Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal)
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Overview of the case
On 19 February 2009, Belgium filed an Application instituting proceedings against Senegal relating to Mr. Hissène Habré, the former President of Chad and resident in Senegal since being granted political asylum by the Senegalese Government in 1990. Belgium submitted that, by failing to prosecute Mr. Habré for certain acts he was alleged to have committed during his presidency, including acts of torture and crimes against humanity, or to extradite him to Belgium, Senegal had violated the so-called obligation aut dedere aut judicare (that is to say, “to prosecute or extradite”) provided for in Article 7 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and in customary international law.
On the same day, Belgium filed a request for the indication of provisional measures, asking the Court to order “Senegal to take all the steps within its power to keep Mr. H. Habré under the control and surveillance of the judicial authorities of Senegal so that the rules of international law with which Belgium requests compliance may be correctly applied”. Belgium justified this request by reference to certain statements made by Mr. Abdoulaye Wade, President of the Republic of Senegal, which, according to Belgium, indicated that, if Senegal could not secure the necessary funding to try Mr. Habré, it would “cease monitoring him or transfer him to another State”.
In its Order of 28 May 2009, referring to the assurances given by Senegal during the oral proceedings that it would not allow Mr. Habré to leave its territory while the case was pending, the Court concluded that there was no risk of irreparable prejudice to the rights claimed by Belgium and that there did not exist any urgency to justify the indication of provisional measures.
In its Judgment dated 20 July 2012, the Court began by examining the questions raised by Senegal relating to its jurisdiction and to the admissibility of Belgium’s claims. Having pointed out that the existence of a dispute is a condition of its jurisdiction under both bases of jurisdiction invoked by Belgium — Article 30, paragraph 1, of the Convention against Torture and the declarations made by both States under Article 36, paragraph 2, of the Statute — the Court considered that, since any dispute that may have existed between the Parties with regard to the interpretation or application of Article 5, paragraph 2, of the Convention against Torture had ended by the time the Application was filed, it lacked jurisdiction to decide on Belgium’s claim relating to that provision. Article 5, paragraph 2, of the said Convention obliges the States parties thereto to establish the universal jurisdiction of their courts over the crime of torture. The Court found, however, that it did have jurisdiction to entertain Belgium’s claims based on the interpretation and application of Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention. It further considered, on the basis of the international arrest warrant issued against Mr. Habré by Belgium, the extradition request transmitted to Senegal and the diplomatic exchanges between the two Parties, that, at the time of the filing of the Application instituting proceedings, there was no dispute between the Parties regarding Senegal’s obligation to prosecute or extradite Mr. Habré for crimes he was alleged to have committed under customary international law. The Court observed that, consequently, while the facts which constituted those alleged crimes may have been closely connected to the alleged acts of torture, it did not have jurisdiction to entertain the issue whether there existed an obligation for a State to prosecute crimes under customary international law allegedly committed by a foreign national abroad.
The Court then turned to the conditions which have to be met in order for it to have jurisdiction under Article 30, paragraph 1, of the Convention against Torture, namely that the dispute cannot be settled through negotiation and that, after a request for arbitration has been made by one of the parties, they have been unable to agree on the organization of the arbitration within six months from that request. Having found that these conditions had been met, the Court concluded that it had jurisdiction to entertain the dispute between the Parties concerning the interpretation and application of Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention. It ruled, however, that it was not necessary for it to establish whether its jurisdiction also existed with regard to the same dispute on the basis of the declarations made by the Parties under Article 36, paragraph 2, of its Statute.
With respect to the admissibility of Belgium’s claims, the Court ruled that once any State party to the Convention against Torture was able invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes, i.e., obligations owed toward all States parties, Belgium, as a party to the said Convention, had standing to invoke the responsibility of Senegal for the alleged breaches of its obligations under Article 6, paragraph 2, and Article 7, paragraph 1, of that Convention. The Court thus found that Belgium’s claims based on those provisions were admissible.
As regards the alleged violation of Article 6, paragraph 2, of the Convention against Torture, which provides that a State party in whose territory a person alleged to have committed acts of torture is present must “immediately make a preliminary inquiry into the facts”, the Court noted that Senegal had not included in the case file any material demonstrating that it had carried out such an inquiry. The Court further observed that, while the choice of means for conducting the inquiry remained in the hands of the States parties, taking account of the case in question, Article 6, paragraph 2, of the Convention requires that steps must be taken as soon as the suspect is identified in the territory of the State, in order to conduct an investigation of that case. In the present case, the establishment of the facts had become imperative at least since the year 2000, when a complaint was filed in Senegal against Mr. Habré. Nor had an investigation been initiated in 2008, when a further complaint against Mr. Habré was filed in Dakar, after the legislative and constitutional amendments made in 2007 and 2008, respectively. The Court concluded from the foregoing that Senegal had breached its obligation under the above-mentioned provision
With respect to the alleged violation of Article 7, paragraph 1, of the Convention against Torture, the Court first examined the nature and meaning of the obligation laid down in that provision. It observed that the obligation to submit the case to the competent authorities for the purpose of prosecution (the “obligation to prosecute”) deriving from that provision was formulated in such a way as to leave it to the said authorities to decide whether or not to initiate proceedings, thus respecting the independence of States parties’ judicial systems : those authorities thus remain responsible for deciding on whether to initiate a prosecution, in the light of the evidence before them and of the relevant rules of criminal procedure. The Court further observed that the obligation to prosecute requires the State concerned to submit the case to its competent authorities for the purpose of prosecution, irrespective of the existence of a prior request for the extradition of the suspect. It noted, however, that, if the State in whose territory the suspect is present has received a request for extradition in any of the cases envisaged in the provisions of the Convention, it may relieve itself of its obligation to prosecute by acceding to that request. It thus concluded that extradition was an option offered to the State by the Convention, whereas prosecution was an international obligation under the Convention, the violation of which was a wrongful act engaging the responsibility of the State.
The Court then turned to the temporal scope of the obligation laid down in Article 7, paragraph 1, of the Convention. It noted in this respect that, while the prohibition of torture was part of customary international law and had become a peremptory norm (jus cogens), the obligation to prosecute the alleged perpetrators of acts of torture under the Convention applied only to facts having occurred after its entry into force for the State concerned. The Court concluded from the foregoing that Senegal’s obligation to prosecute pursuant to Article 7, paragraph 1, of the Convention did not apply to acts alleged to have been committed before the Convention entered into force for Senegal on 26 June 1987, although there was nothing in that instrument to prevent it from instituting proceedings concerning acts that were committed before that date. The Court found that Belgium, for its part, was entitled, with effect from 25 July 1999, the date when it became party to the Convention, to request the Court to rule on Senegal’s compliance with its obligation under Article 7, paragraph 1, of the Convention.
Finally, the Court examined the question of the implementation of the obligation to prosecute. It concluded that the obligation laid down in Article 7, paragraph 1, required Senegal to take all measures necessary for its implementation as soon as possible, in particular once the first complaint had been filed against Mr. Habré in 2000. Having failed to do so, Senegal had breached and remained in breach of its obligations under Article 7, paragraph 1, of the Convention.
The Court found that, by failing to comply with its obligations under Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention, Senegal had engaged its international responsibility. Therefore, it was required to cease that continuing wrongful act and to take, without further delay, the necessary measures to submit the case to its competent authorities for the purpose of prosecution, if it did not extradite Mr. Habré.
This overview is provided for information only and in no way involves the responsibility of the Court.