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. In particular, 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”.
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. It found 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 against Torture. The Court further determined that 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.
With respect to the admissibility of Belgium’s claims, the Court ruled that once any State party to the Convention against Torture was able to 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. 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 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, of the Convention 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.