Non corrigé Traduction
Uncorrected Translation
CR 2012/7 (traduction)
CR 2012/7 (translation)
21 mars 2012 à 10 heures
21 March 2012 at 10 a.m. - 2 -
8 The PRESIDENT: Please be seated. The sitting is open. The Court meets today to hear the
second round of oral argument of the Republic of Senegal. I now give the floor to
H.E.Mr.CheikhTidiane Thiam, Agent of the Republic of Senegal. You have the floor,
Mr. Thiam.
Mr. THIAM:
INTRODUCTION AND GENERAL OBSERVATIONS
1. Mr. President, Members of the Court, at the beginning of the second round of oral
argument of Senegal, I have the great honour to speak on behalf of my delegation and the
Government of the Republic of Senegal, and to address some general observations to your
distinguished Court. These hearings are marked by our country’s sincere concern to share, in
complete transparency and in good faith, the f acts and arguments which underlie and inform our
replies to the allegations which have led Belgium to bring us before your Court.
2. In the light of the arguments and explana tions contained in its Counter-Memorial and oral
pleadings, whereby Senegal has declared and demonstrated that, in this case, it has duly fulfilled its
international commitments and that it has not committed any internationally wrongful act, I would
like to ask the Court, on behalf of my country, to find in its favour on the submissions which follow
and which will be presented at the close of the oral argument at the end of this morning.
3. After this introduction, Mr. President, Members of the Court, the following members of
our delegation will take the floor, with your permission:
⎯ Mr. Ibrahima Bakhoum, counsel, who will address cer tain points regarding the question of the
inadmissibility of Belgium’s Application;
⎯ Mr. Oumar Gaye, counsel, who will consider a pa rticular aspect regarding the matter of the
alleged recognition of a dispute and Senega l’s compliance with the provisions of the
Convention against Torture; and then
⎯ Mr. Abdoulaye Dianko will address the Court and deal with certain points relating to the
non-existence of internationally wrongful acts attributable to Senegal. - 3 -
9 4. Following these presentations, I shall again take the floor, firstly in order to respond to the
questions put by judges, and then to present the final submissions of the Government of Senegal. It
will be clear from our submissions that these pro ceedings bring together two countries which very
likely share the same concerns and the same aim, namely to comply and ensure compliance with
international law and to combat impunity, but which do not go about these matters in quite the
same way, thereby showing that our two countri es have not talked enough, and, perhaps, not
negotiated enough.
5. I thank you for your attention and would ask, Mr. President, that you now give the floor to
Mr. Ibrahima Bakhoum.
The PRESIDENT: Thank you, Mr.Thiam. I give the floor to Mr.IbrahimaBakhoum,
counsel of Senegal. You have the floor, Mr. Bakhoum.
Mr. BAKHOUM:
THE INADMISSIBILITY OF BELGIUM ’S APPLICATION
1. Mr. President, Members of the Court, it isa pleasure and an honour to return before the
Court, not to lay before you Se negal’s arguments on admissibility, which were amply covered in
the State of Senegal’s Counter-Memorial and in its first round of oral argument, but rather to
provide some clarifications or replies to certain points, arguments or positions developed by
Belgium on Monday 19 March 2012 during its second round of oral argument; and I shall be brief.
The points I shall raise concern negotiation, arbitration and the absence of a dispute.
On the absence of negotiation
2. In this connection, Mr. Gérard Dive, Co-Agent of Belgium, quoting from my remarks on
the absence of negotiations, said in his pleadng that “[i]nternational negotiation presupposes a
minimum number of contacts and a minimum amount of follow-up and definition of the terms of
10 the discussion; the Kingdom of Belgium has clear ly paid no heed to these minima in the present
case”1.
1
CR 2012/6, p. 11, para. 2 (Dive). - 4 -
3. In a vain attempt to demonstrate the exis tence of negotiations prior to the seisin of the
Court, he continued to quote me, rather speciously moreover, and deliberately and completely
distorting the letter and spirit of my remarks.
4. Indeed, on page13, paragraph9, of the ve rbatim record of 19 March 2012, he states:
“ ⎯to use again the... words of Mr.Bakhoum ⎯ the existence of ‘a minimum number of
contacts and a minimum amount of follow-up and definition of the terms of the discussion’. There
is more than adequate proof” ⎯ of the existence of prior negotiations, is what is implied.
5. Mr. President, Members of the Court, at this point I must insist on clarifying the spirit and
the letter of my remarks, which, despite being quite clear, were distorted by Mr.Dive in his
pleading.
6. Thus, far from arguing the absence of ne gotiations by asserting the existence of a
minimum number of contacts and a minimum amount of follow-up and definition of the terms of
the discussion, I actually argued quite the opposite. Indeed, I repeat my argument, before your
distinguished Court, that international nego tiation presupposes a minimum number of contacts, a
minimum amount of follow-up and definition of the terms of the discussion, which Belgium has
never undertaken. At best, in its attempt to establish the existence of negotiations, it mentions three
requests for information to which Senegal duly gave a prompt response.
7. The Kingdom of Belgium has not produced, nor can it produce, any relevant proof or
evidence to establish the existence or endorsemen t of negotiations as required under Article 30 of
the Convention against Torture as a condition for the admissibility of its action.
8. Members of the Court, has the Kingdom of Belgium produced in evidence a clear and
official proposal for formal negotiations that was sent to Senegal? Has it included in the case file a
clear and unequivocal official document confirming the response that Senegal sought to give to
such an offer of negotiation? Members of th e Court, has the Kingdom of Belgium produced a
11 document defining the terms of reference for any su ch negotiations? Finally, has it included in the
case file one or more Notes from the Parties attesting to the end of negotiations?
9. Unfortunately, Mr. President, Members of the Court, you will find that the answer to all
these questions is no. - 5 -
10. How, then, can it reasonably be argued that negotiations actually took place prior to the
seisin of the Court, in compliance with Article30 of the Convention against Torture? For the
answer to that, I shall humbly defer to your considered judgment.
On arbitration
11. In this connection, Mr. President, Members of the Court, I humbly request permission to
quote from a Note Verbale dated 20 June 2006 from the Kingdom of Belgium ⎯ of which there is
2
in fact no trace in Senegal’s archives ⎯ whereby Belgium claims to have made an offer of
recourse to arbitration to which Senegal did not reply within the prescribed six months.
12.
“It should be remembered that, in its Verbal Note handed over on 4 May to the
Ambassador of Senegal in Brussels, Belgium emphasized that an unresolved dispute
regarding this interpretation would lead to recourse to the arbitration procedure
provided for in Article30 of the Torture Convention, and... mentioned the
possibility of Belgium having recourse to this procedure, while reiterating its differing
interpretation of the relevant provisions of said convention . . . Belgium cannot fail to
point out that the attempted negotiation with Senegal . . . has not succeeded.”
13. These words invite three observations.
⎯ Firstly: Belgium refers to the failure of nego tiations which never took place, as pointed out in
my previous argument.
⎯ Secondly: Belgium reports the existence of a dis pute, which is not a dispute in this case, and I
shall come back to this point.
12 ⎯ Thirdly: Belgium refers to possible recourse to the arbitration procedure.
14. In connection with the third point on arb itration, Mr. President, Members of the Court, I
would invite you to observe, with the Parties, that Belgium speaks of a possibility, in other words
an event whose likelihood is characterized by uncertainty.
15. And you will observe that, in this case, the possibility of recourse to the arbitration
procedure was not taken up by Belgium, since up until the time these proceedings began, Belgium
had at no point submitted to Senegal an official , formal, clear and reasoned proposal to go to
arbitration.
2
Questions relating to the Obligatito Prosecute or Extradite (Belgium v. Senegal), Provisional Measures,
Order of 28 May 2009, I.C.J. Reports 2009, p. 148, para. 45. - 6 -
16. Moreover, this is precisely what explains and justifies the fact that Senegal gave no
response ⎯ a fact which Belgium first points out and then deplores. However, it is clear that since
no proposal to make use of the arbitration procedure was received from Belgium, there could be no
response from Senegal in that connection.
17. Furthermore, if there is a place to speak of “good faith”, “su rprises”, “surreptitious
manner” and “dissembling”, it is here, since in re spect of both prior negotiations and recourse to
arbitration, Belgium has never demonstrated a clearly expressed intention ⎯ and if it had wanted to
express its intention clearly, it would have done so through official, clear and reasoned
correspondence, unequivocally stating the purpose thereof.
18. Instead, it merely refers to correspondence which did not concern formal compliance
with the preconditions of negotiation and arbitration set out in the relevant provisions of Article 30
of the Convention against Torture.
19. In order to demonstrate compliance with these prerequisites of Article30 of the
Convention against Torture, Belgium instead merely refers to letters con cerning other matters, in
which these words or prior procedures are mentioned in passing and in a superfluous way. This is
not calculated to achieve success.
13 20. Thirdly and finally, Belgium speaks of “an unresolved dispute regarding this
interpretation [which] would lead to recourse to the arbitration procedure provided for in Article 30
3
of the Torture Convention” .
21. This third point will be dealt with in rela tion to the absence of a dispute, about which,
with your permission, I shall say a few words, a few brief words. However, may it please the Court
to note that, in French, Belgium speaks of a “controverse” and not a “différend”.
On the absence of a dispute
22. In this regard, as I stated earlier, in d ealing with the so-called “HissèneHabré case”, at
no time did Senegal discern a dispute with the Kingdom of Belgium within the meaning of
Article 30 of the Convention against Torture, and nor was any dispute discernible to Senegal.
3
CR 2012/6, p. 15, para. 13 (Dive). - 7 -
23. At the very most, my country has noted throughout with interest Belgium’s welcome
contribution to Senegal’s efforts to implement th e relevant provisions of the Convention against
Torture.
24. Moreover, in this connection, it is entir ely appropriate that Belgium should speak in
French of a “controverse” regarding the interpretation of the provisions of the Convention against
Torture, rather than a “différend”, or dispute, with Senegal.
25. Turning now to Mr.EricDavid, in his plead ing he asserted that “the dispute relates...
not to the applicability of the Convention against Torture and ge neral international law, but . . . to
the application of those rules” 4.
26. It should be noted in this respect that in actual fact there is no dispute, since the
application of the Convention against Torture by Senegal relates to its implementation, and the
implementation of the said Convention, far fro m being a static process, is a dynamic one
manifested by a series of actions undertaken by Senegal.
It is on record, in this regard, that Senegal has achieved a great deal and still continues to
undertake concrete and appropriate action: in par ticular, firstly, through consultations with the
14 African Union, which have reached a very advanced stage, aimed at establishing an ad hoc
international court pursuant to the decisi on of the ECOWAS Court of Justice of
18 November 2010; and, secondly, by implementi ng the provisions of the Convention, through its
judicial response to the various extradition request s made by Belgium, the most recent of which
will be dealt with promptly and appropriately.
Regarding judicial co-operation, the Agent will return to this in his remarks.
27. Mr. President, Members of the Court, I therefore beg you, on the strength of these
observations on admissibility, to adjudge and declar e that the proceedings initiated by Belgium are
in clear breach of the provisions of Article 30 of the 1984 Convention against Torture, and,
accordingly, to declare the said action inadmissible.
28. In conclusion, I would point out that my arguments regarding the provisions on
admissibility in Article30 of the Convention agai nst Torture stem from the need to inform the
4
CR 2012/6, p. 27, para. 5 (David). - 8 -
discussion on this point and not from an unwillingness to discuss the merits of the case, something
which, in view of the arguments contained in its Counter-Memorial and its various pleadings,
Senegal would be in a very comfortable position to do.
Mr. President, Members of the Court, I thank you most sincerely for your kind attention and
ask you to invite my colleague Abdoulaye Dianko to take the floor after me.
Thank you for your attention.
The PRESIDENT: Thank you, Mr. Bakhoum. I have one question however: is Mr. Dianko
going to speak, or Mr.Gaye? It is for the Agent to decide. I understand that it is Mr.Gaye who
has some points to make regarding the existence or otherwise of a dispute. I see that it is Mr. Gaye
who will speak. You have the floor, Mr. Gaye.
15 Mr. GAYE: Thank you, Mr. President.
ALLEGED RECOGNITION OF THE EXISTENCE OF A DISPUTE AND S ENEGAL S COMPLIANCE
WITH THE PROVISIONS OF THE CONVENTION AGAINST TORTURE
1. Mr.President, Members of the Court, I am addressing you once again to clarify certain
aspects of the arguments presented by Belgium, which persists in maintaining that a dispute exists
and claims, without any good reason, that Senega l has not fulfilled its obligations under the
1984Convention. My presentation will focus on two points: first, the alleged recognition of the
existence of a dispute, and second, Senegal’s co mpliance with the provisions of the Convention
against Torture.
Alleged recognition of the existence of a dispute
2. In his statement on Monday 19 March 2012, Mr. Gérard Dive, the Co-Agent of Belgium,
attempted to prove, on the basis of extracts from my pleadings before the Court, that there is indeed
a dispute between our two States. I shall quote what he said:
“Mr. Oumar Gaye, in his statement of last Thursday, explicitly acknowledged
the existence of such a dispute when speak ing of the African Union’s intervention in
the case before us, in connection with th e interpretation and application of the
Convention against Torture. Thus, he stated:
‘At issue before the Court is a difference between two States as to
how the execution of an obligation arising from an international - 9 -
instrument to which both States are parties should be understood. That is
the reality of the contentious proceedi ngs that have been brought before
the Court.’” 5
Mr. Dive went on to argue that Senegal recognized the existence of a dispute when he quoted
the following words: “Senegal finds it diffi cult to understand Belgium’s insistence on an
interpretation which has never been that of the State liable to perform the obligation in question ⎯
which is, precisely, to ‘try’” 6.
3. On the basis of those words, Belgium, which is finding it difficult to provide objective
evidence establishing that a dispute exists, seeks the Court’s support in “tak[ing] note of this
observation, made by Senegal, of the existence of a dispute between our two countries”.
16 4. My colleague Ibrahima Bakhoum has talked in considerable detail about what constitutes
a dispute that should be brought before the Court, so there is no need for me to add anything on the
subject. Belgium cannot seize on the mere fact that I have mentioned the word “dispute” here in
Court to claim that one exists, when it is having so many problems in defining it convincingly.
However, the statements he quoted have been take n out of context, and I should like to make our
actual position on this point absolutely clear.
5. I had in fact already replied to Belgium, which, in its Memorial, took the view that, in
referring the Hissène Habré case to the African Uni on, Senegal had not fulf illed its obligation to
7
punish the acts specified in the Convention against Torture . My reply continued in verbatim
record 2012/4, paragraph 33 et seq., page 26.
6. On this point, Senegal’s Agent and Professor Alioune Sall had explained in great detail the
meaning to be ascribed to the Afri can Union’s decision of 2 July 2006 8; they emphasized that the
African Union’s raising of the case of the former Chadian President had no legal implications, and
that the Union could not take the place of Senega l, which remained the only party responsible for
fulfilling the obligations set out in the Convention against Torture as a State Party to the
Convention and, on that same basis, the onl y one bound by the obligation to “extradite” or
“prosecute”.
5CR 2012/6, p. 16, para. 17 (Dive).
6
CR 2012/6, p. 17, para. 18 (Dive).
7
CR 2012/4, p. 26, para. 33 et seq.
8Doc. Assembly/AU/3 (VII). - 10 -
At no point has Senegal established any link between the decision of the African Union and
9
the obligations incumbent upon it under the 1984 Convention .
Senegal’s compliance with the provisions of Articles 5, paragraph 2, Article 6, paragraph 1,
and Article 7, paragraph 1, of the Convention against Torture
7. It should be remembered that Senegal h as established its jurisdiction in accordance with
the provisions of Article 5, paragraph 3, of the Convention, which states: “This Convention does
not exclude any criminal jurisdiction exercised in accordance with internal law.” It was also on
that basis that Mr.Habré was indicted by the senior investigating judge in 2000, acting upon the
17 complaint with civil-party application filed in January 2000 by Souleymane Guengueng and others.
8. Furthermore, the criminal procedure rules in Senegal comply with the provisions of
Article 7, paragraph 3, of the Convention against Torture, concerni ng “guaranteed fair treatment at
all stages of the proceedings”. Those rules enab led Mr.Habré to put his case to the Senegalese
courts and the ECOWAS Court of Justice, enabled the civil parties to file appeals, and enabled
Belgium to make its extradition requests, all without hindrance.
9. If Senegal had intended, as Belgium claims, to shirk its obligations, it would certainly not
have taken the trouble to amend its Constitution and bring its legislation into line with the
provisions of the Convention against Torture, nor would it have followed the correct procedure in
receiving Belgium’s extradition requests, all of wh ich have been considered by the courts in
accordance with Senegalese law.
10. Mr.President, Members of the Court, at the Donors Round Table held in Dakar on
24 May 2010 to raise funds for Mr. Habré’s trial, the European Union representative
“paid tribute to Senegal and the AU for their firm commitment to moving the process
forward without delay, and to Belgium, wh ich had agreed not to bring Hissène Habré
to trial. The EU would continue to give its strong support to the process, which
entailed greater African responsibility for ev ents which had taken place in Africa.”
(Item 5 in the judges’ folder.)
11. Likewise at the Round Table, Belgium a nnounced its intention to contribute one million
euros towards funding for the trial. How can Belgium, which abandoned the idea of trying
9
CR 2009/11, p. 13, para. 10 (Diouf). - 11 -
Mr.Habré in 2010, claim that there is any disput e before the Court under the Convention against
Torture?
12. Furthermore, the participants in the Round Table
“pointed to the need for an immediate st art to the proceedings stage as soon as the
financial resources necessary for it to be gin had been mobilized. The donors also
undertook to mobilize the necessary funds in such a way as to avoid any interruption
in the conduct of the trial, in accordance with the agreed budget schedule.”
13. Belgium, which took part in the Round Table, did not express any reservations and
signed the Final Document approving the proceedings.
18 14. In the light of the arguments I have ju st presented and the submissions of the speakers
before me, Senegal asks the Court to find that the dispute alleged by Belgium is merely theoretical
and has never actually existed between our two countries.
Keeping Hissène Habré in Senegal is in accordance with Article 6, paragraph 1,
of the Convention against Torture
15. Mr. Dive argued that I said the following:
“The Court will note that, despite the declarations 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. Hissène Habré to another country.
No such administrative deci sion has been taken, and Senegal remains in compliance
with the commitments it undertook here before your Court.” 10
16. However, Article 6, paragraph 1, of the Convention against Torture requires Senegal, in
whose territory Mr. Habré is present, he being alleged to have committed offences referred to in the
Convention, to take the necessary measures to ensure his presence.
17. Mr.President, Members of the Court, you w ill note that Mr.Habré is still in Senegal,
thus confirming our country’s fulfilment of the commitment it gave here to the Court at the hearing
on Belgium’s request for the indication of provisional measures 11.
18. In that respect, Senegal is scrupulously complying with the provisions of Article3,
paragraph 1, of the Convention, a fact which Belgium does not dispute, since it maintains that it has
12
“never claimed that a formal expulsion document was drafted on that occasion” .
10
CR 2012/6, p. 17, para. 19 (Dive).
11
Questions relating to the Obligation to Prosecute or Ex tradite (Belgium v. Senegal), Provisional Measures,
Order of 28 May 2009, I.C.J. Reports 2009, p. 154.
12CR 2012/6, p. 17, para. 20 (Dive). - 12 -
19. Members of the Court, we shall leave you to assess the statements to which Belgium has
referred and which have no legal status, since the proceedings before the Court are objective, based
on documents.
20. Mr. Dive wonders why, if Senegal decided to prosecute Mr. Habré, it should not do so on
the basis of the complaints filed in Belgium, consulting the Belgian judicial record and taking
19 account of the investigations conducted in Belgium and Chad. He again quotes my words:
“given the number of victims and civil pa rties 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 and the witnesses on an equal basis, while
respecting the rights of Mr. Hissène Habré and his possible accomplices. Such a trial
deserves to be prepared car efully, and the Kingdom of Belgium should abstain from
the pressure it is exerting on the range of judicial bodies seised with contentious
13
cases.”
21. It should be emphasized that accepting Belgium’s offer of co-operation would not mean
that the courts would agree to conduct the i nvestigations as Belgium wished or would accept
guidelines drawn up by Belgium. The investig ating judge will conduct his investigation in
accordance with Senegalese law and the principle that all individuals are equal before the law,
totally impartially, and without fa vouring any victim because of his country of residence. The
victims in Senegal, Belgium and Chad should all be treated the same.
22. The investigating judge investigates for the prosecution and the def
ence. He gathers
evidence, seeks out the perpetrators and th eir accomplices, and transmits the file on the
investigation to the courts, which then assess the guilt of those charged.
Mr. President, Members of the Court, thank you for your kind attention. I would respectfully
ask you to give the floor to my colleague, Mr. Abdoulaye Dianko, who will continue the defence of
Senegal’s interests. Thank you.
The PRESIDENT: Thank you, Mr.Gaye. I now give the floor to Mr.Abdoulaye Dianko.
You have the floor, Mr. Dianko.
13
CR 2012/6, p. 20, para. 25 (Dive). - 13 -
20 DMIr.NKO:
C ERTAIN POINTS RELATING TO THE NON -EXISTENCE OF INTERNATIONALLY
WRONGFUL ACTS ATTRIBUTABLE TO S ENEGAL
1. Mr. President, Members of the Court, I return before you, at the request of the Agent of
Senegal, to clarify certain points relating to te non-existence of internationally wrongful acts
attributable to Senegal. To that end, I shall consider the following points:
⎯ The meaning of the Agent of Senegal’s statement on extradition.
⎯ The true scope of our interpretation of the African Union decision of 2006.
2. On Friday 16 March, during our oral argum ent, we asserted and amply demonstrated that
Belgium is hard pressed to prove, both in its wr itten pleadings and in the statements made before
your distinguished Court, that any specific action or omission which can be attributed to Senegal
constitutes an internationally wrongful act.
3. That assertion has been eloquently conf irmed by Belgium’s representatives during these
proceedings, in particular by Mr. Gérard Dive, Co-Agent, in his argument last Monday14.
4. In the hope of finding a breach of an international obligation attributable to Senegal, he
took a number of statements out of context, interpreted them as he saw fit and, on the basis of his
very loose interpretation, drew the conclusions that suited his purpose, namely that
“in order to establish the existence of an internationally wrongful act on the part of
Senegal, the Court would then merely have to verify whether Senegal had fulfilled its
obligation to prosecute Mr. Habré under the Convention against Torture and under the
rules of general international law to which Belgium has referred”.
5. We could, of course, have issued the same invitation to the Court, but on condition that the
following clarifications were made and the statemen ts put back into context, so as to dispel any
confusion and ensure that there is no misunderstanding of Senegal’s clear position in this case.
21 6. Mr.Dive begins by selectively citing the Agent of Senegal and notes that in his opening
speech on Thursday 15 March 2012, the Agent stated that “Belgium might... find that Senegal
15
will do as it has asked and that its perseverance has paid off”
14
CR 2012/6, pp. 24-25, paras. 39-42.
15
CR 2012/4, p. 19, para. 45 (Thiam). - 14 -
7. While, according to Mr. Dive, Belgium believed that Senegal intended to comply with its
obligation to prosecute or, failing that, to extradite in the event of a favourable decision by the
Court of Appeal, it was very surprised to hear me say in my remarks last Friday that the African
Union’s decision of July 2006: “signifies that Senegal has to try Mr. Habré, but must do so . . . on
African soil” and that “Senegal will apply that decision while at the same time proceeding to
perform its treaty obligation”16.
8. Belgium thus concludes from this statement that Senegal has apparently decided no longer
to entertain the slightest possibility of extraditing Mr . Habré, contrary to the view expressed by the
Agent of Senegal.
9. Such a deliberately reductionist representation is an unacceptable distortion of what were
nevertheless two clearly worded statements, wh ich may confuse the understanding of Senegal’s
position as set out in all our written and oral pleadings since 2009.
The meaning of the Agent of Senegal’s statement on extradition
10. Let us therefore look again at this statement, parts of which ⎯ I repeat ⎯ were
deliberately left out, and note that the Agent began by saying that Senegal had already embarked on
a process that was to lead to prosecution. I quot e the part of the Agent’s statement that was not
cited in Belgium’s presentation:
“with the completion of these legislative a nd constitutional reforms, which were...
entirely voluntary, particularly as rega rds the exception to the principle of
non-retroactivity introduced into the Cons titution, there appeared to be no further
obstacles to progress towards the trial of Mr. Habré. The Donors Round Table for the
funding of the trial, held in Dakar on 24 November 2010, generated sufficient funding
22 pledges to cover the budget of around €8.6 million, or some CFA5,176,000,000.”
11. This is in fact what the Agent of Senegal said on the subject of extradition:
“It should be noted, however, that Belgium’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 has, unexpectedly,
abandoned its judgment of 25November2005, which had seemed to rule out
altogether the possibility ⎯ now open ⎯ that any extradition request might be
considered which complied with the formal requirements laid 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 when they are called upon to consider any extradition request arising in such
16
CR 2012/6, p. 24, para. 40 (Dive). - 15 -
circumstances. This does, at least, re-open the other alternative to trial, and means that
extradition can be seriously considered instead of prosecution.”
12. Therefore, Senegal’s Agent wanted above all to highlight how the Court of Appeal’s
position had evolved; if it had adhered to its logic of 2005, the scope of Senegal’s treaty-based aut
dedere aut judicare obligation would, in principle, have been reduced. This would have made
compliance with that obligation unlikely in practice, were there to be insurmountable obstacles to
the trial being held in Senegal. That is the onl y point Senegal’s Agent wished to make regarding
extradition.
What then is the true scope of our interpretation of the
African Union decision of 2006?
13. We recalled that the African Union:
⎯ considered that the Hissène Habré case fell within its own competence;
⎯ mandated Senegal to prosecute and ensure that Hissène Habré is tried, on behalf of Africa, by a
competent Senegalese court.
14. We maintain that this decision reflected the desire of the African Union in 2006 to see
Habré tried in Africa and, more precisely, in Senegal. But that never meant that Senegal, in the
context of complying with that decision, was committed to precluding absolutely any possibility of
extradition.
23 15. In any event, in stating that Senegal will apply that decision, we made a point of
specifying that we would do so in strict compliance with our treaty obligation, and we thought that
everyone, in particular our opponents, knew that the treaty obligation also included the obligation
to extradite if no trial were held.
16. Moreover, it should be recalled that the African Union decision of 2006 expressly
mentions the obligations that are binding on Senegal under the 1984 Convention against Torture .
17. I therefore fail to see how we can undertake to comply with such an obligation ⎯ that is
our obligation arising from that Convention ⎯ and at the same time decide irrevocably “that
Hissène Habré will not leave African soil”.
18. We note that Mr. Dive himself acknowledged that in its most recent decision, the African
Union, in view of the material difficulties, no longe r rules out the possibility of the trial being held
outside Africa. - 16 -
19. Furthermore, the African Union had alread y set the tone in the 2006 decision, and in its
subsequent decisions, when it underlined the need to find the financial resources to assist Senegal
in holding the trial.
20. In other words, the African Union had already foreseen the difficulties of holding the
trial in Africa.
Conclusion
21. We agree with Belgium that, in order to establish the existence of an internationally
wrongful act, the Court must indeed verify whether Senegal has complied with its obligation to
prosecute Mr. Habré.
22. Besides correcting Belgium’s representation of Senegal’s position, we consider that the
two statements cited by Mr. Dive, that is both the Agent’s and my own, remain consistent with our
position.
23. The obligation to prosecute should be judged in the light of what has been done.
24 24. Thus we recall that Senegal is seeking to prosecute Mr. Habré, as is attested by the many
steps and initiatives taken towards that end, which have been listed at length in our arguments.
However, there are obstacles in our path that we are trying to overcome.
25. Amongst those obstacles is one that Belgium car es little to mention, and yet it is referred
to in the statement by our Agent which Mr.Dive sought to cite. I once again quote the Agent of
Senegal:
“However, the decision handed down a few days earlier, on 18 November 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.”
“Of course, Senegal’s commitments under the Convention against Torture
remain, but account will now have to be taken of the new factor introduced by the
decision of the ECOWAS Court of Justice.”
26. That judgment, as we recalled in our final remarks on Friday, in so far as it points to the
establishment of a new mechanism that will be more cumbersome, more complicated and even
more expensive for Senegal, which was already struggling to find the resources to organize a trial
at national level, is likely to constitute a major stumbling block to implementing our decision to try
Mr. Habré. - 17 -
27. That is why the change in position of the C ourt of Appeal should be welcomed, in that it
no longer constitutes, in absolute terms, an insurmountable obstacle to Senegal’s compliance with
its obligation to extradite ⎯ in the event, of course, that it finds itself unable to prosecute and that
Belgium’s request for extradition is deemed admissible.
I thank you for your kind attention and would ask you, Mr. President, to give the floor to the
Agent of the Republic of Senegal. Thank you.
The PRESIDENT: Thank you, Mr.Dianko. I give the floor to Mr.Thiam, the Agent of
Senegal. Mr. Thiam, you have the floor.
Mr. THIAM: Thank you, Mr. President. I have been asked to do two things: to answer the
25
questions put by judges, and then to present the final submissions of the Government of Senegal at
the end of the second round of Senegal’s oral argument.
REPLIES TO JUDGES ’QUESTIONS
Mr. President, Members of the Court, thank you for the questions which some of the judges
have put to Senegal. I and my delegation welc ome these as an opportunity to explain and clarify
certain important points in our written and oral argument during these proceedings.
Because of the confines of the situation in which my answers will be given, I shall
unfortunately not be able to go into all the ques tions in exhaustive detail. We would ask those
judges whose questions are not answered directly or in full to bear with the Senegalese delegation,
and we will do our best to provide more satisfactory answers at a later stage.
Questions put to both Parties by Judge Abraham at the end of the hearing on 16 March 2012
1. “Is Belgium entitled to invoke the responsib ility of Senegal for the alleged breach by the
latter of its obligation to submit the H. Habré cas e to its competent authorities for the purpose of
prosecution, unless it extradites him, in respect of the alleged crimes the victims of which did not
have Belgian nationality at the time the facts occurre d? In the case of an affirmative answer, what
is the legal basis conferring such entitlement on Belg ium? In this respect, should one differentiate
between the alleged crimes falling within the scope of the 1984 Convention against Torture and the
others?” - 18 -
Reply
2. In reply, Senegal does not dispute, as such, the idea that Belgium may invoke its
responsibility for an alleged breach of its oblig ation to submit Mr.Habré to its competent
authorities. In doing so, however, Belgium must have an entitlement (or appropriate capacity)
which should be beyond question. In our opinion, the legal basis on which Belgium relies for its
26 title of jurisdiction does not stand up to scrutiny in the context of international practice and case
law. What is presented as a dispute in the present case serves to illustrate the actual situation,
which is that Senegal does not contest the existence of the aut dedere aut judicare rule in
international law, but only the conditions in which Senegal should apply that rule, and Belgium has
challenged those conditions in order to derive a title of jurisdiction.
3. The reiteration of the facts that you have been given by Senegal’s counsel has shown that,
in the present case, Belgium began by invoking universal jurisdiction, and then, following
amendments to its legislation, extraterritorial jurisdiction, on the basis of a factor showing a
connection with Belgium: the nationality of the victims. Belgium also bases its jurisdiction on a
subsidiary title: passive personal jurisdiction. It is therefore requesting the Court to clarify the
meaning of the aut dedere aut judicare obligation, which it would itself like to assume on the basis
of a title of jurisdiction which, even if seconda ry, is unlawful. Let me now consider the
implications of Judge Abraham’s question.
4. First of all, Belgium is trying to persuade the Court somehow to accept that a certain
international responsibility exists, this being the only way, in its desperation, to bring Mr. Habré to
trial ⎯ possibly, as Belgium would have it, before the Belgian courts. In the face of this insistence,
or undue haste as others might call it, Senegal woul d urge the Court to ensure compliance with the
principles of international law that apply here, namely the need for a lawful title of jurisdiction. As
a subsidiary argument, I will look at the time factor ⎯ discussed many times in these
proceedings ⎯ in Belgium’s démarche (the date when th e “Belgian” applicants before the Belgian
courts actually gained Belgian nationality), in or der to examine the failure to comply with the
“continuous nationality” rule in the approach adopted by Belgium.
5. Secondly, Senegal is well aware of the nature and importance of the prohibition on torture
in the international legal order, which should al one have been enough to pe rsuade all States to do - 19 -
more to co-operate with Senegal to bring Mr.Habré to trial. Yet at the same time Belgium has
repeatedly demanded that Senegal extradite him. My delegation would like to reaffirm here that,
under international law, where there is compe ting jurisdiction between two States, personal
jurisdiction must (unless otherwise stipulated) be seen as subsidiary to a territorial title. This
27
primacy of territorial jurisdiction over personal juri sdiction is long established in international case
law, as is clear, in particular, from the arbitral award handed down in the Deserters of Casablanca
17
case .
6. In Senegal’s view, the victims should have had Belgian nationality at the time when the
harmful acts were committed. In international proceedings, individuals have often been required to
provide evidence that they had the “nationality of the applicant State including at the time when the
18
acts giving rise to the injury took place” . The Permanent Court of International Justice, the
predecessor of the International Court of Justi ce, was called upon to examine the question of a
break in the legal connection between an individua l and his State. And it became clear that, in
international proceedings, the unacceptability of any interruption in continuous nationality was well
established under international law 19.
7. The critical date must thus be regarded as the time when the wrongful act was committed
or the time when the Chadian victims suffered harm . Belgium was entitled to rely on an entirely
different title of jurisdiction which both conventi onal and customary international law allow when
it comes to the punishment of torture, but clearly not on the passive personal jurisdiction of the
Chadian victims who have now become Belgian.
Judge Greenwood’s question
8. “With regard to the argument that Senega l is in breach of a customary international law
obligation to prosecute or extradite, please indicate:
(1) which States have provided for their courts to possess jurisdiction over
1See arbitral award in Deserters of Casablanca (France v. Germany), Permanent Court of Arbitration,
22 May 1909, R.I.A.A., Vol. XI, p. 126.
1Orazio de Attelis case, decision of 1842 (American-Mexican arbitr ation system established by the Treaty of
11 April 1839) [Translation by the Registry] ; see also Moore, International Arbitrations, Vol.IV, pp.3333-3334; see
Panevezys-Saldutiskis Railway, Judgment, 1939, P.C.I.J. Series A/B No. 76, p. 3 et seq.
1In the Nottebohm (Liechtenstein v. Guatemala) case, even though the main issue was the validity of
naturalization, the legal problems raised substantiated the id ea that the rule requiring a continuous legal connection had
acquired a certain customary status (Second Phase, Judgment, I.C.J. Reports 1955, p. 4 et seq.). - 20 -
(i) war crimes committed in an armed conflict not of an international character; and
(ii) crimes against humanity;
28 in cases where the alleged offence occurred outsi de their territory and neither the alleged
offender nor the victims were their nationals;
(2) what instances there are of States exercising ju risdiction or granting extradition in such cases;
and
(3) what evidence exists that Stat es consider that international law requires them to prosecute or
extradite in such cases.”
Judge Greenwood adds that his question relates sole ly to customary international law and not to
action taken pursuant to treaty obligations such as those arising under the Convention against
Torture.
Reply
9. This is a very complex and difficult ques tion. I cannot say that our answers will be
exhaustive, but we can say this. Under its La w of 16June1993 concerning the punishment of
serious violations of international humanitarian law, provided for by the Geneva Conventions of
12August 1949 and Additional Protoc ols I and II of 8 June 1977, Belgium has seen a number of
cases come before its courts.
10. The first was a trial that became known as the Butare Four, which involved four
Rwandans (Vincent Ntezimana, a university professor, Alphonse Higaniro, a factory director, and
ConsolataMukangango and JulienneMukabutera, me mbers of a religious community), who were
arrested in Belgian territory and accused of having taken part in Tutsi massacres in the prefecture
of Butare (Rwanda) during the 1994 genocide.
11. The Belgian Public Prosecutor prosecuted them for violations of the Geneva Conventions
and the Belgian Penal Code. Although the alle ged crimes occurred within the context of the
1994 genocide, the Butare Four were not accused of the crime of genocide, since that offence was
not covered by Belgian law at the time when the act s were committed. On 8 June 2001, they were
found guilty by the jury at the Brussels Cour d’assises and sentenced to between 12 and 20 years’
imprisonment. - 21 -
12. This was probably the only trial held on the basis of the Belgian law on universal
jurisdiction before it was amended in 2003.
29 13. A third Rwandan trial was held before the Brussels Cour d’assises in 2007.
BernardNtuyahaga, a former major in the Rwa ndan armed forces (FAR), was prosecuted for the
murders of ten Belgian United Nations peacekeepe rs and the Rwandan Prime Minister, as well as
of an “indeterminate number” of Rwandans on the same occasion. On 5 July 2007, Mr. Ntuyahaga
was sentenced to 20 years’ imprisonment.
14. Unlike the other two Rwandan trials ⎯ if we can call them that ⎯ some of
Mr.Ntuyahaga’s victims were Belgian. Two titles of jurisdiction were used here: universal
jurisdiction and passive personal jurisdiction.
15. On 11 April 2000, still relying on its universal jurisdiction, Belgium issued an
international arrest warrant for the Congolese Fo reign Minister, Yerodia Ndombasi, for crimes
against humanity.
The International Court of Justice, which was subsequently seised by the Democratic
Republic of the Congo, found that Ministers for Foreign Affairs enjoy full immunity and
20
inviolability .
16. Belgium learned lessons from the Judgment handed down by the International Court of
Justice. When complaints were filed against Ariel Sharon, the former Israeli Prime Minister, and
AmosYaron for genocide, crimes against humanity and violation of the Geneva Conventions for
the massacres in the Sabra and Shatila refugee camps in Beirut in 1982, the Belgian courts had to
comply with the requirements of the Internationa l Court of Justice. And we know what happened
next.
17. In 2002, two complaints were lodged ag ainst the Total company for acts which occurred
in Burma. The first was filed in France and resulted in a settlement 21, while the second was filed in
Belgium.
20
Arrest Warrant of 11 April 2000 (D emocratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports
2002, p. 3.
2Article by Pascal Ceaux and Jacques Follorou, Le Monde, 30 November 2005. - 22 -
18. This second complaint came from four Bu rmese refugees who, relying on the law of
universal jurisdiction, accused Total of complicity in crimes against humanity. According to their
account, Total had provided logistical and financia l support for the Burmese military junta, which
30 protected its gas pipeline and was responsible for torture, murder, arbitrary arrests, forced
displacements of populations and forced labour.
19. Shortly after the complaint was filed, the Law of 2003 repealed the Law of 1993, but
made it possible, under Article 29, for the action to continue if at least one of the complainants had
Belgian nationality when the complaint was filed. In fact, in that particular case, the complainants
did not have Belgian nationality, although one of them had political refugee status in Belgium.
20. Any discrimination in access to courts is an infringement of the Belgian Constitution and
violates Article 16 of the 1951 Geneva Convention Relating to the Status of Refugees.
21. When the issue was brought before the Cour t of Cassation, it sought a preliminary ruling
from the Court of Arbitration, which on 13 April 2005 declared that Article 29 of the Law of 2003
was unconstitutional. In a decision of 29 June 2005, the Court of Cassation disregarded that
opinion and, on the basis of Article 29, ruled that the Belgian courts must decline jurisdiction.
22. I could have continued to provide further details on this point, but I will simply add that,
when seised by the complainants, the Court of Arbitration annulled Article29 altogether in a
decision of 21 June 2006.
23. Faced with these contradictory judgments, the Public Prosecutor, under directions from
the Minister of Justice, requested the Court of C assation to revoke its decision. This application
was necessary in so far as the Court of Arbitra tion’s annulment of Article29 did not affect the
courts’ declining of jurisdiction.
24. Only the Court of Cassation may withdraw a decision, by revoking it.
25. On 28 March 2007, the Court dismissed th e application on the grounds that it could not
order the revocation unless it was more favourable to the defendant, in that particular case the Total
company.
26. In April 2007, the Minister of Justice on ce again used his power of injunction and the
Total case was brought before the Chambre des mises en accusation (Indictment Division). Total
claimed that the Court of Cassation’s first decision had the force of res judicata; the applicants - 23 -
refuted this, since the basis on which the decisi on had been made was deemed never to have
existed, because the contested provision of the Law of 2003 had been annulled by the Court of
31
Arbitration.
27. In a decision of 5 March 2008, the Chambre des mises en accusation found in Total’s
favour and dismissed the Minister of Justice’s application, together with the questions which the
complainants had submitted to the Court of Arbitration for a preliminary ruling.
28. On 18 March 2008, the Burmese applicants f iled an appeal before the Court of Cassation
against the decision of 5March2008; the Co urt of Cassation dismissed that appeal on
29 October 2008.
29. To date, following the Court of Arbitration’s judgment of 13 April 2005, no amendment
has been made to the Belgian Constitution, as fa r as we know, to bring Article29 of the Law of
2003 into line with the provisions of the Constitu tion and thus allow equal access to the Belgian
courts.
30. The Convention on the Prevention and Punishment of the Crime of Genocide of
9December1948 urges the Contracting Parties to punish the crime of genocide (Art.1) and
requires them to enact the necessary legislation (Art. 5). Under Article 6, a competent tribunal of
the State in the territory of which the act was committed or an international penal tribunal has
jurisdiction.
31. On page 95 et seq. of its Memorial, Belgium refers to the need to punish crimes against
humanity, war crimes and crimes of genocide, but it certainly did not allow the Burmese to benefit
from the provisions of that Convention, nor has it provided any evidence of prosecution or
extradition, despite Judge Greenwood’s request to do so.
32. In Senegal’s opinion, in the light of th e arguments I have just presented, Belgium’s
arguments do not establish any violation by Senega l of the provisions of the Convention against
Torture.
The PRESIDENT: Mr. Thiam, I should be very grateful if you would provide the Court with
copies of the various decisions of the Belgian cour ts and the judgments of the Court of Arbitration
which you have mentioned in this section of your argument. Thank you. You may continue. - 24 -
32 Mr. THIAM: Thank you, Mr. President.
This gives me the opportunity to reply to the first part of the question from
Judge Cançado Trindade, which reads:
“1. As to the facts which lie at the historical origins of this case, taking into account the
alleged or eventual projected costs of the trial of Mr. Habré in Senegal, what in your view would be
the probatory value of the Report of the National Commission of Inquiry of the Chadian Ministry
of Justice?”
Reply
33. As the Co-Agent, Mr.Dive, noted in his presentation of 19March2012, the arguments
developed in regard to freedom of proof in criminal matters and the unfettered discretion of the trial
judge in assessing evidence, which is discussed inter partes at the public hearing, are also valid in
Senegal.
34. It should merely be pointed out that, with regard to the rules in force in Senegal, the
“Report of the National Commission of Inquiry of the Chadian Ministry of Justice” can only be
used for information purposes and is not binding on the investigating judge who, in the course of
his investigations conducted by means of an inte rnational letter rogatory, may endorse or disregard
it.
35. Nor is this report binding on the trial judge dealing with the merits of the dispute. The
value of the report is therefore entirely relative.
Concerning the second part of the question from Judge Cançado Trindade, which reads:
“2. As to the law:
(a)Pursuant to Article7(1) of the United Na tions Convention against Torture, how is the
obligation to ‘submit the case to its competent au thorities for the purpose of prosecution’ to be
interpreted? In your view, are the steps that Se negal alleges to have taken to date, sufficient to
fulfil the obligation under Article 7 (1) of the United Nations Convention against Torture?
33 (b) According to Article6(2) of the United Nations Convention against Torture, a State Party
wherein a person alleged to have committed an offe nce (pursuant to Article 4) is present, ‘shall
immediately make a preliminary inquiry into the facts’. How is this obligation to be - 25 -
interpreted? In your view, are the steps that Se negal alleges to have taken to date, sufficient to
fulfil its obligation under this provision of the United Nations Convention against Torture?”
Reply
36. It should be recalled that, even before it acceded to the Convention against Torture,
Senegal had endeavoured to punish acts of torture causing serious harm to the dignity of the human
person. It had thus established its jurisdiction in relation to the provisions of Article 5, paragraph 3,
of the Convention, which provides: “This Convention does not exclude any criminal jurisdiction
exercised in accordance with inte rnal law.” It was on this basis that Mr.Hissène Habré was
indicted by the senior investigating judge in 2000 when the co mpetent Senegalese authorities had
been seised with complaints.
37. It was also on the basis of Article7, paragraph3, of the Convention against Torture,
which provides that “Any person regarding whom proceedings are brought in connection with any
of the offences referred to in Article 4 [of the Co nvention] shall be guaranteed fair treatment at all
stages of the proceedings”, that Mr.Hissène Habr é was able to avail himself of the means of
redress made available by Senegalese law to an y individual implicated in proceedings before
criminal courts, without distinction of nationality, on the same basis as the civil parties.
38. It should be noted that, further to the judgment of 20 March 2001, in which the Court of
Cassation upheld the judgment of the Chambre d’accusation of the Court of Appeal ⎯ judgment
No.135 of 4July2000 (contained in the judges’ folder), which had removed the case from the
investigating judge ⎯ and following the mission to Senegal undertaken by the Committee against
Torture from 4 to 7August2009, Senegal adapted it s legislation to the other provisions of the
Convention against Torture (items 3 and 10 in the judges’ folder).
34 39. In criminal proceedings, the investigating judge may be seised either by a complaint with
civil-party application or by an application from the Public Prosecutor to open an investigation.
40. The preliminary inquiry is aimed simply at enabling the basic facts to be established; it
does not necessarily lead to prosecution, since the prosecutor may, in the light of the results,
consider that there are no grounds for further proceedings. - 26 -
41. Moreover, the United Nations Convention against Torture does not contain a “general
obligation to combat impunity” in the sense of a legal obligation [whether in terms of a general
obligation of result or a general obligation of con duct] having the effect of requiring universal
jurisdiction to be established. The hypothesis of an obligation of result is obviously out of the
question, since the fight against impunity is a process having prosecution or extradition as possible
aims under the said Convention. What would be th e purpose of establishing universal jurisdiction,
as provided for in Article5, paragraph2, in the case of a State which already has a legal
entitlement to exercise territorial jurisdiction, whic h, furthermore, is the most obvious principle in
cases of competing jurisdiction, as we saw earlier?
42. In 2009, Senegal establis hed its jurisdiction to deal with offences covered by the
Convention against Torture. This is not disput ed by Belgium. This precondition has been duly
fulfilled by Senegal.
Belgium and Senegal, as Parties to the Conven tion against Torture, appear to differ on the
“time frame within which the obligations provided for in Article7 must be fulfilled or [on the]
circumstances (financial, legal or other difficulties)” ( Questions relating to the Obligation to
Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009 , I.C.J.
Reports 2009 , para.48). And Article 7, paragraph1, of the 1984 Convention against Torture
requires Senegal “in the territory under whose jurisdiction a person alleged to have committed [acts
of torture] is found . . . if it does not extradite hi m, [to] submit the case to its competent authorities
for the purpose of prosecution”. The aut dedere aut judicare obligation remains nonetheless an
obligation either to extradite or, in the alternative, to prosecute, as international law does not appear
to “give priority to either alternative course of action” 2. “The physical presence of the alleged
35 23
offender provides a sufficient basis for the exercise of jurisdiction by the custodial State.”
The obligation to try, on account of which Senegal has been brought before the Court, cannot
24
be conceived as an obligation of result . I could perhaps, very rapidly, give a short definition
contained in the work by Jean Combacau and Serge Sur, which states that:
22Draft Code of Crimes against the Peace and Security of Mankind, with commentaries, Art. 9, p. 31, para. 6.
23
Ibid., Art. 9, p. 32, para. 7.
24Droit international public, ed. Montchrestien, p. 545. - 27 -
“Obligations of means or behaviour are those requiring the person liable thereto
to take such measures as may be expected, within the limits of reasonable likelihood,
to produce a certain result; and obligations of result are those which, subject to
practical possibilities, require him to achieve the result in any event.” 25 [Translation
by the Registry.]
The obligation concerned in this case is more in the way of one of means, where “the requirement
of wrongfulness is fulfilled only if the State to which the source of the obligation is attributable has
not deployed all the means or endeavours that co uld legitimately be expected of it in order to
achieve the results expected by the authors of the rule” [translation by the Registry]. As was
observed by Judge ad hoc Serge Sur:
“The steps taken by Senegal in amen ding its constitution and legislation to
establish its jurisdiction to conduct such a trial are concrete, have been taken without
undue delay and give proof of its [commitment]: it is clear to see what it has done,
and continues to do . . . to hold the trial.”
In fact, it is a matter of established precedent that international law does not impose obligations of
result on member States. Indeed, the Arbitral Tribunal, in the Islamic Republic of Iran v. United
States of America case, held that: “Unless otherwise agr eed by treaty, general international law
permits a state to choose the means by which it implements its international obligations within its
domestic jurisdiction.” This solution has been adopted by the international courts and, in
particular, in the Prosecutor v. Blaskic judgment by the International Criminal Tribunal for the
former Yugoslavia.
It may be noted that the decisions rendered by international courts are mirrored in the
approach taken at the subregional level. Thus, in the Colozza case, the European Court of Human
36 Rights held that the Contracting States enjoy a wide discretion as regards the choice of the means
calculated to ensure that their legal systems are in compliance with conventional requirements,
including the one laid down in Article6, para graph1, of the European Convention on Human
Rights.
43. In the light of the foregoing, the measure s taken by Senegal are largely sufficient and
satisfy the obligations laid down by Article6, pa ragraph2, and Article7, paragraph 1, of the
Convention against Torture. The obligation to extradite or try, as set forth in the United Nations
25
Ibid., p. 546.
2Questions relating to the Obligation to Prosecute or Ex tradite (Belgium v. Senegal), Provisional Measures,
Order to 28 May 2009, I.C.J. Reports 2009; see separate opinion of Judge ad hoc Serge Sur attached to the Order, p. 6. - 28 -
Convention against Torture, which is central to the legal debate, is a way of expressing the
obligation to combat impunity. In the case between Senegal and the Kingdom of Belgium, it
should be pointed out that, once Senegal undertook ma jor reforms to allow the trial to be held,
including constitutional reforms, it may be considered to have satisfied its obligation of means or of
“best efforts”, so as not to give the appearance of a State heedless and not desirous of implementing
its conventional obligations. It may not have d one this to a sufficient extent, but it has made
sufficient progress in terms of acting to achieve such a result.
Regarding the questions put by JudgeKeith and JudgeDonoghue, the State of Senegal
would like to submit replies in writing, if th e Court has no objection. The nature of the aut dedere
aut judicare obligation, to which Judge Xue refers, has been taken into account in the replies given
to Judge Cançado Trindade. Only the absolute nature of the rule will be dealt with in more detail in
the written communication that Senegal intends to transmit to the Court.
I should like to thank you for your attention and, in particular, for your indulgence in
listening to and following my statement. Thank you.
I said at the beginning that my statement would consist of two parts. The first was to be
devoted to providing replies to the questions put by judges at the sitting of 16 March. I should now
like, with your permission, Mr.President and Members of the Court, to read out our final
submissions.
F INAL SUBMISSIONS
1. Mr.President, Members of the Court, in the light of all the arguments and reasons
37 contained in its Counter-Memorial, in its oral plead ings and in the replies to the questions put to it
by judges, whereby Senegal has declared and sought to demonstrate that, in the present case, it has
duly fulfilled its international commitments and has not committed any internationally wrongful
act, I would ask the Court, on behalf of my country, to find in its favour on the following
submissions and to adjudge and declare that:
(1) Principally, it cannot adjudicate on the merits of the Application filed by the Kingdom of
Belgium because it lacks jurisdiction as a resu lt of the absence of a dispute between Belgium
and Senegal, and the inadmissibility of that Application; - 29 -
(2)In the alternative, should it find that it has jurisdiction and that Belgium’s Application is
admissible, that Senegal has not breached any of the provisions of the 1984 Convention against
Torture, in particular those prescribing the ob ligation to “try or extradite” (Article6,
paragraph 2, and Article 7, paragraph 1, of the Convention), or, more generally, any other rule
of conventional law, general international law or customary international law in this area;
(3) In taking the various measures that have been described, Senegal is fulfilling its commitments
as a State Party to the 1984 Convention against Torture;
(4) In taking the appropriate measures and steps to prepare for the trial of Mr. H. Habré, Senegal is
complying with the declaration by which it made a commitment before the Court.
(5) It consequently rejects all the requests set forth in the Application of the Kingdom of Belgium.
2. Those are our final submissions. Mr. President, Members of the Court, these submissions
bring to a close Senegal’s second round of oral argument.
3. Let me take the opportunity, at this solemn moment, to thank all the Members of the Court
for the attention, patience and, indeed, indulgence that they have reserved for the contributions and
pleadings of our delegation in the course of the hearings.
38 4. We also thank the Registrar and all his staff for the excellence of their work, which has
ensured that the proceedings before the Court have run very smoothly, not to mention the
invaluable contributions of the interpreters a nd translators, without whom our voices would not
have been heard.
5. Lastly, Mr. President, Members of the Court, it is my pleasure to thank the delegation of
the Kingdom of Belgium, its Agent and Co-Agent and all its members, for the friendly relations
they have maintained with the Senegalese dele gation throughout the proceedings brought before
your distinguished Court. Thank you.
The PRESIDENT: Thank you, Mr.Thiam. The Court takes note of the final submissions
which you have just read out on behalf of the Re public of Senegal, as it took note, on Monday, of
the final submissions of the Kingdom of Belgium.
I would remind you that the Parties are invited either to supplement in writing the replies
already given to the judges’ questions, or to subm it written replies to questions that have not yet - 30 -
been answered, by 6 p.m. on 28 March at the latest. I would add that any comments that one of the
Parties may wish to make on the responses of th e other Party should be submitted by 6 p.m. on
4 April at the latest.
That brings us to the end of this set of heari ngs devoted to the oral arguments of the Parties.
I should like to thank the Agents, counsel and Advocates of both Parties for the assistance they
have provided to the Court through their oral st atements and for the courtesy which they have
shown throughout these proceedings. I would ask that the Agents remain at the Court’s disposal to
provide any further information that the Court may require.
The Could will now retire for deliberation. Th e Parties will be advised by the Registrar of
the date on which the Court will deliver its judgment at a public sitting in the Peace Palace.
The sitting is closed.
The Court rose at 12.10 p.m.
___________
Traduction