Non corrigé Traduction
Uncorrected Translation
CR 2012/4 (traduction)
CR 2012/4 (translation)
15 mars 2012 à 10 heures
15 March 2012 at 10 a.m. - 2 -
8 The PRESIDENT: Please be seated. The sitting is open. The Court meets today to hear the
first round of oral argument of Se negal. Senegal will conclude this first round of oral argument at
the sitting tomorrow, Friday 16 March, from 10 a.m. to 1 p.m.
Before I give the floor to Senegal, I should first like to extend the Court’s deepest sympathy
to the representatives of the Kingdom of Belgium, following the tragic accident which befell a
school coach in Switzerland on 13 March 2012, bereaving a number of Belgian families. I should
be grateful if you would send our sincerest condolen ces to the victims’ families, and to the Belgian
people and Government. The victims also included Dutch schoolchildren; we would like to extend
our sincerest sympathy to their families and to the Dutch people and Government.
I now give the floor to H.E.Mr.CheikhTidianeThiam, Agent of the Republic of Senegal.
You have the floor, Mr. Thiam.
Mr. THIAM: Thank you, Mr. President. Mr. President, Members of the Court, I would like
to pay tribute to the Belgian citizens who have died so tragically, and extend my sincerest
condolences as well as those of the Senegalese delega tion and Government at this sad time. We
also send our deepest condolences and sympathies for the Dutch citizens who lost their lives at the
same time.
SENEGAL ’S POSITION BEFORE THE COURT
1. Mr. President, Members of the Court, I have the honour to appear before you once again,
having previously been invited to address you in connection with the examination of the Kingdom
of Belgium’s Application of 19 February 2009 con cerning what it presented as a dispute regarding
9 “Senegal’s compliance with its obligation to prosecute Mr. H. Habré [former President of Chad] or
to extradite him to Belgium for the purposes of criminal proceedings”, and the request submitted on
the same date for the indication of provisional m easures against Senegal on the basis of Article 41
of the Statute of the Court and Articles 73 to 75 of the Rules of Court.
2. I would like to express my country’s great respect and esteem for this, the United Nations’
highest judicial institution and its Members, and for the irreplaceable contribution it has made to
peace between nations by strengthening relations under the governance of law. - 3 -
3. In deciding to send representatives to the Court for the case with Belgium, in what is a
worrying national political context, it was Senegal’s intention to show its deep respect for the Court
and its high regard for Belgium, as well as its recognition of the importance of the case before you
as regards respect for the law.
4. Senegal is grateful to Belgium for refe rring to the excellent relations between our two
countries, which the present proceedings will do nothing to alter. Today those relations are focused
more than ever on deepening what is already lo ng-standing, varied and mutually beneficial co-
operation.
5. Mr. President, Members of the Court, the regrettable fact that Belgium has brought
proceedings against our country before the Court, albeit for probably no other reason than to bring
to justice a man allegedly responsible for ser ious crimes condemned by the whole of the
international community, has inevitably added to the many obstacles which have already, for
several years now, hindered Senegal’s tireless effort s to fulfil its intern ational obligations and
thereby to contribute in real terms to the avowed fight against impunity.
6. These proceedings, paradoxically brought against a country which honours the law and
respects the human person and which has a deeply held belief ⎯ hardly needing to be shown off in
10 its Constitution ⎯ that human life is sacred, were only ever likely to harm its ongoing efforts to
assume voluntarily and fulfil in practice its inte rnational obligations under the United Nations
Convention against Torture of 10 December 1984 and under any other relevant source in
international law, which it naturally recognizes and accepts. As it described at length in the
previous phase of the proceedings, Senegal has never disputed its duty, in the circumstances of the
present case, to execute the obligations arising fro m the 1984 Convention. As the first country in
the world to ratify the Rome Statute establishing the International Criminal Court, and whose well-
known commitment to human rights has meant that it has proudly been elected and re-elected to the
Human Rights Council, where it enjoys an enviable status and respect because of the role it has
played there, Senegal cannot be tempted to pick and choose which sources of obligations should
guide it in combating serious viol ations of human rights such as those associated with acts of
torture, war crimes, crimes of genocide and cr imes against humanity. Having ratified almost all - 4 -
human rights legislation, Senegal even welcomes the consequences of the position in which it has
voluntarily placed itself in order to help to fight for human rights and against all forms of impunity.
7. Mr. President, Members of the Court, we w ould like to reassure Belgium. Senegal is not
trying to hide from its commitments. What it is trying to do is to adopt an appropriate course
which takes account of the need to make reasona ble use of time, so that it can overcome any
temptation to inaction and work towards fulfilling its obligations.
8. As it recalled at length in the previous phase of the proceedings, concerning the Court’s
response to Belgium’s request for the indication of temporary measures against Senegal, my
country has never disputed its duty, in the ci rcumstances of the presen t case, to execute its
international obligations to “prosecute” or “extradite” which flow mainly from the
1984 Convention.
9. At this point, therefore, Senegal would like to make it clear to the Court, with the greatest
respect, and to remind Belgium once and for all that, far from seeking to dismiss any relevant
source requiring Senegal to prosecute or extradite Mr. Habré in the present circumstances, Senegal
11 has adopted a comprehensive approach based on conventional law and on any other rules or
principles which Belgium may have shown to be bi nding on Senegal. Senegal’s determination to
comply with its international obl igations will be evident from a br ief recapitulation of the facts,
which will show that, despite the apparent complexity of the case, the responsibilities involved are
remarkably simple.
Recapitulation of the facts
10. Mr.Hissène Habré, President of the Republic of Chad from 1982 to 1990, was
overthrown on 1December 1990. After a brief st ay in Cameroon, he requested political asylum
from the Senegalese Government, a request which w as granted. Since then he has made his home
in Dakar, where he lives with his family and some of his close relatives.
11. In January 2000, Suleymane Guengueng and others, claiming to be victims of abuses
committed against them by President Habré’s régime, filed a complaint with civil-party application
with the senior investigating judge at the Dakar Tribunal régional hors classe , alleging the
following offences: - 5 -
⎯ crimes against humanity;
⎯ torture;
⎯ acts of barbarity and discrimination;
⎯ violation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment;
⎯ torture or murder (Articles 288 and 295-1 of the Senegalese Penal Code);
⎯ enforced disappearance (Article7, paragraph2 (i) of the Rome Statute of the International
Criminal Court).
12. On 3 February 2000, the then senior investigating judge indicted Hissène Habré for these
offences before releasing him pending trial, under court supervision.
13. On 18February2000, through his counsel , Hissène Habré filed an application to annul
the proceedings before the Chambre d’accusation of the Dakar Court of Appeal, citing the
provisions of Article27 of the Convention agains t Torture, Article6 of the Constitution of the
12 Republic of Senegal, Article 669 of its Code of Criminal Procedure and Article 4 of its Penal Code,
on grounds of lack of legal justification and expiry of the time-limit for prosecution.
14. On 4July2000, the Chambre d’accusation of the Dakar Court of Appeal annulled the
record of the indictment and the subsequent pro ceedings on the ground that the court seised lacked
jurisdiction.
15. On 20March2001, the Court of Cassation, ruling on an appeal brought by the civil
parties on 7 July 2000, dismissed the appeal ag ainst the judgment handed down on 4 July 2000 by
the Chambre d’accusation, thus confirming that the investigating judge to whom the case had been
referred lacked jurisdiction.
The Court of Cassation gave the following reasons for its ruling:
“Whereas Article5, paragraph2, of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 requires
each State Party to take such measures as may be necessary to establish its jurisdiction
over the offences referred to in Article 4 in cases where the alleged offender is present
in any territory under its jurisdiction and it does not extradite him;
Whereas, therefore, Article79 of the Constitution could not be applied, since
Senegal needs to enact legislation before the Convention can be implemented; - 6 -
Whereas no procedural text provides th e Senegalese courts with universal
jurisdiction to prosecute and try— if found in the territory of the Republic— the
presumed perpetrators (or their accomplices) of acts falling within the provisions of
the Law of 28August 1996 adapting Senegalese legislation to the provisions of
Article4 of the Convention, when those acts have been committed by foreigners
outside the territory of Senegal.”
16. Being no doubt dissatisfied with this ruling, the victims then brought a case before the
Belgian courts based on the same acts. Mr.President, Members of the Court, it is clear that the
Senegalese courts reacted promptly, in accordance w ith the legislation they regarded as relevant,
without seeking or finding any grounds for dela y which might have benefited the alleged
perpetrator of the crimes in question. We shall be coming back to this statement, which we firmly
believe to be true.
17. On 19 September 2005, after years of investigation, a Belgian judge issued a warrant for
the arrest of Hissène Habré, thus enabling the Kingd om of Belgium to request Senegal to extradite
him.
18. On 25 November 2005, the Chambre d’accusation of the Dakar Court of Appeal, ruling
this time on the request for the extradition of Hissèn e Habré made by Belgium, held that it lacked
jurisdiction on the basis that Mr.Habré should be given jurisdictional immunity, which, far from
13
causing him to be exonerated from criminal responsibility, was of a purely procedural nature within
the meaning of the Abdulaye Yerodia Ndombasi judgment of 14 February 2002, which was handed
down by the International Court of Justice in the case between the Kingdom of Belgium and the
Democratic Republic of the Congo; this privile ge was intended to survive the cessation of a
person’s duties as President of the Republic, whatever their nationality.
19. It was in this context, when extradition app eared to be completely out of the question, if
we remember the terms of the judgment of 25 November 2005, that the Republic of Senegal,
wishing to find a solution to the aut dedere aut judicare requirement contained in Article 7 of the
Convention against Torture, one of whose options now seemed impossible and which lay at the
heart of what had become “the Hissène Habré cas e”, referred the matter to the African Union in
order to obtain the help it needed to benefit from the Union’s involvement and from the subsequent
appeal for the international community’s assi stance in making determined progress towards
prosecution as the only option left. On 2July 2006, the African Union followed the - 7 -
recommendations of eminent African jurists that it had appointed in January2006 and asked
Senegal to put Hissène Habré on trial.
Involvement of the African Union
20. This brings me to the involvement of th e African Union. The Union, which considered
itself affected by the issue and that Senegal was right to consult it, became involved at its summit
in Khartoum (Sudan) in January 2006; this summ it was the first time that Senegal had presented a
document calling on the African Union for assist ance. The Union subsequently adopted a
decision1 at the summit in Banjul (Gambia) in July 2006, calling on Senegal to prosecute and
ensure that Hissène Habré was tried by a competent Senegalese court with guarantees for fair trial.
The international community was invited to provide support for this trial.
14 21. What is striking at this stage is that , far from acting as mandator, in the legal and
technical sense of the term, and despite the use of the word “mandate” in its decision, the African
Union urged Senegal to comply with its international commitments, particularly those arising from
its ratification of the Convention against Torture. Its decision, adopted in July 2006 in Banjul, was
thus an entirely political document reaffirming Se negal’s separate, individual commitment. I was
invited to examine the text of the decision befo re it was adopted by the African Union Heads of
State and Government at the summit, and I was able to ensure that the reference to the Convention
against Torture was retained in the text, thus preventing any gap in the legal justification for
Senegal’s obligations and responsibilities in preparing for and holding Mr. Habré’s trial.
22. The African Union is to support the Senegalese Government’s efforts throughout this
process, in which it has already provided signifi cant assistance in assessing the budget for the trial,
raising the necessary funding and organizing, to th at end, a Donors Round Table, and in giving
detailed consideration to the conditions for establishing an ad hoc international tribunal, as
suggested in the decision of 18 November 2010 handed down by the Court of Justice of the
Economic Community of West African States (ECO WAS) in response to Mr.Habré’s complaint
against Senegal. It is still keeping a close eye ⎯ the African Union, that is ⎯ on the action to be
taken in response to the Kingdom of Belgium’s extradition requests to Senegal.
1
Assembly/AU/3 (VII). - 8 -
Involvement of the United Nations Committee against Torture
23. It should also be mentioned that, prior to the involvement of the African Union, the civil
parties that had seised the senior investigating judge at the Dakar Tribunal régional hors classe had
also, on 18 April 2001, filed a complaint with the United Nations Committee against Torture. On
17May2006, pursuant to Article22, paragraph 7, of the Convention against Torture, the
15 Committee issued recommendations to the Governme nt of Senegal. Mr. Oumar Gaye, counsel for
Senegal in this case, will, with your permission, ta lk in greater detail about this important aspect:
the monitoring of Senegal’s application of th e Convention against Torture and the use of
recommendations to help to prevent impunity for any act of torture.
24. The State of Senegal responded to the recommendations of the Committee against
Torture by bringing its legislation into conformity with the relevant rules of international law, in
particular the Convention against Torture, which Senegal had ratified on 21 August 1987.
Legislative and constitutional reforms
25. I would briefly like to underline the major effort that has been made here ⎯ in a
relatively short period, given the pace at whic h States are known to operate in this respect ⎯ by
mentioning the legislative and constitutional reforms which Senegal has worked hard to complete.
As early as November2006, a commission was est ablished to examine the question of adapting
national legislation and to propose the necessary legislative and institutional reforms.
26. It is apparent today that all the legisla tive and constitutional reforms, of both form and
substance, have already been made in order to gi ve full effect to the provisions of the Convention
and to create the ideal conditions for Mr.Habré’s trial by the Senegalese courts and judges, on a
fair and equitable basis.
Legislative reforms
27. Several reforms amending, supplementing or repealing certain provisions of the Penal
Code and the Code of Criminal Procedure have been effected.
28. Law No. 2007-02 of 12 February 2007 introduced a number of articles ⎯ Articles 431-1
to 431-5 ⎯ defining and formally sanctioning the crime of genocide, crimes against humanity, war
crimes and other crimes of in ternational humanitarian law as specified by the 1954 Hague - 9 -
Convention, the 1976 Convention and the 1980 Convention, which were not previously included in
the domestic arsenal of criminal legislation.
29. Article431-6 of the Penal Code provi des that, notwithstanding the provisions of
Article4 of the Code, perpetrators of the offe nces referred to in Articles431-1 to 431-5 may be
16 tried and sentenced for any act or omission, which, at the time and place where it was committed,
was regarded as a criminal offence according to the general principles of law recognized by the
community of nations, whether or not it constituted an infringement of the law in force at that time
and in that place. This marks a considerable advance.
30. Article 669 of the Code of Criminal Procedure was also amended as follows:
“Any foreigner who, outside the territory of the Republic, is accused of being
the perpetrator of or accessory to one of th e crimes referred to in Articles431-1 to
431-5 of the Penal Code . . . or of acts re ferred to in Articles 279-1 to 279-3 and 295
of the Penal Code may be prosecuted a nd tried according to the provisions of
Senegalese laws or laws applicable in Sene gal... or if the Government obtains his
extradition.”
31. A new article, Article 664bis, has been inserted in Title XII of Book Four of the Code of
Criminal Procedure. It reads as follows: “The national courts shall have jurisdiction over all
criminal offences, punishable under Senegalese law, that are committed outside the territory of the
Republic by a national or a foreigner, if the vic tim is of Senegalese nationality at the time the acts
are committed.”
32. As regards torture, the central crime in these proceedings before the International Court
of Justice, no legislative reforms were necessary, as it was already included in Article 295-1 of Law
No. 96-15 of 28 August 1996, which made it a punishable offence.
33. The final phase in this important task of revising the legislative texts was the far-reaching
reform of the composition of the Cour d’assises and the way in which cases were referred to it.
The two-tier court system in force in Senegal ese criminal proceedings, which applied to the
investigation— an obligatory step in criminal proceedings— was criticized for slowing down
proceedings. It is therefore no longer compulsory fo r the investigating judge to order the file to be
submitted to the higher-level Chambre d’accusation.
34. Now, after closing his criminal investigation, the investigating judge orders the file to be
transmitted directly to the Cour d’assises. - 10 -
T3he. Cour d’assises has also undergone reform in that jurors, ordinary men and women
who were involved in dispensing justice at this high level, no longer sit alongside the professional
judges who constitute the court proper.
17 36. Observers had consistently criticized the presence of jurors as members of the Cour
d’assises, since their lack of training could seriously jeopardize the aim of fairness in criminal
proceedings.
37. An appeals system has also been creat ed, whereby appeals can be brought against the
first-instance rulings handed down by this court before another Cour d’assises appointed by order
of the First President of the Supreme Court.
38. As we can see, these measures reflected Sene gal’s desire to incorporate in its domestic
legislation important rules which protect human rights, such as those of the African Charter on
Human and Peoples’ Rights concerning fair and equita ble trials. Next came the greater reform, to
the Constitution as our fundamental charter, the effects of which would have a major impact on the
handling of the worrying case concerning Mr. Habré.
Constitutional reform
39. Article9 of the Constitution of Senegal set forth the principle of strict conformity with
statute with regard to criminal offences. Before the Rome Statute and the legislative reforms which
I have mentioned were ratified, the Senegalese legisl ature, concerned to ensure that the laws were
constitutional, took steps to intr oduce an exception to that principle, in accordance with the legal
régime for serious crimes covered by jus cogens and with the relevant provisions of the
International Covenant on Civil and Political Rights. This is not the sort of reform that happens
every day, not even in countries which support human rights and seek to protect them as much as
possible.
40. The former Article9 of the Constitution has therefore been replaced by the following
provisions, which I will read out with your permission, Mr. President:
“Any infringement of these freedoms and any intentional restriction of the
exercise of a freedom shall be punishable by law.
No one may be convicted other than by virtue of a law which became effective
before the act was committed. - 11 -
However, the provisions of the preceding subparagraph shall not prejudice the
prosecution, trial and punishment of any pers on for any act or omission which, at the
time when it was committed, was defined as criminal under the rules of international
law concerning acts of genocide, crimes against humanity and war crimes.”
18 This therefore covers war crimes, even where they have been committed before the adoption of a
rule sanctioning them.
41. While these legislative reforms constitute a legal basis for the proceedings which Senegal
is now in a position to contemplate in order to execute its mandate from the African Union,
appropriate organs are needed to implement them, such as investigating judges, prosecuting judges,
a pool of registrars, a co-ordinator and a Committee on Follow-up and Communication. This
whole range of organs has been introduced, partly, and indeed mainly, in or der to ensure the best
possible follow-up for the “Hissène Habré” case.
42. Mr. President, Members of the Court, with the completion of these legislative and
constitutional reforms, which were, as I stressed earl ier, entirely voluntary, particularly as regards
the exception to the principle of non-retroactivity introduced into the Constitution, there appeared
to be no further obstacles to progress towards the tr ial of Mr. Habré. The Donors Round Table for
the funding of the trial, held in Dakar on 24 N ovember 2010, generated sufficient funding pledges
to cover the budget of around €8.6million, or some CFA5,176,000,000. However, the decision
handed down a few days earlier, on 18 Novemb er 2010, by the ECOWAS Court of Justice
undermined this progress towards the holding of an early trial, since it ruled out prosecution by the
Senegalese courts.
43. Of course, Senegal’s commitments under the Convention against Torture remain, but
account will now have to be taken of the new fact or introduced by the decision of the ECOWAS
Court of Justice.
44. It should be noted, however, that Belg ium’s persistence in repeatedly requesting
Mr. Habré’s extradition has led to the emergence of a further new and extremely important factor,
which is that the Court of Appeal h as, unexpectedly, abandoned its judgment of
25November2005, which had seemed to rule out altogether the possibility ⎯ now open ⎯ that
any extradition request might be considered whic h complied with the formal requirements laid
19 down by Senegalese law. This fundamental reversal of its decision has allowed the Senegalese
courts considerable breathing space and means that they can now co-operate with other countries - 12 -
when they are called upon to consider any extradition request arising in such circumstances. This
does, at least, re-open the other alternative to tr ial, and means that extradition can be seriously
considered instead of prosecution.
45. Belgium might thus find that Senegal will do as it has asked and that its perseverance has
paid off. Unless, that is, Belgium considers it preferable to insist on punishing Senegal instead of
welcoming Senegal’s granting of a request that appears generally acknowledged.
46. All in all, although there is, as Senegal has maintained throughout, no dispute between
Belgium and Senegal on the application of the Convention against Torture, the difference seems to
be as follows: that although they share the same ai m of achieving prosecution, in which time is an
important factor, Belgium seems less concerned than Senegal about using time in a way which
acknowledges institutional realities as well as complying with legal requirements.
Mr. President, Members of the Court, thank you for your attention during my presentation.
With your permission I would now like to invite Mr.OumarGaye, counsel, to speak about the
State of Senegal’s position of principle in response to the raising of the case by various
international bodies. After Mr. Gaye, but probably tomorrow morning at the sitting devoted to our
round of oral argument, the speakers will be Mr.François Diouf, Co-Agent, who will discuss the
position of the dispute in this case, followed by Mr.IbrahimaBakhoum, who will consider the
question of admissibility, and Mr. Abdoulaye Dianko, also Senegal’s counsel and agent judiciaire
de l’Etat, who will speak about the absence of any inte rnationally wrongful acts attributable to
Senegal. Thank you for your attention.
The PRESIDENT: Thank you, Sir. I understand that Mr. Oumar Gaye will be the last
speaker for Senegal today and that his address will take about one hour or one hour and ten
20 minutes. In order not to interrupt his statement, the Court will take a break now, for 20minutes.
Please be prepared to continue the hearing from 11.20 a.m.
The Court adjourned from 11 to 11.25 a.m.
The PRESIDENT: Please be seated. The hearing is resumed and I immediately give the
floor to Mr. Oumar Gaye, counsel and advocate for Senegal. You have the floor, Sir. - 13 -
GMr. AYE:
THE S TATE OF SENEGAL ’S POSITION OF PRINCIPLE IN RESPONSE TO THE RAISING
OF THE CASE BY VARIOUS INTERNATIONAL BODIES
1. Mr.President, Members of the Court, as a Senegalese citizen and legal counsel, I am
honoured to have been appointed by the Government of Senegal once again to defend its interests
in this case brought by Belgium before your distinguished Court, following the hearings held here
in April 2009.
2. Following on from the exhaustive review of the facts of the case by the Agent of Senegal,
I shall reiterate the position of principle of the State of Senegal in response to the raising of the case
by the Kingdom of Belgium in the context of various international bodies.
3. Mr.President, Members of the Court, as you know, the Kingdom of Belgium has
presented tendentious arguments to your distinguished Court in an effort to demonstrate that the
raising of the case of Mr. Hissène Habré before ce rtain regional, continental or international bodies
reflects a failure by Senegal to comply with theprovisions of Article5, paragraph2, Article6,
paragraph 2, and Article 7, paragraph 1, of the Convention against Torture.
4. It is necessary to reassert the truthbout the approaches made to the United Nations
Committee against Torture, the African Union and the Economic Community of West African
States(ECOWAS), inasmuch as Senegal’s position before these bodies has consistently reflected
its desire and commitment to abide fully by the obligations incumbent on it, that is, those of a State
Party to the 1984Convention, by giving full and unreserved effect to the provisions of that
Convention.
5. It is worth recalling that Senegal, a State based on the rule of law, which respects human
21
rights, is also deeply committed to the fight against impunity and the punishment of the most
serious violations of international law, in the same way as other States that are members of the
international community and share its ideals, since the crimes of international law undermine
values deemed universal which have an impact on human dignity.
6. My statement will deal with the proceedings instituted by Senegal against
Mr.HissèneHabré and I shall provide clarifica tions on the raising of the case before certain
international bodies, but allow me first to point out before your distinguished Court that no doubts - 14 -
whatsoever appear to have been expressed with regard to Sene gal’s good faith in the handling of
“the Habré case”.
I. Proceedings initiated by Senegal against Mr. Hissène Habré
7. For a proper understanding of the decision of 17May2006 by the United Nations
Committee against Torture, it is worth recalling that in January2000, following the filing of a
complaint with civil-party application by Mr .SouleymaneGuengueng and others, the senior
investigating judge at the Dakar Tribunal regional hors classe indicted HissèneHabré, on
3February2000, for complicity in crimes against humanity, acts of torture and barbarity, and
placed him under house arrest.
8. Mr. Hissène Habré then sought to avail him self of the means of redress made available by
Senegalese law to any individual implicated in proceedings before criminal courts, without
distinction of nationality, on the same basis as the civil parties.
9. In this connection, it should be em phasized that Senegal has never hindered the
Senegalese courts in their consideration of the civil-party complaint or the rights of recourse
exercised by Mr. Habré.
10. It was in this context that the C hambre d’accusation of the Court of Appeal, which had
been seised by counsel for Mr. Hi ssène Habré, annulled, by judgment No. 135 of 4 July 2000, the
record of the indictment and the subsequent pro ceedings on the ground that the court seised lacked
jurisdiction.
11. The Court of Cassation, ruling on an a ppeal lodged by the civil parties against the
judgment rendered by the Chambre d’accusation on 4July2000, dismissed the appeal, thus
confirming, by its judgment of 20March2001, that the investigating judge to whom the case had
been referred lacked jurisdiction.
22 12. The Court of Cassation’s ruling was based on the following reason
s:
“Whereas Article5, paragraph2, of the Convention against Torture and other
Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 requires
each State party to take such measures as may be necessary to establish its jurisdiction
over the offences referred to in Article 4 in cases where the alleged offender is present
in any territory under its jurisdiction and it does not extradite him; - 15 -
Whereas, therefore, Article79 of the Constitution of Senegal could not be
applied, since Senegal needs to enact le gislation before the Convention can be
implemented.”
The court added:
“Whereas no procedural text provides the Senegalese courts with universal
jurisdiction to prosecute and try ⎯ if found in the territory of the Republic ⎯ the
presumed perpetrators (or their accomplices) of acts falling with the provisions of the
Law of 28 August 1996 adapting Senegalese legi slation to the provisions of Article 4
of the Convention, when those acts have been committed by foreigners outside the
territory of Senegal.”
The raising of the Hissène Habré case before the United Nations Committee against Torture
13. It was in this specific context that cer tain individuals of Chadian nationality filed a
complaint with the Committee against Torture, the body established under the Convention, adopted
in New York, of 10 December 1984.
14. The Committee, relying on both the above-mentioned judgment of the Court of Cassation
and the judgment handed down on 25 November 2005 by the Chambre d’accusation of the Dakar
Court of Appeal, which later found that it lacked jurisdiction to rule on the first request from
Belgium for the extradition of Mr.HissèneHabré, noted that Senegal had failed to take “such
measures as may be necessary to establish its jurisd iction over such offences in cases where the
alleged offender is present in any territory under its jurisdiction and it does not extradite him”.
Positive assessment by the Committee against To rture of Senegal’s compliance with the
provisions of the Convention against Torture
15. In this connection, it should be emphasized that the Republic of Senegal, which never
contested the findings of the Committee against To rture at the time when they were made, has
provided guarantees of non-repetition of the violation thus noted, by undertaking, since 2009, all
23 the necessary constitutional and legislative reforms, of both form and substance, to give full effect
to the provisions of Article 5, paragraph 2, of the Convention against Torture and thus to meet fully
all the necessary conditions for havi ng Mr. Hissène Habré put on trial by the Senegalese courts, in
the context of fair and equitable proceedings, or to extradite him.
16. For this reason, a delegation from the Co mmittee against Torture visited Senegal from 4
to 7August2009 on a mission to ascertain the state of preparations for Mr.HissèneHabré’s trial
and the arrangements made by the State of Senegal for that purpose. - 16 -
17. After meeting all the senior administrativ e and judicial authorities involved in the Habré
case, the Committee expressed its appreciation for Sene gal’s desire to comply with its obligations
under the Convention against Torture, and in particular the aut dedere, aut judicare obligation,
with which Senegal must comply in the case of Mr. Habré.
18. The Committee stressed, however, that quite obviously Senegal would not be able to
meet the inevitable costs of such a trial on its ow n. Hence the need for the démarches that it had
made to the African Union, the European Union and its other partners, with a view to establishing a
budget and raising the appropriate funds.
GMro.sman ⎯ a member of the confidential mission ⎯ explained to the Senegalese
authorities during this visit
“that the Committee had in fact intended to adopt a decision regarding Senegal but
that, given the widespread belief that it is showing good will in managing the case and
its commitment to fighting impunity, the me mbers of the Committee had opted for an
approach that involved, above all, hearing the views of the State concerned on this
issue, an approach which was in fact quite exceptional, according to Mr. Grossman”.
19. However, the reality of the situation is quite different. The positive assessments by the
Committee against Torture have been deliberately played down by the Kingdom of Belgium, which
does not seem to wish to give them the prominence they deserve before your distinguished Court, a
fact which Senegal obviously deplores.
24 The non-conformity of the extradition request s with the provisions of Law No.71-77 of
28 December 1971 on extradition
20. It was on the basis of Senegal’s adaptation of its legislation to the provisions of the
Convention against Torture that the Kingdom of Belgium, by Notes Verbales of 15 March 2011
and 5 September 2011, submitted the second and third extradition requests, which were both found
inadmissible, on the grounds that they were not a ccompanied by the original or certified copies of
the necessary documents, in accordance with the requirements of the law on extradition.
21. The third extradition request was rejected on 10January 2012 on account of a formal
defect. An extradition request cannot simply be made by a Note Verbale, as the Kingdom of
Belgium rightly noted when it pointed out that:
“the Belgian authorities wish to stress that the documents required by the Senegalese
law relating to extradition, i.e., the arrest warrant for Mr.Habré and the Belgian and - 17 -
international legislation applicable to the offences of which he is accused, were in fact
transmitted to the Senegalese authorities by Belgium.
Those documents were transmitted [according to Belgium]:
⎯ in original form by Note Verbale of 22September 2005, serving as the first
request for extradition;
⎯ as certified and duly authenticated copies, equivalent to office copies, by Note
Verbale of 15 March 2011, serving as the second request for extradition”.
22. Belgium cannot be unaware of the fact that, in procedural matters, when the Chambre
d’accusation renders its decision and it is again sei sed of a fresh extradition request, it cannot
legally search the archives for any particular doc ument in order to fulfil a required formality, as
Belgium seems to suggest in its Note Verbale of 17 January 2012, when it points out, in relation to
another Note Verbale of 22 September 2005, that the original documents are still in the possession
of the Senegalese authorities.
23. The judgment of the Chambre d’accusation of 10January2012 gave Belgium a clear
explanation of the substantive formalities to be fulfilled and enabled it to submit a new request on
17January2012, which Belgium considers to be in conformity with the requirements of the
Senegalese law on extradition. That request was transmitted as it stood to the competent
25 authorities. This is adequate evidence of Senegal’s desire to implement in full its aut dedere, aut
judicare obligation under the provisions of the Convention against Torture.
24. Furthermore, the statement made to the press on 5anuary012 by
President Abdoulaye Wade of Senegal, to which th e Kingdom of Belgium refers in a letter sent to
the Registrar of your Court on 23 January 2012, is an integral part of this process, as the President
of the Republic stated that, if the Chambre d’accusation were to give a favourable opinion, he
would immediately extradite Mr. Hissène Habré to Belgium.
25. It should, however, be recalled, and rightly so, that because of the independence of the
judiciary vis-à-vis the executive, which is enshrined in the Constitution of Senegal, the President of
the Republic cannot interfere in the functioning of th e judiciary. Senegalese judicial officials, and
the courts in general, are subject only to the author ity of the law in the exercise of their judicial
duties. - 18 -
26. The fourth extradition request from the Kingdom of Belgium, transmitted on
17 January 2012, is under consider ation and will undoubtedly be the subject of appropriate action,
thus confirming Senegal’s desire to comply with the provisions of the Convention against Torture.
27. In the opinion of Senegal, this commi tment has been largely implemented, and the
tendentious reference by the Kingdom of Belg ium to the findings made before 2009 by the
Committee against Torture can certainly no longer be of any more than “historical” interest and
cannot legally be relied upon by that country to support any contention of a violation of the
Convention against Torture, since hitherto the judicial action taken on all of its extradition requests
has been dictated by processing requirements.
28. This démarche is legally inappropriate and Senegal respectfully requests the Court to
leave out of consideration in this case tendenti ous elements of the proceedings before the
Committee against Torture.
26 II. The raising of the Hissène Habré case before the African Union
29. Mr. President, Members of the Court, after the raising of this case before the Committee
against Torture, Belgium did not miss the opportunity to go back over the consideration of the
same case by the African Union, more precisel y by the supreme organ of the pan-African
organization, the Assembly of Heads of State and Government, in an attempt to create the
impression that Senegal had not complied with its international obligations under the Convention
against Torture.
30. On this point, Senegal respectfully invit es the Court to note that the involvement of the
African Union was intended simply to bring to the attention of the highest political authorities of
the African continent the requirements of a new wo rld order based on the fight against impunity in
all its forms with regard to the massive viola tions of international la w, and not to exempt
Mr. Hissène Habré from prosecution for alleged offences committed by him or at his instigation.
31. Furthermore, this approach was welcomed with great enthusiasm, relief and hope by the
Assembly of Heads of State and Government. Th e Agent of Senegal has explained at length the
significance to be attached to the decision of the African Union of 2 July 2006 2.
2
Assembly/AU/3/VII. - 19 -
32. The raising of the case of the former Presi dent of Chad by the African Union had no
legal implications, and this Afri can body could not substitute itself for Senegal, which remains the
only party subject to the obligations contained in the Convention against Torture, on its territory, as
a State Party to the Convention, which is bound, in that capacity, inter alia , by the obligation to
“extradite” or “try”.
Decision of the African Union
33. Mr. President, Members of the Court, as I pointed out to you here, in this same hall, on
6 April 2009, at the hearing on the request for the indication of provisional measures, a decision on
the HissèneHabré case was taken at the most recent session of the African Union, held on
4February2009 in AddisAbaba, Ethiopia, by the Assembly of Heads of State of that
27
3
organization .
34. That decision very pertinently recalled that Mr.HissèneHabré was to be tried by a
competent Senegalese court with guarantees for a fair trial, in accordance with the provisions of the
relevant articles of the Convention against Torture.
35. That point was also made forcefully by Professor Alioune Sall, at the same hearing. And
it bears repeating: “[A]t no point has Senegal established any link between the decision of the
4
African Union and the obligations incumbent upon it under the 1984 Convention.” It was
reaffirmed that:
“The backdrop of the trial for which preparations are now being made is indeed
one of co-operation across Africa ⎯ and even beyond. In this connection Senegal
wishes to make clear once and for all, so as to dispel for good all ambiguity and
misunderstanding, that as a State it is bound by the 1984 Convention. The fact that an
organization like the African Union may be involved in organizing the Habré trial in
no way lessens Senegal’s duties and rights as a party to the Convention. Indeed, it is
Decision of the Conference of Heads of State of the African Union taken on 4 Feb. 2009:
“ Recalls its Decision Assembly/AU/Dec.127(VII) taken in Banjul, the Gambia, in July2006
mandating the Republic of Senegal ‘to prosecute and esure that HissèneHabré is tried, on behalf of
Africa, by a competent Senegalese court with guarantees for fair trial’;
Reiterates its commendation of the Government of the Republic of Senegal for having taken
constitutional, legal and regulatory measures to carry out the mandate;
Takes note that despite the establishment of the budget for the case by the European Union, which
offered to be partner, together with the Government of the Republic of Senegal, the resources needed for
the prosecution are not yet available.”
CR 2009/11, p. 13, para. 10 (Diouf). - 20 -
as a party to the Convention, not pursuant to a mandate from the African Union, that
the Republic of Senegal is fulfilling its obligations.”5
36. The idea that, in agreeing that the African Union should discuss the “Habré case”,
Senegal was seeking to evade its obligation to puni sh the acts specified in the Convention against
Torture is doubly disputable.
37. First, the act of establishing a continent- wide discussion of the subject is, if anything,
indicative of a bias towards punitive act ion, a predisposition to prosecute ⎯ and not to tolerate ⎯
the acts specified in the Convention against Torture.
28 38. Secondly, from a more strictly legal point of view, Senegal has never repudiated its duty.
On the contrary, it has acknowledged its obligati on to deal with the complaints lodged against
Mr. Habré, beginning with his indictment in early January 2000.
39. In other words, the “involvement” or “intervention” of the African Union has no
fundamental impact on the terms of the debate befo re the Court. At issue before the Court is a
difference between two States as to how the execution of an obligation arising from an
international instrument to which both States are pa rties should be understood. That is the reality
of the contentious proceedings that have been brought before the Court. Senegal therefore believes
that anything that falls outside the scope of this clear and simple presentation of the facts should be
set aside from the debate on the ground that it is irrelevant.
40. The State of Senegal has consistently declared its intention to respect its commitments as
a State Party. In fact, it wishes to organize a trial to deal with the acts of which the former Head of
State of Chad, who is now present in its territory, stands accused. However, it does not intend to
act under pressure, even though such pressure is understandable, particularly when it is being
exerted by alleged victims. A trial on this scale and of this complexity deserves to be conducted
calmly and in compliance with international standards of due process.
41. In Senegal’s view, what is at stake here is the very credibility of its judicial institutions
and even of the judicial institutions of Africa as a whole, which are being confronted with such a
situation for the first time.
5
CR 2009/11, p. 18, para. 11 (Sall). - 21 -
42. Indeed, given the number of victims and civil parties to the case, even though Senegal
again thanks the Kingdom of Belgium for its offer of co-operation, the Senegalese courts are
entitled to treat the civil parties, the victims a nd the witnesses on an equal basis, while respecting
the rights of Mr. Hissène Habré and his possible accomplices. Su ch a trial deserves to be prepared
carefully, and the Kingdom of Belgium should abstain from the pressure it is exerting on the range
of judicial bodies seised with contentious cases.
43. Moreover, the Committee against Torture, in the context of its mission to Senegal from
4 to 7 August 2009 to assess preparations for the trial of Mr. Hissène Habré and the arrangements
made by the State of Senegal for that purpose, af ter warmly welcoming Senegal’s desire to comply
with its obligations under the Convention ag ainst Torture, and in particular the aut dedere, aut
29 judicare obligation, with which Senegal must comply in the case of Mr. Hissène Habré, expressed
the view that “Senegal would not be able to meet the inevitable costs of such a trial on its own”.
This explains the need for the démarches it had made to the African Union, the European Union
and its other partners, and the ne gotiations it had held with them, with a view to establishing a
budget and raising the appropriate funds.
44. In this connection, it is appropriate to recall the words used by the Co-Agent of Senegal
in his statement to the Court during the hearings on the request for the indication of provisional
measures:
“The fight against impunity must not overshadow 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.
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 ensure uninterrupted
proceedings all the way to the end in accordance with our domestic law is what is
needed.” 6
45. How can the Kingdom of Belgium reas onably accuse Senegal of basing itself on
recommendations, suggestions, opinions and decisions by the Committee against Torture in order
to fulfil its obligations under the Convention against Torture?
6
CR 2009/9, p. 30, paras. 53 and 54 (Kandji). - 22 -
46. Mr. President, Members of the Court, Sene gal asks you to note that, despite the pledges
made, in particular by Chad and other countries, no contribution has to this day actually been made
and Senegal stood alone in its own defence befo re the African Court on Human and Peoples’
Rights in its case with Mr. Yogogombaye, who sought to obtain from that court “suspension of the
ongoing proceedings instituted by the Republic and State of Senegal with the objective to charge,
try and sentence” Mr.Habré. The court dism issed that application in its decision of
15 December 2009.
47. Similarly, Senegal took steps to defend itself with no support from the States of the
African Union in proceedings before the Court of Justice of ECOWAS, after the latter was seised
by Mr. Hissène Habré. I shall return to that decision in due course.
30 48. In any event, Belgium provides no evidence that the Senegalese courts, in their various
decisions, referred to the mandate of the African Union. Senegal intends to fulfil its aut dedere, aut
judicare obligations under the Convention against Torture, and the Chambre d’accusation seised
with the latest request for extradition from Belgiu m will consider the merits of the request on the
basis of the Convention against Torture.
49. In the light of these considerations, Senegal respectfully requests the Court to set aside
from the debate the arguments made by the Kingdom of Belgium on the raising of this case before
the African Union, which could not legally reflect a failure to comply with the provisions of the
Convention against Torture.
The raising of the case before the ECOWAS Court of Justice
50. Belgium filed its Memorial before the EC OWAS Court of Justice delivered its ruling by
a judgment of 18 November 2010.
51. It is appropriate to recall that it was Mr. Hissène Habré himself who took the initiative in
bringing the State of Senegal before the ECOWAS Court, following the adoption of the necessary
legislative measures enabling Senegal to fulfil its obligations as a State Party to the
1984 Convention.
52. Mr.Habré then seised the ECOWAS Court, which delivered a judgment on
18 November 2010, the operative part of which reads as follows: - 23 -
“⎯ finds that evidence exists to demonstrate that Mr.HisseinHabré’s... rights are
likely to be violated as a result of the constitutional and statutory reforms
undertaken by the State of Senegal;
⎯ finds that in this regard, the State of Senegal must respect the rulings handed down
by its national courts and, in particular, abide by the principle of res judicata;
⎯ consequently, the Court orders Senegal to comply with the absolute principle of
non-retroactivity;
⎯ finds that the mandate which Senegal received from the African Union was in fact
a remit to devise and propose all the necessary arrangements for the prosecution
and trial to take place, within the strict framework of special ad hoc international
proceedings as practised in international law by all civilized nations;
⎯ dismisses all of Mr. Hissein Habré’s other claims as inoperative.”
31 That is the purport of the decision taken by the Court of Justice of ECOWAS.
53. Although Senegal took note of that judgment by the ECOWAS Court of Justice, it has to
be stated that the said judgment was not of a nature to change its position before your distinguished
Court, since Senegal remains attached to the prin ciples of international law, according to which a
State which enters into an international commitmen t must accept all of the implications of that
commitment at the national level.
54. In fact, the measures that Senegal has undertaken were definitively adopted and form
part of the ongoing adjustment of its legislati on to conform to the provisions of the Convention
against Torture in order to satisfy the United Nations Committee against Torture.
55. Nevertheless, Senegal considers that th e decision rendered by the ECOWAS Court of
Justice constitutes an event that it cannot ignore, which could well give rise to a conflict between
two obligations with different, i ndeed opposing, objectives: to prosecute if it has not extradited
him, on the one hand, and not to prosecute (in the national courts), on the other hand.
56. It is desirable that Senegal’s obligation to apply the provisions of the Convention against
Torture should not be delayed to any extent by the mechanism suggested by the ECOWAS Court of
Justice which specifies, in its decision of 18N ovember2010, that Senegal must establish “all the
necessary arrangements for the prosecution and trial to take place, within the strict framework of
special ad hoc international proceedings as practised in international law by all civilized nations”.
57. What approach has been taken by your Court, as the principal judicial organ of the
United Nations, with regard to other judgments rendered by international courts? - 24 -
58. This question is particularly important, since the HissèneHabré case dealt with by the
ECOWAS Court of Justice has some links with the present case placed before your Court, which
has its own jurisdiction.
59. One need only consider the position taken by the International Court of Justice and the
ECOWAS Court of Justice with regard to legal ru les or situations governed by a sub-category of
international law with its own specific seconda ry rules, including its own method of dispute
settlement.
32 60. This hypothesis is illustrated by the observation that, for some years, the jurisprudence of
the International Court of Justice has included many cases in which the Court has found the
existence of leges specialia in the context of which settlement procedures were under way (cases
where a connection existed), or situations wher e positions had previously been taken on legal
matters of which the Court itself had been seised.
61. Mention may be made of a judgment rendere d in 1992, which falls under this category.
In the case concerning the Land, Island and Maritime Frontier Dispute between ElSalvador and
Honduras, the Chamber of the Court was confront ed with a judgment of the Central American
Court of Justice rendered many years earlier in 1917; that regional court, the first of its kind, had
been called upon to adjudicate on a question relating to the status of the waters of the Gulf of
Fonseca, divided between three riparian States ( Land, Island and Maritime Frontier Dispute
(El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992).
62. Moreover, in the LaGrand and Avena cases, which gave rise to judgments in 2001 and
2004, respectively, Germany, followed by Mexi co, had invoked against the United States the
authority of an advisory opinion rendered by the Inter-American Court of Human Rights
concerning Article 36, paragraph 1, of the 1963 Vienna Convention on Consular Relations.
63. In the case concerning Certain Property between Liechtenstein and Germany, which
gave rise to a judgment in 2005, the Court was aware that, in large part, the same facts had been the
subject of a judgment by the European Court of Human Rights on a complaint by Prince Adam of
Liechtenstein.
64. Finally, in the case concerning Application of the Convention on the Prevention and
Punishment of the Crime of Genocide , the Court was confronted with the position taken by the - 25 -
International Criminal Tribunal for the former Yugoslavia concerning that same Tribunal’s prior
legal characterization of the facts which the Court itself had to hear.
65. The possibility that could at best be envisaged is that the Court, persuaded by the
arguments of Senegal regarding the adoption of the judgment of the ECOWAS Court, which had
previously ruled on a question relating to the Habré case, could on its own account adopt the same
solution.
66. This hypothesis appears to be borne out by the Judgment of 11September1992 in the
33
case between ElSalvador and Honduras, in connecti on with the legal status of the waters of the
Gulf of Fonseca, and in the Judgment of 26 February 2007, at least in so far as, in the latter case,
the International Court of Justice accepted the re asoning and even the legal characterization of the
facts it had to deal with in the form in wh ich they had previously been presented by the
International Criminal Tribunal for the former Yugoslavia.
67. This balance sheet does in any case show that, at least up until the recent judgment of the
Court in the “genocide case” between Bosnia and Serbia and Montenegro, albeit only in connection
with a point of general international law, it has never felt the need openly to take a position against
a judgment by another judicial body.
68. On the contrary, the International Court of Justice has either accepted in substance the
conclusions of the Central American Court, or avoided adjudicating on the points of law that had
been the subject of another court’s jurisprudence.
69. In any event, the judgment of the ECOWAS Court does not call into question Senegal’s
desire to implement fully its aut dedere, aut judicare obligations deriving from the Convention
against Torture.
70. The Court will note that, despite the declar ations by the President of the Republic of
Senegal, the Kingdom of Belgium has not provided evidence of the existence of any decision
aimed at expelling Mr.HissèneHabré to another country. No such administrative decision has
been taken, and Senegal remains in compliance with the commitments it undertook here before
your Court.
71. In Senegal’s opinion, the raising of the Hissène Habré case by the Kingdom of Belgium
before the African Union, the Court of Justi ce of ECOWAS, the Committee against Torture and - 26 -
other bodies has nothing to do with facts constituting a violation of its international obligations
under the Convention against Torture.
72. In view of the foregoing, and other arguments which will be made by the Agent, the
Co-Agent and counsel, Senegal respectfully request s the Court to dismiss out of hand these points
raised by Belgium, which lack legal relevance to the debate in these proceedings.
73. Mr.President, my statement is the last in Senegal’s first round of oral argument.
34
Mr.President, Members of the Court, I thank you for your kind attention to my presentation.
Thank you.
The PRESIDENT: Thank you, Mr. Gaye. The Court will meet tomorrow at 10a.m. It
would be greatly appreciated if counsel for Senegal could indicate in the texts of their pleadings the
references they make to citations, in terms of either references to documents placed in the case file
or documents and publications easily accessible to the public. The sitting is closed.
The Court rose at 12.20 p.m.
___________
Traduction