Client Alerts

International Court of Justice issues judgment on the questions relating to the obligation to prosecute or extradite (Belgium v. Senegal)

Volterra Fietta Client Alert
14 August 2012

On 20 July 2012, the International Court of Justice (the “ICJ” or the “Court”) issued its judgment in the case brought by the Kingdom of Belgium (“Belgium”) against the Republic of Senegal (“Senegal”) regarding Senegal’s obligation to either prosecute or extradite Mr. Hissène Habré, the former President of Chad, for the purpose of criminal proceedings. The Court held that Senegal must, “without further delay”, submit the case to its competent authorities for the purpose of prosecution, if it does not extradite him.

Background

After taking power on 7 June 1982 following a rebellion, Mr. Hissène Habré became President of Chad, a position he held for eight years. During his time in office, large-scale violations of human rights were allegedly committed, including torture and enforced disappearances of political opponents.

Mr. Habré was subsequently overthrown as President on 1 December 1990 by his former defence and security adviser (and current President of Chad) Mr. Idriss Deby. Mr. Habré subsequently requested, and was granted, political asylum by the Senegalese Government and has been living in Dakar ever since. In the years which followed, a number of Belgian, Chadian and dual-nationals filed complaints against Mr. Habré for serious violations of international humanitarian law, torture and genocide in the domestic courts of Belgium and Senegal. On 19 September 2005, a Belgian investigating judge issued an international arrest warrant for Mr. Habré in abstentia. By 17 January 2012, Belgium had made four (unsuccessful) requests of Senegal for Mr. Habré’s extradition.

On 19 February 2009, Belgium filed an application instituting proceedings before the ICJ against Senegal. In its application, Belgium requested the Court to adjudge and declare that Senegal was obliged to bring criminal proceedings against Mr. Habré, failing which it should extradite him to Belgium.
Belgium based its claims on the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (the “Convention”) and customary international law. Belgium ratified the Convention on 25 June 1999 and became bound by it on 25 July 1999. Senegal ratified the Convention on 21 August 1986 and became bound on 26 June 1987.

The Court’s ruling on jurisdiction

The Court re-affirmed its previous jurisprudence that in order for a dispute to exist, “[i]t must be shown that the claim of one party is positively opposed by the other”. According to the ICJ:
“what matters is whether, on the date when the Application was filed, a dispute existed between the Parties regarding the obligation for Senegal, under customary international law, to take measures in respect of the above-mentioned crimes attributed to Mr. Habré.”

In the Court’s view, such a dispute did not exist on that date. It was only with regard to the dispute concerning the interpretation and application of Article 6, paragraph 2 and Article 7, paragraph 1 of the Convention that the ICJ found these to be a jurisdictional basis.

Senegal failed to make a preliminary inquiry into the facts (Article 6(2))

Under Article 6, paragraph 2 of the Convention, the State in whose territory a person who is alleged to have committed torture is present must “immediately make a preliminary inquiry into the facts”. In the Court’s view, Senegal breached this obligation. According to the ICJ:

“the Convention requires that steps must be taken as soon as the suspect is identified in the territory of the State… That provision must be interpreted in light of the object and purpose of the Convention, which is to make more effective the struggle against torture.”

Senegal, however, did not initiate a preliminary inquiry as soon as they had reason to suspect Mr. Habré as responsible for acts of torture. According to the Court, that point arose, at the very latest, when Chadian nationals had filed a complaint against Mr. Habré in 2000.

Senegal failed to submit the case of Mr. Habré to its competent authorities (Article 7(1))

Article 7, paragraph 1 of the Convention states:

“The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in Article 4 is found shall in the cases contemplated in Article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution”.
First, the ICJ held that Senegal was not obliged to prosecute acts which were committed prior to the Convention’s entry in force for that country, namely 26 June 1987. Nevertheless, there was nothing within the Convention to prevent Senegal from doing so (and Mr. Habré had been accused of serious acts allegedly committed prior to that date). Second, the Court stated that Senegal could not rely upon either financial difficulties or invoke provisions of its internal law to justify a breach of Article 7, paragraph 1 of the Convention. In the Court’s view, Senegal failed “to take all measures necessary” to implement the Convention and in so doing, breached (and remains in breach of) Article 7, paragraph 1 of the Convention.

Remarks

Several aspects of the Court’s judgment are of particular interest. Firstly, the ICJ was unequivocal in its opinion that the prohibition of torture was now a part of customary international law and had become a peremptory norm (jus cogens). Secondly, the Court held that a State is not bound to prosecute alleged acts of torture which occurred prior to the Convention’s entry in force for the State concerned.
The ICJ’s judgment offers an authoritative and contemporary interpretation of the Convention and the obligations for States contained therein. It remains to be seen whether the Court’s judgment will now bring to an end this long-running saga.