Belgium v Senegal

• Jurisdiction: Derecho Internacional
• Judge: Donoghue,Gaja,Greenwood,Koroma,Abraham,Bennouna,Simma,Kirsch,Sepúlveda-Amor,Owada,Keith,Shi,Al-Khasawneh,Skotnikov,Cançado Trindade,Tomka,Yusuf,Sebutinde,Xue,Sur
• Court: International Court of Justice
• Date: 20 July 2012

International Court of Justice

Request for the Indication of Provisional Measures.

Judgment.

(Owada, President; Shi, Koroma, Al-Khasawneh, Simma, Abraham, Sepúlveda-Amor, Bennouna, Skotnikov, Cançado Trindade, Yusuf and Greenwood, Judges; Sur2 and Kirsch,3Judges ad hoc)

(Tomka, President; Sepúlveda-Amor, Vice-President; Owada, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue, Donoghue, Gaja and Sebutinde, Judges; Sur and Kirsch, Judges ad hoc)

Questions Relating to the Obligation to Prosecute or Extradite

(Belgium

and

Senegal)1

International Court of Justice — Provisional measures — Criteria for indication of provisional measures — Prima facie basis for jurisdiction — Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, Article 30 — Whether dispute between Parties regarding interpretation or application of the Convention — Procedural conditions of negotiation and arbitration — Requirement of urgency — Risk of irreparable prejudice to rights of Parties

International Court of Justice — Jurisdiction — Dispute — Definition of dispute — Change of original scope of dispute — Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, Article 30 — Failure of negotiations — Failure to agree on organization of arbitration — No need to consider Statute of the International Court of Justice, Parties' declarations under Article 36(2) — Customary international law

International Court of Justice — Admissibility — Standing — Special interest of Belgium — Obligations erga omnes partes under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984

Treaties — Interpretation — Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, Articles 5(2), 6(2) and 7(1) — Whether Senegal established jurisdiction over crimes of torture in its domestic law — Whether Senegal conducted preliminary inquiry — Whether Senegal submitted Mr Habré's case to its competent authorities for the purpose of prosecution — Extradition as an option, not an obligation

Summary:4The facts:—Mr Habré was President of the Republic of Chad from 1982 until his overthrow in 1990. During this time, large-scale violations of human rights were allegedly committed, including arrests of actual or presumed political opponents, detentions without trial or under inhumane conditions, mistreatment, torture, extrajudicial executions and enforced disappearances. After being overthrown he was granted political asylum in Senegal.

There were several claims against Mr Habré before Senegalese and Belgian courts. On 25 January 2000, several Chadian nationals filed a complaint before the Dakar Tribunal régional hors classe alleging crimes committed by Mr Habré during his presidency. On 3 February 2000, a senior investigating judge placed Mr Habré under house arrest; the claim was later dismissed by

the Dakar Court of Appeal and the Senegalese Court of Cassation on the ground that the Senegalese Code of Criminal Procedure then in force did not provide for jurisdiction over crimes committed outside the territory of Senegal by a foreign national against foreign nationals.5 Between 30 November 2000 and 11 December 2001, a Belgian national of Chadian origin, persons with dual Belgian–Chadian nationality and several other Chadians separately filed similar complaints against Mr Habré with a Belgian investigating judge, alleging serious violations of international humanitarian law, crimes of torture and crimes of genocide. The Belgian investigating judge subsequently issued an international warrant in absentia for the arrest of Mr Habré on 19 September 2005, after which Belgium made its first request to Senegal for the extradition of Mr Habré.

Rejecting Belgium's extradition request on 25 November 2005, the Chambre d'accusation of the Dakar Court of Appeal ruled that Mr Habré was accorded jurisdictional immunity since the alleged crimes were committed in the exercise of his functions as a head of State. Senegal later referred the issue to the African Union, which decided in July 2006 that it would provide the necessary assistance for Mr Habré to be prosecuted and tried by Senegalese courts. Meanwhile, the United Nations Committee against Torture issued a decision on 17 May 20066 that Senegal had violated Articles 5(2) and 7(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 19847 (“the Convention”) by failing to adopt the necessary measures to establish jurisdiction over crimes of torture and failing to submit Mr Habré's case to its competent authorities.

From 2007 to 2008, Senegal implemented legislative and constitutional reforms intended to bring its domestic law into conformity with Article 5(2) of the Convention. In 2007, the Senegalese Penal Code was amended to allow for the prosecution of genocide, crimes against humanity, war crimes, other violations of international humanitarian law and any act or omission which was regarded as a “criminal offence according to the general principles of law recognized by the community of nations” at the time of its commission. Amendments to the Senegalese Code of Criminal Procedure also enabled such crimes to be prosecuted even where the suspect was a foreigner and committed the acts outside Senegal, as long as he was under the

jurisdiction of Senegal, the victim was resident in Senegal, or the Senegalese Government obtained his extradition. A further amendment allowed Senegalese courts to exercise passive personality jurisdiction over Senegalese criminal offences. In 2008, the Senegalese Constitution was amended to provide for an exception to the principle of non-retroactivity of its criminal laws.

On 19 February 2009, Belgium instituted proceedings against Senegal before the International Court of Justice (“the Court”), invoking Article 30(1) of the Convention8 and declarations made pursuant to Article 36(2) of the Statute of the International Court of Justice.9 The Application requested the Court to declare that Senegal was obliged, under the Convention, to bring criminal proceedings against Mr Habré for acts including crimes of torture and crimes against humanity or, failing that, to extradite him to Belgium for prosecution before Belgian courts.

On 15 December 2009, the African Court on Human and Peoples' Rights ruled that it had no jurisdiction to hear an application against Senegal that was aimed at withdrawing Senegal's ongoing proceedings against Mr Habré.10 On 18 November 2010, the Court of Justice of the Economic Community of West African States (“ECOWAS”) ruled on Mr Habré's application that his human rights would be violated if Senegal instituted proceedings against him, finding that Senegal should abide by the decisions of its courts and comply with the principle of non-retroactivity.11 It also found that the mandate Senegal received from the African Union was to arrange for the prosecution of Mr Habré under special ad hoc international proceedings.

From 2011 to 2012, Belgium made three further requests to Senegal for the extradition of Mr Habré. The Chambre d'accusation of the Dakar Court of Appeal declared the second extradition request to be inadmissible since the accompanying documents required under Senegalese law were not provided and Belgium had instituted proceedings before the Court, which now had the sole competence to decide on the Parties' dispute relating to the Convention. The third extradition request was also held inadmissible on the grounds that Belgium did not provide an authentic copy of the international arrest warrant

and it failed to provide a report on the arrest, detention and questioning of Mr Habré. As of January 2012, the fourth extradition request had not been ruled upon.

Order on Request for the Indication of Provisional Measures

Belgium also submitted a Request for the indication of provisional measures, invoking Article 41 of the Statute of the Court and Articles 73 to 75 of the Rules of Court. Belgium claimed that there was a risk of irreparable prejudice to its rights under the Convention if Mr Habré was allowed to leave Senegal, since the President of Senegal had previously suggested that Mr Habré's house arrest could be lifted if there were insufficient financial resources to prosecute him.

Held (by thirteen votes to one, Judge Cançado Trindade dissenting):—The circumstances did not require the indication of provisional measures.

(1) The Court could only indicate provisional measures if it had prima facie jurisdiction to rule on the merits. Article 30 of the Convention appeared, prima facie, to afford a basis of jurisdiction for the Court.

(a) A prima facie dispute had to be established. There appeared to be such a dispute between the Parties concerning the interpretation or application of the Convention.

(i) There was a dispute between the Parties when the Application was filed. Belgium contended that Senegal could not comply with its obligations under Article 7 of the Convention by referring the matter to an international organization and Senegal had not fulfilled its treaty obligations generally. Senegal maintained that it had taken measures to fulfil its obligations and emphasized its intention to continue such efforts (paras. 42–7).

(ii) A dispute continued to exist between the Parties after they explained their positions during the hearings, even if the original scope of the dispute might have changed. Although Senegal clarified that its obligation to prosecute Mr Habré did not emanate from the African Union's decision in 2006 and it could not fulfil such an obligation by referring the matter to an international organization, the Parties maintained differences on other questions relating to the interpretation or application of the Convention. There remained a dispute pertaining to the time frame within which Senegal's obligation under Article 7 had to...