Non-Corrigé Traduction
Uncorrected Translation
BS
CR 2009/9 (traduction)
CR 2009/9 (translation)
Lundi 6 avril à 15 heures
Monday 6 April 2009 at 3 p.m. - 2 -
8 The PRESIDENT: Please be seated. The sitti ng is open. The Court meets this afternoon to
hear the first round of oral observations on behalf of Senegal. I will now give the floor to
His Excellency Mr. Cheikh Tidiane Thiam, Agent of the Republic of Senegal.
THrI.AM:
1. Mr. President, Members of the Court, allow me to say what an honour it is to represent the
Government of Senegal before your august institution, an institution which, like all members of the
international community, my country holds in gr eat respect and esteem. To Belgium, Senegal
wishes to express its gratitude before the Court fo r the glowing assessment by its Agent, Director
General of Legal Affairs, Mr.Rietjens, of the excellent relations steadily developed over such a
long time between Senegal and Belgium, and the mutual assistance not to say active support the
two countries have shown one another in such prestigious and noteworthy areas as human rights
and the progressive development of international law.
2. Mr. President, it is not the first time thaSenegal has appeared before the International
Court of Justice. In the case concerning the Arbitral Award of 31July1989 , which lasted from
1989 to 1991, the Court decided to reject a request for the indication of provisional measures filed
by GuineaBissau and, basically, to oppose the pr esentation by that country seeking a declaration
that the arbitral award delivered in Geneva on the delimitation of the maritime boundary between
the two countries was null and void.
3. Today, Senegal notes, albeit with regret, that Belgium has seised the Court. This
precipitate action can only impede the efforts Senegal has been making for some years now to meet
its international obligations by organizing a just and impartial trial for Mr. Hissène Habré who has
resided in Dakar for 19 years. Senegal’s presence before the Court today, far from being justified
solely by the need to defend its own rights, also stems from its firm conviction that it is acting in
concert with the members of the international co mmunity to play its part in strengthening the
principles and rules of international law as they have been constantly and authoritatively refined for
almost a century by your Court and its predecesso r. This case will therefore give Senegal an
9 opportunity to make its determination to remain a state of law which respects international law
clearly known. In proclaiming the superiorit y of international law over national law, its - 3 -
Constitution is in this respect a reflection of that choice enshrined since its accession to
independence in 1960.
4. The Senegalese delegation is distinguished by the presence of the following members:
ProfessorSérigneDiop, Minister of State, and Mr.El Hadj Amadou Sall, Minister in the
Government of the Republic of Senegal. Their presence is a mark of Senegal’s respect for the
principal judicial organ of the United Nations and international law and of the importance our
country attaches to the rejection by the Court of the request for the indication of provisional
measures submitted by Belgium.
5. Mr.President, Senegal’s presentation to you today will turn solely on Belgium’s
Application instituting proceedings and on the reque st for the indication of provisional measures,
together with the documents received by the Regist ry on Friday, 2 April 2009. We will endeavour
to reply to this morning’s presentation by Belgium next Wednesday.
6. With your permission, I will now briefly recall the principal relevant facts of the case,
with particular emphasis on its international aspects.
I.T HE FACTS
7. The statement of the facts made by Belgium, both in its Application and in its request for
the indication of provisional measures, is regrettably inaccurate and wrong on many points and
Senegal will make the necessary corrections during the hearings, only where necessary and relevant
for the needs of the incidental proceedings.
8. On 1 December 1990, Mr.Hissène Habré was removed from power by a coalition of
armed groups and fled to Senegal after passing through Cameroon.
9. In accordance with Senegal’s tradition of offering asylum, from which another Nigerian
head of state also ousted from power has benef ited, Mr. Habré has resided in Dakar since 1990, on
10 the basis of the asylum granted to him, yet without enjoying the status of refugee under the
applicable regulations. But first, what of the national aspects associated with the facts of the case?
(a) National aspects associated with the facts of the case
10. On 25 January 2000, as recalled this morning, Souleymane Guengueng and seven others,
members of the Chadian Association of Victims of Political Repression and Crime (AVCRP), - 4 -
founded in 1991, filed a complaint with civil-part y application with the investigating judge of
Dakar against Mr.HissèneHabré for crime against humanity and acts of torture, of which they
were allegedly victims in Chad between June 1982 and December 1990.
11. This first judicial measure marked the opening, in Senegal, of protracted judicial
proceedings which, would subsequently have repercussions both in Africa and internationally, the
African Union, the European Union and the United Nations Committee Against Torture being
involved.
12. On 3February 2000, following the above-m entioned complaint of 25January2000, the
senior judge in charge of investigations at the Dakar Special Regional Court (Tribunal Hors classe)
charged Mr. Habré with complicity in crimes agai nst humanity, acts of torture and barbarism, and
placed him under house arrest.
13. On 18February 2000, the accused,Hissène Habré, seised the Chambre d’Accusation of
the Dakar Court of Appeal for an annulment of the decision indicting him, on the ground that the
Senegalese courts lacked jurisdiction to hear the case owing to the failure to transpose and fully
implement the United Nations Convention against To rture and Other Cruel, Inhuman or Degrading
Treatment of 10 December 1984 into Senegalese domestic law.
14. On 4 July 2000, by Judgment No. 135, the Chambre d’Accusation of the Dakar Court of
Appeal upheld Mr.Habré’s request, annulling the decision indicting him owing to the lack of
jurisdiction of the court seised since “Senegalese courts cannot hear acts of torture committed by a
foreigner outside Senegalese territo ry regardless of the nationalities of the victims, and since the
wording of Article 669 of the Code of Crim inal Procedure excludes this jurisdiction” [Translation
by the Registry]..
11 15. The complainants, asserting that the Senega lese courts did indeed have jurisdiction to
indict and try Mr.Habré by virtue of the principle of the universal jurisdiction which was said to
exist in Senegalese law, referred the above-mentioned Judgment to the Cour de Cassation.
16. On 20 March 2001, the Cour de Cassation rejected their appeal on the ground that:
“no procedural text recognizes that Senegal ese courts have universal jurisdiction to
prosecute and try the presumed perpetrators or accomplices ⎯ if they are found in the
territory of the Republic ⎯ of the acts which fall within the provisions of Law 96-15
of 28 August 1996 adapting Senegalese legislation to the provisions of Article 4 of the - 5 -
Convention of 10December1984 against To rture, when those acts have been
committed outside the territory by foreigners”. [Translation by the Registry.]
17. On 19September 2005, the investigating judge at the court of first instance in Brussels
(Belgium), issued an international arrest warrant against Mr. Hissène Habré, charging him with acts
of genocide, crimes against humanity, war crim es, torture and other serious violations of
international humanitarian law and addressed a re quest for his extradition to the Senegalese
authorities.
18. On 15 November 2005, following the Belgia n request, Mr. Habré was arrested, detained
awaiting detention and brought before the Chambre d’Accusation of the Dakar Court of Appeal, in
accordance with the Senegalese law on extradition.
19. On 25 November 2005, the Chambre d’Accusation of the Dakar Court of Appeal, in its
Judgment No.138 ⎯ which may be set against the governmental authorities in application of the
principle of the separation of powers ⎯ declared that it lacked jurisdiction owing to the status of
head of State enjoyed by Mr.Habré when th e acts of which he is accused were committed,
inasmuch as that status confers jurisdictional immunity upon him such as to survive the cessation
of his duties as President of the Republic. So mu ch for the issues raised so far by the national
aspects of the Hissène Habré case. Let us now cons ider the international aspects of the case which
today has reached your august Court.
(b) International aspects
20. Mr. President, Members of the Court, the international aspects of the case will now take
us to the various African capitals where relevant meetings of the African Union have taken place,
and of course also to Brussels ⎯ seat not only of the Belgian Government but also of the European
12 Union and lastly to the United Nations ⎯ since the United Nations Committee against Torture has
been referred to and will be referred to again.
21. To give you some advance guidance in the statement of the facts set out below, let me
state here and now that, at least since 2005, Se negal has clearly retained the option of trying
HissèneHabré in its own courts. To do so, Senegal will seek African support from the African
Union ⎯ and I do mean “support”, as this is all it is about, as we will explain below. Belgium - 6 -
wishes to know the fate of its extradition request. Hence, Senegal wishes to fulfil its obligations to
try (judicare) while Belgium thinks only of extradition (extradere).
22. Belgium asks for details of the scope of the decision delivered by the Chambre
d’Accusation of the Appeal Court, which was asked for an opinion on the Belgian extradition
request. [SG 2228 of 30 November 2005, documents submitted by Belgium on 3 April 2009]. On
23 December 2005, Senegal, by transmitting to it a copy of Judgment No. 138 to which I have just
referred, delivered by the Chambre d’Accusation, informed Belgium on the scope of the judgment
relating to the extradition request. In this connectio n, it stated that it was a basic act of criminal
procedure which put an end to the judicial phase of the extradition proceedings. We ⎯ either
myself or my colleagues ⎯ will need to revert to this point later on.
23. Concerned by the seizin of the African Union, Belgium seeks support in the 1984
Convention in an attempt to set aside or ignore Se negal’s initiative, relying on Article30 of the
Torture Convention, which provides for the opening of negotiations to find a solution to a dispute
and which Belgium would use to refer once again to the fate of its extradition request, and this
despite the consequences of the legal decision, namely, refusal by the competent court to deliver an
opinion favourable to extradition. [Note Verbale No. 0084 of 11 January 2006.]
24. At its Sixth Ordinary Session, held in Khartoum, Sudan, the African Union, which
Senegal had seized of the case ⎯ all will note that I use the term seisin, never transfer or
appropriation or relinquishment ⎯ with a view to its involvement and support, adopted a resolution
calling for the creation of a committee of eminen t African jurists entrusted with the task of
13 examining all aspects and implications of the HissèneHabré trial (document No.9 filed on
2 April 2009).
25. Senegal was therefore surprised to l earn from Belgium on 9March2006 [Note Verbale
No. 06/00491], that “the procedure for negotiation wi th regard to the extradition application . . . in
application of Article 30 of the convention is under way”.
26. On 4May 2006, Belgium referred to th e possibility of recourse to the arbitration
procedure provided for in Article 30 of the Conve ntion against Torture for any unresolved dispute
(Note Verbale No. J25011 (06)). - 7 -
27. On 9May 2006, Senegal made known ⎯ and this is very important for clarifying our
position ⎯ its concerns about a trial in view of the legal impossibility of extradition which it faced.
Belgium’s insistence on a reply in keeping with its expectations thus spurns the legal realities
surrounding this case and the efforts expended by Se negal to try Hissène Habré in conformity with
its treaty obligations.
28. On 2 July 2006, the Heads of State and Government of the African Union, meeting at the
Organization’s Seventh Ordinary Summit held in Banjul (Gambia), called upon Senegal to
prosecute and try Mr. Hissène Habré before the Sene galese courts. I would like, Mr. President, to
draw the Court’s attention to the basis and content of that decision.
29. As regards the basis, the Conference : “[o]bserves that, according to Articles 3 (h), 4 (h)
and 4 (o) of the Constitutive Act of the African Uni on, the crimes of which HissèneHabré is
accused fall within the jurisdiction of the African Union” and urges that “the jurisdiction of the
International Court of Justice in this case and the ratification by Senegal of the United Nations
Convention Against Torture” be taken into consideration.
30. As regards the content of the African Un ion’s decision, the Conference “[m]andates the
Republic of Senegal to prosecute and ensure that Hissène Habré is tried, on behalf of Africa, by a
14 competent Senegalese court with guarantees for fair trial”. Also it “[f]urther mandates the
Chairperson of the Union, in consultation with the Chairperson of the Commission, to provide
Senegal with the necessary assistance for the effective conduct of the trial”.
31. The Conference concluded by asking “all the Member States to co-operate with the
Senegalese Government . . .” and “call[ing] upon the international community to avail its support to
the Government of Senegal”. (Doc. Assembly/AU/3(VII).)
32. It is probably this decision by the African Union which prompted Belgium, on
20June2006 [Note Verbale No.06/01203] to “point out that the attempted negotiation with
Senegal, which started in November 2005, has not succeeded and, in accordance with Article 30.1
of the Torture Convention consequently asks Senegal to submit the dispute to arbitration under
conditions to be agreed mutually”.
33. Mr. President, I wish to make a number of remarks on this subject here: - 8 -
⎯ First, Belgium’s reaction shows its concern to speed up the seisin of a judicial body after the
twofold conclusion that (1)extradition could no longer be envisaged after 2005; and
(2)Senegal had just found a means of fulfillin g its obligations to try the accused under the
Torture Convention by obtaining support from the African Union.
⎯ Second confirmation: rather than genuinely co- operating with Senegal with a view to a trial
held in that country, Belgium seems to have chosen to ignore the course adopted by Senegal, a
course since reinforced by the support of the African Union, preferring extradition instead.
And with a view to securing that extradition, it modifies the fulfilment of the procedural
conditions necessary under the Convention against Torture to enable it to seise your august
Court.
34. In any event, Senegal has not managed to find the Note Verbale of 20June2006
transmitted by Belgium to the Registry of your Cour t last Friday, 3April2009, in the archives of
the Ministry of Foreign Affairs, and would be grat eful to Belgium, with the Court’s permission, if
it would provide it with all the details testifying to the transmission of that Note to that Ministry.
15 35. With a view to the holding of the trial, Senegal gave Belgium an undertaking that it
would regularly supply it with all the relevant in formation on the progress of preparations for that
trial. [Note Verbale, Embassy of Senegal, 20 February 2007.]
36. Accordingly, on 21 February 2007, Senega l informed Belgium that, since the request of
2July2006 addressed by the Conference of Heads of State and Governments to Senegal that
Mr.HissèneHabré be tried, consistent measures ha ve been initiated with a view to holding the
trial. [Note Verbale, Ministry of Foreign Affair s of 21 February 2007]. I shall omit the references
to the Notes Verbales relating to the comments and dates, and also to events which I mention in
passing, as all of this is contained in the written document submitted to the Registry of the Court.
⎯ First, among these essential measures, the adoption by the National Assembly, on
31January 2007, of the laws for the amendment of the Penal Code on the one hand, with the
introduction of an Article 295-1 setting out the crime of torture by reference to Article 1 of the
Convention against Torture of 10December1984, in accordance with the provisions of
Article4 of that same Convention and, also, of the Code of Criminal Procedure, in its - 9 -
Article 669, now enabling Senegalese courts to hear crimes of international law, and the basis
of which stems from the principles recognized by the international community;
⎯ then, still among the organizational steps to be taken with a view to holding the trial, the setting
up by Decree (No.007993-2006) of 23November2006 by the Ministry of Justice, of a
working group responsible for making relevant proposals for the smooth conduct of the trial;
⎯ added to which are other measures, such as the presentation by Senegal of a preliminary report,
to be followed by others, to the eighth sessi on of the Conference of Heads of States and
Government of the African Union, meeting fro m 29 to 30January2007, in Addis Ababa,
pointing out, inter alia, the necessity to mobilize financial resources thanks to the support of
the Member States of the Union, international partners and the international community as a
whole;
16 ⎯ and also a further measure, the decision of the Conference of Heads of State and Government
of the African Union (No.Assembly/AU/Dec157) of 30January2007, by which the
Organization congratulates and encourages the Senegalese Government on the work achieved,
while inviting Member States of the Union, in ternational partners and the international
community as a whole to assist it in its task, in particular in mobilizing the resources necessary
for the preparation and smooth conduct of the trial.
37. On 8May2007, Belgium persisted and as there had been no response from Senegal
regarding the proposal for arbitration, reserved its rights on the basis of Article30 of the
Convention against Torture. [No number or date provided by Belgium.]
38. In connection with the organization of the HissèneHabré trial, on 5October2007,
Senegal invited Belgium to attend a meeting of potential donors to finance the trial; that meeting
was to be held on 1October2007 in Dakar (Note Verbale, Embassy of Senegal, No.00421). On
behalf of the European Union, of which Belgium is part, the Portuguese President of the European
Union requested a report on the meeting to enable the European Union to study the report of a
mission of experts it proposed to send to Senega l (Note Verbale from the Embassy of Portugal,
No. 95, dated 10 October 2007).
39. Senegal thanked the European Union and its Member States for that initiative which it
welcomed (Note Verbale70751 of 15October2007), at the same time wishing to be informed of - 10 -
the possible dates ⎯ which, it was hoped, would not be too far in the future ⎯ to which the
meeting of donors could be rescheduled.
40. On 19May2008, the Ministry of Justice, Keeper of the Seals of Senegal, invited the
European Union, the Commission of the Africa n Union and Switzerland, the United States of
America and Canada to attend an information meeting on 21May on the positive developments
which had taken place regarding the preparation of the Hissène Habré trial (Note Verbale, Ministry,
No. 70971 of 19 May 2008).
41. On 2 December 2008, Belgium proposed that there be international judicial co-operation
with Senegal to enable applicants of Belgian origin to assert their rights during the trial in Senegal.
That, to make it short, was the long-awaited, final reply from Belgium, by which it would appear at
long last to have embraced our option of trying Mr. Hissène Habré in Senegal.
17 42. Shortly thereafter, an interview with the President of the Republic of Senegal,
Maître Abdoulaye Wade, given on 2 February 2009 to “Radio France International” was seized
upon by Belgium as a reason or pretext to seise your Court.
43. Mr.President, Members of the Court, what does this interview tell us? That Senegal
agreed to try Hissène Habré on behalf of Africa; th at the reforms needed for holding the trial were
carried out and that the trial would begin as soon as the funding was pledged. In its request for the
indication of provisional measures, Belgium referred to this interview claiming that “Senegal could
lift [the] house arrest [of Mr.H.Habré] if it fa ils to find the budget which it regards as necessary
for the organization of the trial . . .”. This inte rview would, therefore appear to be the ground for
seizing the Court or to be one of the impediments having resulted in that decision. One has only to
read the transcript of the interview ⎯ which Senegal transmitted to the Court in its written
pleadings, on 2April 2009, whereas the desire to contribute to the good administration of justice
should have prompted Belgium to produce this tran script as early as 17February, the date of the
filing of its request for the indication of provisional measures ⎯ to clearly see the inaccuracy, haste
and confusion ⎯ pace Belgium! ⎯ which characterized the use made of this document by our
opponents.
44. From the interview, the Court will see ⎯ since it is one of the documents included in the
case file ⎯ that the Senegalese Head of State explicitly stated having agreed to have Mr.Habré - 11 -
tried, while reiterating his desire to meet his ob ligations under international law. Also, he said ⎯
and I quote the Senegalese Head of State: “I agree to it [referring to the trial] because I am against
impunity”. [Translation by the Registry.] In the same vein, he added that he had wished to bring
pressure to bear on the providers of funds by th reatening to “hand over the case” if the funding
needed for the trial was not forthcoming. All of this is in the transcript of the interview, of which
the Belgian delegation spoke this morning. The Presi dent concluded with the words: “Fine, but it
was pushing a bit to speed things up”.
45. The Court will appreciate that the Belgia n Application and request are essentially based
on a document whose letter and spirit are patently not what Belgium hastily decided they were.
18 46. To complete the picture, I would add th at, on 7January last, the President of Senegal
brought the same pressure to bear on the African Union, in the person of the President of the
Commission of that pan-African organization. In reply, on 29 January 2009, the latter ⎯ in other
words JeanPing, who presides over the destin ies of the Commission of the African Union ⎯
reiterated “the wholehearted commitment of the African Union to providing [its] assistance ⎯ [to
Senegal] in accordance with the decision [adopted] in July2006”. [Translation by the Registry.]
He translated that undertaking into practice by deciding to dispatch an emissary to Senegal in order
“to agree on the role the African Union could play in mobilizing” the funding needed to hold the
trial.
47. The pressure brought to bear by the Presi dent of Senegal was conclusive, since the
meeting of the Conference of Heads of State and Government of the African Union, initially to be
held in Addis Ababa on 2 and 3 February 2009, was extended to 4 February at the urgent request of
Senegal to enable consideration of the question of funding for the trial. At that meeting, which
lasted very late into the night, it was also decide d to launch a further “appeal to all member States
of the African Union, to the European Union and to its member States and institutions for
contributions to the cost of holding the trial, paying them directly to the Commission of the African
Union” [Translation by the Registry] (document No. 1 filed by Senegal on 2 April 2009).
48. It was against this background, although not hing really suggested it might happen, that
Belgium, fully aware of that decision now in the public domain, seized the Court on 16February
2009 with an Application introduc ing proceedings against Senegal relating to an alleged dispute - 12 -
over the interpretation and application of the United Nations Convention against Torture. That
Application was accompanied, the following day, by a request to the Court to indicate the
provisional measures requiring Senegal to “take allsteps 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”.
19 II. GENERAL OBSERVATIONS ON THE BELGIUM A PPLICATION AND R EQUEST
49. In conclusion, a few general remarks whic h it seems to us appropriate to make on the
Belgian application and request.
50. Mr. President, Members of the Court, with your permission I would like to share with
you just a few observations.
51. To Senegal, the Belgian approach seems mistaken to say the least. Some ⎯ in other
circumstances ⎯ the setting would not be suitable ⎯ might even say fallacious, inappropriate,
inopportune and baseless. It prejudges the merits of the case. Senegal is confident that the Court
will consider that the circumstances in no way re quire any provisional measure of protection with
respect to the law of either of the States be taken by your distinguished Court.
52. In our view, Belgium’s request for the indication of provisional measures does not meet
the conditions laid down by the Statute and Rules of Court.
53. In its request, Belgium relied on Article 41 of the Statute of the Court and Articles 73, 74
and 75 of the Rules in particular, with a view tsafeguarding rights it held under custom and the
1984 Torture Convention. It glossed over Senegal’ s obligations, in this case to try Hissène Habré,
and which are referred to all over, including in the texts by which the African Union, asked to give
its support, allegedly called upon Sene gal, in response, to deal seriously with the HissèneHabré
case.
54. At the present stage in the proceedings, Belgium seeks to found the jurisdiction of the
Court on the declarations of acceptance of the optional clause made by itself and Senegal and based
on Article36(2), of the Statute, dated r espectively 17June1958 and 2December1985 for
Belgium and Senegal, that is. For Senegal, no real legal dispute on the interpretation or application
of an international rule of law connected in particular with the Convention Against Torture exists - 13 -
between the two countries. For Senegal, the absen ce of any dispute regarding the interpretation or
application of the Convention cannot have been the origin of true negotiations since the two
countries were speaking the same language. Belgium wanted Senegal to conduct a trial ⎯ or,
failing that, to extradite ⎯ Senegal said to it: I cannot extradite but I am going to conduct a trial!
And for the trial, I am going to seek funding. It is as simple as that. For Senegal, as we have just
20 repeated, the absence of any dispute on the interp retation of the application of the Convention
could not be the origin of true negotiations with the result that the procedural conditions required
for that purpose could not be adequately satisfied for the Convention Against Torture to constitute
a valid basis of jurisdiction.
55. In any event, these instruments cannot pr ima facie constitute a basis of jurisdiction
permitting the Court, if circumstances so require, to indicate provisional measures. Of course,
Senegal reserves its rights to file or to raise pr eliminary objections to jurisdiction and admissibility
as the Statute of the Court authorizes it to do, even if the Court considers that it had jurisdiction
prima facie to entertain the case and to consider the request for the indication of provisional
measures submitted by Belgium.
56. As regards the links between the rights of protection alleged by Belgium and the object
of the case pending on the merits, Article 41 of the Statute gives the Court the “power” to indicate
the provisional measures to safeguard the rights wh ich the Judgment it might subsequently have to
deliver might recognize as being those of the Applicant or the Respondent. Senegal notes that the
rights Belgium relies on in its request for the indi cation of provisional measures, and which it is
seeking to protect, prejudge the merits of the case brought before the Court. Senegal is meeting its
obligations to prosecute Hissène Habré stemming from the Convention Against Torture, on which
the African Union’s decision is based. Consequent ly, there is no request for extradition which has
to be met in this case. Aut dedere aut judicare: either one thing or the other. And above all, it is
extradition if there can be no trial. When the extradition avenue is blocked, and the country
pledges to conduct a trial, it is hard to see ⎯ in relation to the Convention Against Torture ⎯
where any dispute could lie on the application and interpretation of that Convention. A request for
provisional measures which consisted of the Court reminding Senegal of its obligations could not
endow those measures with any protective quality. Under cover of an invitation to ensure - 14 -
compliance with international law, the purpose of the proceedings instituted by Belgium is to get
the Court to order Senegal to extradite Hissène Habré as soon as possible so that he can be tried in
Belgium in disregard of Senegal’s rights and obligations under the Convention Against Torture and
which task Senegal is tackling with unflagging determination.
21 57. The Statute of the Court points out that the purpose of the power to indicate provisional
measures is to avoid irreparable prejudice being caused to the rights of one of the parties in
contention. Senegal does not envisage putting an end to the control and surveillance of
Mr.HissèneHabré both before and after the funding pledged by the international community has
been made available to it to cover the legal proceedings concerned.
58. Lastly, the Statute of the Court makes it clear that its power to indicate provisional
measures can only be exercised in an emergency, in other words where there is a real risk of action
being taken which is prejudicial to the rights of either of the parties before the Court has delivered a
final decision on the merits. Senegal has never stated that it was not going to try HissèneHabré.
Consequently, the urgency artificially conceived by Belgium does not exist.
59. Mr. President, Members of the Court, Senegal concludes that the circumstances of this
case do not justify the indication of the provisional measures wrongly requested by Belgium, or
even that it would be appropriate for the Court to indicate measures with respect to either of the
two Parties.
III.O RDER OF ORAL ARGUMENTS
60. I should now like, with your permission, to indicate the order Senegal is going to follow
in setting out its position in this case.
61. Following on from me, but at much shorter length, Mr. Demba Kandji, Co-Agent, with a
view to providing further explanation, will set out to you the ins and outs of the legal proceedings
initiated against HissèneHabré since February 2000 and also the efforts made by Senegal to try
him, including the reforms to its legislation and its Constitution.
62. ProfessorNdiawDiouf, Dean of the Faculty of Legal and Political Sciences at the
University of Sheikh Anta Diop in Dakar, w ill set out Senegal’s position on the prima facie
jurisdiction of the Court in relation to the request for the indication of provisional measures and - 15 -
also on whether the procedural conditions laid down by Article 30 of the Convention against
Torture have been met.
22 63. Mr. Abdulaye Dianko, agent judiciare de l’Etat , will speak with the permission of the
President of the Court of course, to demonstr ate that the provisional measures requested by
Belgium do not comply with the Convention against To rture, that they prejudge the merits of the
case and that they seek to deprive Senegal of its right to conduct a trial.
64. Mr.AliouneSall, professor in the Faculty of Legal Sciences in the University of
SheikhAntaDiop in Dakar, will deal with the lack of urgency, which cannot therefore justify the
indication of provisional measures requested by Belgium.
65. Mr. Oumar Gaye, lastly, will contend that Belgium has not demonstrated the existence of
the irreparable prejudice it alleges.
66. With that statement, Senegal’s presentati on in the first round of oral argument will be
closed.
67. Allow me, Mr. President, Members of the C ourt, to thank you for your patience and kind
attention. May I now request you ask Mr. Kandji, Co-Agent of Senegal, to take the floor.
The PRESIDENT: Thank you, Ambassador Thiam, Agent of Senegal, for your statement. I
now give the floor to Mr. Demba Kandji, Co-Agent of Senegal.
Mr. KANDJI: Thank you, Mr. President.
R EVIEW OF THE FACTS ;EFFORTS AND REFORMS UNDERTAKEN BY SENEGAL
TO SAFEGUARD THE RIGHTS CLAIMED BY B ELGIUM AND
TO FULFIL ITS INTERNATIONAL OBLIGATIONS
1. Mr. President, Members of the Court, disti nguished members of the Belgian delegation, it
is a signal honour for me to appear today before this august Court to defend the sovereign interests
of my country, Senegal. I am greatly moved in assuming the honour thus bestowed upon me. In
fact, history is now catching up with me, for it was nine years ago that I myself took the first
investigative step in the proceedings brought against Mr. Hissène Habré when I charged him and
placed him under court supervision.
2. Today I find myself again deeply involved in this case, in my dual capacity as Co-Agent
of the Republic of Senegal and Di rector of Criminal Affairs and Pardons, and responsible as such - 16 -
for overseeing the implementation, definition and co-ordination of Senegal’s policy in penal
matters.
23 3. Acting on the Agent’s instructions and with your leave, I have the duty to bear witness,
Mr. President, Members of the Court, to bear witness on the subject of the Hissène Habré case, as
experienced by Senegal, as experienced by Africa.
4. The story begins on 3 February 2000, wh en the investigating judge received a complaint
with civil-party application filed by Chadian nationals, led by Mr. Suleymane Guengueng, accusing
Mr. Hissène Habré of:
⎯ crimes against humanity;
⎯ acts of torture;
⎯ acts of barbarity;
⎯ discrimination;
⎯ murders; and
⎯ forced disappearances.
5. These Chadian nationals claimed that Mr. Hissène Habré was directly liable for the acts,
when he was President of the Republic of Chad. He was indicted, regard being had to the United
Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, adopted at New York on 10December 1984. For the courts, this Convention was
already part of the Senegalese legal order as Se negal had ratified it in 1987 and Senegalese law
already treated torture and murder, inter alia, as criminal offenses. As a result, Mr. Hissène Habré
was charged with complicity in crimes against humanity and in acts of torture and was placed
under judicial supervision, his supervision and monitoring being entrusted to a unit of the national
police to oversee.
6. Mr.HissèneHabré exercised the due process rights accorded him by Senegalese
procedural laws. He seised the Chambre d’accusation [Indictment Division] of the Court of
Appeal of Dakar. This division is the appellate body responsible for determining the lawfulness of
steps taken by the investigating judges under the jurisdiction of the Court of Appeal of Dakar. It
also plays a role in monitoring the functioning of the investigating judges’ chambers. Mr.Habré - 17 -
moved this court to quash the indictment on the ground that the judges who had issued it were
without jurisdiction.
24 7. Mr. President, as the Agent has already said, on 4 July 2000 the Chambre d’accusation by
judgment No.135 upheld Mr.Habré’s motion by quash ing his indictment. As you have already
been told, it held that the Senegalese court w as without jurisdiction, because the provisions of
Article669 of our Code of Criminal Procedure at the time did not allow for the prosecution of
aliens who had committed actionable acts outside the national territory, regardless of the nationality
of the victims of the acts.
8. The complainants then filed an appeal with the Court of Cassation, at the time the supreme
Senegalese court in criminal matters. They mainta ined their contention that the Senegalese courts
were in fact competent pursuant to the principle of universal jurisdiction.
9. While the Senegalese Court of Cassation still had the case under advisement, another
complaint was filed, in Belgium, by another gro up of victims who were either Chadian or of
Chadian descent, among whom Mr. Aganaye, who filed a complaint on 30November2000 with
the Belgian investigating judge.
10. This was not the same group of victims as the one which had submitted the complaint in
Dakar, but the two groups received support from the same sources.
11. At the time, the Belgian Law of 1993 conf erred broad universal jurisdiction on Belgian
courts, which could have cognizance over mass atrocities no matter where they had been
committed.
12. In Senegal, the Court of Cassation ⎯ the forum serving as supreme court ⎯ on
20March 2001 rejected the appeal brought by th e Chadian victims in the Guengueng group. It
held that there was no procedural provision confe rring any universal jurisdiction on the Senegalese
courts over the acts complained of on the basis of the 1984Convention, not yet incorporated into
domestic law.
13. On 18April2001, the group led by Mr .SouleymaneGuengueng submitted a complaint
to the United Nations Committee against Torture, established by Article17 of the Convention
against Torture and Other Cruel, Inhuman or De grading Treatment or Punishment, adopted on
10 December 1984 at New York. This Committee, should it need recalling, is the guardian of the - 18 -
Convention: it watches over the effective implem entation of the Convention in the legislation of
the States parties.
25 14. Mr. President, Members of the Court, in an international letter rogatory dated
19 September 2001, Belgium asked Senegal to communicate to it the entire record in the
proceedings, from the filing of the complaint to the Court of Cassation judgment. That was done
on 22November2001 in keeping with a very long-standing Senegalese tradition of always
co-operating in judicial matters, even where there is no formal framework for it.
15. Senegal, anxious to fulfil its obligations as a State governed by the rule of law, wished ⎯
all the same, despite the Court of Cassation j udgment ruling that the State court had [no]
jurisdiction ⎯ to find a solution to what had truly become the “Hissène Habré case”.
16. It is thus, Mr.President, Members of the Court, that I come to Belgium’s request for
extradition and its repercussions in Senegal.
17. On 19September2005 the Belgian investig ating judge responsible for the proceedings
brought by certain victims in Brussels issued an international warrant for Mr.HissèneHabré’s
arrest.
18. The international arrest warrant serves as an extrad ition request by the Kingdom of
Belgium. It cited the provisions of the 1984 Convention, among others.
19. Senegal immediately complied with the request for extradition: Mr. Hissène Habré was
arrested on 15 November 2005 and placed in custody pending extradition, in other words held so as
to be in a position to be extradited to Belgiu m. In accordance with the law, HissèneHabré
remained in custody throughout the period required for consideration of the extradition request.
T2he. Chambre d’accusation in Dakar, the court having jurisdiction over the extradition
request, was once again seised. And, under the procedural law in force, the Chambre must give its
opinion before any extradition decision may be taken.
21. As under other bodies of law, including specifically Belgian law, which like ours is part
of the Roman-Germanic family , under Senegalese law if the Chambre d’accusation advises in
favour, the Senegalese executive, in other words th e Senegalese civil service, may then decide to
extradite or not. On the other hand, if the Chambre d’accusation advises against, its opinion is
binding on the executive. - 19 -
22. Although it decides by way of advice, the Chambre d’accusation hands down judicial
decisions in every sense of the term, since pe rsons whose extradition is sought or principal
26 prosecutors with the Courts of Appeal can challenge the decisions by appeal to the Supreme Court
if they feel that their rights are being violated.
23. By a judgment dated 25November2005, the Chambre d’accusation held that it was
without jurisdiction over the request for HissèneHabr é’s extradition. It ruled that he enjoyed an
exemption from jurisdiction by virtue of having been Head of State at the time of commission of
the acts of which he stood accused. This exempti on from jurisdiction continued even after he left
office.
Th4.s Chambre d’accusation judgment finding against jurisdiction put an end to the
extradition proceedings in Senegal.
25. Senegal immediately turned to the Afri can Union, referring the “Hissène Habré case” to
it.
26. Senegal informed Belgium on 23December2005 by notifying it that under the
Senegalese rules of criminal procedure the Chambre d’accusation judgment had put an end to the
judicial phase of extradition.
27. At its conference in Khartoum the Afri can Union decided on 24 January 2006 to set up a
“Committee of Eminent African Jurists” mandated “to consider all aspects and implications of the
Hissène Habré [trial]”.
28. By establishing this committee of eminent jurists, the pan-African organization wished:
⎯ to examine ways and means to put an end to impunity;
⎯ in compliance with fair trial standards;
⎯ taking into consideration all victims and all witnesses involved in the acts of which
Hissène Habré was accused;
⎯ in so far as possible through an African judicial mechanism.
29. Senegal lost no time in co-operating with the Committee of Eminent African Jurists,
which included a Senegalese representative.
30. While the Committee of Eminent African Jurists was busy with its work, the United
Nations Committee against Torture rendered its decision on 17May2006 on the complaint - 20 -
submitted by the first group of victims, the group led by Souleiman Guengueng, which had filed a
complaint in Senegal in 2000.
27 31. Among other recommendations, the United Nations Committee against Torture asked
Senegal to amend its legislati on to bring it into conformity with the provisions of the
1984 Convention against Torture so as to render it suitable for punishing acts of torture.
32. Obviously, the Committee of Eminen t African Jurists took account of the
recommendations made by the United Nations Comm ittee against Torture in formulating its own
conclusions for submission to the African Union.
33. Senegal accepted the recommendations of the United Nations Committee against
Torture.
34. Subsequently, at its July2006 conference in Banjul, the African Union, drawing on the
recommendations made by the Committee of Eminent African Jurists, mandated Senegal to
“prosecute and ensure that Hissène Habré is tried, on behalf of Africa, by a competent Senegalese
court with guarantees for fair trial”.
35. The African Union took account of its C onstitutive Act, pursuant to which the crimes of
which HissèneHabré stood accused, and which the African Union deemed grave, fell squarely
within its competence, and of the fact that, at th e time Senegal had referred the case to it, it had no
continental judicial organ able to conduct the trial.
36. After taking into consideration the United Nations Convention against Torture, the
conference of the African Union decided to cons ider the HissèneHabré matter to be one for the
African Union and decided that the trial to open in Senegal . . .
The PRESIDENT: Mr. Kandji. Could you speak a bit more slowly.
Mr. KANDJI: I beg your pardon, Mr. President.
... is the African Union’s trial of HissèneHabré. In doing this, it called upon the
international community to offer Senegal its support in ensuring the trial’s smooth conduct.
37. Mr. President, Members of the Court, Senegal therefore accepted the mandate from the
African Union to fulfil its obligations under the Convention against Torture and immediately began
to equip itself with all the necessary means for holding the trial. - 21 -
28 38. Thus, Senegal without delay initiated or intensified substantive and procedural reform of
its constitutional and criminal legislation.
39. It amended, repealed and introduced pr ovisions in the Penal Code and the Code of
Criminal Procedure, allowing for the introduction of new offences such as the international crimes
of war crimes, crimes against humanity, and genocide, crimes which are moreover dealt with in the
Rome Statute, which our country was the first State to ratify. It conferred broadened jurisdiction
on its courts. For example, it has been provided in Article669 that Sene galese courts may be
competent in respect of international crimes co mmitted abroad by an alien if the alien is
apprehended in our territory or if the governme nt succeeds in having him extradited. Thus,
Senegalese courts have been endowed with universal jurisdiction.
40. Concurrently, and also with a view to fulfilling this obligation deriving from the African
Union, Senegal reformed its Assize Court, the fo rum with jurisdiction over crimes, by establishing
a two-tiered system. Previously, it must be said, the Assize Court rendered its decisions as the
court of first and last instance, without possible appeal by defendants. The Court of Appeal’s
decision may now be challenged by appeal to another Assize Court designated by order of the First
President of the Supreme Court. All of these re forms were aimed at guaranteeing defendants a fair
and equitable trial.
41. As I said, Senegalese courts may assum e jurisdiction over mass atrocities committed by
an alien, regardless of the place of commission or the identity of the victims.
42. In addition to providing for judicial offici als to take charge of the criminal proceedings
and the investigation ⎯ among other reforms, the Penal Code and Code of Criminal Procedure
were put in place ⎯, provision was made for institutions, investigating judges, prosecutors,
registrars, and a significant support staff to ensure the smooth start and conduct of the trial. As the
Agent said a few moments ago, the Minister of Ju stice issued an order appointing a co-ordinator
and a monitoring and information committee.
43. Mr. President, the scale of the reforms drew a reaction from Mr.Habré, whose lawyers
took proceedings in the Court of Justice of the Economic Community of West African
States(ECOWAS), alleging that the laws thus passed targeted him personally. Another of - 22 -
29 Mr.Habré’s supporters brought proceedings agai nst Senegal in the African Court on Human
Rights, asking the African Court to enjoin Senegal from trying Hissène Habré.
44. These trials are still pending and in them Senegal is elaborating arguments to enable
itself to carry out the mandate from the African Union, in compliance with the recommendations by
the United Nations Committee against Torture, and t hus to fulfil its international obligations under
the 1984 United Nations Convention against Torture.
45. Mr. President, on 15March2008 the European Union, of which Belgium is a member,
took note of and welcomed the efforts made by Se negal to meet its international commitments.
Similarly, MsLouiseArbour, former United Nations High Commissioner for Human Rights, has
praised Senegal’s efforts and pointed to its leadership in the fight against impunity in Africa. In his
report to the Human Rights Council (doc. A/HRC/ 4/33), Mr. Manfred Nowak, Special Rapporteur
on torture and other cruel, inhuman or degrading treatment or punishment, also spotlighted
Senegal’s commitment in respect of the HissèneHa bré case, which, in his view, “may provide a
positive example to other States which so far have been reluctant to exercise universal jurisdiction
over alleged perpetrators of torture present on their territory” (document7 filed by Senegal on
2 April 2009).
46. Most recently, in February2009, the A frican Union at its conference in Addis Ababa
commended Senegal’s efforts and reiterated its undertakings to it.
47. The only impediment, Mr.President, Members of the Court, to the opening of
Mr. Hissène Habré’s trial in Senegal is a financial one. Senegal agreed to try Mr. Habré but at the
very outset told the African Union that it would be unable to bear the costs of the trial by itself.
48. The budget prepared by Senegal totalling €27 400 000 (18,000,000,000 CFA francs) has
been deemed inflated by some. However, t hose who criticize it fail to take account of the
difficulties and costs to be faced in transporting, lodging and protecting hundreds of witnesses
scattered across Africa.
30 49. For example, Mr. President, a flight between Dakar and N’Djamena, the capital of Chad,
costs much more than comparable travel between Dakar and Paris or Kigali and Brussels.
50. It is impossible to compare the “Butare F our” trial, held up to Senegal as a benchmark,
with the HissèneHabré trial now being prepared, which involves a far greater number of victims - 23 -
and much more laborious evidence-gathering. The two trials are comparable in neither temporal
nor spatial terms.
51. Mindful of its obligation to prosecute on behalf of all Africa, pursuant to its mandate
from the African Union and by virtue of its ratifi cation of the Convention against Torture, Senegal,
out of concern for transparency in the manageme nt of property held in common, demands that
management of the funds needed to finance the trial be entrusted, if necessary, to third parties and
not involve any Senegalese official.
52. To our mind, one benefit of holding Hissène Habré’s trial on African soil will be that all
victims, all witnesses, will be able to attend withou t difficulty. That might not be the case if the
trial venue were to be moved to another continen t, one that restrictions of various types might
render less accessible.
53. The fight against impunity must not overs hadow the no-less-important duty on us all to
afford the accused, no matter how serious the acts with which he is charged, a presumption of
innocence until such time as he is convicted after a fair trial; and it is for that fair trial that Senegal
is making the preparations.
54. It is for all of these reasons that Senegal has not yet begun the trial, fearing that it would
be interrupted for long periods in which funds, hypothetical funds, would have to be sought.
Accordingly, advance financing adequate to ensu re uninterrupted proceedings all the way to the
end in accordance with our domestic law is what is needed.
55. Even though by now, Mr. President, and I shall conclude with this, all the reforms
necessary for a fair and equitable trial have been carried out, one has the feeling that Senegal is
being subjected to harassment, harassment extendi ng all the way to distorting statements made in
various settings by its President.
31 56. I thank the Court for its patience and would ask you, Mr.President, to give the floor to
Professor N’Diaw Diouf, unless you wish to announce a break. Thank you. - 24 -
The PRESDENT: Thank you, Mr. Kandji, for your statement. This seems to me a suitable
time for a coffee break. We shall continue Senegal’s first round of oral argument after a ten-minute
break.
The Court adjourned from 4.25 to 4.45 p.m.
The PRESIDENT: Please be seated. I now give the floor to Professor Ndiaw Diouf.
DMIr.UF:
PRIMA FACIE JURISDICTION AND ADMISSIBILITY
1. Mr.President, Members of the Court, it is a particular honour for me to take the floor
before this renowned Court, at the request of the Agent of Senegal, to deal with the procedural
requirements the Court has always imposed when it has before it a request by a party for the
indication of provisional measures.
2. It is Senegal’s position that the arguments relied on by the Kingdom of Belgium in support
of its Application to obtain a judgment in the dispute which would allegedly result from the
violation of the obligation to punish the crimes under international law of which Mr. Hissène Habré
stands accused are without merit; it will have no difficulty proving this, if necessary, at a later
date.
3. But Senegal is now asking the Court to fi nd that those conditions to be met before the
provisional measures sought by Belgium can be indicated are not satisfied. It is easily seen at first
sight in the present case not only that there is no di spute between the Parties, which shows that the
Court patently lacks jurisdiction, but also, and more importantly, that the Applicant has not fulfilled
its obligation to put in motion the negotiation and arbitration procedure contemplated by the
Convention before the Court may be seised, and this results in the inadmissibility of the
Application. - 25 -
32 I.THE PATENT ABSENCE OF ANY DISPUTE AS TO THE INTERPRETATION
OR APPLICATION OF THE U NITED N ATIONS CONVENTION
AGAINST TORTURE OF 10 DECEMBER 1984
4. Mr.President, Members of the Court, I am going to centre my statement on two points:
first, the clear absence of any dispute concerninthe interpretation or application of the United
Nations Convention against Torture of 10 December 1984; and, second, the inadmissibility of the
Application. Your Court, Mr. President, and I am going to speak to you about the manifest lack of
any dispute, has always wisely avoided being placed in a position in which it urgently indicates
provisional measures when it might later have to find that it lacks jurisdiction to entertain the case
on the merits. Indicating provisional measures ina case which the Court subsequently refrains
from considering on the merits owing to a lack ofjurisdiction can lead to an extremely ticklish
situation. For confirmation of this, we need look no further than the case concerning Anglo-Iranian
Oil Co., in which the Court, after having indicated provisional measures, found in a Judgment on
preliminary objections in 1952 that it had no jusdiction, and it had to revoke the provisional
measures (I.C.J. Reports 1952, p. 93).
5. For this reason, where it is clear that the case before it is not within its jurisdiction, which
is true here, owing to the prima facie lack of any dispute between the Parties, the request to the
Court to indicate provisional measures must be rejected de plano, as has occurred in a number of
cases.
6. In the present case, Belgium founds the jurisdiction of the Court on the provisions of
Article 30 of the United Nations Convention of 10 December 1984. According to Belgium,
“The two States have been parties to the United Nations Convention against
Torture of 10December1984 since 21August1986 (Senegal) and 25June1999
(Belgium). The Convention has been in force since 26June1987. Article30 of the
Convention provides that any dispute be tween two States parties concerning the
interpretation or application of the Convention which it has not been possible to settle
through negotiation or arbitration may be submitted to the ICJ by one of the States. In
this instance, Belgium has been negotiating with Senegal since 2005 for the latter to
prosecute Mr. H[issène] Habré directly, failing his extradition to Belgium. As Senegal
has taken no action on these alternatives in practical terms, Belgium is now in a
situation where the other party has declared itself unable, or refuses, to give way,
thereby exhausting the obligation to settle th e dispute by negotiation.” (See para. 14,
first subparagraph, of the Application instituting proceedings of 16 February 2009.)
7. In Senegal’s view, an examination, even a superficial one, of the Application submitted by
the Kingdom of Belgium shows that there is no act ual legal dispute in this case. Thus, it can - 26 -
clearly be seen from the terms of the Application that Belgium is asking th e Court to adjudge and
33 declare that the Republic of Senegal is under an obligation to prosecute Mr.HissèneHabré. But
Senegal has already taken all the appropriate step s to this end and the actions taken thus far
demonstrate its clear intent to hold the trial.
8. In this undertaking Senegal will be able to count on all African countries which have
committed themselves to assist in securing the fund s necessary for the practical organization of the
trial and to provide full support to Senegal in the way of mutual judicial assistance in carrying out
those investigative measures required in their respective territories.
9. By now, Senegal has completed all the necessary legal reforms to secure for itself the
means to hold a fair and equitable trial reasonably qu ickly. In this respect, amendments have been
made not only to the substantive and procedural pena l rules but also to the Constitution, so there is
no longer any impediment of a legal nature preventing the pursuit of the prosecution.
10. Senegal has taken all these steps because, give n the scope of their jurisdiction, its courts
are the best placed in the current context to hold the contemplated trial.
11. Apart from the fact that Mr.HissèneHa bré is in Senegalese territory, and this
consideration is not unimportant if only becau se it averts the complications arising from an
extradition request, Senegal’s decision to opt for uni versal jurisdiction means that the Senegalese
courts can assume jurisdiction over all the acts at issue, regardless of the nationality of the victims.
12. Belgium, it should be recalled, amended its legislation to condition its courts’ jurisdiction
over certain acts committed abroad on certain fact ors of connection, so that passive personal
jurisdiction, the only possible basis for prosecu tion in the Belgian courts, severely limits the
possibility of referral to those courts because th ey will be able to have cognizance only over acts
carried out against persons of Belgian nationality.
13. If no judicial investigation has yet been opened, it is because Senegal wants to make sure
that all the necessary conditions, in particular the financial conditions, are met so that the trial can
take place reasonably quickly. It is Senegal’s conviction that every individual is entitled, no matter
34 how serious the acts charged against him, to be tried within a reasonable time; this is why it cannot
take the risk of starting a trial which might have to be interrupted because of insufficient resources.
The proceedings, once begun, must be carried thou gh to completion without more or less long - 27 -
breaks to allow funds to be gathered to pay for it, as happens in some international courts or
tribunals.
14. These arguments should persuade you that there is no actual legal dispute between the
Parties, especially if reference is made to the jurisprudence of the Court, which considers a dispute
to be “a disagreement on a point of law or fact, a conflict of legal views or of interests between two
persons” (Mavrommatis Palestine Concessions, Judgment No.2, 1924, P.C.I.J., SeriesA, No.2,
p. 11).
15. There is no need in the present instance to analyze the Applicant’s contentions in detail
to realize that there is no conflict between the Parties in respect of a claim asserted by one against
the other and rejected by the latter.
16. Given that the Court will obviously not be ab le to rule on the merits, the request for the
indication of provisional measures should be rejected without further ado.
17. In view of the foregoing, the Court coul d, in accordance with th e case-law elaborated in
the case concerning Northern Cameroons ((Cameroon v. United Kingdom), Preliminary
Objections, Judgment , I.C.J. Reports 1963 , p.15), find that it is impossible for it to render a
judgment capable of effective application in the ab sence of a contested legal situation involving a
conflict of legal interests between the Parties and that the clear impossibility of doing so prevents it
from indicating the requested provisional measures.
18. Mr. President, Members of the Court, a decision of this type in the present case would be
fully in line with the case-law on the subject handed down by this august body.
19. Under this case-law, when the Court’s lack of jurisdiction can be determined without an
in-depth examination of the situation of the par ties, the Court will not join the objection to the
merits and will conclude from the lack of jurisdic tion that it does not have “the power” to indicate
the requested provisional measures; in respect of this, no distinction is to be made based on
35 whether the Court is unable to find any basis for its prima facie jurisdiction in any text or whether
the circumstances are such that jurisdiction is obviously lacking.
20. This minimum degree of review is necessary to prevent Belgium from achieving its ends,
that is to say from obtaining, through the indication of provisional measures, an interlocutory
judgment on the merits generally and on the Court’s jurisdiction specifically. - 28 -
21. But even if the Court were to believe it appropriate to proceed regardless and to find
prima facie jurisdiction, the patent inadmissib ility of the Application based on a violation of
Article 30 of the Convention against Torture should lead to the rejection, without any examination
on the merits, of the measures sought.
II. THE INADMISSIBILITY OF THE CLAIM OWING TO THE ABSENCE
OF ANY NEGOTIATION OR ARBITRATION PROCEEDINGS
22. Mr. President, Members of the Court, to jus tify its action in this Court, and to maintain
that the Court has jurisdiction to decide the present dispute, the Kingdom of Belgium relies on: the
two unilateral declarations made under Article36 of the Statute of the Court by the Parties to the
proceedings; and the provisions of Article 30 of the United Nations Convention of
10 December 1984.
23. The first question to be answered by the Court is whether the Kingdom of Belgium,
which brought the proceedings, has complied with Article30. In other words, have the avenues
first of diplomatic negotiation and then of arbitration been explored and exhausted?
24. In the document submitted to the Court, the Kingdom of Belgium cites, in reference to
these “negotiations”, the following actions it claims to have taken:
⎯ 30November2005: it “asks” the Government of Senegal to explain “the implications” of a
judgment by the Chambre d’accusation of the Dakar Court of Appeal in which it held that it
was without jurisdiction. It should be noted th at Senegal responded, through its ambassador in
Brussels, to this request. In particular, theresponse shows that, notwithstanding the judicial
decision, the Republic of Senegal intended to raise the “Habré question” during the African
Union (AU) summit scheduled to take place a few months later in Banjul;
36 ⎯ 11January2006: according to Belgium, it “tak es note” of the decision by the Senegalese
authorities to raise the matter with the African Union and, it writes, “refers” to the negotiation
procedure contemplated in Article 30 of the 1984 Convention against Torture;
⎯ 9March2006: Belgium “points out” the ne gotiation procedure and “asks” Senegal whether
the raising of the “Habré matter” means that Senegal will neither extradite Mr.Habré to
Belgium nor try him. Senegal responded to this question as well. Its response was that, in
raising the matter with the African Union, the Republic of Senegal did not seek to shirk its - 29 -
obligation under the 1984Convention (namely, to try or to extradite), but, on the contrary,
intended to assume its duty to prosecute.
25. By Belgium’s own admission, and as discerned from its description of the process
leading up to the proceedings before the Court, tho se were the main stages said to have marked the
negotiations which Article30 of the 1984 Conven tion makes a precondition to any action before
the International Court of Justice.
26. The Court will thus have the opportunity to observe the liberty taken by the Applicant in
interpreting the obligation to negotiate. Inte rnational negotiation presupposes a minimum number
of contacts and a minimum amount of follow-up an d definition of the terms of discussion and the
Kingdom of Belgium has plainly paid these minima no heed in the present case. There has never
been any true offer to negotiate, never any of the exchanges characteristic of diplomatic
negotiations. The only approaches cited by Belg ium in this regard consisted of addressing
questions to the Senegalese authorities, questions simply calling for answers, and the Republic of
Senegal always gave these. Moreover, why sh ould negotiations have been held inasmuch as
Senegal is fulfilling its obligations? Negotiations would be conceivable and welcomed by Senegal
only if it were in breach, which is not the case, as Senegal has shown.
27. Thus, everything points to the Applicant wishing to move “by surprise” and to bring
proceedings against the Republic of Senegal before the Court by retrospectively interpreting certain
of its approaches as connected with a precondition imposed by the Convention against Torture.
28. Everything points to Belgium having had a preconceived intention to bring proceedings,
the rest, that is to say its earlierdémarches, being mere formalities or pretexts preliminary to
judicial proceedings.
37 29. International negotiation is understood to require “transparency” and good faith on the
part of States. It bars “surprises” and dissembling; and it must, so to speak, present itself as such.
It is on this condition that it may be invoked against a State.
30. Never did the Kingdom of Belgium with true conviction express to the Republic of
Senegal its intention to engage in negotiations. Moreover, how c ould it have done so inasmuch as
Senegal was fulfilling its obligati on? As Belgium itself says, it merely “pointed out” the
precondition laid down by Article30 of the Conven tion. Belgium’s behaviour is not in strict - 30 -
accordance with the requirements of good faith in inter-State relations. The Court itself has
repeatedly established a link between the obligation to negotiate and good faith.
31. The relationship which the Court estab lishes among the obligation to negotiate, the
principle of good faith and mutual trust is particularly apposite in the present case.
32. The Republic of Senegal considers not onl y that the duty to negotiate was not properly
performed by the Applicant but also that the Applicant’s action before the Court, and the sort of
excessive haste accompanying it, reflect a clear form of distrust and abuse of the right to take
proceedings for which there is neither any basis nor any justification in light of the measures the
Republic of Senegal has by now taken to arrange for the trial of the former Chadian Head of State.
33. In the current context it must be recognized that there was no reason for the “negotiation”
required by Article30 of the Convention agains t Torture and none took place. When a party
intends to enter into a process of discussion, it must clearly say so. More or less “general”
questions aimed at eliciting factual information cannot suffice.
34. The Kingdom of Belgium will therefore be hard put to demonstrate the failure of a
proposal to negotiate which was never really made. In order for judicial proceedings to be brought
against a State party to the Convention, negotiations must have failed; all the avenues explored to
reconcile the views must have proved to be d ead ends. Yet the Kingdom of Belgium fails to
demonstrate the existence of any such dead end; it cannot say that any efforts it supposedly made
ended in failure. If we go by Belgium’s own presentation of the facts, we cannot help but observe
38
how odd are the circumstances under which it claims to have exhausted its obligation to negotiate.
35. The second issue which arises in this case is whether there has been a failure of
negotiations. The Court takes a very strict view of what constitutes the “failure of negotiations”.
In the case concerning Mavrommatis Palestine Concessions , (Judgment No.2, 1924, P.C.I.J.,
Series A, No. 2), the Permanent Court of International Justice defined what was meant by the
failure of a negotiation justifying recourse to litig ation. The State relying on the failure of
negotiations to take court proceedings can justif y its position only “if [in the negotiation] a dead
lock is reached, or if finally a point is reached at which one of the Parties definitely declares
himself unable, or refuses, to give way, and there can therefore be no doubt that the dispute cannot - 31 -
be settled by diplomatic negotiation ” ( Judgment No.2, 1924, P.C.I.J., SeriesA, No.2 , p. 13;
emphasis in the original).
36. Can it be said in the present case that the Government of the Republic of Senegal gave
the slightest evidence of any such refusal? Were negotiations ever opened and, a fortiori, did they
ever reach a deadlock like that which the Court defi nes as the test for the existence of a failure of
talks?
37. The fact is that the Kingdom of Belgium has never entered into any real negotiations
with the Government of the Republic of Senegal. Its only approach to the Senegalese authorities
was through Notes Verbales consisting of queries as to the status of the proceedings or the
Senegalese Government’s plans in respect of the Habré affair. Answers were provided to all of
these questions. The truth is that Belgium never wanted to see Mr. Hissène Habré tried in Senegal.
38. Not only did the Kingdom of Belgium not enter into any negotiations in the strict sense
of the term with the Government of the Republic of Senegal, but also by its conduct it skirted round
the other precondition laid down by Article 30 of the 1984 Convention. The only reference to any
specific offer to go to arbitration is found in a statement by the Belgian Government dated
20June2006, which Belgium claims to have sent to the purported addressee, and that is evasive.
As Belgium describes the facts, it “observes that the negotiations based on Article30 of the
Convention have failed; it notes that there is a dispute between the two States concerning the
interpretation of Article 7 of the Convention and asks Senegal to submit to the arbitration process
39
contemplated by Article 30 of the Convention”.
39. All three assertions lurking in this seemingly innocuous sentence are questionable:
⎯ Belgium speaks of the “failure” of “negotiations” that never actually took place;
⎯ it refers to the existence of a “dispute concerning the interpretation of Article7”, when
nowhere in the Notes exchanged with the Repub lic of Senegal was there any discussion of or
dispute over this provision of the Convention; on the contrary, Senegal’s response of
9 May 2006, the only document in which it refers to this provision, clearly states that Senegal
“is complying with the spirit of the rule aut dedere aut punire laid down in Article 7”;
⎯ finally, the invitation which Belgium claims to have addressed to Sene gal to submit to the
arbitration procedure was extended only once, and very furtively, in a statement whose main - 32 -
subject was not this invitation (the statement of 20June2006) and which, by the way, the
supposed addressee is still unable to find.
40. While the African Union has just taken charge of the Habré matter and referred to
Senegal’s obligations under the Convention against Torture, Belgium invites Senegal to negotiate.
41. As a fundamental precondition on actions be fore the International Court of Justice was
involved, Senegal was entitled to expect a clear er, less evasive, proposal. Here too, the
circumstances reflect Belgium’s will to “expedit e” as much as possible the formalities required by
Article 30 so as to satisfy as quickly as possible the conditions to be met before the Court could be
seised.
42. But most importantly, the desire on the part of the Kingdom of Belgium to bring the
matter to litigation was thwarted because the Republic of Sene gal had begun the process which
should, in principle, lead to the trial of the former Chadian Head of State. The Applicant itself
acknowledges soon afterwards that the constitutional and legislative reforms have been carried out
to remove the obstacles barring jurisdiction on the part of the Senegalese courts, obstacles which
had justified the findings against jurisdiction previously handed down by the national courts.
40 43. These circumstances together show that no doubt can be entertained as to the good faith
of the Republic of Senegal. A detailed demonstr ation has already been made of the efforts and
reforms the Republic of Senegal has carried out since receiving the mandate from the African
Union with a view to trying Mr. Habré. Once it ha d been established in principle that the trial was
to be held by the State of Senegal, it became nec essary to take the measures called for by the trial,
those measures being legislative, practical and financ ial in nature. It bears pointing out that, after
obtaining critical support from the African Union, Senegal entered into discussions with the
European Union, one of whose members is Belgium, which, incidentally, has never distinguished
itself by offering the slightest financial contribution to the Senegalese State.
44. The Court will have no trouble appreciating the striking contrast between the attitude on
the part of the Kingdom of Belgium, unquestionably in a hurry to try the case in its courts and, to
that end, skipping required stages in the pro cess, and the conduct of the State of Senegal,
legitimately cautious to begin with but then sedulous once it became apparent that the possibility of
trying Mr. Habré had become clear. - 33 -
45. In conclusion, the Kingdom of Belgium has not satisfied the requirement laid down by
Article30 of the 1984Convention, namely texhaustion of the negotiation procedure and a
proposal to submit to arbitration. For this reason, Mr. President, Members of the Court, Senegal is
asking this distinguished Court to find that the procedural conditions laid down by Article 30 of the
Convention against Torture have not been met and, accordingly, to declare Belgium’s claim to be
inadmissible.
46. But even in respect of the request for the indication of provisional measures, Belgium’s
Application does not stand up to analysas will now be shown by Mr.Dianko, whom I
respectfully ask you, Mr. President, to call to the lectern. Thank you for your attention.
The PRESIDENT: Thank you, Professor Diouf, for your statement. I now give the floor to
Mr. Abdoulaye Dianko.
41 DIAr.NKO:
T HE PROVISIONAL MEASURES REQUESTED ARE NOT IN ACCORDANCE WITH THE
C ONVENTION AGAINST T ORTURE AND O THER C RUEL, NHUMAN OR
D EGRADING T REATMENT OR PUNISHMENT ; THEY PREJUDGE THE
MERITS OF THE CASE AND DEPRIVE SENEGAL OF ITS
RIGHT TO TRY M R. ISSÈNE HABRÉ
1. Mr. President, Members of the Court, it is a great honour and a privilege for me to stand
today before this distinguished Court tothe interests of my country in these proceedings
brought by Belgium.
2. The Agent of the Republic of Senegal has asked me to explain before the Court why the
provisional measures requested by Belgium cannot be indicated. To this end, I will examine the
following points.
⎯ The measures requested would not be in accrdance with the convention which Belgium
requests the application of in the proceedings on the merits.
⎯ The indication of the provisional measures requested by Belgium would constitute a
prejudgment of the merits. - 34 -
⎯ I will endeavour to show that the indication of the provisional measures requested by Belgium
would deprive Senegal of the rights which it holds under international rules, in particular those
contained within the Convention against Torture.
I. THE PROVISIONAL MEASURES REQUESTED ARE NOT IN ACCORDANCE
WITH THE C ONVENTION AGAINST T ORTURE
3. According to your settled jurisprudence, the power to indicate provisional measures which
the Court holds under Article 41 of its Statute has as its object to preserve the respective rights of
each Party, pending a decision by the Court, so that irreparable prejudice is not caused to rights
which are the subject of dispute in judicial proceedings. It follows from this:
(i) first, that the Court must be concerned to preserve by such measures the rights which may
subsequently be adjudged by the Court to belong either to the Applicant or to the
Respondent;
(ii) second, it should not be obliged at this stage to rule on those rights.
4. Mr.President, Members of the Court, at this stage of proceedings, Belgium requests the
Court:
42 “to indicate, pending a final judgment on the merits, provisional measures requiring
Senegal to take all the steps within its pow er 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”.
5. Senegal would like to point out that if the measures which Belgium requests are indicated,
it would be tantamount to disregarding the provisions of the Torture Convention of 1984, in
particular those contained in its Article 6.
6. According to that article, when a State Party is informed that a person suspected of having
committed or having attempted to commit acts of torture as the perpetrator, co-perpetrator or
accomplice is located on its territory, it can take two types of measures: take him into custody or
take the legal measures appropriate to keeping th e suspected person on its territory. Such custody
and other legal measures shall, however, be as provided in the law of the State concerned.
7. Belgium is aware that there exist two types of such legal measures in addition to custody:
those which lie within the powers of the judicial authorities and those taken on the initiative of the
administrative authorities. - 35 -
8. Mr.President, Belgium cannot be requesting the indication of measures taken on the
initiative of the Senegalese administrative authorities aimed at preventing Mr. Habré from leaving
Senegal and avoiding prosecution. Such a request would be without object since it has already
been fulfilled by Senegal by the police control measures taken with respect to him.
9. Indeed, Belgium itself acknowledges in its Application the effectiveness of the
surveillance measures taken by Senegal and men tioned by those who have spoken before me.
Those measures have made sure that Mr. Habré has remained on Senegalese territory without being
able to leave it and have done so for 19 years now.
10. The probability of Mr.Habré leaving Se negal and avoiding pro secution is practically
zero. The control and surveillance measures that ha ve been taken with respect to him have proven
particularly effective since 1990. If these measu res had been insufficient, Mr.HissèneHabré
would have left Senegal in 2000, when the complaints against him were filed; or again in2005,
when Belgium’s request for extradition was being considered; or again in 2006 when the African
Union mandated Senegal to try him under the Tortur e Convention of 1984 or, at the latest, after
Senegal completed the changes to its legal arsenal making his trial now possible at any moment.
43 11. Mr. President, in reality what Belgium seek s to obtain from you is a judicial measure. It
asks you to indicate that Senegal should obtain from its judicial authorities a measure restricting the
freedom of Mr. Hissène Habré.
12. The implementation of such a measure would be inconsistent with the Convention
against Torture of 1984.
13. The measure requested by Belgium can onl y be envisaged in the form of a request
addressed to a court. Yet in our legal system the principle of the independence of the judiciary is
fundamental. Judges are not subordinate to the ex ecutive. A judge is always entitled to refuse a
request made by the executive. Thus, the implementation of the measure which Belgium requests
the Court to indicate, if it is to be envisaged as a request that the executive authorities must address
to the judiciary, would potentially prove ineffective.
14. To overcome the ineffectiveness of such a request, the independence of the Senegalese
judiciary would have to be flouted to oblige it to implement the measures requested. - 36 -
15. In that case, the implementation of such a measure would disregard Article6 of the
Convention, which requires that the measures taken restricting Mr. Habré’s freedom be as provided
in the law of Senegal. You now know that in Senega l, a State governed by the rule of law, it is not
possible for the executive to compel a judicial authority to issue and maintain a control and
surveillance measure with respect to a pers on without amending the Constitution and the
legislation.
16. In view of the foregoing, I invite the Court to dismiss the request for the indication of
provisional measures.
II.THE INDICATION OF THE PROVISIONAL MEASURES REQUESTED
WOULD CONSTITUTE A PREJUDGMENT OF THE MERITS
17. Mr.President, Members of the Court, the request for the indication of provisional
measures must also be rejected because accedi ng to it would prejudge the merits of the case as
indicated in the Application instituting proceedings which the Registrar was kind enough to remind
us of at the beginning of this morning’s hearing.
18. In its request for the indication of provisional measures, Belgium asks the Court to
indicate that Senegal should take measures in orde r to make a court impose a measure of judicial
supervision (it is what Belgium calls surveillance and control in its request) on Mr. Hissène Habré.
44 19. Under Senegalese law, the implementati on of such a measure by Senegal presupposes
that Mr. Hissène Habré is being prosecuted as the perpetrator of, co-perpetrator of or accomplice in
the crimes of torture and the crimes against humanity attributed to him and that a judicial
investigation against him is being conducted. It also presupposes that he has been charged (or
placed under investigation as they say in France).
20. Belgium thus requests, as a provisional measure, the indication of measures the object of
which is the same as that of the decisions which it requests in the substantive case, that is to say the
indictment of Habré. Consequently we can see that any decision by which the Court indicated
provisional measures of this type would prejudge the proceedings on the merits. On that ground, it
must be dismissed. The Court has always dismissed requests to obtain the indication of provisional
measures having the same object as the claims advanced on the merits. - 37 -
III.T HE INDICATION OF THE PROVISIONAL MEASURES REQUESTED WOULD
BE TANTAMOUNT TO DEPRIVING SENEGAL OF ITS RIGHT
21. Mr.President, Members of the Court, the request for the indication of provisional
measures must also be dismissed because their indication would deprive Senegal of the right to try
Mr. Hissène Habré which it holds under the Convent ion against Torture and would prevent it from
implementing the mandate conferred on it by the African Union.
22. Belgium requests that Senegal applies the aut tradere, aut judicare rule laid down in
Article 7 of the Torture Convention.
23. The implementation of the provisional measures requested by Belgium inevitably
involves the immediate application of the aut tradere, aut judicare rule. It would compromise the
right of Senegal to try Mr.HissèneHabré in accordance with its treaty obligation and in
compliance with the mandate received from the African Union.
24. While it has not been shown in the slightest that the application of the provisional
measures requested would undermine the right which Belgium seeks to preserve, that is to say
extradition, the implementation of those measures w ould, however, destroy Senegal’s right to try
Mr.HissèneHabré, since it implies his immediate prosecution, which Senegal has undertaken to
carry out.
25. Indeed, placing Mr. Hissène Habré under judici al supervision involves, as we have said,
the immediate launch of legal proceedings agains t him. And once he has been prosecuted, the
45 proceedings should not be interrupted, especially for reasons unconnected to the law, and should in
fact be hastened by virtue of the right of Mr. Habré to be tried within a reasonable timescale.
26. At present, as the Co-Agent explained to you before, Senegal is engaged, with its
partners, in the process of gathering funds and the timescale of that process is not entirely within its
control. No trial of this sort can seriously be held without substantia l material and financial
resources. Without them, it will most definitely not be seen through to the end.
27. By requesting the indication of provisiona l measures designed to make the trial begin in
the current circumstances, Belgium is in reality seeking to cause its failure.
28. In these conditions, the only alternative that the requested provisional measures would
leave would be extradition to Belgium to sidestep the stumbling block of a reasonable timescale.
That would mean that Senegal was deprived of the right it holds to try Mr.HissèneHabré under - 38 -
international rules. It would also mean that Senegal would not implement the mandate of the
African Union in violation of its obligations vis-à-vis the Constitutive Act of the pan-African
organization.
29. In addition, the transfer of the trialMr.HissèneHabré to Belgium would also be to
detriment of all of the victims regardless of eir citizenship. As was shown by the Co-Agent,
Senegal is better placed than Belgium to try Mr.Habré, as Belgium would only provide the
opportunity to three or four Belgians of Chadian origin.
30. Under the cover of its substantive claim, Belgium, by way of th e present request for the
indication of provisional measures, asks the Court to order Senegal to extradite Mr. Hissène Habré,
without regard to the right of Senegal to try him itself and without regard to the mandate expressly
conferred on Senegal by the African Union.
31. That would be a real abuse of procedure.
32. In order to avoid it, the request for indication must be dismissed.
33. Mr. President, Members of the Court, I thank you for your patience and I ask you to give
the floor to Mr. Alioune Sall. Thank you.
The PRESIDENT: I thank you for your presentation, Mr.Dianko. I now give the floor to
Mr. Alioune Sall.
46 SALr.L:
THE LACK OF ANY URGENCY WHICH MIGHT JUSTIFY THE INDICATION
OF PROVISIONAL MEASURES REQUESTED BY B ELGIUM
1. Mr. President, Members of the Court, I am very honoured, as a citizen of the Republic of
Senegal, as a lawyer and as a professor of law, to take the floor before the Court, to ensure, along
with others, the defence of my country’s interests in this case brought against it by Belgium.
2. The Agent of the Government of Senegal has assigned me the task of addressing the
question of urgency, which the Court regards as an essential condition which must be fulfilled by
the party seeking provisional measures.
3. I propose to address this question by showing: - 39 -
⎯ first, that the Kingdom of Belgium, in basing itself on an extract from the statement by the
Senegalese Head of State has effected a complete misrepresentation of that statement;
⎯ second, that the process of international negotia tions to obtain the support promised for the
organization of the trial of Mr. Habré is ongoing and should soon see an outcome;
⎯ third, that the conditions in which Mr. Habré is currently subject to surveillance in Dakar make
the probability of him escaping from justice or the Senegalese authorities nonexistent;
⎯ finally, that a comparison of the facts of the present case with your jurisprudence should
prompt you to dismiss the Belgian request.
1. A false pretext for the request for the indication of provisional
measures: the statement by President Wade
4.Mr.President, Members of the Court, on 17February2009 the Kingdom of Belgium
submitted a request to the Court for it to indicate provisional measures in order that the Republic of
Senegal be required to take “all the steps within its power to keep Mr. H. Habré under the control
and surveillance of the judicial authorities of Senegal”.
5. That request was justified, in its own word s, by a statement made by the President of the
Republic of Senegal aired by Ra dioFranceInternationale, according to which, as interpreted by
47
Belgium, Senegal might put an end to Mr. Habré’s stay in Dakar.
6. Mr. President, Members of the Court, may we first be permitted to note the peculiarity of
the position of the applicant State, which, in or der to justify a request for the indication of
provisional measures, argues solely on the basis of comments made by the Head of State broadcast
by Radio France Internationale. At least, that is what transpires from the request.
7. The fact should be emphasized that this statement which Belgium uses to request
provisional measures has been completely taken out of context, and has been attributed a meaning
by the applicant State which it manifestly did not have.
8. On the contrary, the President’s statem ent placed great emphasis on Senegal’s eagerness
to pursue the process under way. It is the phrase in which the Senegalese President recalled the
requirement of holding the trial which has been taken out of its context and put to the Court as a
justification for the indication of provisional measures. That phrase is the following: “I said that if - 40 -
I was not provided with the conditions, in other words funding for the trial, I would hand over the
case” [translation by the Registry].
9. Mr. President, Members of the Court, in ex actly the same interview, the Senegalese Head
of State also stated:
“I authorize those NGOs to come to Senegal so that we can tell them exactly
where we are... I accepted [that the trial be held] because I am against impunity.
We have gone as far as to take the interna tional texts and incorporate them into our
own law in order to be able to try Hissène Habré. [After all the promises of support
that were made], as it was taking a little too much time, I said “[the promised financial
support] will actually have to be available ... It was pushing a bit to speed things
up... As soon as we have the funding, the trial will begin. There is absolutely no
doubt about it.” [Translation by the Registry]
10. Mr. President, Members of the Court, the overall tone of the President’s comments is, of
course, consonant with the prospect of a trial being held. An interpretation to the contrary would in
fact be rather unfair.
2. The international negotiations held to organize the trial of Mr. Habré
11. Might I briefly recall that it was on the basis of this concern of the Senegalese authorities
about holding the trial that negotiations were unde rtaken with the European Union and the African
48 Union, which committed themselves to supporting the Senegalese authorities for the actual holding
of the trial. It was thus that:
⎯ a delegation of the European Union visited Dakar in this context, made a report and, in a letter
dated 15March2008, the delegation of the Eur opean Union “noted with satisfaction the
determination of Senegal to see the process through” [translation by the Registry] . The
European Union congratulated itself moreover “on excellent co-operation with the African
Union which was particularly evident in the participation in this mission of the Special
Representative for the Habré Trial of the Chai rperson of the Commission of the African
Union” [translation by the Registry].
⎯ On 29January2009, Mr.President, Members of the Court, in reply to a letter from the
authorities of the Republic of Senegal, concerned about the lack of the necessary financial
resources, the Chairperson of the Commission of the African Union wrote as follows, he
recalled “the commitment of the African Union to provide assistance to Senegal. It is in this - 41 -
context that I have asked my envoy/special repr esentative to visit Senegal in order to discuss
the issue with the Government of Senegal” [translation by the Registry].
⎯ The Assembly of the Heads of State and Government of the African Union, meeting on
3February 2009, reiterated “its commendation of the Government of the Republic of Senegal
for having taken constitutional, legal and regulatory measures”.
⎯ Finally, from 11 to 13March2009, not even a month ago, the envoy of the special
representative of the Commission of the African Union carried out a mission to Senegal, in the
course of which he met the Senegalese head of State for talks.
12. Mr. President, Members of the Court, having put the President’s statement back into its
context, I would now like to turn to the surveillance which is currently kept on Mr. Habré in Dakar
and which makes the probability of him slipping out of the country practically nonexistent.
3. The surveillance kept on Mr. Habré and his entourage
13. Indeed, Mr. Habré and his family are kept under constant and tight surveillance.
14. The Court must first be aware, and this is an essential detail, that Mr. Habré does not at
present possess a valid travel document (neither a passport or a safe-conduct) enabling him to
travel.
49 15. Moreover, the surveillance of Mr. Habré is carried out by the Military Governor, who is
responsible for the security of the Palais de le République (the presidential palace). The
surveillance mission is also assigned to a groupe d’intervention, an elite unit of the Senegalese
Gendarmerie, specially equipped, and trained and prepared for the protection of the authorities.
16. This close-range security mission also extends to the inner subur bs of Dakar (Ouakam),
where Mr.Habré’s two homes are located, thanks to another brigade of the Senegalese
Gendarmerie.
17. Furthermore, in their concern for the effe ctive application of the security directives, the
officers of the group which I have just mentioned carry out regular patrols in order to clarify
security issues with Mr. Habré.
18. The Court will thus have the leisure to note the singular nature of the case that has been
put before it: the Applicant seeks measures which in reality have already been taken at present. - 42 -
And every time an analogous or similar case has been brought to it, the Court has dismissed the
request for the indication of provisional measures.
4. A comparison of the facts with the jurisprudence of the Court
19. In the case concerning Application of the International Convention on the Elimination of
All Forms of Racial Discrimination (Georgia v. Russian Federation) (Order of 15October2008),
the Court indicated that it only exercised its power to indicate provisi
onal measures if there is
urgency.
20. The party which requests provisional measur es, be it in national la w or in international
law, must provide evidence that the passage of time entails a risk to his person, his right or his
property.
21. The rather succinct nature of Article 41 of the Statute of the Court must not give rise to
any illusions: the provisional measures mentioned therein must manifestly not be declared unless
there is urgency.
22. The jurisprudence of the Court demonstr ates that a request for the indication of
provisional measures has no chance of success unless a serious probability of prejudice to a right
exists.
50 23. That it what is said in the Passage through the Great Belt case, in which the Court
recalled that “provisional measures . . . are therefore only justified if... action prejudicial to the
rights of either party is likely to be taken . . .” (Passage through the Great Belt (Finland v.
Denmark), Provisional Measures, Order of 29 July 1991, I.C.J. Reports 1991, p. 17, para. 23;
emphasis added).
24. In the Pulp Mills case, in the Order of 27 January 2007, it recalled that the indication of
provisional measures is tied to the existence of an urgent necessity to prevent irreparable prejudice
being caused to one of the parties ( Pulp Mills on the River Uruguay (Argentina v. Uruguay),
Request for the Indication of Provisional Measures, Order of 23 January 2007, para. 32).
25. Mr. President, Members of the Court, a process is thus under way which clearly attests to
the good faith of the Senegalese authorities rega rding putting Mr.Habré on trial. Senegal
continues to honour its obligations as a party to the 1984 Convention. - 43 -
26. In your jurisprudence, the demand for the indication of provisional measures must appear
to be an admission of failure or attest to the impossibility of reaching an agreement. While urgency
is the characteristic feature of proceedings on provisional measures, they must necessarily be
appreciated in terms of such deadlock. That m eans that the Court will not intervene or will show
reluctance to do so if the inclinations displayed by at least one of the parties or the possibilities
provided by a process that has yet to be exhausted seem capable of neutralising the risk alleged by
the State requesting provisional measures.
27. The Court has stated this in a number of its decisions which I will not cite. In the
Passage through the Great Belt (Finland v. Denmark) case (Order of 29 July 1991, pp. 12 et seq.).
It also said so in Certain Criminal Proceedings in France (Republic of the Congo v. France)
(Order of 17 June 2003, para. 38). Fi nally, it reiterated this in the Pulp Mills on the River Uruguay
(Argentina v. Uruguay) case (Order of 13 July 2006).
28. Mr. President, Members of the Court, the Court has always wagered upon the good faith
of States when, before it, they have made undertakings or initiated measures to resolve, in fact or in
law, the dispute which has been put before it.
51 29. That was the case in the Aegean Sea Continental Shelf (Greece v. Turkey) case, in which
it ruled out the possibility of indicating provisi onal measures after it had taken note of the
declarations of Turkey’s Minister for Foreign Affairs.
30. Having begun the process which should enab le it to try Mr.Habré and thus fulfil its
international obligations, Senegal does not understand on the basis of what principles the exercise
of its prerogatives related to a moderate conception of its sovereignty should be openly or latently
challenged.
31. Every time that it has been asked to indicate provisional measures, the Court has always
been careful not to cause prejudice to the rights of the parties. It is now clearly faced with a
dilemma, which can probably be stated in simple terms: making a purely “potential” right prevail
or preserving a “real” right, assuming the bad faith of States or taking note of the evidence of good
faith put before it, lending weight to inaccurate cl aims of intent or attributing significance to the
acts of States alone. - 44 -
32. Finally, the Court will observe, Mr. President, Members of the Court, that the Kingdom
of Belgium waited until the process which should lead to the trial was under way before bringing
the case before you and that it refrained throughout the negotiations with the European Union from
expressing any criticism or reservation as to Senegal’s approach. Now that it is committed, legally
if not morally, by the positions of the organization of which it is a member, Belgium suddenly feels
the need “to stand apart” and to break with, so to speak, th e European Union. There was never
any question with the European Union of a deadlock in the negotiations.
33. In view of all of the foregoing, the Repub lic of Senegal is of the opinion that no urgency
exists at present justifying the indication by the Court of the provisional measures requested. In
addition, the request does not meet the other requirements implied by Article 41 as will be shown,
if the Court so wishes, by my colleague shortly.
34. Mr. President, Members of the Court, I thank you for your attention.
The PRESIDENT: I thank you for your presenta tion, Mr.Sall. I now give the floor to
52
Mr. Gaye.
GMAr. E:
B ELGIUM HAS NOT DEMONSTRATED THE EXISTENCE OF THE
IRREPARABLE PREJUDICE WHICH IT ALLEGES
1. Mr.President, Members of the Court, as a Senegalese citizen and legal counsel, I am
honoured by my appointment by the Government of Senegal to defend its interests in this case
brought by Belgium before your distinguished Court.
2. The Agent of Senegal has asked me to deal with the question of whether Belgium
demonstrated irreparable prejudice which, as you k now, is one of the conditions for the success of
its claim.
3. My oral argument follows that of my colleague, ProfessorSall, who dealt with the
urgency at the heart of any procedure for the indication of provisional measures. I propose to
round off that argument, your Court having ruled th at a request for the indication of provisional
measures can only be accepted ⎯ if the event alleged by Belgium occurred ⎯ if it caused
irreparable prejudice to the rights of the Applicant. In other words, I am going to try to establish - 45 -
that the request for the indication of provisional measures by Belgium but solely be concerned with
protecting its rights which form the object of the Application instituting proceedings, provided the
imminent danger demonstrated by the Applicant would cause irreparable prejudice to its interests.
THE POSITION OF THE C OURT
4. Senegal’s position is based on the jurispruden ce of the Court. By way of illustration, let
me quote your dictums in the following cases:
⎯ In the case relating to the Certain Criminal Proceedings in France (Republic of the Congo v.
France), by Order of 17 June 2003 (p. 107, para. 22), you pointed out that: “The power of the
Court to indicate provisional measures under Article41 of the Statute of the Court...
presupposes that irreparable prejudice should not be caused to the rights which are the subject
of dispute”.
53 ⎯ That decision was confirmed by your Order de livered on 15October2008 (para.128) in the
case concerning the Application of the International Convention on the Elimination of all
Forms of Racial Discrimination (Georgia v. Russian Federation).
⎯ Also, in the case concerning Lagrand (Germany v. United States of America) , you stated, in
your Order of 3 March 1999 (para. 23), that: “[ Your] Court will not order interim measures in
the absence of ‘irreparable prejudice . . . to rights which are the subject of dispute’”.
BELGIUM ’S ALLEGATIONS
5. In Senegal’s view, Belgium does not demonstrate in its request for the indication of
provisional measures that irreparable prejudice will result from the Court’s non-acquiescence to the
provisional measures requested. In that request, Belgium claims only that it might suffer
irreparable prejudice “were” Mr. Hissène Habré’s house arrest were to be lifted if Senegal failed to
find the budget necessary to hold his trial, thus, according to Belgium, making it possible for him to
leave Senegal and avoid any prosecution.
6. For Senegal, even supposing it were possible to consider that Belgium could meet its
obligation to prove that there is a real and imnent risk of Mr.Hissène Habré’s being released
(which is far from likely, in view of the information given to you by my predecessor), Belgium - 46 -
does not justify why such a risk would inevitably give rise to irreparable prejudice to one of its
rights under the 1984 Convention.
7. Mr. President, Members of the Court, my statement will fall into two parts. In the first, I
will deal with the absence of evidence of a risk of irreparable prejudice. And, in the second part, I
will explain that Belgium has not identified its alleged right, which would be prejudiced by the
refusal of your Court to grant it the provisional measures it requests.
1. LACK OF EVIDENCE OF A RISK OF IRREPARABLE PREJUDICE
8. On the first point, I would point out that the declaration made by the President of the
Republic of Senegal on 2 February 2009, which, there is no doubt, was produced by Belgium and
on the subject of which the Agent of Senegal has spoken to you, does not reveal the possible
54
occurrence of any irreparable prejudice. In other words, Belgium must, in this case, according to
your jurisprudence, meet the following additional condition: prevent irreparable prejudice and thus
protect the rights of the Parties.
9. The Court itself, in its Order of 3 March 1999 for example, pointed out that: “The Order
for the execution of Mr. Walter Lagrand was given for 3 March 1999; and that such an execution
would cause irreparable harm to the rights claimed by Germany in the particular case” ( Lagrand
(Germany v. United States of America) Order of 3 March 1999 (para. 24)). In that case, your Court
considered the right to life as a right inherent to the human person and that the execution of a
person constituted irreparable harm , which is not the case here, Belgium not having demonstrated
any such irreparable harm.
10. Similarly, you also decided in the case concerning Pulp Mills on the River Uruguay
(Argentina v. Uruguay), that “the Court has not found that at present there is an imminent risk of
irreparable prejudice to the rights of Uruguay in dispute before it” (Order of 23January2007,
para. 50).
Decision of the African Union
11. The question of irreparable prejudice in the provisional measures is in fact to prevent any
change, to the detriment of either of the Parties, in the situation existing between them when the
Court is seised of the dispute, since such change would create irreparable harm. Mr. Hissène Habré - 47 -
has now been in Senegal for 19 years with no po ssibility of fleeing and avoiding any prosecution,
as already pointed out by Professor Sall, the previous speaker.
12. In the light of the decision by the African Union, Senegal has never had and does not
have now any intention to lift the control a nd surveillance measures taken with respect to
Mr.HissèneHabré, hence, at present, no risk of irreparable prejudice exists, which might justify
the request for the indication of provisional measures submitted by Belgium.
55
Article 41 of the Statute of the Court
13. The jurisprudence of your Court lays dow n the requirement, for the exercise of its
powers under Article41 of its Statute, that the applicant should find itself facing a probable or
imminent danger. On the basis of this settled case law, it may be stated without risk of
contradiction that a request for the indication of provisional measures has no chance of succeeding
if the harm it seeks to prevent is remote or hypothetical.
14. You already pointed this out in the case between the Re public of Congo and France
(Certain Criminal Proceedings in France), in your Order of 17 June 2003 (para. 22).
The effectivité of the measures taken by Senegal to prevent Mr. Hissène Habré
from leaving Senegal and evading any prosecution
15. Both in its Application instituting proceed ings and in its request for the indication of
provision measures, Belgium is patently not able to demonstrate that it risks suffering irreparable
prejudice.
16. Since December 1990, the date when Mr.HissèneHabré arrived, Senegal has fully
complied with all its obligations as a State party to the 1984 Convention.
17. Just as you did in the case concerning Pulp Mills on the River Uruguay (Order of 13 July
2006), you will surely here reject the request for the indication of provisional measures, since no
risk of irreparable prejudice likely to jeoparadize an y right of Belgium can be identified today, and
my colleague, Professor Sall, has already discussed the prejudice suffered by Senegal with respect
to Mr. Hissène Habré at length. - 48 -
Conformity of the constitutional and legislative reforms
with the provisions of the Convention
18. Furthermore, to date, all the legislative and constitutional reforms, of both form and
substance, have already been made in order to give full effect to the provisions of the
above-mentioned Convention and thus to create th e ideal conditions for Mr.HissèneHabré’s trial
by the Senegalese courts, on a fair and equitable basis.
56 19. At no time before 2009 did Belgium ever request Senegal to take specific measures to
prevent Mr. Hissène Habré from fleeing with a view to preserving its potential right of extradition.
Mr. President, with your permission, may I ask you to give me at least two or three minutes
more to bring my oral argument to a close as I believe my time is almost up? Thank you.
2.B ELGIUM DOES NOT STATE WHICH PARTICULAR RIGHT WOULD BE LIKELY
TO BE AFFECTED FAILING THE PROVISIONAL MEASURES REQUESTED
20. As the previous speakers have already told you, the mere possibility of possible prejudice
to rights in issue before the Court does not, by it self, suffice to justify recourse to its exceptional
power under Article 41 of the Statute to indicate interim measures of protection.
21. Mr. President, Members of the Court, it would be an easy matter for you to ascertain that
Belgium does not prove the existence of any right appertaining to it, which would be irremediably
affected if the alleged risk were to become a reality.
22. Furthermore, the jurisprudence of your Court requires that the applicant specify the rights
it seeks to protect by means of its request for the application of provisional measures. Take the
case concerning Armed Activities on the Territory of the Congo, in which your Court stated “nor
has the Congo specified which rights protected by that Convention [on Discrimination against
Women] have allegedly been violated by Rw anda and should be the object of provisional
measures” (Armed Activities on the Territory of the C ongo (New Application:2002) (Democratic
Republic of the Congov. Rwanda), Provisional Meas ures, Order of 10July2002, I.C.J. Reports
2002, p. 247, para. 79).
23. Belgium’s act instituting proceedings is based on a set of provisions in the 1984
Convention against Torture, which are nevertheless referred to only in a vague, general way. And
the request for the indication of provisional measures is even less explicit and more confused, - 49 -
Belgium merely stating evasively, as it does, that “this dispute relates to the interpretation and
application of the United Nations Convention against Torture of 10 December 1984”.
57 24. Senegal also considers that none of th e provisions of the 1984 Convention quoted in the
act instituting proceedings ⎯ of which there are four ⎯ may be considered as forming the object
of a threat or imminent risk. Senegal will consider each of these four provisions in turn.
No threat to the 1984 Convention
25. The first provision concerns Article 5 (2), of the Convention, which states that each State
Party shall take such measures as may be necessar y to establish its jurisdiction over the offences
consisting of acts of torture in cases where the alle ged offender is present in any territory under its
jurisdiction and where the State does not extradite him. The necessary amendments have been
made, as previously described by the Agent and other counsel of Senegal. There is thus no threat
which could be based on that Article.
26. The second provision referred to by Belgium relates to Article 7 (1), which provides that,
in cases where a State Party in territory under whose jurisdiction the person alleged to have
committed an act of torture is found, shall in the cases contemplated in Article5, if it does not
extradite him, submit the case to its competent authorities for the purpose of prosecution. But that
is exactly what was done in the past, before the procedure was subsequently invalidated through the
incompatibility of Senegalese criminal law with the exercise of univer sal jurisdiction. The
adjustments which were needed to guarantee jurisdiction to hear such a prosecution have now been
made and the resumption of the case is now only partly dependent on obtaining the necessary
funding. Hence, no threat can be based on that Article.
27. The third provision relied upon by Belgium is based on Article8(2), but adds no
substantive content with respect to the offences punished by the Convention and merely makes the
provisions of the Convention applicable by defa ult in the absence of a specific extradition treaty
between the two States. This provision is referr ed to by Belgium only superficially and, in any
event, no specific violation can be deduced from it. So no threat exists.
28. Lastly, Article9(1), the last provision referred to by Belgium, contemplates a broad
measure of judicial co-operation in any criminal proceedings relating to the offences which are the - 50 -
58 object of the Convention. Senegal and Belgium have already had favourable exchanges on this
subject, concerning, in particular, offers to shar e information, and no specific offence is currently
alleged in this connection. So no threat exists.
29. In the light of the foregoing, Senegal c onsiders that, in the present circumstances, the
indication of provisional measures cannot be acceded to by your Court, the conditions imposed by
the provisions by Articles 41 of the Statute of the Court and 73 to 75 of the Rules of Court have not
been met.
30. Mr. President, Members of the Court, this presentation closes the first round of Senegal’s
oral argument. The Agent has asked me to point out that Senegal’s conclusion is that the request
for the indication of provisional measures by Belgium should be rejected.
31. I thank you for your attention during the presentation of my oral argument and also the
oral arguments of the speakers who preceded me on behalf of Senegal. Thank you.
The PRESIDENT: Thank you for your presentation and your co-operation, Mr. Gaye.
That concludes the first round of oral observati ons of Senegal. At this stage of the oral
proceedings, in other words at the end of the oral observations of Belgium and Senegal, two of my
colleagues would like to put questions to the Parties.
I shall first call Judge Simma, who now has the floor.
Judge SIMMA: Thank you, Mr.President. Ma question est la suivante: lors du premier
tour de plaidoiries, la Belgique a souligné l’ existence d’une obligation de juger ou d’extrader
M.Habré incombant au Sénégal en vertu à la fois du droit international conventionnel et du droit
international coutumier. Dans ses pièces, la Belg ique a été relativement brève en ce qui concerne
la nature et le fondement de son droit de voir le Sénégal satisfaire à l’obligation aut tradere, aut
judicare, notamment sur la base du droit internati onal coutumier. Lors du second tour de
plaidoiries, et sans trop s’étendre sur le fond de l’ affaire, la Belgique pourrait-elle apporter des
précisions supplémentaires quant à la nature de ce droit, en particulier celui qu’elle fonde sur le
droit international coutumier, et quant à la nature du préjudice qu’elle subirait? La Belgique
59 cherche-t-elle, au regard de ce à quoi elle-mêm e pourrait prétendre en vertu du droit international
coutumier, à obtenir du Sénégal qu’il s’acquitte d’une obligation erga omnes ? - 51 -
The PRESIDENT: Thank you, Judge Simma. I now give the floor to Judge Greenwood.
Judge GREENWOOD: Thank you, Mr.President. Ma question est la suivante: compte
tenu de ce qui a été dit cet après-midi par ses éminents agent et conseil, le Sénégal a-t-il, d’abord,
donné solennellement l’assurance à la Cour qu’il ne permettra pas à M. Habré de quitter le Sénégal
alors que l’affaire est pendante devant la Cour ? Ensuite, si tel est le cas, pareille assurance
constitue-t-elle pour la Belgique une garantie suffisante des droits qu’elle fait valoir dans la
présente espèce ?
The PRESIDENT: Thank you, Judge Greenwood. I should like to make a slight correction
to what I said a few moments ago: I said “at this stage of the oral proceedings, in other words at
the end of the oral observations”; I ought to have said “at the end of the first round of oral
observations of Belgium and Senegal”. There will be an opportunity to put further questions at the
end of the oral observations, on Wednesday. The texts of these questions will be communicated to
the Parties in writing this evening and, since time is pressing, they are requested to reply to them
orally during their second round of oral observations, in other words tomorrow and the day after.
The Court will meet tomorrow at 4.30p.m. to hear the second round of oral observations of
Belgium. The sitting is closed.
The Court rose at 6.10 p.m.
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Traduction