1 Yogogombaye v. Republic of Senegal, App. No. 001/2008, Judgment (Afr. Ct. Hum. & Peoples’ Rts. Dec. 15, 2009), available at http://www.african-court.org/en/cases/latest-judgments/. It should be noted that the Court calls rulings on preliminary matters concerning jurisdiction “Judgments,” rather than “Decisions,” the term used by most international courts.

2 The following nine judges signed the opinion: Jean Mutsinzi, Akuffo, Sophia A. B., Mafoso-Guni, Justina K., Ngoepe, Bernard M., Fannoush, Hamdi Faraj, Modibo, Tounty Guindo, Gérard, Niyungeko, Fatsah, Ouguergouz, and Mulenga, Joseph N.. As required by Court rules, the Senegalese judge El Hadj Guissé recused himself. See Yogogombaye, para. 2Google Scholar.

3 The first name of the former Chadian President is variously spelled Hissein, Hissen, Hissane, Hissene, and Hissène. His last name is spelled Habre or Habré. This case note uses the Court’s spelling: Hissein Habré.

4 A Chadian inquiry concluded that, in addition to those allegedly killed, up to 80,000 orphans, 30,000 widows, and 200,000 people were victimized by Habré. See Marks, Stephen P., TA Hissène Habré Case: The Law and Politics of Universal Jurisdiction , in Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law 131, 135 (Stephen, Macedo ed., 2004)Google Scholar.

5 Constitutive Act of the African Union, July 11, 2000, 2158 UNTS 3. This and other African Union documents are available online at http://www.africa-union.org.

6 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, June 10,1998, Doc. OAU/LEG/EXP/AFCHPR/PROT (III) (entered into force Jan. 25, 2004) [hereinafter Protocol].

7 Article 7(2) provides:

No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.

African Charter on Human and Peoples’ Rights, Art. 7(2), June 27, 1981, OAU Doc. CAB/LEG.67/3 rev. 5, 21 ILM 58 (1982).

8 Yogogombaye claimed that, by choosing to prosecute Habré and by asking for the AU’s financial support to do so, Senegal’s “pecuniary motivation” would be lucrative at 40 billion CFA francs (approximately $38 million) (para. 23(6)). This incentive would, in his view, set a bad precedent for other African states where former heads of states may seek refuge.

9 Senegal wrote the Court on February 17, 2009, requesting time to prepare a reply. That request was granted, by an order dated March 6, 2009, providing Senegal with a deadline of April 14, 2009 (paras. 9-10). The Judgment noted that Senegal filed its “statement of defence within the time limit,” but the date was not specified (para. 12). No indication was given that the order issued by the Court was confidential. Concerns therefore arise about the lack of transparency in the proceedings because, so far, the order has not been published.

10 See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty doc. no. 100-20 (1988), 1465 UNTS 85 [hereinafter Convention Against Torture].

11 The Court cited Article 3(2) of the Protocol and Rules 26(2), 39(1 ), and 52(7) of the Interim Rules of the Court (paras. 29-30). See Interim Rules of the African Court of Human and Peoples’ Rights, June 20, 2008, available at http://www.africancourtcoalition.org/content_files/files/Interim_Rules_of_Court_ENG.pdf.

12 See id.

13 See Frans, Viljoen, International Human Rights Law in Africa 420-22 (2007)Google Scholar; Christof, Heyns, The African Regional Human Rights System: The African Charter, 108 Penn St. L. Rev. 679, 681-85 (2004)Google Scholar.

14 See Viljoen, supra note 13, at 420-22; Makau, Mutua, The African Human Rights Court: A Two-Legged Stool? 21 Human Rts. Q. 342, 351 (1999)Google Scholar. Information about the Commission is available on its Web site, http://www.achpr.org/english/_info/mandate_en.html.

15 For an analysis of the various problems, see Mutua, supra note 14, at 343-44; Chidi, Anselm Odinkalu, The Individual Complaints Procedures of the African Commission on Human and Peoples Rights: A Preliminary Assessment , 8 Transnat’l. & Contemp. Probs. 359, 365 (1998)Google Scholar; Richard, Gittleman, The African Charter on Human and Peoples’ Rights: A Legal Analysis , 22 Va. J. Int’l L. 667 (1982)Google Scholar; Cees, Flinterman & Evelyn, Ankumah, The African Charter on Human and Peoples’ Rights , in Guide to International Human Rights Practice 159 (Hurst, Hannum ed., 2d ed. 1992)Google Scholar.

16 International Human Rights in Context: Law, Politics, Morals 920 (Steiner, Henry J. & Philip, Alston eds., 2d ed. 2000)Google Scholar.

17 Mutua, supra note 14, at 352.

18 Viljoen, supra note 13, at 422-23.

19 Id. at 431-36.

20 George, Mukundi Wachira, African Court on Human and Peoples’ Rights: Ten years on and Still no Justice 2 (2008)Google Scholar, available at http://www.unhcr.org/refworld/pdfid/48e4763c2.pdf (lamenting the Court’s failure to hear a single case a decade after its formal creation).

21 Article 5(3) of the Protocol provides that the Court “may entitle” NGOs with observer status before the Commission to initiate cases, as well as individuals to do so directly (consistent with Article 34(6)). Viljoen has argued the phrase may entitle is a drafting anomaly. It was not intended to confer discretion for the Court to reject a case. Otherwise, it places an “unduly heavy burden on individuals.” This author agrees with Viljoen that formalistic interpretations of this provision should be avoided to enhance individual and NGO access to the Court. See Viljoen, supra note 13, at 443.

22 As J udge Ouguergouz notes in his separate opinion, the chair of the AU Commission, depository of the treaty, only lists on the AU Commission’s Web site the states parties to the Protocol; reference to states that have lodged the Article 34(6) declaration accepting automatic individual and NGO complaints has been omitted. In addition, unlike similar international judicial institutions, the Protocol does not require the list to be transmitted to the Court (sep. op. Ouguergouz, J., paras. 41-42). A simple remedy would be for the depository to regularly provide an updated list to the Court which, in turn, could post it online to inform prospective complainants. Regrettably, as of writing, this process has not yet been put in place. Recently, however, the Court identified these four countries as recognizing its authority to hear petitions filed by individuals and NGOs. See Press Release, African Court on Human and Peoples’ Rights, Opening Ceremony of the 18th Ordinary Session (Sept. 20, 2010), at http://www. africa-union.org/root/au/Conferences/2010/September/pr/Presse%20Release%200pening%2018%20Ordinariy%20session%20of%20the%20African%20Court_20%20Sep_Eng.pdf.

23 Article 5 of the Protocol establishes the various ways to access the Court. In addition to jurisdiction over contentious matters, the Court has wide advisory jurisdiction.

24 Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.), paras. 60-63 (Int’ICt. Justice June 4, 2008). Materials for this and other cases are available on the ICJ’s Web site, http://www.icj-cij.org. Given the ICJ’s experience, where only a limited set of cases have successfully based jurisdiction on this doctrine, it seems unlikely that the African Court will receive a flood of cases anytime soon. Any such use of the doctrine will have to address the underlying state consent issue that inevitably arises.

25 See, e.g., Decision on the Hissène Habré Case and the African Union, Doc. Assembly/AU/3 (VII), para. 5 (July 1-2, 2006) (mandating Senegal to ensure Habré was tried, on behalf of Africa, by a competent court with guarantees of a fair trial); AU Report of the Committee of Eminent African Jurist on the Case of Hissene Habré (2006), at http://www.hrw.org/justice/habre/CEJA_Repor0506.pdf; see also Mandiaye, Niang, The Senegalese Legal Framework for the Prosecution of International Crimes, 7 J. Int’L Crim. Just. 1047, 1048 (2009)Google Scholar (noting that the Habré case has been both a “catalyst and litmus test” for Senegal, and arguing that the failure to prosecute arose at least partially from the lacunae in the domestic legal framework criminalizing international crimes) .Fora discussion of AU policy on universal jurisdiction and the related African government critique of the International Criminal Court, see Jalloh, Charles C., Universal Jurisdiction, Universal Prescription? A Preliminary Assessment of the African Union Perspective on Universal Jurisdiction, 21 Crim. L.F. 1 (2010)Google Scholar; and Jalloh, Charles C., Regionalizing International Criminal Law? 9 Int’l Crim. L. Rev. 445 (2009)Google Scholar.

26 Application Instituting Proceedings (Belg. v. Sen.) (Int’l Ct. Justice Feb. 19, 2009); see also Convention Against Torture, supra note 10, Arts. 7(1), 30 (imposing an obligation on states parties to prosecute or extradite, and a duty for disputing parties to refer disputes over alleged noncompliance to the ICJ).

27 Questions relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), Provisional Measures (Int’l Ct. Justice May 28, 2009).

28 Questions relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), Order (Int’l Ct. Justice July 9, 2009) (setting timeline for written pleadings and deadline for Senegal’s counter-memorial as July 11, 2011).