12160
INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING QUESTIONS RELATING TO THE
OBLIGATION TO PROSECUTE OR EXTRADITE
(BELGIUM v. SENEGAL)
MEMORIAL OF THE KINGDOM OF BELGIUM
VOLUME I
1 JULY 2010
[Translation by the Registry] T ABLE OF C ONTENTS
Introduction........................................................................
................................................................ 1
I. Belgium’s aim in the present proceedings........................................................................
......... 1
II. The proceedings ........................................................................
............................................... 1
III. The structure of the Memorial........................................................................
......................... 3
Chapter I The facts........................................................................
.................................................... 5
I. Chad under Mr. Habré........................................................................
....................................... 5
II. The proceedings against Mr. Habré in Senegal........................................................................
6
III. The legal proceedings against Mr. Habré in Belgium............................................................. 8
IV. Belgium’s efforts to encourage and he lp Senegal to fulfil its obligation to
prosecute or extradite........................................................................
..................................... 11
V. Referral of the case to the African Union and subsequent developments.............................. 20
A. Referral of the H. Habré case to the African Union.......................................................... 21
B. The efforts of the African Union a nd the European Union to help Senegal
organize proceedings ........................................................................
................................ 24
VI. Summary of the facts........................................................................
.................................... 27
Chapter II Proceedings before the Committe e against Torture, the African Court on
Human and Peoples’ Rights and the Court of Justice of the Economic Community of
West African States (ECOWAS)........................................................................
........................ 30
I. Committee against Torture ........................................................................
.............................. 30
II. African Court on Human and Peoples’ Rights....................................................................... 32
III. Court of Justice of the Economic Community of West African States (ECOWAS) ............ 32
Chapter III The jurisdiction of the Court........................................................................
................. 34
I. Jurisdiction under Article 30 of the Convention against Torture............................................. 34
A. The existence of a dispute........................................................................
......................... 36
B. The dispute could not be settled through negotiation........................................................ 38
C. The request for arbitration........................................................................
......................... 39
D. The Parties were unable to agree on the organization of an arbitration within six
months........................................................................
....................................................... 40
II. Jurisdiction based on the declarations of acceptance of compulsory jurisdiction.................. 41 - ii -
A. The existence of a legal dispute........................................................................
................ 42
B. Inapplicability of the limit ratione temporis ..................................................................... 42
C. The lack of other means of settlement........................................................................
....... 43
D. The conflict does not fall within the exclusive jurisdiction of Senegal ............................ 43
Chapter IV Violations of international law attributable to Senegal................................................ 44
I. Violations of the Convention against Torture........................................................................
.. 44
A. Obligations under the Convention against Torture........................................................... 44
1. The Convention against Torture ........................................................................
........... 44
2. The obligation to prosecute or extradite (aut dedere aut judicare) established
by the Convention against Torture ........................................................................
..... 46
(a) The obligation to establish universal jurisdiction ................................................ 48
(b) The obligation to prosecute or extradite .............................................................. 50
B. Senegal has failed to fulfil its obligations under the Convention against Torture ............ 53
1. Senegal failed to adopt the necessary measures prescribed by Article5,
paragraph 2, of the Convention against Torture......................................................... 53
2. Senegal failed in its obligation to prosecute or extradite deriving from
Article 7 of the Convention against Torture............................................................... 55
(a) Senegal failed in its obligation to pr osecute or extradite Mr.Habré to
Belgium........................................................................
......................................... 56
(b) The seisin of the African Union does not constitute an alternative to
compliance with Senegal’s conventional obligations........................................... 58
(c) Senegal has to date neither initiated a preliminary inquiry nor submitted
the H.Habré case to the compet ent authorities for the purpose of
prosecution........................................................................
................................... 59
II. Violations of other rules of conventional and customary international law........................... 61
A. Conventional and customary obligations regarding the punishment of the other
crimes alleged against Mr. Habré ........................................................................
............. 61
1. Crimes against humanity ........................................................................
...................... 61
2. War crimes........................................................................
............................................ 66
3. The crime of genocide ........................................................................
.......................... 67
B. The modalities of the obligation of punishment................................................................ 71
C. Legal basis of the jurisdiction to be exercised by Senegal with regard to the
crimes alleged against Mr. Habré ........................................................................
............. 72 - iii -
Chapter V The responsibility of Senegal and remedies .................................................................. 76
I. Financial, legal or other “difficulties” ca nnot release Senegal from its obligations or
justify the violation thereof........................................................................
............................ 76
II. Belgium is entitled to invoke the responsibility of Senegal................................................... 79
III. The content of Senegal’s responsibility........................................................................
........ 80
Submissions.................................................................
..................................................................... 827
INTRODUCTION
I. BELGIUM ’S AIM IN THE PRESENT PROCEEDINGS
0.01. The Kingdom of Belgium (hereinafter “B elgium”) wishes to make clear that the
bringing of the present case is in no way an unfriendly act towards the Republic of Senegal
(hereinafter “Senegal”), with which Belgium has long enjoyed excellent relations. Belgium’s aim
is to ensure compliance with the fundamental pr inciple, recognized by Senegal as well as Belgium
and endorsed by the African Union, that perpetra tors of serious crimes under international law,
including the crimes of torture and genocide, crimes against humanity and war crimes, must not go
unpunished. To this end, full compliance with the provisions of the 1984 Convention against
Torture and Other Cruel, Inhuma1 or Degradi ng Treatment or Punishment (hereinafter the
“Convention against Torture”) and with other rules of conventional or customary international law
concerning the autdedere aut judicare obligation is vital. It is in this spirit, and in the hope that
they will contribute to a solution satisfactory to bo th Parties, that Belgium has initiated the present
proceedings.
II. THE PROCEEDINGS
0.02. By Application dated 16 February 2009 and filed in the Registry of the Court on
19February2009, the Kingdom of Belgium (hereina fter “Belgium”) initiated proceedings against
the Republic of Senegal (hereinafter “Senegal”) in connection with a dispute concerning the
interpretation and application of the Convention against Torture and the application of other
customary and treaty obligations to punish other serio us crimes under international law. Since late
2000, various proceedings have been opened in Be lgium to bring to justice Mr.Habré, a former
President of Chad now in Senegal, to answer fo r acts ascribed to him which may be characterized
8 as, in particular, crimes of torture and other serious crimes under international law. Since 2005
Belgium has been asking Senegal to try Mr.Habré, if not extradite him. Senegal has yet to give
any concrete response to Belgium’s requests.
0.03. Belgium considers Senegal to be under an obligation to prosecute Mr. Habré for crimes
of torture and other serious crimes under interna tional law which have been ascribed to him as
perpetrator, co-perpetrator or accomplice or, if Se negal fails to prosecute Mr.Habré, to extradite
him to Belgium so that he can stand trial in the Belgian courts for these crimes.
0.04. The Court’s jurisdiction is founded on Article 30 of the Convention against Torture and
on the declarations recognizing the compulsory jurisdiction of the Court made by Belgium and
2
Senegal in accordance with Article 36, paragraph 2, of the Statute of the Court .
0.05. On 19 February 2009, after filing its A pplication instituting proceedings, Belgium also
submitted a request for the indication of provision al measures in accordance with Article 41 of the
Statute of the Court and Articles 73 to 75 of the Rules of Court. Alarmed by comments made by
the President of Senegal, Mr.A.Wade, to the effect that Senegal might end Mr.Habré’s house
arrest if it did not find the funds it deemed necess ary to hold his trial, Belgium filed a request for
the indication of provisional measures. In that request Belgium asked the Court, pending its final
1
United Nations, Treaty Series (UNTS), Vol. 1465, p. 123 (1-24841), Ann. A.1.
2
Ann. A.2. - 2 -
decision on the merits, to indicate that Senegal was to take all measures in its power to ensure that
Mr. Habré remained under the control and surveillance of the Senegalese authorities . 3
0.06. At the hearings on the request for the indication of provisional measures, which took
place on 6, 7 and 8April2009, Senegal, in answer to a question put by a Member of the Court,
affirmed that it would not allow Mr. Habré to leave Senegalese territory. These assurances given to
the Court were expressed as follows in paragraphs 38 and 68 of the Order:
9 “38. Whereas, in response to the questi on put by a Member of the Court at the
hearings, referred to in paragraph33 above, Senegal solemnly declared that it would
not allow Mr4Habré to leave its territory while the present case was pending before
the Court” ; and
“68. . . . whereas the Co-Agent of Senegal, at the end of the hearings, solemnly
declared, in response to a question put by a Member of the Court, the following:
‘Senegal will not allow Mr.Habré to leave Senegal while the
present case is pending before the Court. Senegal has not the intention to
allow Mr.Habré to leave the territory while the present case is pending
5
before the Court.’”
The Court also observed in its Order that:
“in response to a question put by a Member of the Court at the hearings, Belgium
indicated that a solemn declaration made befo re the Court by the Agent of Senegal, in
the name of his Government, could be suffi cient for Belgium to consider that its
Request for the indication of provisiona l measures had no further raison d’être,
provided that such a declaration would be clear and unconditional, and that it would
guarantee that all the necessary measures woul d be taken by Senegal to ensure that
Mr.Habré did not leave Senegalese territory before the Court delivered its final
6
Judgment . . .” .
0.07. By reason of these assurances, solemnly given by Senegal before the Court, the Court,
in an Order made on 28 May 2009 and “taking note of the[se] assurances given by Senegal, [found]
that the risk of irreparable prejudice to the ri ghts claimed by Belgium [was] not apparent on the
7
date of [the] Order” and held that the circumstances, as they then presented themselves to the
Court, were not such as to require the exercise of its power under Article41 of the Statute to
indicate provisional measures . The Court did nonetheless note that its Order “leaves unaffected
10 Belgium’s right to submit in future a fresh request for the indication of provisional measures, under
Article 75, paragraph 3, of the Rules of Court, based on new facts” . 9
Request for the indication of provisional measures, p. 2, Ann. C.8.
Questions relating to the Obligation toProsecute or Ex tradite (Belgium v. Senegal), Provisional Measures,
Order of 28 May 2009, para. 38.
5
Ibid., para. 68. This assurance was given in English; CR 2009/11, 7 Apr. 2009, p. 23, para. 6.
6
Questions relating to the Obligation toProsecute or Ex tradite (Belgium v. Senegal), Provisional Measures,
Order of 28 May 2009, para. 33.
7
Ibid., para. 72.
Ibid., para. 76.
Ibid., para. 75. - 3 -
0.08. After consultation with the Parties, the Court handed down an Order on 9July2009
authorizing the submissio10of a Memorial by Belgium on 9 July 2010 and a Counter-Memorial by
Senegal on 11 July 2011 . This Memorial is being presented pursuant to that Order.
0.09. By letter dated the same day, the Regist rar of the Court asked Belgium and Senegal to
provide to the Court as quickly as possible a document containing a detailed summary of the
information in their possession in regard to certain new developments since the Court had made its
Order on the Request for the indication of provisional measures; those developments concerned:
⎯ the various measures taken by Senegal to ensure that Mr. Habré’s trial would be held as soon
as possible;
⎯ the Parties’ diplomatic exchanges aimed at facilitating co-operation between them for the
purposes of that trial; and
⎯ Senegal’s approaches to the African Union and the European Union with a view to securing
funding for the trial.
0.10. Belgium replied to the Court’s request for information by letter dated 16July2009,
communicated to the Registry though diplomatic channels on 28 July 2009.
0.11. By letter dated 15June2010, Senegal transmitted to the Court a “Note on the latest
developments in Senegal’s preparations for the tr ial of Mr. Hissène Habré since the delivery of the
Order of 28May2009 on the request for the indication of provisional measures submitted by
11 Belgium” (hereinafter the “Note on the latest developments”), accompanied by a number of
annexes .11
III. THE STRUCTURE OF THE M EMORIAL
0.12. The present Memorial is divided into five chapters.
0.13. Chapter I sets out the facts underlying the present dispute. It summarizes:
⎯ conditions in Chad during Mr.Habré’s presidenc y; though not at the heart of the dispute
between Belgium and Senegal, that situation is nevertheless important, forming as it does the
basis of the criminal proceedings initiated in Senegal and Belgium against the former President
of Chad;
⎯ Belgium’s efforts to prevail upon and help Se negal to fulfil its obligation to prosecute
Mr. Habré or, if not, to extradite him; these efforts brought the dispute between the two States
to the fore; and
⎯ the referral of the matter to the African Union and developments since the Union’s intervention
in the Habré case.
10
Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Order of 9 July 2009.
1Note on the latest developments in Se negal’s preparations for the trial of Mr. Hissène Habré since the delivery
of the Order of 28May 2009 on the request for the indication of provisional measures submitted by Belgium,
15 June 2010, Ann. D.9. - 4 -
0.14. Chapter II recapitulates the decisions: by th e Committee against Torture regarding
the Habré case; and by the African Court on Human and Peoples’ Rights and by the Community
Court of Justice of the Economic Community of West African States.
I.15. Chapter III Belgium shows that the Court has jurisdiction to adjudicate the present
dispute. This jurisdiction is founded on Article30 of the Convention against Torture and on the
declarations recognizing as compulsory the jurisdiction of the Court made by Belgium and Senegal
in accordance with Article 36, paragraph 2, of the Statute of the Court.
0.16. Chapter IV establishes that, in failing to prosecute or extradite Mr. Habré, Senegal has
12
breached, and continues to breach, obligations it bears under the Convention against Torture and
under the rules of conventional and customary inte rnational law. In particular, Senegal has
breached the obligations under Artic le5, paragraph2, of the Convention against Torture. It has
also breached, and continues to breach, its obligation to prosecute or extradite pursuant to Article 7,
paragraph1, of that Convention and the closely related obligation in Artic le 6, paragraph 2.
Furthermore, Senegal has not complied with the obligation international law imposes on States to
combat impunity in respect of persons present in their territory and suspected of having committed
serious crimes under international law.
I.n17. Chapter V Belgium shows that Senegal has in curred international responsibility by
virtue of these breaches of international law. Th is responsibility is neither set aside nor tempered
by financial, legal or other difficulties faced by Senegal in organizing Mr. Habré’s trial. Senegal is
therefore under a duty to cease its breaches and it must fulfil its international obligations.
Specifically, it must submit the Habré case to its competent authorities so that criminal proceedings
can be conducted or, if it fails to prosecute Mr. Habré, it must extradite him to Belgium.
0.18. Lastly, Belgium will present its submissions.13 C HAPTER I
T HE FACTS
12
I. HAD UNDER M R. HABRÉ
1.01. Chad, a former French colony that w as part of French Equatorial Africa, gained
independence in 1960 under the presidency of Fran çois Tombalbaye, who hailed from the southern
part of the country. From 1968 onwards, eastern and northern areas of Chad took up arms against a
government seen as being too close to the people from the south. Mr. Tombalbaye sought France’s
help in quelling the insurrection. He was as sassinated in 1975 after a coup instigated by
General Félix Malloum, who seized power.
1.02. Mr. Hissène Habré, a member of the Toubou ethnic group (which lives in the Tibesti in
northern Chad), became Prime Minister of Chad in August 1978. He and Mr. Goukouni Oueddei
were the leaders of FROLINAT ( Front de libération nationale du Tchad or National Liberation
Front of Chad), an armed movement founded in Sudan to oppose the régime, which was thought to
favour southerners.
1.03. Mr. Habré’s term as Prime Minister came to an end when General Malloum was forced
to relinquish the presidency of Chad in 1979 and cede his place to Mr.Oueddei, who, like
Mr.Habré, comes from the Tibesti. Mr.Ouedde i formed a Transitional Government of National
Unity (Gouvernement d’unité nationale et de transition (“GUNT”)), in which Mr. Habré served as
Minister of State for Defence.
1.04. Relations between Messrs. Oueddei a nd Habré could however be likened to those
between rivals, since both claimed to lead FROLINAT and the Toubou rebels.
1.05. In 1980 FROLINAT units calling themselves the Armed Forces of the North ( Forces
Armées du Nord (“FAN”)) and under Mr.Habré’s lead ership waged war on Mr.Oueddei’s
People’s Armed Forces ( Forces Armeés Populaires (“FAP”)). The FAP prevailed and Mr. Habré
14 was forced to take refuge in eastern Chad, at the Sudanese border. Libyan troops which had
supported the GUNT withdrew in November 1981 and remained present only in the north in the
Aouzou Strip. Meanwhile, the FAN re-grouped and re-armed and regained control over areas in
eastern and central Chad. On 7 June 1982, the FAN entered N’Djamena, meeting virtually no
resistance from the FAP. Mr. Oueddei left Chad and Mr. Habré became the new President.
1.06. Mr.Habré abolished the office of Prim e Minister on 19 June 1982. A number of
political opponents were executed. He transfor med the FAN into the National Armed Forces of
Chad (Forces armées nationales du Tchad (“FANT”)) and established a political police force: the
Documentation and Security Directorate ( Direction de la documentation et de la sécurité
(“DDS”)).
1Unless otherwise stated, the information in this section is Keesing’s Contemporary Archives ,
1979-1982, and the Report of the National Commission of Inquiry of the Chadian Ministry of Justice on “The Crimes and
Misappropriations Committed by ex-PresidentHabré, his Accomplices and/or Accessories” [ Rapport de la Commission
d’enquête nationale du ministère tchadien de la Justice sur Les crimes et détournements de l’ex-Président Habré et de ses
complices], Paris, L’Harmattan, 1993. [TranslatoFor an English translation of the RepoTransitional
Justice (ed. N. J. Kritz), Vol. III, Washington D.C., U.S. Institute of Peace Press, 1995, pp. 51-93.] - 6 -
1.07. In 1983 Mr. Habré called for French help in fighting Libyan forces which had returned
to Chad. In 1987, Chad’s military succeeded in driving the Libyan forces out of the country,
except for the Aouzou Strip, from which Libyan forces did not withdraw until 1994, further to the
13
Court’s Judgment of 3 February 1994 .
1.08. Mr.Habré remained in power until 1990. A new rebel movement (the “Patriotic
Salvation Movement” (“ Mouvement patriotique du salut ” ⎯ MPS)), formed in Sudan by
Mr.IdrissDéby, a former defence and security adviser to Mr.Habré, ousted Mr.Habré from
power. He took refuge in Senegal. Mr. Déby is still President of Chad.
1.09. Many various human rights violations were reported in Chad during Mr.Habré’s
presidency: arrests of actual or presumed politi cal opponents, detentions without trial, inhumane
14
detention conditions, mistreatment, torture, extrajudicial executions, enforced disappearances .
1.10. According to an assessment published in 1993 by the National Commission of Inquiry
of the Chadian Ministry of Justice, Mr. Habré’s pr esidency produced tens of thousands of victims.
The Commission gives the following figures:
15 “⎯ more than 40,000 victims;
⎯ more than 80,000 orphans;
⎯ more than 30,000 widows;
⎯ more than 200,000 people left with no mo ral or material support as a result of this
15
repression” .
II. THE PROCEEDINGS AGAINST M R. HABRÉ IN SENEGAL
1.11. On 25 January 2000, seven Chadian nationals residing in Chad, together with the
Chadian Association of Victims of Political Repression and Crime ( Association des Victimes des
Crimes et Répressions Politiques (“AVCRP”)), filed a complaint with civil-party application
(constitution de partie civile1) against Mr. Habré with the senior investigating judge at the Dakar
17
Tribunal régional hors classe .
13Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 6.
14
See the Amnesty International A nnual Reports, French editions, between 1983 and 1990: Report 1983,
pp. 116-117; Report 1984, pp. 124-128; Report 1985, pp. 132- 135; Report 1986, pp. 111-114; Report 1987, pp. 83-84;
Report 1988, pp. 98-100; Report 1989, pp. 97-99. [ Translator’s note: Citations to the French version of these Reports
have been retained, given the difficulty in obtaining the English equivalents.]
15Report by the National Commission of Inquiry of the Chadian Ministry of Justice on “The Crimes and
Misappropriations Committed by ex-President Habré, his Accomplices and/or Accessories”, op. cit. (footnote 12), p. 92.
16
Under Roman-Germanic law, this refers to: the filing of a complaint with an investigating judge in respect of a
crime or other offence by an individclaiming to have been injured as a result of that crime or offence; and the
resulting initiation of criminal proceedings if such have not already been commenced. The civil party may participate in
the proceedings by receiving a hearing and may ask the court trying the case to award damages for the injury caused by
the crime or other offence.
17Ann. D.1. - 7 -
1.12. On 3February2000, the investigating judge indicted Mr.Habré for complicity in
“crimes against humanity and acts of torture and barbarity” 18. A few weeks later, the prosecuting
19
authorities, who had been in favour of Mr. Habré’s prosecution , reversed position and supported
his application to the Chambre d’accusation of the Dakar Court of Appeal to annul the
20
proceedings . Furthermore, the Conseil supérieur de la Magistrature (Judicial Service Council)
transferred the investigating judge, thereby removing him from the case . 21
1.13. On 4 July 2000, the Chambre d’accusation annulled the proceedings on the ground that
they concerned crimes committed abroad by an alien against aliens and that they would involve the
16 exercise of universal jurisdiction, whereas the Senegalese Code of Criminal Procedure did not
provide for jurisdiction of this sort (Art. 669) .22
1.14. Following the dismissal of the proceedings, two Special Rapporteurs from the United
Nations Commission on Human Rights ⎯ Mr. Dato ParamCumaraswamy, Special Rapporteur on
the independence of judges and lawyers, and SirNigelRodley, Special Rapporteur23n torture ⎯
made known to Senegal their “concern” over the “circumstances” surrounding the decision.
According to a press release dated 2August2000: “The Special Rapporteurs reminded the
Government of Senegal of its obligations under the Convention against Torture . . ., to which it is
party”; and
“[t]hey also draw its attention to the resolution adopted this year by the Commission
on Human Rights on the question of torture (resolution2000/43), in which the
Commission stressed the general responsibility of all States to examine all allegations
of torture and to ensure that those who encourage, order, tolerate or pe
rpetrate such
24
acts be held responsible and severely punished” .
1.15. The complainants lodged an appeal with the Court of Cassation, which rejected it and
on 20 March 2001 upheld the judgment to annul by the Chambre d’accusation . 25
1.16. In April2001, President Wade publicly announced that he was giving Mr.Habré one
26
month to leave Senegal .
1.17. On 27 September 2001, further to appeals from United Nations High Commissioner for
Human Rights Mary Robinson and United Nations S ecretary-General Kofi Annan, President Wade
18
Ann. D.2.
19
See Le Soleil, 29-30 Jan. 2000, Ann. G.1; Sud Quotidien, 4 Feb. 2000, Ann. G.2.
20
Walfadjiri, 17 May 2000, Ann. G.3.
21Ibid., 4 July 2000, Ann. G.4; Sud Quotidien, No. 2173, 4 July 2000, Ann. G.5.
22Ann. D.3.
23United Nations Press Release dated 2 Aug. 2000.
24
Ibid.
25
Ann. D.4.
26
Human Rights Watch, Chad: The Victims of Hissène Habré Still Aw aiting Justice , July 2005, Vol.17,
No. 10 (A), p. 20, http://www.hrw.org/en/reports/2005/07/11/chad-victims-hiss-ne-habr-stil…; Le
Témoin, No. 553, 27 Mar.-2 Apr. 2001, Ann. G.6; Le Soleil, 9 Apr. 2001, Ann. G.7. - 8 -
stated that he was prepared to keep Mr.Habré in Senegal until another country ⎯ he mentioned
Belgium ⎯ agreed to “organiz[e] a fair trial” .27
1.18. On 16September2008, after constitu tional and statutory amendments had been
17 28
effected in 2007 , 14 individuals (inc luding a Senegalese citizen resident in Dakar, 11Chadian
citizens resident in Chad, and two Chadian citizens one of them resident in France and the other in
the United States of America) filed a complaint against Mr.Habré for crimes against humanity,
torture and complicity in those crimes. The complaint was addressed to the Procureur général
(Chief Public Prosecutor) at the Dakar Court of Appeal 29. No action has yet (at the end of
June 2010) been taken on it.
III.T HE LEGAL PROCEEDINGS AGAINST
M R. HABRÉ IN B ELGIUM
1.19. The legal proceedings against Mr. Habré in Belgium began on 30November2000,
when a Belgian citizen of Chadian descent submitted a complaint with civil-party application
against Mr. Habré to a Belgian investigating judge; two other Belgians of Chadian descent did the
same on 12 April and 3 May 2001; ten Chadian citi zens living in Chad also filed a complaint, on
24 April 2001 .0
1.20. The complaints were based on crimes c overed by the Belgian Law of 16June1993
concerning the punishment of serious violations of international humanitarian law, as amended by
the Law of 10February1999 31 (hereinafter the “1993/1999 Law”), and on crimes of torture
covered by the 1984 Convention . 32
1.21. In response to these complaints, the inv estigating judge found that the acts complained
of could be characterized as “crimes against humanity” under the 1993 Law and on
19 September 2001 issued two international letters rogatory, one to Senegal and the other to Chad.
18 1.22. The first was destined for the Senegalese authorities with a view to obtaining a copy of
the record 33om the proceedings conducted by a Senegalese investigating judg34looking into similar
complaints ; it was transmitted by Note Verbale dated 10 October 2001 .
1.23. On 22 November 2001, the Senegalese au thorities dispatched a file of papers and
documents to Belgium concerning the proceedings in Senegal in the Habré case.
27Human Rights Watch, Chad: The Victims of Hissène Habré Still Aw aiting Justice , July 2005, Vol.17,
No. 10 (A), p. 20, http://www.hrw.org/en/reports/2005/07/11/chad-victims-hiss-ne-habr-stil…; Le
Témoin, No. 553, 27 Mar.-2 Apr. 2001, Ann. G.6; Le Soleil, 9 Apr. 2001, Ann. G.7.
28See para. 1.46 below.
29Ann. D.5.
30
Ann. C.1.
31
This statute was subsequently ame nded, notably by the Law of 5 2003, but the amendments have no
impact on the Habré case in the Belgian courts.
32See the international arrest warrant in absentia, 19 Sep. 2005, pp. 22 et seq. and 36 et seq., Ann. C.1.
33Ann. C.2.
34Ann. B.1. - 9 -
1.24. The second letter rogatory ⎯ the one sent to the Chadian authorities ⎯ contained
requests that:
⎯ the Chadian complainants, the members of the Commission of Inquiry into the crimes ascribed
to Mr. Habré, and various witnesses be examined;
⎯ a copy of the Commission of Inquiry papers and documents be provided;
⎯ the sites identified by the complainants and the Commission of Inquiry be inspected;
⎯ those papers and documents which were helpful to the investigation and discovered during the
letter rogatory proceedings be transferred to Belgium;
⎯ Belgian representatives from the prosecutor’s office and the registry of the Brussels Tribunal
de première instance and investigators from the Belgian federal police force be permitted to
attend when the letter rogatory was carried out . 35
This letter rogatory was executed in Chad by the Belgian investigating judge between
26 February and 8 March 2002 . 36
1.25. On 27 March 2002, the Belgian investigating judge asked the Chadian Minister of
37
Justice whether Mr.Habré enjoyed immunity from jurisdiction as a former Head of State . On
7 October 2002, the Minister of Justice of Chad responded to the effect that the Sovereign National
19
Conference held in N’Djamena from 15 January to 38April 1993 had “officially lifted all immunity
from legal process from Mr. Hissein Habré” .
1.26. Between 2002 and 2005, various investiga tive steps were taken in Belgium; these
included examining complainants and witnesses, and analysing very many of the documents
provided by the Chadian authorities in execution of the letter rogatory referred to above. These
documents in total take up some 27 binder files, which constitute the judicial record in Belgium.
1.27. On 23 February 2003, PresidentWade confirmed that an extradition request could be
submitted to the Senegalese judicial authorities, and stated that, if it were up to him alone, the
39
extradition would be approved, but that he had not yet received any request for extradition .
1.28. On 19 September 2005, the Belgian inves tigating judge issued an international warrant
in absentia for the arrest of Mr.Habré “as the perp etrator or co-perpetrator” of crimes under
international humanitarian law. The warrant was circ ulated by Interpol (red notice) to Senegal; in
40
accordance with Interpol practice (Belgium and Senegal having been members of Interpol since
35Ann. C.3.
36International arrest warrant in absentia, 19 Sep. 2005, p. 17, Ann. C.1.
37
Ann. C.4.
38
Ann. C.5.
39Le Soleil (Senegal), 24 Feb. 2003, Ann. G.8.
40http://www.interpol.int/Public/ICPO/LegalMaterials/FactSheets/FS13fr.asp. - 10 -
7September1923 and 4September1961, respectiv ely), this notice serves as a request for
provisional arrest with a view to extradition . 41
1.29. The warrant sets out, inter alia , the complainants’ names, the substance of their
42
complaints and the various bases for the jurisdiction of the Belgian judge; in respect of those
bases, the warrant states that:
⎯ ratione materiae , the acts in question amount to ser ious violations of international
humanitarian law and the Belgian judge has ju risdiction over them pursuant to the 1993/1999
Law; furthermore, that the acts complained of by the complainants actually took place is
20 confirmed in the above-cited report by the Commission of Inquiry of the Chadian Ministry of
Justice, published in 1993 43; finally, the fact that serious violations of international
humanitarian law were made crimes under Be lgian domestic law in 1993 and 1999 does not
constitute a violation of the principle of non-re troactivity of penal laws, since these were
crimes under international law at the time the acts in question were committed ; 44
⎯ ratione loci , the 1993/1999 Law confers universal ju risdiction on the Belgian judge over
serious violations of international humanitari an law; the Law of 5August2003, which
restricted the ambit of this jurisdiction as it was initially provided for in the 1993/1999 Law,
imposes no bar to such universal jurisd iction, because the 2003 Law provides that
investigations begun before its entry into force may be pursued if they follow from complaints
filed by Belgians ; 45
⎯ ratione personae, the judge retains jurisdiction in respect of Mr. Habré inasmuch as Mr. Habré
has enjoyed no immunity ever since he ceased to be President of Chad and as Chad itself has,
46
in so far as is necessary, lifted the immunities which Mr. Habré may have sought to claim ;
⎯ ratione temporis, the facts being investigated occurred while Mr. Habré was President of Chad,
between 1982 and 1990, but they are not tim e-barred because crimes under international
humanitarian law are involved and there is no statute of limitations on these under international
47
law as it has been incorporated into Belgian domestic law .
1.30. Finally, it is noted in the warrant that there is a great deal of evidence indicating that
the events described in the co mplaints actually took place and justifying further action by the
investigating judge upon the complaints . 48
1.31. Accordingly, the warrant states, if Mr .Habré were to remain at liberty, he might
21
interfere with the course of the investigation or destroy evidence. The warrant therefore calls for
his arrest .9
41
Ann. C.6.
42
Ann. C.1, pp. 1-11.
4Ibid., pp. 11-15.
4Ibid., pp. 23-30.
45
Ibid., pp. 15-17.
46
Ibid., pp. 17-20.
4Ibid., pp. 20-22.
4Ibid., p. 33.
4Ibid. - 11 -
1.32. As Mr. Habré continues to reside in Sene gal, the other procedural matters in respect of
him concern Belgium’s requests to Senegal to extr adite or prosecute, such requests having given
rise to the present dispute between the two States .50
IV. B ELGIUM ’S EFFORTS TO ENCOURAGE AND HELP S ENEGAL TO FULFIL
ITS OBLIGATION TO PROSECUTE OR EXTRADITE
1.33 The present dispute arises out of the failure of the Senegalese authorities to carry out the
extradition requested by Belgium despite the fact that Senegal is required, by virtue of its
international obligations, to extradite Mr. Habré if it does not try him in Senegal. Senegal’s replies
to the Belgian Notes Verbales and requests, and the absence of any concrete measure to bring the
H. Habré case before the competent judicial authorities, show that it has breached and continues to
breach its international obligations to prosecute Mr. Habré or, failing prosecution, to extradite him
to a State which has so requested.
1.34 On 22 September 2005, Belgium transmitted a Note Verbale to Senegal containing the
international arrest warrant in absentia issued by the Belgian investigating judge against Mr. Habré
for crimes of torture, crimes of genocide, war crimes, murder, and intentional assault and battery . 51
Senegal failed to reply.
1.35. Two months later, on 16 November 2005, Belgium informed Senegal that members of
the Federal Public Prosecutor’s Office could go to Dakar
22 “to give additional information about the request for extradition against Hissène Habré
if the Senegalese authorities so wished” .52
It added that it would be grateful to receive a reply from the competent authorities with a
view to informing the Belgian Federal Public Service 53 concerned .54
1.36. On 25 November 2005, the Chambre d’accusation of the Dakar Court of Appeal ruled
on the request for extradition transmitted by Note Verbale from Belgium to Senegal, and dated
22 September 2005 . In its judgment of 25 November 2005, the Chambre d’accusation found that
Article 101 of the Constitution and the Organic Law on the High Court of Justice
“instituted a special procedure falling outside the scope of the ordinary law for any
proceedings brought against the President of the Republic”
and
“that consequently the Chambre d’accusation , a court of ordinary law, cannot extend
its jurisdiction to matters relating to the investigation or prosecution of a Head of State
for acts allegedly committed in the exercise of his functions”.
5See paras. 1.34 et seq. below.
5Ann. B.2. See also paras. 1.28-1.32 above.
52
Ann. B.3.
53
The official title of a “Ministry” in Belgium is “Federal Public Service”.
5Ann. B.3.
5Ann. B.2. See also Ann. C.7. - 12 -
According to the Chambre d’accusation , “HissèneHabré should therefore be given
jurisdictional immunity such as to survive the cessation of his duties as President of the Republic,
whatever his nationality and regardless of any convention on mutual assistance”; the Chambre
concluded that it had no jurisdic tion “to adjudicate the lawfulness of proceedings and the validity
of the arrest warrant against the Head of State” . The judgment ends with a cryptic phrase inviting
57
“the Office of the Public Prosecutor to make a better case” .
1.37. On 30 November 2005, Belgium, havi ng taken note of the judgment of 25 November,
requested Senegal, by Note Verbale, to reply to the following questions:
23 ⎯ “What are the implications of this judicial decision” for Belgium’s request for extradition?
⎯ “What is the current stage of the proceedings?”
⎯ Could Senegal reply officially “to the request for extradition” and provide “explanations about
58
the position of the Senegalese Government pursuant to this decision”?
59
1.38. By Note Verbale of 7December2005 , Senegal transmitted to Belgium a
communiqué of the Senegalese Ministry of Foreign Affairs “concerning the Hissène Habré case” 60.
The communiqué referred to Belgium’s request fo r extradition, the above-mentioned61udgment of
25 November 2005 by the Chambre d’accusation concerning that request , and the referral of the
case to the African Union. The Note Verbale specified that
⎯ Senegal agreed to host Mr. Habré “without ever trying to protect him from the law”;
⎯ thus, it remained committed “to its traditional values of hospitality”, but also remained attached
“to the principles of justice and democracy”;
⎯ “furthermore” it had referred the matter to the African Union Summit, which
⎯ “prefigures a concerted approach on an African scale of issues that fall in principle under
the States’ national sovereignty”,
⎯ contributes “to the continent’s political integration”,
⎯ consolidates “justice and the rule of law in Africa”, and
62
24 ⎯ encourages “compliance with rules of good governance” .
1.39. On 23 December 2005, the Senegalese Ministry of Foreign Affairs replied to the Notes
Verbales sent by Belgium in November 2005 concer ning the H. Habré case. The Ministry referred
to the judgment delivered by the Chambre d’accusation of the Dakar Court of Appeal and pointed
56Ann. B.2. See also Ann. C.7.
57Ibid.
58
Ann. B.4.
59
Ann. B.5.
60Ibid.
61See para. 1.36 above.
62Ibid. - 13 -
out that “the decision” to submit the H.Habré case to the Assembly of Heads of State and
Government of the African Union reflects “the position of the Senegalese Government pursuant to
the judgment of the Prosecution Chamber” . 63
1.40. By Note Verbale of 11January2006, sent to the Ministry of Foreign Affairs of
Senegal, the Embassy of Belgium in Dakar obser ved that the Convention against Torture, and
specifically the obligation aut dedere aut judicare, imposed obligations only on States parties, that
is, in the context of the request for the extradition of Mr.Habré, on Senegal; in particular, the
Embassy wished to be notified of the “final decision” of Senegal “to grant or refuse the...
extradition application” concerning Mr. Habré . 64
Senegal did not reply to this Note Verbale.
1.41. On 9March2006, Belgium, through its Embassy in Dakar, referred to four earlier
Notes Verbales (16November2005 65, 30 November 2005, 23 December 2005, 11 January 2006)
and requested the Ministry of Foreign Affairs of Senegal to “be so kind as to inform it as to
whether its decision to transfer the Hissène Habré case to the African Union is to be interpreted as
meaning that the Senegalese authorities no longer intend to extradite him to Belgium or to have
66
him judged by their own courts” .
25 1.42. On 4 May 2006, the Ambassador of Senegal in Brussels was summoned to the Belgian
Ministry of Foreign Affairs 67 for talks with the Director-General of Legal Affairs. During those
talks, he was given a Note Verbale expressing
“the concern of the Belgian Government w ith regard to the ab sence of an official
reaction by the Senegalese authorities to th e repeated applications by the Belgian
Government, to which there has been no response to date, with a view to obtaining the
extradition from Senegal to Belgium of fo rmer PresidentHissèneHabré, who is
68
wanted for serious violations of international humanitarian law” .
The Note Verbale from the Belgian Ministry of Foreign Affairs added that “former
PresidentHissèneHabré fled to Senegal in 1990” and that Belgium’s request for extradition “was
sent to the Senegalese authorities in September 2005”. However, in spite of
“verbal notes and personal approaches by the Embassy of Belgium in Dakar on
30 November 2005, 11 January 2006 and, once again, on 10March2006, the
Senegalese authorities have not advised the Belgian Government as to whether or not
69
they have decided to extradite Hissène Habré to Belgium” .
In the opinion of the Belgian Ministry of Foreign Affairs, “the decision to pass the
Hissène Habré case on to the African Union does not . . . relieve Senegal of its obligation to either
63Ann.B.6. [ Translator’s note: Chambre d’accusation is rendered as Prosecution Chamber in Belgium’s
translations of Notes Verbales contained in Ann. B to the Memorial.]
64Ann. B.7.
65
In the Note Verbale of 9 Mar. 2006, the date of this Note Verbale is erroneously specified as 11 Nov. 2005.
66
Ann. B.8.
67The official title of the Belgian “Ministry of Foreign A ffairs” is “Federal Public Service for Foreign Affairs”
(SPF AE).
68Ann. B.9.
69Ibid. - 14 -
judge or extradite the author of the crimes cove red by the relevant Articles of the Convention
against Torture . . .” .0
The Belgian Ministry of Foreign Affairs referred to what it had already stated in its Note
Verbale of 9March2006 71, namely that “Belgium interprets Article7 of the Convention against
Torture as requiring the State on whose territory th e alleged offender is lo cated to extradite him
unless it has judged him” . 72
26 The Ministry added: “An unresolved dispute regarding this interpretation would lead to
recourse to the arbitration procedure provided for in Article30 of the Convention against
73
Torture.”
It insisted, in view of
“the willingness already expressed by Senegal to combat impunity for the most serious
crimes such as those of which Mr. Hissène Habré is accused . . . on Senegal respecting
the obligations arising from the Convention on Torture and responding to the request
by the Belgian authorities accordingly” . 74
1.43. Senegal replied to that Note Verbal e by Note Verbale addressed to the Belgian
Ministry of Foreign Affairs on 9 May 2006 75, in which Senegal expressed the view that the Notes
76
Verbales of 7 and 23 December 2005 answered Belgium’s questions and added
⎯ concerning the interpretation of Article 7 of the Convention against Torture
“that by transferring the HissèneHabré case to the African Union, Senegal, in order
not to create a legal impasse, is acting in accordance with the sp irit of the principle
‘aut dedere aut punire’ the essential aim of which is to ensure that no torturer can
escape from justice by going to another country” ; 77
⎯ “[that] by taking this case to the highest level on the continent, Senegal, while respecting the
separation of powers and the independence of its judicial authorities, has thus opened78p
throughout Africa new prospects for upholding human rights and combating impunity” ;
⎯ that it “[takes] note” of “the possibility of Belgium having recourse to the arbitration procedure
provided for in Article 30 of the Convention agains t Torture”, but restates “the commitment of
27 Senegal to the excellent relationship between the two countries in terms of co-operation and the
combating of impunity”.
1.44. On 20June2006, Belgium, through its Embassy in Dakar, wrote to the Senegalese
Ministry of Foreign Affairs to remind it of the two Belgian Notes Verbales of November 2005 and
70
Ann. B.9.
71
See para. 1.41 above.
7Ann. B.8.
7Ann. B.9 [Translator’s note: not ibid. as in the French original].
74
Ibid.
75
Ann. B.10.
7See paras. 1.38 and 1.39 above.
7Ann. B.10.
7Ibid. - 15 -
the three Notes Verbales of January, March and May2006, as well as two Senegalese Notes
Verbales of December2005 and one Note Verbale of May2006 79. Senegal acknowledged that
those Notes fell within the framework of the ne gotiations provided for by Article30 of the
Convention against Torture with regard to the Belg ian request for the extradition of Mr.Habré.
Belgium recalled that its Note of 4May2006 no ted the existence of “an unresolved dispute”
regarding the interpretation of Article 7 of the 1984Convention, which should lead to recourse to
the arbitration procedure provided for in Article30 of that Convention 80. Senegal had moreover
referred to this “in its reply of 981ay . . . while reiterating its differing interpretation of the relevant
provisions of said Convention” .
According to Belgium, “the attempted ne gotiation with Senegal, which started in
November 2005, has not succeeded and, in accordance with Article 30.1 of the Torture Convention,
[Belgium] consequently asks Senegal to submit the dispute to arbitration under conditions to be
82
agreed mutually” .
1.45. Senegal did not reply to this Note Verbale of 20 June 2006 and did not resume contact
with Belgium until 20 February 2007. On that date, the Senegalese Embassy in Brussels informed
the Belgian Ministry of Foreign Affairs that Sene gal’s Council of Ministers, on 9 November 2006,
had submitted two bills amending the Senegalese Pena l Code and Code of Criminal Procedure “to
allow the prosecution and judgment of Mr.HissèneHabré in Senegal” 83; these bills “were
scheduled for adoption by the Senegalese Natio nal Assembly during its plenary meeting of
2 February 2007” . In addition, “on 23 November 2006 already, a National Commission charged
with defining the conditions of Mr.Habré’s tria l was established”; it was to “[examine] all the
28 85
legal, judicial, diplomatic, security and fi nancial implications . . . of said trial” . The Senegalese
Embassy cited a decision by the Summit of the African Union which commended Senegal for its
efforts regarding “the implementation of the Banjul Decision”, encouraged it “to pursue its
initiatives to accomplish the mandate entrusted to it”, and appealed to the international community
to mobilize the “financial resources required” for the trial 86. On 21 February 2007, the Senegalese
Ministry of Foreign Affairs confirmed the above-mentioned points and indicated that the National
Assembly of Senegal had adopted these two bills on 31 January 2007; it added: “With these two
texts, Senegal is filling the legal vacuum which, for technical reasons related to the unsuitability of
87
national legislation, had prevented the Senegalese courts from hearing the Hissène Habré case.”
1.46. The crime of torture had been intr oduced into Senegalese criminal law by Law
No. 96-15 of 28 August 1996, but it had been necess ary to amend the Code of Criminal Procedure
in order to enable the Senegalese courts to exer cise universal jurisdiction; this was done by new
laws which, in addition, declared the non-applicability of statutory limitation to the crimes
provided for in the Statute of the International Criminal Court. On 31 January 2007, the National
Assembly of Senegal adopted tw o laws amending the Penal Code and the Code of Criminal
Procedure of Senegal:
79
Ann. B.11.
80
Ibid.
81Ibid.
82Ibid.
83
Ann. B.12.
84
Ibid.
85Ibid.
86Ibid. See also para. 1.72 below.
87Ann. B.13. - 16 -
⎯ new Articles 431-1 to 431-6 of the Penal Code introduce into Senegalese criminal law the
88
crimes of genocide, crimes against humanity, including torture, and war crimes ;
⎯ Article 669 of the Code of Criminal Procedure was amended to provide for the jurisdiction of
Senegalese courts over the a bove-mentioned crimes committed by a foreigner outside Senegal
if the alleged perpetrator of the crime is located in Senegal (universal jurisdiction), or if his
29 victim is resident in Senegal (89ssive personal jurisdiction), or if the alleged perpetrator has
been extradited to Senegal .
1.47. Moreover, in its Note Verbale of 21 February 2007, the Ministry of Foreign Affairs of
Senegal observed that “the principle of non-retr oactivity” does not block the sentencing of any
individual found guilty of acts “considered criminal under the general principles of law recognized
by all States” . Senegal also established “a working group charged with producing the proposals
necessary to define the conditions and procedures suitable for prosecuting and judging the former
President of Chad, on behalf of Africa, with the guarantees of a just and fair trial” . 91
On this basis
⎯ “a special system must be established from the in frastructure, legislative and administrative
standpoint to bring it into conformity with the hi ghest relevant standards and enable a fair trial
92
to be held” ;
⎯ steps must be taken to facilitate letters of re quest and the working stays abroad of judicial
93
personnel “for purposes of investigation” ;
⎯ the broadest possible accessibility must be assured fo r persons interested in the trial, as well as
the use of information and communication technologies ; 94
95
⎯ the “highest degree of protection” must be assured for judges, witnesses and victims ;
30 ⎯ such a trial requires funds to be mobilized with “the assistance of the international
community”, as is moreover suggested by the African Union . 96
Senegal submitted a report dealing with these poi nts to the Assembly of Heads of State and
Government of the African Union (29-30 January 2007). The Assembly took note of the report and
invited the Member States and the entire intern ational community to mobilize “the resources”,
particularly the financial resources, required for the trial . 97
88Ann. D.6.
89Ann.D.7.
90Ann. B.13.
91
Ibid.
92
Ibid.
93
Ibid.
94Ibid.
95Ibid.
96Ibid.
97
Ibid. - 17 -
98
1.48 By Note Verbale of 8May2007 , Belgium reminded Senegal of the request for
arbitration which it had transmitte d in June2006, and in which it had referred to the relevant
provisions of the Convention against Torture.
This Note Verbale from Belgium met with no response.
1.49. On 5October2007, Senegal informed Belg ium, by Note Verbale, of its decision to
organize the trial of Mr. Habré in Senegal and invited Belgium, together with other Member States
of the European Union, to attend a “meeting of potential donors to finance it” scheduled for
16 October 2007 . That meeting never took place.
1.50. Subsequently, several exchanges concerning the holding of a conference of donors took
place between the Representative of the European Commission and the diplomatic missions of
Member States of the European Union based in Dakar, on the one hand, and Senegal, on the other.
However, no donor conference was actually organized for want of a realistic 100 mutually agreed
budget covering the costs of organizing Mr. Habré’s trial in Senegal .
1.51. In a Note Verbale of 2December2008, transmitted to the Senegalese Ministry of
Foreign Affairs on 16December2008, the Belgian Embassy in Dakar referred to the dispute
between the two States concerning the interpretati on and implementation of several provisions of
31 the Convention against Torture. Belgium “reite rates its receptiveness to establishing international
judicial co-operation with Senegal, in particular by forwarding to Senegal the Belgian investigation
file in response to a letter of request from the Senegalese authorities”. Belgium was prepared “to
receive, as soon as possible and as most convenient to them, the Senegalese investigating judges
handling this case”. Belgium hoped that this co- operation would result in “decisive progress in the
next few weeks” 101.
1.52. On 19February2009, Belgium filed w ith the Registry of the Court an Application
instituting these proceedings. Toge ther with its Application, Belgium filed a request for the
indication of provisional measures, having regard to the statements made by President Wade in the
press and to the media, to the effect that Senegal could lift the house arrest of Mr. Habré if it failed
102
to find the budget which it regarded as necessary for organizing his trial .
1.53. On 29 May 2009, the Minister of Justice of Senegal st103d that four judges had been
appointed “to lead the investigation against Mr.Habré” . By Note Verbale of 23June2009,
transmitted on 2July2009, Belgium reca lled its Note Verbale of 2December2008 104 and added
that it would defray the costs associated with the execution of a preliminary letter rogatory aimed at
enabling Senegalese judges to examine the Belgian record of investigation 10. By Note Verbale of
9Ann. B.14.
9Ann. B.15.
10See paras. 1.76 to 1.79 below.
101
Ann. B.16.
102
Anns. C.7 and C.8.
10Article in Sud Quotidien, 29May2009 (Ann.G.9) and article in Walfadjiri, 29May2009 (Ann.G.10); see
also Ann. B.19.
10See para. 1.51 above.
10Ann. B.17. - 18 -
29July2009, Senegal took note of Belgium’s propo sal for judicial co-operation in the H.Habré
case; it indicated that the proposal had been refe rred to the competent authorities and that “any
development in this connection will be communicated to the Embassy as soon as possible” 10. By
Note Verbale of 14September 2009, Senegal welcom ed Belgium’s offer of judicial assistance.
Senegal also announced the designation of two of the four judges, Messrs.Diouf and Seck, to visit
32 Belgium, and stated that concre te arrangements could be establ ished “at the convenience of the
Belgian and Senegalese parties, once the period ofjudicial recess in mid-November 2009 has come to
107
an end” .
1.54. In a Note Verbale of 14 October 2009, transmitted in the context of an approach made to
the Minister for Foreign Affairs on 22October2009, Belgium took note of the designation of four
Senegalese judges to conduct the investigation against Mr.Habré 108. It repeated that the Belgian
judicial authorities were prepared to furnish to the Senegalese judges, in connection with a letter
rogatory to be executed in Belgium, a copy of the Belgian record of investigation against Mr. Habré,
and to bear the costs associated with the letter rogatory. Belgium laid stress on compliance with the
rules governing mutual judicial assistance. On 28October2009, in an interview given to the
Ambassador of Belgium, certai n Ambassadors of other States of the European Union and the
Representative of the European Commission, the Senegalese Minister of Justice thanked Belgium in
particular for its offer of co-operation and said that he had undertaken to respond to it at the earliest
opportunity. The Minister also referred to budgetarymatters and said that the Senegalese authorities
were not in agreement with the revised budget presented by the African Union following the mission
of the African Union Commission in June 2009 . 109
1.55. On 19November2009, in the cour se of a telephone conversation between the
Ambassador of Belgium and the Senegalese Minister of Justice, the latter announced that his services
were preparing a formal letter rogatory in resp onse to Belgium’s proposal of mutual judicial
assistance.
1.56. On 5December2009, PresidentWade rece ived the Belgian Minister of Development
Co-operation, Charles Michel, on a visit to Dakar,and reiterated Senegal’s intention to try Mr. Habré
provided that all the necessary fundswere available. He once again threatened to refer Mr. Habré “to
the African Union or to Belgium” ifno solution was found by January 2010.
33 1.57. On 14 January 2010, the Court of Justice of the Economic Community of West African
States held a hearing to examine the case brought against the Republic of Senegal in the context of
the H.Habré case. In their pleadings, counsel for Senegal noted inter alia that, at that stage, no
110
proceedings were pending against Mr. Habré in the Senegalese courts .
1.58. In February 2010, the Belgian Minist er for Foreign Affairs met his Senegalese
counterpart in Addis Ababa on the sidelines of the African Union Summit. The Senegalese
Minister indicated that the only remaining obstacle to the organization of the trial was merely of a
10Ann. B.18.
10Ann. B.19.
108
Ann. B.20.
109
See para. 1.89 below.
11ECOWAS Court of Justice, Hissein Habré v. Republic of Senegal, Judgment on Preliminary Objection,
14 May 2010, para. 14 (Ann. E.1). See also para. 2.10 below. - 19 -
financial nature. He also indicated that Mr.Habré was under house arrest and that there was no
risk of his escaping.
1.59. On 23 February 2010, the Belgian Amba ssador transmitted to the Senegalese Ministry
of Foreign Affairs a Note Verbale in which Be lgium again reiterated its offer of judicial
co-operation and set 30April2010 as the deadlin e for execution of the letter rogatory for
Senegalese judges to go to Belgium and be provided with a copy of the record of investigation
drawn up concerning H. Habré by the Belgian judicial authorities 111.
1.60. In March2010, the Ambassador of Be lgium met the new Senegalese Minister of
Justice who expressed receptiveness to the Belgian offer of judicial co-operation without, however,
wishing to make a specific commitment regarding transmission of an international letter rogatory.
1.61. In a Note Verbale dated 30April2010, the Senegalese Ministry of Foreign Affairs
replied to the Note of 23 February 2010 from the Belgian Embassy regarding the Belgian offer of
judicial co-operation whereby the Senegalese judg es responsible for the case would be received in
Belgium on the basis of an international letter rogatory, and recalled that “the competent
Senegalese authorities welcomed this proposal” and that “[a]ll that remained to be decided by the
112
parties were the terms of implementation” .
34 1.62. On 26May2010, the Belgian Minist er for Foreign Affairs met his Senegalese
counterpart in Brussels. The Ministers discussed inter alia the H.Habré case. During the
discussion, the Senegalese Minister for Foreign Affa irs told the Belgian Minister that no judge had
to date been put in charge of the investigation, given the lack of agreement on the budget to finance
the proceedings. In that context, the Senegalese Minister stated that he was unable to transmit a
letter rogatory in proper form and proposed, by way of alternative, that four prosecutors (“those in
charge of the criminal proceedings”) should undert ake an exploratory mission to examine the case
file in Belgium.
1.63. In the Note on the latest developments transmitted to the Court by Senegal on
15 June 2010 113, Senegal stated that “[t]he Senegalese authorities welcomed” 114 Belgium’s offer to
receive the judges in charge of the H. Habré case on the basis of an international letter rogatory and
to bear the costs of their visit. Senegal referred repeatedly to its desire to fulfil its “international
commitments” with regard to initiating judicial proceedings against Mr.Habré 11. Senegal also
11Ann. B.22.
112
Ann. B.23.
113
See para. 0.11 above.
11Ann. D.9, p. 1.
11See: “Senegal . . . its commitment to put Mr. Hissène Habré on trial”, ibid.; “Senegal’s desire both to continue
the efforts that it has made on various levels to en sure that the trial can indeed take place soon”, ibid.; the President of
the Republic [ . . .] reiterate[d] his commitment to have judicial proceedings opened against Mr. Habré”, ibid. , p. 2; “the
Senegalese authorities replied by reaffirming Senegal’s desire to comply with the obligations arising from its signature
and ratification of the Convention against Torture”, ibid., p. 3; “its [Senegal’s] commitment to fighting impunity”, ibid.;
“Senegal has been summoned to appear [before two African Courts ] in two cases that are direct ly related to the trial that
the State of Senegal intends to open on its owterritory, in accordance with its international obligations and national
legislation, against Mr. Hissène Habré”, ibid., p.4; “the applict was clearly attempting to prevent Senegal from
achieving its declared objective of putting Mr. Hissène Habré on trial in compliance with its international obligations, an
attempt that would appear to have definitively failed”, ibid.; “the clear desire of the Senegalese Government and Head of
State to open judicial proceedings against [Mr.Habré], in accordance with the State of Senegal’s international
commitments and its own national law”, ibid., p. 6. Emphasis added by Belgium, in the preceding extracts. - 20 -
indicated that it “would not be invoking any argum ent based on a lack of financial resources in
116
order to escape its obligations and [that it] had not considered doing so” .
1.64. By Note Verbale dated 15 June 2010 from the Ministry of Foreign Affairs of Senegal,
addressed to the Belgian Embassy in Dakar,
35 “[t]he competent Senegalese authorities reiterate their thanks to the Embassy for this
initiative and wish to express once again th eir willingness to accept this offer [of a
letter rogatory], as soon as the forthcoming Donors’ Round Table has taken place.
This is being held under the aegis of the European Union and the African Union to
117
raise financial contributions from States and institutions.”
1.65. In a Note Verbale of 28June2010 fro m the Embassy of Belgium in Dakar to the
118
Senegalese Ministry of Foreign Affairs , the Belgian authorities:
“while welcoming Senegal’s readiness to ta ke up Belgium’s offer, recall that a State
should ‘not be invoking any argument based on a lack of financial resources in order
to escape its [international] obligations’. This, moreover, was recalled by Senegal
itself in its ‘Note on the latest developments in Senegal’s preparations for the trial of
Mr. Hissène Habré since the delivery of the Order of 28 May 2009 on the request for
the indication of provisional measures submitted by Belgium’, sent to the International
Court of Justice by letter of 15June2010 in the context of the dispute between
Belgium and Senegal, brought before the In ternational Court of Justice by Belgium
through its Application filed on 19 February 2009.”
And they added:
“If Senegal were to maintain its pos ition consisting of making the transmission
of an initial letter rogatory to Belgiu m conditional upon the holding of a Donors’
Round Table ⎯ a Round Table which would be unlikely to take place for at least
several months ⎯ the Senegalese judicial authorities would risk finding themselves
unable to initiate proceedings against Mr .HissèneHabré in accordance with the
principle of a reasonable period of time. Accordingly, Belgium respectfully points out
to Senegal that it is still possible for it to honour its obligation to prosecute or extradite
by opting for the second of those alternatives.”
V. R EFERRAL OF THE CASE TO THE A FRICAN UNION AND
SUBSEQUENT DEVELOPMENTS
1.66. The present section will deal with
⎯ the referral by Senegal of the H. Habré case to the African Union (A); and
⎯ the efforts made by the African Union and the Eu ropean Union to assist Senegal in instituting
proceedings (B).
11Ann. D.9, p. 3.
117
Ann. B.25.
11Ann. B.26. - 21 -
36 A. Referral of the H. Habré case to the African Union
1.67. The involvement of the African Union in the proceedings against H. Habré dates back
to December2005 and continues to this day. Duri ng the period of four and a half years that has
thus elapsed, the Senegalese public prosecutor’s of fice has taken no judicial steps to institute
proceedings against Mr.Habré. Moreover, be fore the Court of Justice of the Economic
Community of West African States (ECOWAS), Senegal itself affirmed that, to date, “no
proceedings against [Mr.Habré] were pending... in the Senegalese courts” 11. Moreover,
Senegal’s statements show a continued lack of certainty on the question whether Senegal considers
that it is acting solely under a mandate from the African Union, or whether it is seeking to fulfil its
obligations under the Convention against Torture and other rules of international law.
1.68. The day after the decision of 25November2005 in which the Chambre d’accusation
held that it had no jurisdiction to deal with the request for extradition, i.e., on 26 November 2005,
the Senegalese Minister of the Interior issued a decree “placing Mr. Habré . . . at the disposal of the
Chairman of the African Union”, while indicating that, after a lapse of 48 hours, Mr. Habré would
be expelled to Nigeria (a country which, at that point in time, was exercising the presidency of the
120
African Union) . However, the Senegalese Minister for Foreign Affairs stated on
27November2005, in a communiqué, that Mr. Habré would remain in Senegal as long as the
African Union Summit had not “indicate[d] which court has jurisdiction to determine this case” 121.
1.69. In a communiqué of its Ministry of Fo reign Affairs, annexed to the Note Verbale
122
addressed to Belgium on 7 December 2005 , Senegal stated that it “is in no way directly involved
in the ‘Hissène Habré’ case” and that this case “is not a Senegalese case but an African case”. As
noted above, the Minister of the Interior had adopted a decree placing Mr. Habré “at the disposal of
37 123
the Chairman of the African Union” .
1.70. Senegal duly informed the Assembly of Heads of State and Government of the African
Union, at its sixth ordinary session held in Khartoum on 23-24January2006, that the Senegalese
Government had taken the decision to transmit the dossier to the African Union so that the H124s
of State and Government could decide what follow-up should be given to this case .
1.71. In its Decision103(VI), the Assembly of the African Union established a Committee
of Eminent African Jurists to consider, among ot her things, “all aspects and implications of the
125
Hissène Habré case” . That committee reported to the next session of the Assembly, held in
Banjul on 1-2 July 2006. On that occas ion, the Assembly adopted Decision 127 (VII) 126in which
it took note of the report presented by the Committee of Eminent African Jurists 127. The Assembly
then noted that, under the terms of Articles3 (h), 4 (h) and 4 (o) of the Constitutive Act of the
119
ECOWAS Court of Justice, Hissein Habré v. Republic of Senegal, Judgment on Preliminary Objections,
14 May 2010, para. 14 (Ann. E.1).
120
HRW chronology: http://www.hrw.org/en/news/2009/02/12/chronology-habr-case.
121Ann. B.5.
122Ibid.
123
See para. 1.68 above.
124
Assembly/AU/8 (VI) Add. 9.
125Assembly/AU/Dec.103 (VI), para. 3 (Ann. F.1).
126Assembly/AU/Dec.127 (VII), (Ann. F.2).
127Ibid., para. 2. - 22 -
African Union, “t128crimes of which HissèneHabr é is accused fall within the competence of the
African Union” . Further, considering that “in its present state, the African Union has no legal
organ competent to try HissèneHabré” 12, and “considering the jurisdiction of the International
Court of Justice..., and the ratification by Senegal of the United Nations Convention against
Torture” 130, the Assembly:
“(i) DECIDES to consider the HissèneHabré case as falling within the competence of the
African Union;
(ii) MANDATES the Republic of Senegal to prosecute a nd ensure that HissèneHabré is tried,
on behalf of Africa, by a competent Senegalese court with guarantees for fair trial;
38 (iii) FURTHER MANDATES the Chairperson of the Union, in consultation with the Chairperson
of the Commission, to provide Senegal with the necessary assistance for the effective
conduct of the trial;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(v) CALLS UPO131 the international community to avail its support to the Government of
Senegal” .
1.72. At its eighth ordinary session, held in Addis Ababa on 29-30January2007, the
Assembly of the African Union recalled the decision adopted in Banjul and took note of an interim
132
report from Senegal . At its twelfth ordinary session, held again in Addis Ababa
(1-3February2009), the Assembly of Heads of State and Government of the African Union
adopted Decision 240 (XII) 13. In that Decision, the Assembly:
C“4. ONSIDERS that the final budget of the case should be prepared and adopted
by the African Union, in conjunction with the Government of the Republic of Senegal
and the European Union; [and]
C 5. ALLS ON all Member States of the African Union, the European Union and
partner countries and institutions to make their contributions to the budget of the case
by paying these contributions directly to the African Union Commission.”
1.73. At its thirteenth ordinary session, held in Sirte, Libya (1-3 July 2009), the Assembly of
Heads of State and Government of the African Union:
“4. R EITERATES its appeal to all Member States to contribute to the budget of the trial
and extend the necessary support to the Government of Senegal in the execution
of the AU mandate to prosecute and try Hissène Habré;
12Assembly/AU/Dec.127 (VII), (Ann. F.2), para. 3.
12Ibid., para. 4.
13Ibid., para. 5.
131
Ibid.
13Assembly/AU/Dec.157 (VIII), (Ann. F.3).
13Assembly/AU/Dec.240 (XII), (Ann. F.4). - 23 -
5. D ECIDES that the AU should make a token contribution to the budget of the trial
for a sum to be determined following consultations between the Commission and
the Permanent Representatives Committee (PRC).” 134
1.74. At its fourteenth ordinary session (A ddis Ababa, 31 January-2 February 2010), the
Assembly of Heads of State and Government of the African Union;
39 “4. R EITERATES its appeal to all Member States to contribute to the budget of the trial
and extend the necessary support to the Government of Senegal in the execution
of the African Union (AU) mandate to prosecute and try Hissène Habré;
5. R ECALLS its Decision Assembly/AU/246(XIII) adopted in Sirte, Great Libyan
Arab Jamahiriya in July 2009, calling fo r the African Union to make a token
contribution to the budget of the trial for a sum to be determined following
consultations between the Commission and the Permanent Representatives
Committee (PRC);
6. R EQUESTS the Government of Senegal, the Co mmission and partners, particularly
the European Union to continue with consultations with the view to ensuring the
holding of the Donors’ Round Table as soon as possible.” 135
1.75. At the hearings on the request for the indication of provisional measures, Senegal
stated: “[A]t no point has Senegal established an y link between the dec136on of the African Union
and the obligations incumbent upon it under the 1984 Convention.”
Senegal also indicated that: “it is as a part y to the Convention, not pursuan137o a mandate
from the African Union, that the Republic of Senegal is fulfilling its obligations” .
1.76. While Belgium welcomes these statements, it notes that the decisions of the African
Union concerning the HissèneHabré case, including decisions subsequent to the statements made
by Senegal to the Court, relate to proceedings against Mr. Hissène Habré “in compliance with the
mandate from the African Union”. Moreover, the terms of reference decided in October2009 by
the Senegalese authorities explain that “[i]n the li ght of such a clear mandate [from the African
Union], the Senegalese authorit138 were required to make suitable arrangements for the trial to take
place as quickly as possible” and that it was necessary to “ensure the proper implementation of
their political commitment” 139. This is consistent with certain statements by Senegal to the effect
that
40 ⎯ it had voluntarily accepted the “mandate” of the African Union;
⎯ the latter could terminate the mandate whenever it so wished;
⎯ the entire case now came under the responsibility of Africa, not Senegal.
13Assembly/AU/Dec. 246 (XIII), 3 July 2009 (Ann. F.5).
13Assembly/AU/Dec. 272 (XIV), 2 Feb. 2010 (Ann. F.6).
13CR 2009/11, 8 Apr. 2009, p. 13, para. 10 (Diouf).
137
Ibid., p. 18, para. 11 (Sall).
13Ann. D.8, p. 2.
13Ibid., p. 3. - 24 -
B. The efforts of the African Union and the European Union to help
Senegal organize proceedings
1.77. In July2007, the Senegalese au thorities requested financial support from the
international community to organize Mr. Habré’s tr ial in Senegal, but no realistic or agreed budget
could be established 140.
1.78. On 18July2007, in a letter from the Senegalese President to the Belgian Prime
Minister, the Senegalese authorities communicated their own revised estimate of the budget needed
to organize the trial (+/-€27million) and requested financial and technical support from Belgium.
The President also announced his intention to hold a meeting of potential donors in
141
September 2007 . Several partners of the European Union received a similar letter. At the
suggestion of certain other Member States, it w as decided that the Presidency of the European
Union would reply on behalf of the Union to the request from the Senegalese authorities and would
suggest sending an expert mission from the European Union to help the Senegalese authorities in
the calculation of a realistic budget for the trial.
1.79. On 14 September 2007, the Presidency of the European Union sent a letter to
President Wade proposing the dispatch of an “expert technical mission to be tasked with analysing,
142
with the competent authorities [of Senegal], existing needs for the organization of the trial” . In
spite of this letter, the Senegalese Embassy transm itted a Note Verbale to the Belgian Ministry of
41 Foreign Affairs on 5October2007, inviting Be lgium to a meeting of potential donors on
143
16 October 2007 . A similar Note Verbale was sent to all the diplomatic missions in Brussels and
to the European Commission. After consultations between the Heads of Mission of Member States
of the European Union in Dakar, the Presidency of the European Union in Dakar spoke to the
Principal Private Secretary to MinisterGadio w ith a view to postponing the meeting of potential
donors until after the expert mission of the Europ ean Union, as the excessive budget estimates for
the organization of the trial by the Senegalese au thorities had not been revised in the meantime.
The Minister agreed to the adjournment of the meet ing to a date to be decided, and requested the
representatives of the European Union in Senegal to propose a new date at their convenience.
1.80. Nevertheless, by a facsimile of 4December2007 addressed to Prime Minister
Verhofstadt, the President of Senegal again convened a meeting of potential donors for 13and
144
14 December 2007 . A similar invitation was sent to the other diplomatic missions of the
Member States of the European Union in Daka r and to the Representative of the European
Commission. The latter immediately re quested and was granted a postponement sine die of the
meeting until after the expert mission of the Euro pean Union. By letter of 7December2007, the
Senegalese President informed the Belgian Prime Mi nister of the postponement “to a later date” of
145
the conference of potential donors “for scheduling reasons” . Belgium, for its part, exerted
pressure to have the expert mission organized as quickly as possible.
14The terms of reference for the organization of the l of Mr.HissèneHabré, prepared in Oct.2009 by the
Committee on Follow-up and Communication established by Senegal, provided for a budget of more than 18 billion CFA
francs (+/-€27 million), a budget identical in amount to the one already estimated in 2007.
14Ann. D.14.
142
This item of European correspondence has been classified as restricted by the Secretariat of the Council of the
European Union.
143
Ann. B.15.
14Ann. D.15.
14Ann. D.16. - 25 -
1.81. Since January2008, the African Union and the European Union have endeavoured to
determine the type of assistance that Senegal should receive for the purpose of organizing
Mr. Habré’s trial.
1.82. On various occasions, the Assembly of Heads of State and Government of the African
Union has called on the Member States of the Uni on to contribute to the budget for the trial 146. In
its Note on the latest developments, Senega l noted that, at its most recent Summit in
42 February 2010, Senegal had been invited to “continue with consultations with a view to holding the
Donors’ Round Table in Dakar in 2010” 147. Senegal also refers to tw o preliminary drafts of terms
of reference proposed by the African Union, on e on the organization of the Donors’ Round Table
and the other on the management of the funds earmarked for the trial 14, although these documents
have not been communicated to the Court or to Belgium.
1.83. In January2008, an expert mission from the European Union went to Dakar to
formulate recommendations on support for the organi zation of the trial of Mr.H.Habré by the
Senegalese authorities, including recommendations on a revised and finalized budget.
1.84. In May 2008, the Senegalese Minister of Justice announced that, in order to prepare for
Mr.Habré’s trial, he had appointed Mr.Ibra himaGueye as co-ordinator, and a “Committee on
Follow-up and Communication” whose member s included judges and representatives of
non-governmental organizations. He also announced the establishment of a working group on
budgetary aspects 149.
1.85. By letter of 4November2008, the Senega lese authorities transmitted to the Office of
the Representative of the European Commission in Dakar a draft budget for the organization of
Mr.Habré’s trial: the draft was in the amount of 18billion CFA francs (approximately
€27 million) 150.
1.86. In December2008-January2009, in an exchange of letters be tween the Senegalese
President and the President of the Council of the European Union, the French President,
President Sarkozy, noted that the investigative stage of the trial had not started and that no credible
budget had been established. He proposed providing for technical support from the European
Union in order to work out a schedule and a budget which would make it possible to raise funds
from the international community swiftly. Preside nt Wade reiterated Senegal’s willingness to hold
43 the trial as soon as the financial and logistical conditions necessary to ensure its credibility had
been met 151.
1.87. In March 2009, Mr.RobertDossou, special envoy of the African Union for the
H. Habré case, went to Dakar on a mission concerning the preparation of the budget. There he met,
146
See also the Note on the latest developments, pp. 2-3.
14Ibid., p. 3.
14Ibid.
149
Agence de Presse Sénégalaise (APS), communiqué of 21 May 2008.
15Ann. D.10.
15Letter from President Sarkozy to President Wade of 15Dec.2008 (Ann.D.11) and letter of reply from
President Wade to President Sarkozy of 6 Jan. 2009 (Ann. D.12). - 26 -
among others, the Ambassadors of Belgium, Fran ce, the Netherlands and Switzerland, and the
Representative of the European Commission.
1.88. By letter of 2 June 2009 addressed to the Representative of the European Commission
in Dakar, the Senegalese President requested technical assistance for the evaluation of the budget
needed for H.Habré’s trial 15. The Representative of the Commission responded favourably and
began drafting terms of reference for the technical assistance mission. At his request, the
Senegalese Minister of Justice forwarded to him, on 25June2009, a set of documents relating to
the estimated budget for the trial (provisional budget estimate of 18 billion CFA francs prepared in
2007, with an additional budget for the co-ordinator and a budget for the prison administration).
1.89. A delegation from the African Union Commission visited Dakar from 4 to
10 June 2010 in order to draw up a draft budget in accordance with the “mandate from the African
Union” 153. No meeting with representatives of the European Union was organized and the latter
were informed of the visit only after the event by a letter of 25June2009 from the Minister of
Justice of Senegal to the Representative of the Commission of the European Union. At the
conclusion of that mission, the African Union re-estimated the budget needed as US$16 million.
1.90. In October 2009, terms of referenc e for the organization of the trial of
154
Mr. Hissène Habré were prepared by the Committee on Follow-up and Communication
established by Senegal. The term s of reference referred to the “mandate” from the African Union
and to the “political commitment” undert aken by the Senegalese authorities 155. The objectives
44
consisted in establishing the physical and lega l conditions necessary for organizing a fair trial
within 28months (20months for preparation and tr aining, five months for the trial, three months
for the appeal). The terms of reference describ ed the legislative amendments already made in
Senegal. They also described the working gr oup established after the decision of the African
Union to examine the legislative amendments, evaluate the costs, provide for a co-ordinator and a
committee on follow-up and communication, and the tr aining needs of judges and legal officials in
the near future. It was recommended to designa te the persons concerned, provide them with
training (including study trips), and address issues of security and communication. The budget
would exceed 18 billion CFA francs (approximately €27 million).
1.91. In a letter of 29October2009 from the Senegalese Minister of Justice to the
Representative of the European Commission, the former proposed a tripartite African
156
Union-European Union-Senegal meeting on budgetary matters . The Representative of the
Commission, in his reply, requested postponement of the meeting until after the second expert
mission of the European Union scheduled to take place before the end of the year and proposed
extending the invitation to other parties (fo r example, the United States of America and
Switzerland).
15Letter of 2June 2009 from the Senegalese authoritis to the European Commission delegation in Dakar
(Ann. D.13).
15Letter from the Minister of Justice of Senegal the Representative of the European Commission, dated
25 June 2009 (Ann. D.17).
154
Ann. D.8.
155
Ibid., p. 3.
15Ann. D.18. - 27 -
1.92. From 7 to 17 December 2009, three Europ ean Union experts visited Dakar in order to
assist the Senegalese authorities in finalizing the budget for the trial. This was the first phase in the
second expert mission of the European Union.
1.93. Taking advantage of the presence in Dakar of the European Union’s experts, the
Senegalese authorities, on 9December2009, orga nized a “day of validation of the terms of
reference for the organization of the trial of H. Habré”, in which the experts of the European Union
and representatives of the African Union Commission participated as observers.
1.94. The second phase of the second expert missi on of the European Union, scheduled for
45
19 to 23 April 2010, was postponed on account of disr uptions in European airspace. It was finally
held in the week of 17 May 2010.
VI. SUMMARY OF THE FACTS
1.95. The facts of this case may be summarized as follows:
⎯ from 1982 to 1990, Mr.Habré was President of Chad; during his presidency, numerous
violations of the most fundamental human ri ghts were committed against several tens of
thousands of persons (paras.1.05-1.10 above); having been deposed in 1990, H.Habré took
refuge in Senegal where he has been resident ever since (para. 1.08 above);
⎯ in January2000, victims of Mr.Habré file d a complaint against him in Senegal; the
investigating judge charged Mr.Habré with co mplicity in “crimes against humanity, acts of
torture and barbarity”, but the Chambre d’accusation annulled the proceedings on grounds of
lack of jurisdiction of the Senegalese courts in the absence of a law enab ling them to exercise
the extraterritorial jurisdiction required by the case (paras.1.11-1.13 above); in March2001
the Court of Cassation of Senegal rejected the appeal of the victims who had filed complaints
in Senegal (para. 1.15 above);
⎯ in November2000, complaints were filed in Belgium against Mr.Habré (paras.1.19-1.20
above);
⎯ in September 2005, upon completing his investigatio n, the Belgian investigating judge issued a
warrant in absentia for the arrest of Mr. Habré; the arrest warrant was transmitted to Senegal
via the Interpol system, with a red notice, and served as a request for provisional arrest with a
view to extradition (paras. 1.28-1.31 and 1. 34);
⎯ in November2005, the Chambre d’accusation of the Dakar Court of Appeal declared that it
46 had no jurisdiction to rule on the request fo r extradition from Belgium, given the immunity
enjoyed by the President of Senegal under Senegalese law (para. 1.36 above);
⎯ in December2005, Senegal transmitted two Notes Verbales to Belgium referring to the
judgment of the Chambre d’accusation of the Dakar Court of Appeal and pointing out that the
case had been referred to the African Union (paras. 1.38-1.39 above);
⎯ in January and March 2006, Belgium transmitte d two Notes Verbales to Senegal, requesting
Senegal to clarify its position on the request for the extradition of Mr. Habré, in the light of the
Convention against Torture (paras. 1.40-1.41); - 28 -
⎯ in May 2006, in its reply to the Notes Verbales of Belgium, Senegal stated that the transfer of
the case file to the African Union was in keeping with its obligations under the
1984 Convention (para. 1.43 above);
⎯ in June 2006, Belgium transmitte d a Note Verbale to Senegal in which it noted that it had not
been possible to resolve by ne gotiation the difference of views between the two States on the
interpretation and implementation of the Convention against To rture and that, consequently, it
proposed having recourse to the arbitration procedure provided for in the Convention
(para. 1.44 above);
⎯ in 2008, victims of Mr.Habré filed a further co mplaint against him in Senegal (para.1.49
above);
⎯ in December2008, Belgium offered to extend j udicial co-operation to Senegal by forwarding
the investigation file relating to Mr.Habré and receiving Senegalese investigating judges in
Belgium (para. 1.51 above);
⎯ in February2009, Belgium filed an Applica tion instituting proceedings with the Court and
submitted a request for the indication of provisional measures (para. 1.52 above);
⎯ in July2009, Belgium reiterated the proposal s it had made in December2008 (para.1.53
above);
47 ⎯ in July and September2009, Senegal welcomed the proposal for Belgian judicial assistance
and designated two judges to go to Belgium; Belgium took note of this and declared its
readiness to finance this letter rogatory (para. 1.53 above);
⎯ in November2009, the Minister of Justice of Senegal informed the Ambassador of Belgium
that a formal letter rogatory would be sent to Belgium (para.1.55 above); up to the present
time (end of June 2010), Belgium has not received a letter rogatory;
⎯ in December 2009, President Wade stated that Senegal would try H. Habré on condition that all
the necessary funds were available (para. 1.56 above);
⎯ in February2010, the Senegalese Minister for Foreign Affairs repeated this message to the
Belgian Minister for Foreign Affairs (para. 1.58 above);
⎯ in February2010, Belgium reiterated its offe r of judicial co-operation for the third time
(para. 1.59 above);
⎯ in March 2010, the new Senegalese Minister of Justice said that he was receptive to the Belgian
offer, but could make no concrete commitment re garding the transmission of a letter rogatory
to Belgium (para. 1.60 above);
⎯ in June2010, Senegal transmitted to the Court documents intended to demonstrate Senegal’s
willingness to initiate criminal proceedings against Mr. Habré (para. 1.63 above);
⎯ also in June2010, Senegal reaffirmed its readiness to accept the Belgian offer of a letter
rogatory “as soon as the forthcoming Donors’ Round Table has taken place. This is being held
under the aegis of the European Union and the African Union.” (Para. 1.64 above);
48 ⎯ in a Note Verbale in reply, also dated June 2010, the Belgian authorities indicated to the
Senegalese authorities that, by making further proceedings conditional on the actual holding of
a Donors’ Round Table, the Senegalese author ities might not be able to honour, within a - 29 -
reasonable period of time, the obligation to prosecute if not extradite, unless they opted for the
second of those alternatives (para. 1.65 above).
1.96. To sum up, Mr.Habré has been living in Senegal for 20years during which the
competent Senegalese authorities have at no time taken concrete action on
⎯ the international rules on action to combat impunity for the acts alleged against him;
⎯ two sets of individual complaints addressed to the Senegalese courts (2000, 2008);
⎯ the request for extradition addressed by Belgium to Senegal (2005);
⎯ the offers of judicial co-operation from Belgium to Senegal (2008, 2009, 2010);
⎯ the commitments explicitly undertaken by Senegal.49
C HAPTER II
PROCEEDINGS BEFORE THE C OMMITTEE AGAINST T ORTURE ,THE A FRICAN C OURT
ON H UMAN AND PEOPLES ’ RIGHTS AND THE COURT OF JUSTICE OF THE
ECONOMIC COMMUNITY OF W EST A FRICAN STATES (ECOWAS)
2.01. Several international forums have dealt with various aspects of the H. Habré case: the
United Nations Committee against Torture and two international courts, the African Court on
Human and Peoples’ Rights and the Court of Justice of the Economic Community of West African
States (as was stated by Senegal during thearings on provisional measures in April2009).
This chapter updates the information on those proceedings, in so far as such information is
available.
I.COMMITTEE AGAINST TORTURE
2.02. On 17May2006, the Committee against Torture rendered its decision on a
158
communication submitted against Senegal by SuleymaneGuengueng et al . The Committee
concluded that Senegal had violat ed the Convention against Torture by failing in its obligation to
extradite or prosecute Mr. Habr.
2.03. The Committee concluded:
“9.3 On the merits, the Committee mu st determine whether the State party
violated article 5, paragraph 2, and article 7 of the Convention. It finds ⎯ and this has
not been challenged ⎯ that Hissène Habré has been in the territory of the State party
since December 1990. In January 2000, the complainants lodged with an examining
magistrate in Dakar a complaint against Hissène Habré alleging torture. On
20 March 2001, upon completion of judicial proceedings, the Court of Cassation of
Senegal ruled that ‘no procedural textonfers on Senegalese courts a universal
jurisdiction to prosecute and judge, if they are found on the territory of the Republic,
50 presumed perpetrators of or accomplices in acts [of torture]. . . when these acts have
been committed outside Senegal by foreigners; the presence in Senegal of
HissèneHabré cannot in itself justify the proceedings brought against him’. The
courts of the State party have not ruled on th e merits of the allegations of torture that
the complainants raised in their complaint.
9.4 The Committee also notes that, on 25 November 2005, the Indictment
Division of the Dakar Court of Appeal sted that it lacked jurisdiction to rule on
Belgium’s request for the extradition of Hissène Habré.
9.5 The Committee recalls that, in accordance with article 5, paragraph 2, of the
Convention, ‘each State Party shall... take such measures as may be necessary to
establish its jurisdiction over such offen ces in cases where the alleged offender is
present in any territory under its jurisdand it does not extradite him...’. It
notes that, in its observations on the merits, the State party has not contested the fact
that it had not taken ‘such measures as mbe necessary’ in keeping with article5,
paragraph2, of the Convention, and observes that the Court of Cassation itself
15CR 2009/9, 6 Apr. 2009, pp. 28-29, para. 43 (Kandji).
158
Mr. Suleymane Guengueng is one of the victims who filed a complaint with the Senegalese judicial authorities.
15Ann. E.2. - 31 -
considered that the State party had not taken such measures. It also considers that the
reasonable time frame within which the State party should have complied with this
obligation has been considerably exceeded.
9.6 The Committee is consequently of the opinion that the State party has not
fulfilled its obligations under article 5, paragraph 2, of the Convention.
9.7 The Committee recalls that, under artic le 7 of the Convention, ‘the State
Party in the territory under whose jurisdiction a person alleged to have committed any
offence referred to in article 4 is found shall in the cases contemplated in article 5, if it
does not extradite him, submit the case to its competent authorities for the purpose of
prosecution’. It notes that the obligation to prosecute the alleged perpetrator of acts of
torture does not depend on the prior existen ce of a request for his extradition. The
alternative available to the State party unde r article7 of the Convention exists only
when a request for extraditi on has been made and puts the State party in the position
of having to choose between (a) proceeding with extradition or (b) submitting the case
to its own judicial authorities for the institution of criminal proceedings, the objective
of the provision being to prevent any act of torture from going unpunished.
9.8 The Committee considers that the State party cannot invoke the complexity
of its judicial proceedings or other reasons stemming from domestic law to justify its
failure to comply with these obligations under the Convention. It is of the opinion that
the State party was obliged to prosecute Hissène Habré for alleged acts of torture
unless it could show that there was not sufficient evidence to prosecute, at least at the
time when the complainants submitted their complaint in January2000. Yet by its
decision of 20 March 2001, which is not subj ect to appeal, the Court of Cassation put
an end to any possibility of prosecuting Hissène Habré in Senegal.
9.9 Consequently and notwithstanding the time that has elapsed since the initial
51 submission of the communication, the Committee is of the opinion that the State party
has not fulfilled its obligations under article 7 of the Convention.
9.10 Moreover, the Committee finds th at, since 19September2005, the State
party has been in another situation cove red under article7, because on that date
Belgium made a formal extradition request. At that time, the State party had the
choice of proceeding with extradition if it decided not to submit the case to its own
judicial authorities for the purpose of prosecuting Hissène Habré.
9.11 The Committee considers that, by re fusing to comply with the extradition
request, the State party has again failed to perform its obligations under article 7 of the
Convention.
9.12 The Committee against Torture, acting under article 22, paragraph 7, of the
Convention, concludes that the State party has violated article5, paragraph2, and
160
article 7 of the Convention.”
2.04. In its Note on the latest developments tr ansmitted to the Registry of the Court, Senegal
refers to a confidential fact-finding mission by the Commission against Torture which visited
Senegal from 4 to 7 August 2009 in order to “ascertain what steps the State of Senegal had taken to
prepare for the trial of Mr.HissèneHabré and how much progress had been made” 161. The
160
Committee against Torture, Suleymane Guengueng et al. v. Senegal, communication No. 181/2001, decision of
17 May 2006, CAT/C/36/D/181/2001, paras. 9.3-9.12 (Ann. E.2).
161
Ann. D.9, p. 3. - 32 -
Committee’s mission met the administrative and judicial authorities in charge of the H. Habré case.
It is reported that, following an observation made by the members of the mission, the Senegalese
authorities reaffirmed “Senegal’s desire to comply with the obligations arising from its signature
and ratification of the Convention against Torture” and also gave assurances that “Senegal would
not be invoking any argument based on a lack of financial resources in order to escape its
obligations, and had not considered doing so”62. According to the explanation given in the Note
on the latest developments, “the members of the Committee had opted 163 an approach that
involved, above all, hearing the views of the State concerned on this iss.e”
52 II.AFRICAN C OURT ON H UMAN AND P EOPLES ’ RIGHTS
2.05. In the Michelot Yogogombaye v. Republic of Senegal case, the applicant requested
“suspension of the ongoing proceedings instituted” by Senegal agains t Mr. Habré. In its judgment
of 15 December 2009, the African Court on Human and Peoples’ Rights unanimously ruled that it
had no jurisdiction to hear the case as Senegal had made no declaration accepting the jurisdiction of
the Court under Article34, paragraph6, of the Protocol to the African Charter on Human and
Peoples’ Rights on the establishment of that Court.
III.C OURT OF JUSTICE OF THE E CONOMIC C OMMUNITY
OF W EST A FRICAN STATES (ECOWAS)
2.06. In an application filed on 6 October 2008 against Senegal, Mr. Habré seised the Court
of Justice of the Economic Community of West African States, requesting it to find numerous
violations of international instruments for the pr otection of human rights, including the Universal
Declaration of Human Rights, the African Charter on Human and Peoples’ Rights and the
International Covenant on Civil and Political Rights. He requested the Court to
⎯ “adjudge and declare that any proceedings instituted on the grounds indicated in
[the] application would be liable to perpetuate the said violations;
⎯ adjudge and declare that the violation of these principles and rights constitutes an
obstacle to the implementation of any proceedings against Mr. Hissein Habré;
⎯ order the Republic of Senegal in consequence to uphold the rights and principles
referred to above and cease any pro ceedings and/or actions against
165
Mr. Hissein Habré”.
53 2.07. The Note on the latest developments transmitted by Senegal to the Court indicates that,
on 27November2009, the Court of Justice, by preliminary judgment No.ECW/CCJ/ADD/11/09,
rejected the application to intervene submitted by the “Victims’ Collectiv.”
16Ann. D.9, p. 3.
163
Ibid.
16Judgment of 15Dec.2009, Michelot Yogogombaye v. Republic of Senegal , application No.001/2008
(Ann. E.3). See also the explanations of Senegal in its Note on the latest devel opments in Senegal’s preparations for the
trial of Mr. Hissène Habré since the delivery of the Order of 28 May 2009 on the request for the indication of provisional
measures submitted by Belgium, 15 June 2010, p. 4 (Ann. D.9).
16ECOWAS Court of Justice,Hissein Habré v. Republic of Senegal, Judgmen t on Preliminary Objections,
14 May 2010, para. 2 (Ann. E.1).
16Ann. D.9, p. 7. - 33 -
2.167 In a Note Verbale of 12May2010 addressed to the Mini ster for Foreign Affairs of
Senegal , Belgium requested the Senegalese authorities to provide confirmation, in the event that
a decision of the Court of Justice of the Economic Community of West African States declared
Mr.Habré’s appeal to be well-founded, of their interpretation of their solemn commitment made
before the International Court of Justice to keep Mr.Habré on their territory. At the end of
June 2010, that Note Verbale had still met with no response.
2.09. On 14May2010, the Court of Justice held that it had jurisdiction and that the
168
application was admissible . The Court decided that
“⎯ the Court has jurisdiction to hear the case referred to it by Mr. Hissein Habré;
⎯ finds that the application by Mr. Hissein Habré is admissible;
⎯ consequently, rejects the preliminary objections raised by the State of Senegal;
169
⎯ orders the continuation of the proceedings on the merits” .
2.10. In their pleadings on the jurisdiction of the Court of Justice of the Economic
Community of West African States, the representativ es of Senegal acknowledged that “at the time
when Mr.HisseinHabré seised this Court, no proceedings against him were pending, nor are any
170
pending at this date, in the Senegalese courts” .
2.11. The Court of Justice held hearings on the merits of the case on 18 June 2010. At those
54
hearings, Senegal reaffirmed that no violation of instruments for the protection of human rights had
been committed and that only potential violations are at issue, having regard to the fact that, at the
present time, no judicial proceedings have been formally instituted against Mr. Habré. The Court’s
decision is expected on 19 October 2010.
167
Ann. B.24.
168
ECOWAS Court of Justice, Hissein Habré v. Republic of Senegal, Judgment on Preliminary Objections,
14 May 2010 (Ann. E.1).
16Ibid., para. 71.
17Ibid., para. 14.55
C HAPTER III
T HE JURISDICTION OF THE C OURT
3.01. In its Application instituting proceedings, Belgium invoked two bases of jurisdiction:
⎯ Article 30 of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment 171;
⎯ the declarations made by Belgium and Senegal under Article 36, paragraph 2, of the Statute of
the Court172.
3.02. These bases of jurisdiction were addressed in the oral proceedings on the indication of
provisional measures. In its Order of 28May2009, the Court held that it had prima facie
jurisdiction under Article 30 of the Convention against Torture 17. It also decided that
“consequently there is no need to ascertain, at this stage of the proceedings, whether
the declarations made by the Parties pursuant to Article 36, paragraph 2, of the Statute
might also, prima facie, afford a basis on which the Court’s jurisdiction could be
174
founded” .
3.03. Article 30 of the Convention against Torture applies to the dispute inasmuch as it
concerns the obligations of Senegal under that C onvention. Moreover, the jurisdiction founded on
Article 36, paragraph 2, of the Statute covers the entire dispute brought before the Court, whether
based on the Convention against Torture or on any other rule of conventional or customary
international law. Belgium considers that the Court has jurisdiction on this double basis175.
56 3.04. Section I of this Chapter will examine the jurisdiction of the Court from the standpoint
of Article 30 of the Convention against Torture. Section II will deal with the optional declarations
of acceptance of the compulsory jurisdiction of the Court.
I.JURISDICTION UNDER A RTICLE 30 OF THE C ONVENTION
AGAINST T ORTURE
3.05. Article30, paragraph 1, of the Convention against Torture is a compromissory clause
providing that disputes concerning the interpretati on or application of the Convention shall be
submitted to arbitration or, if “the parties are unable to agree on the organization of the arbitration”,
to the International Court of Justice:
171
Ann. A.1.
17Ann. A.2.
17Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Request for the indication
of provisional measures, Order of 28 May 2009, para. 53. See also the consideration of Article 30 at paras. 42-52.
17Ibid., para. 54.
175
The argument put forward by Senegal during the publhearings on the request for the indication of
provisional measures, to the effect that the condition for jurisdiction under Article 30 and that deriving from the optional
declarations of compulsory jurisdiction are “cumulative in such a way that it is enough for one of them to be lacking for
the Court to be unable to uphold its jurisdiction” (CR8 Apr.2009, p.15, para.21 (D iouf)), is utterly without
foundation. - 35 -
“Any dispute between two or more States Parties concerning the interpretation
or application of this Convention which cannot be settled through negotiation shall, at
the request of one of them, be submitted to arbitration. If within six months from the
date of the request for arbitration the Parties are unable to agree on the organization of
the arbitration, any one of those Parties may refer the dispute to the International
Court of Justice by request in conformity with the Statute of the Court.”
3.06. Belgium and Senegal are parties to the C onvention against Torture. Senegal ratified it
on 21 August 1986. It entered into force for Senegal at the time of its general entry into force on
26 June 1987. Belgium ratified the Convention on 25 June 1999. It entered into force for Belgium,
including in its relations with Senegal, on 25 July 1999.
3.07. Neither Belgium nor Senegal have made any reservation to the Convention,
particularly on the basis of Article 30, paragraph 2, which authorizes a State party to opt out of the
compromissory clause provided for in paragraph 1 of that Article. Belgium and Senegal are
therefore bound by Article 30, paragraph 1, of the Convention.
3.08. Article 30, paragraph 1, is a relativel y common provision in international conventions.
176
It is similar to Ar177le14 of the Montreal Convention , which the Court examined in the
57 Lockerbie cases . It is also similar to Article29 of the Convention on the Elimination of All
Forms of Discrimination Against Women 178 which the Court had to examine in the dispute
179
between the Democratic Republic of the Congo and Rwanda .
3.09. Four conditions must be satisfied before a party can submit a dispute to the Court under
Article 30 of the Convention against Torture:
⎯ there must be a “dispute between two or more States Parties concerning the interpretation or
application of this Convention”;
⎯ the dispute “cannot be settled through negotiation”;
⎯ one of the parties to the dispute must have requested that it be submitted to arbitration; and
⎯ “within six months from the date of the request for arbitration the Parties are unable to agree on
the organization of the arbitration”.
176
Convention for the Suppression of Unlawful Acts agai nst the Safety of Civil Aviation, 23Sep.197UNTS,
Vol. 974, p. 178 (I-14118).
177
Questions of Interpretation and Application of the 1971 Mo ntreal Convention arising from the Aerial Incident
at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 9;
Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at
Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports
1998, p. 115.
178
Convention on the Elimination of All Forms of Discrimination against Women, 18 Dec. 1979, Art. 29, para. 1,
UNTS, Vol.1249, p.13 (I-20378). Although this provision of the 1979 Convention refers to any dispute “which is not
settled by negotiation”, whereas the 1984 Convention refers to any dispute “which cannot be settled through negotiation”,
there is no substantive differenc e. In the case concerning Armed Activities on the Territo ry of the Congo (Democratic
Republic of the Congo v. Rwanda) (New Application: 2002) , the Court, in referring to the 1979 Convention, used the
phrase: “which could not have been settled by negotiation” ( Jurisdiction and Admissibility, Judgment , I.C.J.Reports
2006, p. 40, para. 89).
17Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v.
Rwanda), Provisional Measures, Order of 10 July 2002, I.C.J. Reports 2002, pp. 246-247, paras. 76-79. - 36 -
3.10. These conditions are cumulative. If they are met, the dispute may be submitted to the
Court under Article 30 of the Convention by each of the parties.
A. The existence of a dispute
3.11. The dispute between Belgium and Sene gal relates to the interpretation and, in
particular, the application of the Convention against Torture, as will be explained in more detail in
180
58 Chapter IV below . Belgium considers that Senegal is not fulfilling its obligations under the
Convention against Torture, while this is denied by Senegal. Furthermor e, Belgium and Senegal
do not agree on the meaning to be attached to certa in provisions of the Convention. According to
Belgium, Senegal’s acts and omissions are contrary to the Convention and give rise to the
international responsibility of Senegal. These acts and omissions include
⎯ the fact of not having taken, before 2007, the necessary measures to implement the Convention
in accordance with Article 5, paragraph 2, thereof;
⎯ the referral of the H.Habré case file to the African Union, and Sene gal’s claim to be now
acting under the “mandate” of the Union;
⎯ its refusal to prosecute or extradite Mr. Habré within a reasonable period of time;
⎯ the suggestion that financial considerations woul d in some way justify the failure to comply
with the Convention.
3.12. The Court examined the question of the existence of a dispute in its Order concerning
the indication of provisional measures of 28 May 2009 ; it held that, prima facie, a dispute existed
181
on the date the Application in stituting proceedings was filed and that this dispute continued to
exist, even if its scope might have changed:
“Whereas the Court will next consider whether such a dispute continues, prima
facie, to exist in the light of the way in which the Parties explained their positions at
the hearings; whereas Senegal has affirmed that its obligations do not derive from the
mandate given by the African Union in 2006 and that a State party to the Convention
against Torture cannot fulfil the obligations under Article 7 thereof by the mere act of
referring the matter to an international organization; whereas the Parties nonetheless
seem to continue to differ on other questions relating to the interpretation or
application of the Convention against Torture, such as that of the time frame within
which the obligations provided for in Artic le7 must be fulfilled or that of the
circumstances (financial, legal or other difficulties) which might be relevant in
considering whether or not a failure to fu lfil those obligations has occurred; whereas,
moreover, the Parties seem to continue to hold differing views as to how Senegal
should fulfil its treaty obligations; and wher eas in consequence it appears that prima
59 facie a dispute of the kind contemplated by Article30 of the Convention against
Torture continues to exist between the Parti es, even if the scope of that dispute may
have changed since the Application was filed.” 182
18See paras. 4.02-4.59 below.
181
Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures,
Order of 28 May 2009, para. 47.
18Ibid., para.48. For a different poiof view, see the joint separaopinion of JudgesAl-Khasawneh and
Skotnikov, paras. 8-15, and the separate opinion of Judge ad hoc Sur, paras. 13-15. - 37 -
3.13. According to the classic definition given by the Permanent Court of International
Justice, “[a] dispute is a disagreement on a point of law or fact, a conflict of legal views or interests
between two persons” 183.
As this Court has stated, “it must be shown that the claim of one party is positively opposed
by the other” 184.
3.14. A dispute of this type exists between Belgium and Senegal concerning the
interpretation and application of the Convention against Torture 185. It has to be ascertained
whether or not the failure to prosecute Mr. Habré for acts of torture and the refusal to extradite him
to Belgium are consistent with Article7 and other provisions of the Convention against Torture.
Senegal is clearly bound by an obligation to pro secute or extradite Mr.Habré for the crimes of
torture alleged against him, an obligation which, to date, it has failed to fulfil. In particular, this
obligation was not fulfilled by transmitting the “Hissène Habré” case file to the African Union. On
the other hand, Senegal places a very different interpretation on its obligations and their
implementation in regard to the Convention.
3.15. This point emerges very clearly from the lengthy exchange of Notes Verbal186between
Belgium and Senegal and the diplomatic contacts between the two countries , as well as from the
actions and omissions of Senegal.
3.16. In those Notes, Belgium repeatedly recalled its interpretation of the relevant provisions
of the Convention against Torture and clearly stated that “a dispute existed within the meaning of
Article 30 of the Convention”. Senegal, for its part, prevaricated either by citing the referral of the
60 case to the African Union, or by invoking the spirit of the Convention, or again by failing to reply.
187
Senegal’s position at the time is expl ained in its Note of 23December2005 : “The decision to
submit ‘the Hissène Habré case’ to the African Union will consequently have to be considered as
reflecting the position of the Sene galese Government pursuant to the judgment of the Prosecution
Chamber.”
3.17. A dispute therefore existed between Be lgium and Senegal over the interpretation or
application of the Convention. The dispute con tinued to exist when the Application instituting
proceedings was filed and when the Order on the request for the indication of provisional measures
was made on 28 May 2009. Senegal’s persistent failure to fulfil its obligation to take the necessary
steps to prosecute or extradite Mr.Habré since the date of the Order on the indication of
provisional measures confirms the continued existence of the dispute.
183Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11.
184Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v.
Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p. 40, para. 90.
185
Application instituting proceedings, 19 Feb. 2009, para. 8.
186
See paras. 1.33-1.60 above and Anns. B.1 to B.26.
187Ann. B.6. - 38 -
B. The dispute could not be settled through negotiation
3.18. In its Order on the indication of provisi onal measures, the Court concluded that “the
requirement that the dispute is one which 188nnot be settled through negotiation’ must be regarded
as having been satisfied prima facie” . In order to reach this conclusion, the Court noted
“[that] an attempt has been made by Belgium to negotiate; [that...] the diplomatic
correspondence, in particular the Note Ve rbale of 11 January 2006, whereby Belgium
wished to submit certain clarifications to the Government of Senegal ‘within the
framework of the negotiation procedure covered by Article30 of the Convention
against Torture...’, shows that Belgium attempted to resolve the said dispute by
negotiation and that it cannot be concluded that the negotiations thus proposed had the
189
effect of resolving the dispute” .
3.19. Negotiations concerning this dispute di d indeed begin with the Note Verbale of
30 November 2005, in which Belgium requested “explanations about the position of the Senegalese
Government pursuant to [the decision of the Chambre d’accusation of the Dakar Court of
61 Appeal]”. This request was followed by a lengthy exchange of Notes and diplomatic contacts in
Dakar and Brussels. Notwithstanding these exchanges, it was clear, in 2006, that the dispute would
not be settled through negotiation.
3.20. In its Order on the indication of provi sional measures of 15October2008 in the case
concerning Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), the Court examined Article 22 of the Convention
on the Elimination of All Forms of Racial Disc rimination (CERD). This compromissory clause
provides for the submission to the Court of any di spute concerning the interpretation or application
of the Convention which “is not settled by negotiatio n”. The Court considered that this provision
“does not, in its plain meaning, suggest that formal negotiations in the framework of the
Convention or recourse to the procedure referred to in Article 22 thereof constitute preconditions to
be fulfilled before the seisin of the Court” 190.
However, the Court pointed out that Article 22 “does suggest that some attempt should have
been made by the claimant party to initiate, w ith the Respondent Party, discussions on issues that
would fall under CERD” 191.
The Court noted that “it is apparent from the cas e file that such issues have been raised in
bilateral contacts between the Parties, and, that these issues have manifestly not been resolved by
192
negotiation prior to the filing of the Application” .
It therefore considered that, “prima facie, it has jurisdiction under Article22 of CERD to
193
deal with the case” .
18Questions relating to the Obligation to Prosecute or Ex tradite (Belgium v. Senegal), Provisional Measures,
Order of 28 May 2009, para. 50.
18Ibid.
190
Application of the International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, para. 114.
191
Ibid.
19Ibid., para. 115.
19Ibid., para. 117. - 39 -
62 3.21. In that case, Georgia had not explicitly referred to the Convention on the Elimination
of All Forms of Racial Discrimination in its bilateral contacts with the Russian Federation, whereas
in the present case, Belgium has expressly referred to the Convention against Torture throughout its
contacts with Senegal. Belgium has, indeed, been very precise in citing the Convention and some
of its provisions on numerous occasions. For exam ple, in its Note Verbale of 11January2006,
Belgium expressly referred to “the negotiation procedure covered by Article 30 of the Convention
194 195
against Torture” . In its Note Verbale of 9March2006 , Belgium again referred to the
procedure for negotiation and observed that it in terpreted the provisions of Articles 4, 5.1 (c), 5.2,
7.1, 8.1, 8.2, 8.4 and 9.1 of the Convention “as requiring the State on whose territory the alleged
author of an offence under Article4 of the af oresaid Convention is located to extradite this
offender, unless it has judged him on the basis of the charges covered by said Article”.
This detailed list of conventi on provisions was repeated in the Belgian Note Verbale of
20 June 2006 19, where Belgium noted that “the attempted negotiation with Senegal, which started
in November2005, has not succeeded and, in accordance with Article30.1 of the Torture
Convention [Belgium] consequently asks Senegal to submit the dispute to arbitration”.
3.22. These facts are not contested by Senegal. At no time has Senegal initiated or sought to
prolong the negotiations. The conclusion is therefor e clear: this dispute was not capable of being
settled through negotiation.
C. The request for arbitration
3.23. Belgium announced the possibility of having recourse to arbitration in its Note Verbale
63 of 4 May 2006 197. It wrote: “[a]n unresolved dispute regarding this interpretation [of Article 7 of
the Convention against Torture] would lead to rec ourse to the arbitration procedure provided for in
Article 30 of the Convention against Torture”.
Senegal itself, in its Note Verbale of 9May 2006, “[took] note” of “the possibility of...
recourse to the arbitration procedure provided for in Article30 of the Convention against
Torture” 19.
In its Note Verbale of 20 June 2006, Belgium formally requested recourse to the arbitration
procedure provided for in Article30 of the Convention 199: “Belgium cannot fail to point out that
the attempted negotiation with Senegal, which started in November 2005, has not succeeded and, in
accordance with Article30.1 of the Torture Convention consequently asks Senegal to submit the
dispute to arbitration under conditions to be agreed mutually”.
3.24 During the public hearings on the request for the indication of provisional measures,
Senegal stated that it was not able to find the Belgian Note Verbale of 20June2006 in its
archives 200. Belgium explained that the Note in question had been transmitted to the
Secretary-General of the Ministry of Foreign Affairs on 21June2006 and referred in this
194
Ann. B.7.
19Ann. B.8.
19Ann. B.11.
19Ann. B.9.
198
Ann. B.10.
19Ann. B.11.
20CR 2009/9, 6 Apr. 2009, p. 14, para. 34 (Thiam). - 40 -
201
connection to an internal report of the same date . Senegal replied that the Note Verbale had not
been notified correctly or officially 202. In any event, as the Court stated in its Order of
28May2009, “even supposing that the said Note Verbale never reached its addressee, the Note
Verbale of 8 May 2007 explicitly refers to it; an d . . . it has been confirmed that this second Note
was communicated to Senegal and received by it more than six months before the date of referral to
203
the Court” .
64 D. The Parties were unable to agree on the organization
of an arbitration within six months
3.25. The request for arbitration under Artic le30 of the Convention against Torture was
made on 21June2006. Eleven months later, by Note Verbale of 8May2007 204, Belgium
reminded Senegal of this request for arbitration and once again listed the relevant provisions of the
Convention against Torture.
3.26. Senegal failed to reply to either of th ese two requests (the initial request for arbitration
of 21June2006 and the reminder of 8May2007). As was stated by the Court in the Lockerbie
205
cases, the request “met with no answer” . An unanswered arbitration proposal was precisely the
situation considered by the Court in the Lockerbie cases. In those cases, the United States of
America and the Unite206ingdom had clearly informed the Security Council that they would not
accept arbitration (a particularly pertinent fact from the standpoint of the Court’s decision
concerning the six-month time-limit, which is not at issue here).
3.27. The Court again considered the ques tion in its Judgment in the case concerning Armed
Activities on the Territory of the Cong o (Democratic Republic of the Congo v. Rwanda) in which
the Respondent had made no answer to a proposal for arbitration. After noting that “the lack of
agreement between the parties as to the organization of an arbitration cannot be presumed”, the
Court, citing the Lockerbie cases, added
“The existence of such disagreement [on the organization of arbitration] can
follow only from a proposal for arbitration by the applicant, to which the respondent
has made no answer or which it has expressed its intention not to accept.” 207
65 3.28. In the instant case, Belgium requested that the dispute be submitted to arbitration 208.
The request met with no answer. The Parties were therefore unable to agree on the organization of
201
CR 2009/10, 7 Apr. 2009, p. 21, para. 16 (Wood). For the internal report, see Ann. C.9.
202
CR 2009/11, 8 Apr. 2009, pp. 15-16, paras. 23-25 (Diouf).
20Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures,
Order of 28 May 2009, para. 52.
20Ann. B.14.
20Questions of Interpretation and Application of the 1971 Mo ntreal Convention arising from the Aerial Incident
at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objecti ons, Judgment, I.C.J. Reports 1998 ,
p. 17, para. 21; Questions of Interpretation and Application of th e 1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Prelimi nary Objections, Judgment, I.C.J.
Reports 1998, p. 122, para. 20.
20Ibid., p. 17, para. 21 and p. 122, para. 20.
20Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v.
Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p. 41, para. 92.
20See paras. 3.23-3.24. - 41 -
the arbitration within the six-month period provi ded for in Article30 of the Convention against
Torture.
*
3.29. All the conditions of Ar ticle30 have been met. The Court therefore has jurisdiction
under Article 30 of the Convention against Torture over the dispute between Belgium and Senegal
which concerns the interpretation or application of that Convention.
II. URISDICTION BASED ON THE DECLARATIONS OF ACCEPTANCE
OF COMPULSORY JURISDICTION
3.30. Belgium and Senegal have made decl arations of acceptance of the compulsory
jurisdiction of the Court, and those declarations are still in force.
209
3.31. The current declaration by Belgium dates from 3April1958 . It was filed with the
Secretary-General of the United Nations and came in to effect on 17 June 1958. Belgium declares
that it recognizes the jurisdiction of the Court in “legal disputes arising after 13July1948
concerning situations or facts subsequent to that date”. This declaration excludes legal disputes “in
regard to which the parties have agreed or may agree to have recourse to another method of pacific
settlement”.
3.32. The declaration of Senegal dates from 2 October 1985 210. It was filed and took effect
211
on 2December1985. It extends to “all legal disputes arising after the present declaration”. It
also provides that:
“Senegal may reject the Court’s competence in respect of:
66
⎯ disputes in regard to which the parties have agreed to have recourse to some other
method of settlement;
⎯ disputes with regard to questions which, under international law, fall exclusively
within the jurisdiction of Senegal”.
3.33. By virtue of the principle of reciproc ity applied to these declarations, the competence
of the Court extends to all legal disputes arising after 2 December 1985, provided that they concern
situations or facts subsequent to 13 July 1948, with two exceptions:
(i) disputes in212gard to which the parties have agreed to have recourse to another method of
settlement ;
209
UNTS, Vol. 302, p. 251 (4364) (Ann. A.2).
21UNTS, Vol. 1412, p. 155 (23644) (Ann. A.2).
21Translator’s note: The French wording of footnote 211 highlights disparities in the English language versions
of the Belgian and Senegalese declarations. For the purposes of this translation, the versions that appear on the Court’s
website have been used. - 42 -
(ii) disputes which, under international law, fall “exclusively within the jurisdiction” of one of
the parties.
A. The existence of a legal dispute
3.34. In its Application instituting proceedings, Belgium wrote: “A dispute between Senegal
and Belgium therefore exists, relating to the a pplication and interpretation of conventional and
customary international obligations regarding the punishment of torture and crimes against
humanity.” 213
3.35. The dispute relates to the failure to prosecute Mr.Habré for crimes against humanity,
crimes of genocide and war crimes, and to the international responsibility of Senegal resulting from
violations of conventional and customary rules. Belgium considers that Senegal did not fulfil its
obligation to prosecute or extradite Mr. Habré for th e crimes that are alleged against him. Senegal,
for its part, through its actions and inaction, including its failure to respond to the repeated requests
67 of Belgium, clearly showed that it did not interpret conventional and customary rules in the same
way as Belgium.
214
3.36. The diplomatic correspondence is also relevant in regard to the crimes that are not
covered by the Convention against Torture and of which Mr.Habré is accused. The request for
extradition, transmitted on 22September2005, cove red the crimes in question as well as those
referred to in the Convention against Torture. Sene gal’s failure to act on that request, or to bring
proceedings itself, violates Senegal’s conventi onal and customary obligation to prosecute or
extradite Mr. Habré and to ensure that he does not benefit from impunity. There is therefore a legal
dispute between Belgium and Senegal on these points.
B. Inapplicability of the limit ratione temporis
3.37. As was stated earlier 215, a double limit ratione temporis follows from the combined
effect of two declarations of acceptance of the co mpulsory jurisdiction of the Court. Under those
declarations, the competence of the Court ex tends to all legal disputes arising after
2December 1985, provided that they concern situati ons or facts subsequent to 13July 1948. The
two key dates are therefore 2 December 1985 and 13 July 1948.
3.38. The dispute between Belgium and Se negal concerns Senegal’s obligation, under
conventional or customary international law, to prosecute or extradite Mr. Habré for certain crimes,
and the failure by Senegal, since 2005, to fulfil that obligation. The dispute did not arise when the
alleged crimes were committed in Chad, betw een 1982 and 1990, crimes for which Senegal
obviously bears no responsibility; it arose when Be lgium and Senegal came into conflict over the
interpretation and application of the conventional and customary obligation of Senegal to ensure
that Mr. Habré did not enjoy impunity. It is not necessary to establish the precise date on which the
dispute arose; it was in any case long after 2 D ecember 1985, since Mr. Habré did not seek refuge
in Senegal before 1990.
21The slight difference in wording between the two declaations entails no difference with regard to their
substance.
21Application instituting proceedings, 19 Feb. 2009, para. 9 (Ann. C.7).
214
See paras. 1.33-1.60 above.
21See para. 3.33 above. - 43 -
68 3.39. Similarly, it is clear that the dispute concerns facts or situations subsequent to
13 July 1948.
3.40. The present dispute does not therefore fall outside the limits ratione temporis of the
optional declarations recognizing the compulsory jurisdiction of the Court made by Belgium and
Senegal.
C. The lack of other means of settlement
3.41. The exclusion of the jurisdiction of th e Court in regard to cases concerning which the
parties have agreed on another method of settlement is not a factor in this case. Belgium and
Senegal have not reached agreement on any other means of settling this dispute.
D. The conflict does not fall within the exclusive
jurisdiction of Senegal
3.42. Finally, Senegal excluded the jurisdicti on of the Court over “disputes with regard to
questions which, under international law, fall exclus ively within the jurisdiction of Senegal”. This
is an “objective” reservation of internal jurisdiction which does not raise the difficult questions the
Court has faced when it has had to deal with the same type of reservation presented in “subjective”
form.
3.43. The present dispute obviously does not fall under this type of exception: it relates to
violations of conventional or customary rules of international law and does not therefore come
within the exclusive jurisdiction of one of the Parties.
*
3.44. All the conditions covered by the opt ional declarations recognizing compulsory
jurisdiction have been met. The Court has jurisdiction, under Article 36, paragraph 2, of its Statute,
over the entire dispute between Belgium and Senega l, both with regard to the Convention against
Torture and with regard to other rules of conventional and customary international law.69 CHAPTER IV
V IOLATIONS OF INTERNATIONAL LAW ATTRIBUTABLE TO S ENEGAL
4.01. By not prosecuting Mr.Habré and not ex traditing him to Belgium despite the request
for extradition duly formulated by the Belgian authorities, Senegal breached and continues to
breach its obligations under the Convention agains t Torture (I) and other rules of conventional and
customary international law (II).
I. VIOLATIONS OF THE C ONVENTION AGAINST T ORTURE
A. Obligations under the Convention against Torture
1. The Convention against Torture
4.02. The Convention against Torture was adopted by resolution 39/46 of 10 December 1984
216
at the thirty-ninth session of the United Nations General Assembly . Pursuant to Article 25 of the
Convention, it was opened for signature by all Stat es. At the end of June 2010, it had 146 States
Parties21, including Belgium and Senegal 21.
4.03. The object and purpose of the Convention against Torture are clearly established in its
preamble: it was adopted to “make more effec tive the struggle against torture and other cruel,
219
inhuman or degrading treatment or punishment throughout the world” . In the above-mentioned
resolution39/46, the General Assembly also expressed itself desirous “of achieving a more
70 effective implementation of the existing prohibiti on under international and nation220law of the
practice of torture and other cruel, inhuman or degrading treatment or punishment” .
4.04. To that end, the Convention is in no sense limited to prohibiting torture, but imposes
other essential obligations on States Parties.
4.05. The States Parties undertook obligations in regard to preventing acts of torture and
other cruel, inhuman or degrading treatment or punishment and strengthening the prohibition
thereof. Under Article2, paragraph 1, they undert ook in particular to take “effective legislative,
administrative, judicial or other measures to prev ent acts of torture in any territory under [their]
jurisdiction”21. As the Committee against Torture reaffi rmed in its general comment No. 2 on the
implementation of Article 2 of the Convention by States Parties:
“States parties are obligated to eliminate any legal or other obstacles that
impede the eradication of torture and ill-treatment; and to take positive effective
21General Assembly, resolution 39/46, 10 Dec. 1984.
217
See Multilateral Treaties deposited with the Secretary-General, online at http://treaties.un.org/, ch. IV, 9.
218
See para. 3.06 above.
21Sixth preambular paragraph of the ConventiSee also M.Nowak and E. McArthur, The United Nations
Convention against Torture, A Commentary, Oxford University Press, 2008, p. 8.
22Op. cit. (cf. footnote 216).
22Under Article16, paragraph1, States Parties are required to take similar measures in respect of “other acts of
cruel, inhuman or degrading treatment or punishment . . . when such acts are committed by or at the instigation of or with
the consent or acquiescence of a public official or other person acting in an official capacity”. - 45 -
measures to ensure that such conduct a nd any recurrences thereof are effectively
222
prevented.”
More specifically, they are required to include the prohibition of torture in the training of
certain categories of staff exercising public authority prerogatives (Art.10), to keep under
systematic review interrogation or detention rul es and practices on their territory (Art.11) and to
ensure that the competent authorities proceed to a prompt investigation ex officio of any suspected
case of torture (Art.12). Further to the aim of preventing any form of torture, the States Parties
undertook not to expel or return (“refouler”) any individual, in accordance with Article3 of the
Convention.
4.06. The Convention also recognizes the right of victims to an effective remedy (Art.13)
and adequate compensation (Art. 14). Pursuant to Article 22, any individual who claims to be the
victim of a violation of a provision of the Convention has the possibility of filing a communication
71
with the Committee against Torture, provided that the State under whose jurisdiction the victim is
found has recognized the Committee’s jurisdiction in respect of individual communications.
Belgium and Senegal have recognized the jurisdic tion of the Committee against Torture in that
regard.
4.07. Lastly, the third category of obligations contained in the Convention against Torture
requires States Parties to introduce in their dom estic legal systems the necessary standards and
criminal procedures to punish any act of to rture. This is in fact a “special raison d’être for the
entire Convention” 22, the avowed purpose of which is precisely to “make more effective the
224
struggle against torture” . The Convention is thus not confined to requiring States Parties to
“ensure that all acts of torture [and the attempted practice of torture and complicity or participation
in torture] are offences under its criminal law” (Art.4), but obliges them to establish their
jurisdiction in order to deal w ith such offences in a particularly comprehensive manner. States
Parties must not only establish criminal jurisdicti on; they are also obliged to exercise such
jurisdiction in cases where the alleged perpetrator of acts of torture is present in any territory under
their jurisdiction (Art. 5, para. 2), or, if they d eem it more appropriate, they must extradite him in
accordance with the provisions of Article 8. This is not just a right recognized by international law
but a real conventional obligation on any State Part y to establish and exercise criminal jurisdiction
which, depending on the circumstances, may be territorial (Art.5, para.1 (a)), active personal
(Art. 5, para. 1 (b)) or universal jurisdiction (Art. 5, para. 2). In addition, the Convention provides
for the establishment of passive personal jurisdiction if the State concerned “considers it
appropriate” (Art. 5, para. 1 (c)). All of these forms of jurisdiction are indicative of the obligation
to combat impunity.
4.08. The dispute between Belgium and Senegal concerns more particularly the failure by the
Senegalese authorities to comply with their ob ligation to exercise the universal jurisdiction
embodied in the “prosecute or extradite” rule (A rt.5, para.2) deriving from the obligation to
combat impunity.
222
Committee against Torture, general comment No.2 (Im plementation of Article2 by States Parties),
CAT/C/GC/2, para.4, in Official Records of the General Assembly, Sixty-third Session, Supplement No(A/63/44),
Ann. VI, p. 176.
223
M.Nowak and E.McArthur, The United Nations Convention Against Torture, A Commentary , Oxford
University Press, 2008, p. 10.
22Convention against Torture, sixth preambular paragraph. See also para. 4.03 above. - 46 -
72 2. The obligation to prosecute or extradite (aut dedere aut judicare) established by the
Convention against Torture
4.09. The obligation to prosecute or extradite (aut dedere aut judicare) established by the
Convention is set out in Articles 5 to 9.
Article 5
1. Each State Party shall take such measur es as may be necessary to establish its jurisdiction
over the offences referred to in Article 4 in the following cases:
(a) when the offences are committed in any territory under its jurisdiction or on board a ship or
aircraft registered in that State;
(b) when the alleged offender is a national of that State;
(c) when the victim is a national of that State if that State considers it appropriate.
2. Each State Party shall likewise take su ch measures as may be necessary to establish its
jurisdiction over such offences in cases where the alleged offender is present in any territory under
its jurisdiction and it does not extradite him pursuant to Article 8 to any of the States mentioned in
paragraph 1 of this Article.
3. This Convention does not exclude any criminal jurisdiction exerci sed in accordance with
internal law.
Article 6
1. Upon being satisfied, after an examinati on of information available to it, that the
circumstances so warrant, any State Party in whose territory a person alleged to have committed
any offence referred to in Article4 is present sh all take him into custody or take other legal
measures to ensure his presence. The custody and other legal measures shall be as provided in the
law of that State but may be continued only for su ch time as is necessary to enable any criminal or
extradition proceedings to be instituted.
2. Such State shall immediately make a preliminary inquiry into the facts.
3. Any person in custody pursuant to paragr aph1 of this Article shall be assisted in
communicating immediately with the nearest appropriate representative of the State of which he is
a national, or, if he is a stateless person, with the representative of the State where he usually
resides.
4. When a State, pursuant to this article, has taken a person into custody, it shall immediately
notify the States referred to in Article 5, paragraph 1, of the fact that such person is in custody and
of the circumstances which warrant his detention. The State which makes the preliminary inquiry
contemplated in paragraph 2 of this Article shall promptly report its findings to the said States and
shall indicate whether it intends to exercise jurisdiction. - 47 -
Article 7
1. The State Party in the territory under whose jurisdiction a person alleged to have
73
committed any offence referred to in Article 4 is found shall in the cases contemplated in Article 5,
if it does not extradite him, submit the case to its competent authorities for the purpose of
prosecution.
2. These authorities shall take their decision in the same manner as in the case of any
ordinary offence of a serious nature under the law of that State. In the cases referred to in Article 5,
paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be
less stringent than those which apply in the cases referred to in Article 5, paragraph 1.
3. Any person regarding whom proceedings are brought in connection with any of the
offences referred to in Article 4 shall be guaranteed fair treatment at all stages of the proceedings.
Article 8
1. The offences referred to in Article4 sha ll be deemed to be included as extraditable
offences in any extradition treaty existing between States Parties. States Parties undertake to
include such offences as extraditabl e offences in every extradition treaty to be concluded between
them.
2. If a State Party which makes extradition conditional on the existence of a treaty receives a
request for extradition from another State Party wi th which it has no extradition treaty, it may
consider this Convention as the legal basis for extr adition in respect of such offences. Extradition
shall be subject to the other conditions provided by the law of the requested State.
3. States Parties which do not make extradition conditional on the existence of a treaty shall
recognize such offences as extraditable offences between themselves subject to the conditions
provided by the law of the requested State.
4. Such offences shall be treated, for the purpose of extradition between States Parties, as if
they had been committed not only in the place in wh ich they occurred but also in the territories of
the States required to establish their jurisdiction in accordance with Article 5, paragraph 1.
Article 9
1. States Parties shall afford one another the greatest measure of assistance in connection
with criminal proceedings brought in respect of any of the offences referred to in Article4,
including the supply of all evidence at their disposal necessary for the proceedings.
2. States Parties shall carry out their oblig ations under paragraph1 of this Article in
conformity with any treaties on mutual judicial assistance that may exist between them. - 48 -
4.10. The obligation to prosecute or extradite comprises two fundamental, closely linked and
74 225
interdependent characteristics :
⎯ the obligation to take such measures as may be necessary to establish the universal jurisdiction
of national courts in cases where the alleged pe rpetrator of acts of torture is present in the
territory of the forum State (Art 5, para. 2);
⎯ in the absence of a request for extradition or in cases where the foru m State chooses not to
extradite the alleged perpetrator of acts of tort ure present in its territory, the State Party is
obliged to submit the case to its competent au thorities for the purpose of prosecution (Art.7,
para. 1).
4.11. The obligations contained in Articles6, 8 and 9 are close226linked to the exercise of
universal jurisdiction and to the obligation to prosecute or extradite . Their purpose is to ensure
the effectiveness of the prosecution, in partic ular by guaranteeing the presence of the alleged
perpetrator of acts of torture under the jurisdiction of the forum State
and the conduct of
preliminary inquiries into the facts, by allowing mu tual judicial assistance between several States
and by facilitating extradition procedures.
(a) The obligation to establish universal jurisdiction
4.12. Apart from the obligation incumbent on any State Party to the Convention against
Torture to take such measures as may be necessary to establish territorial and personal jurisdiction
for any act of torture (Art.5, para.1 (a) and (b)), States Parties are also obliged to establish
universal jurisdiction in accordance with Article 5, paragraph 2, of the Convention, which provides:
“Each State Party shall likewise take such measures as may be necessary to
establish its jurisdiction over such offen ces in cases where the alleged offender is
75 present in any territory under its jurisdicti on and it does not extradite him pursuant to
article 8 to any of the States mentioned in paragraph 1 of this article.”
4.13. This provision is closely linked to the obligation to prosecute or extradite contained in
Article7, and to the scope of the criminal juri sdiction which States are required to institute. Its
purpose is to ensure that “no saf227avens for perpet rators of torture shall continue to exist in our
contemporary global world” . To this end, the States Parties must equip themselves with legal
resources for the effective implementation of their ob ligation to prosecute or extradite and, in this
case, bring the alleged perpetrator of the crime of torture before the national authorities with
criminal jurisdiction. Their jurisdiction may be based on domestic criminal law or, more directly,
on international law.
22In its recent study entitled “Survey of multilateral conventions whic h may be of relevance for the
Commission’s work on the topic ‘The obligation to extradite or prosecute (aut dedere aut judicare)’”, the Secretariat of
the International Law Commission observed: “Firstly, clauses usually qualified as containing an obligation to extradite
or prosecute share two fundamental characteristics, namely:(1)their objective to ensure the punishment of certain
offences at the international level; and (2)their use, fthat purpose, of a mechanism combining the possibility of
prosecution by the custodial State and the possibility of extrad ition to another State.” (A/C N.4/630, para. 150 (available
on the website of the International Law Commission: http://www.un.org/law/ilc/
226
See also para. 4.23 below.
22M.Nowak and E. McArthur, The United Nations Convention against Torture, A Commentary , Oxford
University Press, 2008, p. 10. - 49 -
4.14. In this connection, J. H. Burgers and H. Danelius wrote: “To be in a position to bring
criminal proceedings against the offender, the St 228 concerned must have jurisdiction over the
offence, and this is what Article 5 seeks to ensure.”
4.15. This interpretation of Article5 is corr oborated by the work of the International Law
Commission concerning the establishment of a code of crimes against the peace and security of
mankind. At its 2408th meeting, the introduction by the Drafting Committee of Article 5 bis in the
Commission’s draft articles concerni229the establishment of jurisdiction to deal with crimes against
the peace and security of mankind was explained in the following terms:
“If the ‘prosecute or extradite’ option recognized in Article6 [of the
Commission’s draft] was to be effective, either alternative should be capable of
implementation. The ‘prosecute’ option required that the State where the alleged
criminal was found should have jurisdicti on over the crime. That requirement was
76 addressed in new article5 bis. The text proposed by the Drafting Committee...
modelled on the corresponding provision wh ich appeared in all the penal law
conventions to which he had referred earlie r... was self-explanatory. Inasmuch as
article 6 now laid down an obligation to ‘refer the case to its competent authorities’ ⎯
and not an obligation to try, as provided for in the text adopted on first reading ⎯
article 5 bis was of special importance, bearing in mind that the whole purpose of the
‘extradite or prosecute’ principle would be frustrated if the courts of a State in whose
territory an individual alleged to have committed a crime under the Code was found
were to decide, once they had been seized of the case by the competent authorities,
230
that they lacked jurisdiction.”
4.16. With regard to the system of universal jurisdiction and the obligation to prosecute or
extradite established by the Hague Convention for the Suppression of Unlawful Seizure of Aircraft,
which was a major source of inspiration for the authors of the 1984 Convention,
JudgeG.Guillaume explained in his separate opinion attached to the Judgment in the case
concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium):
“[The Hague Convention of 1970] places an obligation on the State in whose
territory the perpetrator of the crime takes re fuge to extradite or prosecute him. But
this would have been insufficient if the Convention had not at the same time placed
the States parties under an obligation to establish their jurisdiction for that purpose.
Thus Article 4, paragraph 2, of the Convention provides:
‘Each Contracting State shall... take such measures as may be
necessary to establish its jurisdiction over the offence in the case where
the alleged offender is present in its territory and it does not extradite him
pursuant to [the Convention].’
This provision marked a turning point, of which the Hague Conference was
moreover conscious. From then on, th e obligation to prosecute was no longer
228
J.H.Burgers and H. Danelius, The United Nations Convention against Torture, A Handbook on the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment , Martinus Nijhoff
Publishers, Dordrecht/Boston/London, 1988, p. 131.
229
Draft Article 5 bis provided that: “Each State party shall take such measures as may be necessary to establish
its jurisdiction over crimes against the peace and security of mankind.” ( Yearbook of the International Law Commission
(YILC), 1995, Vol. I, 2408th meeting, 30 June 1995, p. 196, para. 1.)
23Ibid., p. 200, para. 20. - 50 -
conditional on the existence of jurisdiction, but rather jurisdiction itself had to be
231
established in order to make prosecution possible.”
4.17. The Article 5 obligation thus constitutes an essential precondition for the obligation to
prosecute or extradite under Article7. As the Permanent Court of International Justice noted in
connection with Article18 of the Lausanne C onvention on the exchange of Greek and Turkish
populations:
77 “[this] clause, however, merely lays stress on a principle which is self-evident,
according to which a State which has contr acted valid internati onal obligations is
bound to make in its legislation such modi fi232ions as may be necessary to ensure the
fulfilment of the obligations undertaken” .
4.18. Although Article5, para graph2, permits States to a dopt such measures as may be
necessary to achieve the desired result in their domestic legislation, States are still obliged to ensure
that their domestic law is consistent, upon entry into force, with the provisions of the Convention.
The Committee against Torture regularly calls on 233 States to adopt the necessary legislation or to
reform their system of universal jurisdiction .
(b) The obligation to prosecute or extradite
4.19. According to Article 7, paragraph 1, of the Convention against Torture:
“The State Party in the territory unde r whose jurisdiction a person alleged to
have committed any offence referred to in article4 is found shall in the cases
contemplated in article 5, if it does not extr adite him, submit the case to its competent
authorities for the purpose of prosecution.”
4.20. While Article5 on the establishment of jurisdiction to try the alleged perpetrators of
acts of torture merely requires States Parties to create the necessary lega l framework in order to
exercise their criminal jurisdiction, Article7, pa ragraph1, requires them to use such jurisdiction
effectively by bringing any person alleged to have committed acts of torture before the competent
authorities unless they decide to extradite him.
4.21. The obligation to try or to extradite unde r Article 7 of the Convention is subject to the
sole and exclusive condition that th e alleged perpetrator of acts of torture is present in the territory
of the State Party. Once he has been discovered to be present, the State Part y is obliged to ensure
the presence of the alleged perpetrator on its terri tory (Art.6, para.1), immediately to make a
78 preliminary inquiry into the facts (Art. 6, para. 2), and to notify any States that might be capable of
establishing their jurisdiction on the basis of Article 5, paragraph 1 (Art. 6, para. 4).
4.22. After carrying out these preliminary measure s, the forum State is required, pursuant to
Article7, paragraph1, to submit the case to its competent authorities for prosecution. This
23Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, separate opinion
of President Guillaume, I.C.J. Reports 2002, pp. 38 and 39, para. 7.
232
Exchange of Greek and Turkish Populations, Advisory Opinion, 1925, P.C.I.J., Series B, No. 10, p. 20.
23See, for example, Report of the Committee against Torture, Official Records of the General Assembly,
Sixty-first Session, Supplement No. 44 (A/61/44), para. 29 (18). - 51 -
obligation (and the universal jurisdiction which States must establish in accordance with Article 5,
paragraph 2) is not made conditional on a request for extradition from another State, but is imposed
by reason of the mere presence of an alleged perpet rator of acts of torture in the territory of the
forum State.
4.23. It emerges from the travaux préparatoires that “[s]everal delegations indicated
particularly that they had difficulties, in view of their legal systems, in accepting a clause of
234
universal jurisdiction which was not subject to some conditions” . It was proposed on several
occasions to add the words “after re ceiving a request for extradition” 235 in draft Article5 of the
236
Convention, or to introduce a more flexible régime on the basis of the Brazilian proposal .
However, all amendments aimed at softening the obligation to exercise universal jurisdiction were
rejected and were not included in the text of the Convention 237. In its decision of 17 May 2006, the
Committee against Torture emphasized unambiguously that “the obligation to prosecute the alleged
perpetrator of acts of torture does not depend on the prior existence of a request for his
extradition” 238.
4.24. In its recent study entitled “Survey of multilateral conventions which may be of
relevance for the Commission’s work on the topic ‘The obligation to extradite or prosecute
79 (aut dedere aut judicare)’” 239, the Secretariat of the International Law Commission also confirmed
this conclusion. Regarding more particularly the relationship between prosecution and extradition,
the study distinguishes two categories of conventional provisions:
“(1) those clauses that impo se an obligation to prosecute ipso facto when the alleged
offender is present in the territory of the State, which the latter may be liberated
from by granting extradition; and (2) t hose clauses for which the obligation to
prosecute is only triggered by the refusal to surrender the alleged offender
following a request for extradition.” 240
According to the study, Article7 of the C onvention against Torture, like all comparable
provisions of conventions drawn up on the basis of Article 7 of the Hague Convention of 1970 for
241
the Suppres242n of Unlawful Seizure of Aircraft , forms part of the first of the above-mentioned
categories . Concerning the legal effect of this provision, the study notes:
“The first category includes all those clauses that impose an obligation upon
States Parties to prosecute any person present in their territory who is alleged to have
committed a certain crime. This obligation to prosecute may be said to exist ipso facto
in that it arises as soon as the presence of th e alleged offender in the territory of the
State concerned is ascertained, regardless of any request for extradition. It is only
when the latter is made that an alternativ e course of action becomes available to the
23E/CN.4/1475, 1981, p. 56, para. 25.
23E/CN.4/1408, 1980, p.59, para.50; E/CN.4/1475, 1981, p.57, para.25; E/CN.4/1982/30/Add.1, p.5,
para. 15.
23E/CN.4/1983/WG.2/WP.12, in E/CN.4/1983/63, p. 6, para. 23.
23E/CN.4/1984/72, p. 7, para. 35.
238
Committee against Torture, Suleymane Guengueng et al. v. Senegal, communication No. 181/2001, decision of
17 May 2006, CAT/C/36/D/181/2001, para. 9.7; see also para. 2.03 above and Ann. E.2.
239
A/CN.4.630 (available on the website of the International Law Commission: http://www.un.org/law/ilc/).
24Ibid., para. 126.
24Ibid., paras. 90-124.
24Ibid., paras. 130-131. - 52 -
State, namely the surrender of the alleged offender to another State for prosecution. In
other words, in the absence of a request for extradition, the obligation to prosecute is
absolute, but, once such a request is made, the State concerned has the discretion to
243
choose between extradition and prosecution.”
4.25. When a request for extradition has been addressed to the forum State, the latter may
then fulfil its obligations under the Convention by extraditing the alleged perpetrator of acts of
torture, in accordance with Article8 of the Convention. However, this is only one possibility
afforded by the Convention. The obligation to extr adite or prosecute as prescribed by Article 7 of
the Convention gives the forum State the discretion to select one or the other of the two options
while ensuring the detention or surveillance of th e person concerned (Art.6, para.1). Under the
Convention, the forum State is entitled to refuse extr adition. As was observed in the context of the
80
travaux préparatoires of the Convention:
“[E]xtradition was a sovereign act to be decided in each case by the competent
court of the requested State. Some sp eakers observed that it was both legally and
politically proper to leave the State in wh ich the offender was found such freedom to
refuse extradition, because if extradition was requested by the State in which the acts
of torture had taken place, it was doubtful whether the requesting State would really
punish the offender.” 244
4.26. Although the forum State can refuse ex tradition, it must nonetheless have the alleged
perpetrator of acts of torture prosecuted by its ow n competent authorities. This was the sense in
which JudgesEvensen, Tarassov, Guillaume and Aguilar interpreted Article7 of the 1971
Montreal Convention, which is identical to Article7 of the Convention against Torture. They
wrote in their joint declaration appended to the Orders on the indication of provisional measures in
the Lockerbie cases:
“[T]he Montreal Convention, which in our opinion was applicable in this case,
did not prohibit Libya from refusing to extradite the accused to the United Kingdom or
the United States. It implied merely that, in the absence of extradition, Libya had to
submit the case to its competent authorities for the purpose of prosecution.” 245
4.27. Articles5 and 7 of the Convention thus establish a coherent system for the
implementation of the obligation aut dedere aut judicare , the main objective of which is to
246
“prevent any act of torture from going unpunished” . When the alleged perpetrator of acts of
torture is found in the territory of a State Party, the latter is under an obligation to arrest him, and
subsequently to extradite or prosecute him. As a preliminary matter, the forum State must have
established the jurisdiction of its courts to try th e person concerned in the event that he is not
243A/CN.4.630 (available on the website of the Interational Law Commission: http://www.un.org/law/ilc/),
para. 127 (footnotes omitted).
244E/CN.4/1984/72, p. 6, para. 33.
245
Questions of Interpretation and Application of the 1971 Mo ntreal Convention arising from the Aerial Incident
at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, I.C.J. Reports
1992, joint declaration by Judges Evensen, Tarassov, Guillaume and Aguilar Mawdsley , pp. 24 and 25, para. 3;
Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at
Lockerbie (Libyan Arab Jamahiriya v. United States of Americ a), Provisional Measures , Order of 14April1992,
I.C.J. Reports 1992, joint declaration by Judges Evensen, Tarassov, Guillaume and Aguilar Mawdsley, pp. 136 and 137,
para. 3.
246Committee against Torture, Suleymane Guengueng et al. v. Senegal, communication No. 181/2001, decision of
17 May 2006, CAT/C/36/D/181/2001, para. 9.7 (Ann. E.2). - 53 -
extradited. The 1984 Convention thus ensures the universality of punishment for torture offences,
so that their perpetrators may not find refuge on the territory of any State.
81 B. Senegal has failed to fulfil its obligations under the
Convention against Torture
4.28. Through its actions and omissions, Sene gal has violated the obligations deriving from
Article 5, paragraph 1, Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention against
Torture.
1. Senegal failed to adopt the necessary measures prescribed by Article 5, paragraph 2, of the
Convention against Torture
4.29. Up to the end of January2007, Senegal had not incorporated in its domestic law the
necessary provisions to enable the Senegalese judicial authorities to exercise the universal
jurisdiction provided for in the Convention. This omission violated Article5, paragraph2, of the
Convention.
4.30. In 1990, the Senegalese representative had sought to provide reassurances to the
Committee against Torture during the examination of Senegal’s initial report: “[S]ince Senegal
had ratified the Convention against Torture with out reservations it should therefore have no
247
difficulty in incorporating the releva nt provisions into its domestic law.” Nevertheless, during
consideration of the second periodic report of Sene gal, six years later, in 1996, the Committee had
requested Senegal to
“consider introducing explicitly in national legislation the following provisions:
(a)The definition of torture set forth in article1 of the Convention and the
classification of torture as a general offence, in accordance with article4 of the
Convention, which would, inter alia, permit the State party to exercise universal
jurisdiction as provided in articles 5 et seq. of the Convention.”248
4.31. Despite this reminder by the Committee, Senegal failed to fulfil its obligation to take
appropriate legislative measures to remedy this gap in Senegalese legislation and to introduce the
universal jurisdiction provided for in the Convention. This omission and the inconsistency of
82 Senegalese legislation with the 1984 Convention became particular ly sensitive matters in 2001
during the Court of Appeal and Court of Cassa tion proceedings concerning the annulment of the
procedure instituted against Mr. Habré on the grounds of the lack of jurisdiction of the Senegalese
courts.
T.32. Chambre d’accusation of the Dakar Court of Appeal found as follows in 2001:
“Whereas the Senegalese legislature should, in conjunction with the reform
undertaken to the Penal Code, make amendm ent[s] to Article669 of the Code of
Criminal Procedure by including therein the offence of torture, whereby it would bring
247
Report of the Committee against TorturOfficial Records of the General Assembly, Forty-fifth Session,
Supplement No. 44 (A45/44), para. 393.
248
Ibid., Sixty-first Session, Supplement No. 44 (A61/44), p. 170, para. 8.9. - 54 -
itself into conformity with the objecti249 of the Convention and thus recognize the
principle of universal jurisdiction.”
Furtther, Chambre held:
“Whereas it follows from the foregoing that the Senegalese courts cannot deal
with acts of torture committed by a foreigner outside Senegalese territory regardless of
the nationality of the victims, and that the wording of Article669 of the Code of
Criminal Procedure excludes such competence.” 250
The Court of Appeal did no more than find, therefore, that the Senegalese authorities had
failed to comply with Article 5, paragraph 2, of the Convention against Torture.
4.33. The Court of Cassation of Senegal c ould only confirm the acknowledgment by the
judicial authorities that they could find no provisions in Senegalese law which gave them the
universal jurisdiction provided for in Articles 5 and 7 of the Convention. It explained:
[N]o procedural text recognizes that Senegalese Courts have universal
jurisdiction to prosecute and try the presumed perpetrators or accomplices ⎯ if they
are found in the territory of the Republic ⎯ of the acts which fall within the
provisions of the law of 28August1996 ad apting Senegalese legislation to the
provisions of Article4 of the Conventi on, when those acts have been committed
outside the territory of Senegal by foreigners.” 251
83 4.34. The Senegalese authorities therefore recognized that Senegalese law was not consistent
with the requirements of Article5, paragraph2, of the Convention against Torture. In 2001,
therefore, Senegal had not adopted “such measur es as may be necessary” to establish in its
domestic law the universal jurisdiction provided for by the Convention against Torture, in violation
of Article 5, paragraph 2.
4.35. Five years later, in 2006, the situa tion had not changed and the Committee against
Torture also found that Senegal had still not brought itself into conformity with its obligation under
Article 5, paragraph 2, of the Convention against Torture. The Committee recalled
“that, in accordance with article5, paragra ph2, of the Convention, ‘each State party
shall [...] take such measures as may be necessary to establish its jurisdiction over
such offences in cases where th e alleged offender is present in any territory under its
jurisdiction and it does not extradite him [. . .]’. It notes that, in its observations on the
merits, the State party has not contested the fact that it had not taken ‘such measures
as may be necessary’ in keeping with Article 5, paragraph2, of the Convention, and
observes that the Court of Cassation itself considered that the State party had not taken
252
such measures.”
249
Judgment No.135 of the Chambre d’accusation of the Dakar Court of Appeal , 4July 2000 ( Public
Prosecutor’s Office and François Diouf v. Hissène Habré) (Ann. D.3).
250
Ibid.
25Court of Cassation, Suleymane Guengueng et al. v. Hissène Habré , Judgment No.14, 20 Mar.2001
(Ann. D.4).
25Committee against Torture, Suleymane Guengueng et al. v. Senegal, communication No. 181/2001, decision of
17 May 2006, CAT/C/36/D/181/2001, para. 9.5; para. 2.03 above and Ann. E.2. - 55 -
The Committee concluded that “the State 253ty has not fulfilled its obligations under
article 5, paragraph 2, of the Convention” .
254
4.36. It was only after the intervention of the African Union that Senegal, in 2007,
amended its legislation in order to come into compliance with the obligation contained in Article 5,
paragraph2, of the Convention against Torture and to enable universal jurisdiction and the
obligation aut dedere aut judicare provided for in the Convention to be applied in its legal system.
On 31January2007, the National Assembly adopt ed several laws amending both the Senegalese
Penal Code, through the introduction of a provision creating the offence of torture in accordance
with the Convention against Torture, and the Code of Criminal Procedure, Article669, enabling
84 Senegalese courts henceforth to deal with crimes of international scope, on the basis of the
255
principles recognized by the international community . In its Note to the Belgian Embassy in
Dakar, dated 21 February 2007, the Senegalese Ministry of Foreign Affairs thus gave an assurance
that “Senegal [has] fill[ed] the legal vacuum which, for technical reasons related to the unsuitability
of national legislation, had prevented the Sene galese courts from hearing the HissèneHabré
case” 25. In the pleadings relating to the request for the indication of provisional measures,
Mr. Gaye, on behalf of Senegal, again confirmed that
“to date, all the legislative and constituti onal reforms, of both form and substance,
have already been made in order to give full effect to the provisions of the
above-mentioned Convention and thus to create the ideal conditions for
Mr. Hissène Habré’s trial by the Senegalese courts, on a fair and equitable basis” 257.
4.37. The fact remains, however, that from the entry into force of the Convention and up
until 2007, that is for 20years, Senegal had not taken the necessary measures prescribed by
Article5, paragraph2, as was moreover clearly noted by the Minister for Foreign Affairs of
Senegal 258. For want of suitable legislative or judicial measures, the respondent State was unable
to fulfil its obligations under the C onvention, particularly the obligation aut dedere aut judicare ,
having regard to the decision of the Senegalese au thorities not to fill that gap by founding their
jurisdiction directly on international law. Th rough its omissions, Senegal violated the central
obligations of the Convention, which, according to its preamble, is designed to “make more
effective the struggle against torture and othe r cruel, inhuman or degrading treatment or
punishment throughout the world” 259.
85 2. Senegal failed in its obligation to prosecute or extradite deriving from Article7 of the
Convention against Torture
4.38. Senegal also violated its obl igation to prosecute or extradite (aut dedere aut judicare)
deriving from Article 7, paragraph 1, of the Convention against Torture.
25Committee against Torture, Suleymane Guengueng et al. v. Senegal, communication No. 181/2001, decision of
17 May 2006, CAT/C/36/D/181/2001, para. 9.6.
25See paras. 1.67 et seq. above.
25Law No.2007-05 of [12] Feb.2007 amending the Code of Criminal Procedure in order to implement the
Treaty of Rome [Rome Statute] establishing the International Criminal Court, Journal officiel de la République du
Sénégal, 10 Mar. 2007, p. 2384 (Ann. D.7). See also para. 1.46 above.
25Ann. B.13.
257
CR 2009/9, 6 Apr. 2009, p. 55, para. 18 (Gaye).
25See footnote 251 above.
25Sixth preambular paragraph of the Convention. See also para. 4.03 above. - 56 -
260
4.39. Regardless of the reasons why Mr. Habré was not prosecuted in Senegal , Mr. Habré
was not extradited by Senegal to Belgium as he should have been under Article7 of the
Convention (a). The “transfer” of th e “Habré” dossier to the African Union 261could not release
Senegal from its conventional obligations an d did not constitute a substitute for those
obligations(b). To date, 20years after his arrival on Senegalese territory, and despite the
legislative reforms introduced in 2007, Senegal has still not submitted the case to its competent
authorities for the purpose of prosecution (c).
(a) Senegal failed in its obligation to prosecute or extradite Mr. Habré to Belgium
4.40. Belgium does not dispute the fact that, in accordance with the provisions of Article 5,
paragraph 2, and Article 7, paragraph1, of the Convention, a State Party in whose territory a
person alleged to have committed acts of torture is present has the choice of either extraditing him
or handing him over to its own judicial authorities for the purpose of prosecution 262. It may
therefore refuse extradition provided that it hands ove r the alleged perpetrator of acts of torture to
263
its competent authorities for the purpose of prosecution .
264
4.41. However, in view of the violation of Article 5, paragraph 2, of the 1984 Convention
and the incompatibility of Senegalese law with th e requirements of that Convention at the time
86 when Belgium requested Mr. Habré’s extradition, Senegal was not able to rely on the possibility of
choosing between extradition and prosecution. Not extraditing Mr.Habré to a State which has
established its jurisdiction to prosecute in accordance with Article5, paragraph1, of the
Convention and which is legitim ately requesting his extradition compromised the object and
purpose of the aut dedere aut judicare obligation. As the International Law Commission noted
when drawing up the Code of crimes against the peace and security of mankind:
“the whole purpose of the ‘extradite or pro secute’ principle would be frustrated if the
courts of a State in whose territory an individual alleged to have committed a crime
under the Code was found were to decide, once they had been seized of the case by the
competent authorities, that they lacked jurisdiction”. [ YILC, 1995, Vol.I, p.200,
para. 20.]
In its commentaries attached to Article 8 of the draft Code of crimes against the peace and security
of mankind, adopted in 1996, which is similar to Article5 of the Convention against Torture, the
Committee considered:
“Failing such [universal] jurisdiction, the custodial State would be forced to
accept any request received for extradition which would be contrary to the alternative
nature of the obligation to extradite or prosecute under which the custodial State does
not have an absolute obligation to grant a request for extradition. Moreover, the
alleged offender would elude prosecution in su ch a situation if the custodial State did
not receive any request for extraditi on which would seriously undermine the
fundamental purpose of the aut dedere aut judicare principle, namely, to ensure the
26See paras. 4.29 to 4.37 above.
26See paras. 1.67-1.76 above.
262
See also paras. 4.24-4.25 above.
26See also paras.4.24 and 4.26 above. See also Committee against Torture, Suleymane Guengueng et al. v.
Senegal, communication No. 181/2001, decision of 17 May 2006, CAT/C/36/D/181/2001, para. 9.7 (Ann. E.2).
26See paras. 4.29 to 4.37 above. - 57 -
effective prosecution and punishment of265fenders by providing for the residual
jurisdiction of the custodial State.”
4.42. This is the situation in which Senegal found itself in 2005. By not taking the necessary
measures to enable its courts to entertain the H. Habré case, Senegal not only violated Article5,
paragraph 2, of the Convention, but also made it impossible for itself to choose prosecution rather
than extradition. To borrow the words used by the Agent of Senegal, Cheikh Tidiane Thiam, in the
pleadings on the request for the indication of provisional measures: “ Aut dedere, aut judicare :
266
either one thing or the other. And above all, it is extradition if there can be no trial.” Since
Senegal considered itself legally incapable of putting Mr. Habré on trial, it was obliged to extradite
him to Belgium, the only State that had requested his extradition for trial.
4.43. The Committee against Torture found in 2006
87
“that, since 19 September 2005, the State pa rty has been in another situation covered
under Article 7, because on that date Belgiu m made a formal extradition request. At
that time, the State party had the choice of proceeding with extradition if it decided not
to submit the case to its own judicial authorities for the purpose of prosecuting
Hissène Habré.” 267
4.44. However, by its decision of 25 November 2005, the Court of Appeal in Dakar declared
its lack of jurisdiction to hear the extradition requ est made by Belgium. This decision bestows on
Mr. Habré the immunity provided for under Senegal ese public law for the President of Senegal. A
strange line of reasoning which consists in conferring on a former foreign Head of State:
⎯ the benefit of rules provided under the Senegal ese Constitution for the President in office of
Senegal, not for a foreign Head of State;
⎯ the benefit of rules of immunity whic h, in a less than clear manner, the Chambre seems to link
indirectly with international law 268, whereas international law excludes immunity for a former
Head of State in respect of acts unrelated to his official functions;
⎯ the benefit of rules of immunity which, in any event, did not apply to Mr.Habré, since Chad
had confirmed in 1992, in so far as necessary, that Mr. Habré enjoyed no immunity.
4.45. Regardless of how this judgment is interpreted, it reveals, together with the decision to
transmit the dossier to the African Union, that the respondent State had no intention of fulfilling its
obligation to extradite Mr. Habré to Belgium.
4.46. Pursuant to Article 7, paragraph 1, of the Convention against Torture, Senegal was then
required to extradite Mr.Habré and should have complied with the international arrest warrant
issued on 19September2005 by the Belgian investigating judge 269. By not extraditing him, if it
265Yearbook of the International Law Commission, 1996, Vol. II, Part 2, p. 29, para. (6) of the commentary.
266
CR 2009/9, 6 Apr. 2009, p. 20, para. 56 (Thiam).
267
Committee against Torture, Suleymane Guengueng et al. v. Senegal, communication No. 181/2001, decision of
17 May 2006, CAT/C/36/D/181/2001, para. 9.10 (Ann. E.2).
268See ibid., in fine, the reference made in the Judgment to the Arrest Warrant case.
269Ann. C.2. - 58 -
88 failed to exercise its universal jurisdiction, Se negal violated its conventional obligation under
Article 7, paragraph 1, of the Convention against Torture.
(b) The seisin of the African Union does not cons titute an alternative to compliance with
Senegal’s conventional obligations
4.47. In its Note Verbale dated 9May2006, the Senegalese Embassy in Brussels informed
the Belgian authorities that
“With regard to the interpretation of Article 7 of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Embassy
considers that by transferring the Hissène Habré case to the African Union, Senegal, in
order not to create a legal impasse, is ac ting in accordance with the spirit of the
principle ‘aut dedere aut punire’ the essential aim of which is to ensure that no
torturer can escape from justice by going to another country.” 270
4.48. Belgium cannot endorse this interpreta tion of Article7 of the Convention against
Torture. It is clear from the text of that provisi on that the “State Party in the territory under whose
jurisdiction a person alleged to have committed any o ffence referred to in article 4 is found”, if it
does not extradite him, must hand him over to its competent authorities for the purpose of
prosecution.
4.49. The “mandate” conferred on Senegal by the African Union to try Mr. Habré 271 does not
in any way exempt Senegal from its obligation, as the forum State, to submit the case to its
competent authorities or to extradite him to a State which so requests. This obligation continues to
exist despite the intervention of the African Union. The obligation to try or extradite provided for
in the Convention derives from the mere presence of the person alleged to have committed acts of
torture in the territory of the State Party concer ned. In fact, it is a responsibility incumbent on
Senegal as the forum State 272.
4.50. This interpretation is mo reover confirmed by the decision of the African Union. In its
89
decision of July 2006 on the Hissène Habré trial a nd the African Union, the Assembly of Heads of
State and Government of the Union expressly referre d to “the ratification by Senegal of the United
Nations Convention against Torture” 273. In the oral proceedings on the request for the indication of
provisional measures, the representative of Senegal also affirmed that “the African Union, which
Senegal had seized of the case ⎯ all will note that I use the term seisin, never transfer or
274
appropriation or relinquishment ⎯ with a view to its involvement and support” .
270
Ann. B.10.
271
Ann. F.2.
272See the communiqué of the Ministry of Foreign Affa irs of Senegal, 27 Nov.2006 (Ann.B.5). In this
communiqué, the Ministry observed that “Senegal is in no way directly involved in the Hissène Habré case” and that “the
case (. . .) is not a Senegalese case but an African case”.
273Ann.F.2. The European Parliament also called on the African Union, “within the framework of the case
against Hissène Habré, to ensure that Senegal respects its international commitments as a State Party to the Convention
against Torture” (legislative resolution of the European Parliament on impunity in Africa and in particular the case of
Hissène Habré, P6_TA(2006)0101, 16 Mar. 2006, Official Journal of the European Union , C291E of 30Nov.2006,
p. 420, point 13).
274CR 2009/9, 6 Apr. 2009, p. 12, para. 24 (Thiam). - 59 -
And Mr.Thiam added: “[T]he text by wh ich the African Union asked Senegal to try
Mr.Habré in its own courts is b ased on Senegal’s obligations deri ving from its ratification of the
1984 Convention against Torture.” 275
4.51. Belgium has taken note of the statements made by the Agent of Senegal in the
276
International Court of Justice. However, certa in statements made by the Senegalese authorities
90 appear to imply that Senegal, by establishing the necessary conditions for organizing a trial of
Mr.Habré on its territory, would not be fulfilling the obligations placed on it by the Convention
against Torture, but merely carrying out a “manda te” of the African Union. However, as Belgium
has recalled repeatedly in its Notes Verbales, it is Senegal which remains legally bound to
prosecute Mr. Habré or to extradite him to Belgium, under the terms of Article 7 of the Convention
against Torture and under conventional and customary rules. With all due respect for the work of
the African Union, which has undeniably had po sitive effects, if only by facilitating essential
legislative changes in the domestic law of Senegal, the fact still remains that ⎯ unless otherwise
provided by international law itself ⎯ a State cannot be exempted from its international obligations
by transferring a case to a regional organization any more than it could be exempted from its
obligations by transferring its responsibilities to another State.
(c) Senegal has to date neither initiated a prelimin ary inquiry nor submitted the H. Habré case
to the competent authorities for the purpose of prosecution
4.52. Notwithstanding the fact that, since the legislative reform introduced in 2007, Senegal
has established the necessary regulatory conditions in order to fulfil its obligation to try Mr. Habré
in Senegal, it has still not submitted the H. Habré case to its competent authorities for the purpose
of prosecution. No measures have been taken: neither a preliminary inquiry into the facts, as
provided for in Article 6, paragraph 2, of the Convention, nor the opening of an investigation of the
case, despite the filing in September2008 of a new application to the Public Prosecutor by
14 victims of Senegalese and Chadian nationality, accusing Mr. Habré of acts of torture and crimes
against humanity 277.
4.53. To date, the Ministry of Justice of Senegal has only “appointed” four judges “to lead
the investigation against Mr. Habré” 278. But no decision has been taken regarding the opening of a
judicial inquiry or investigation.
275
CR 2009/9, 6 Apr. 2009, p. 13, para. 29 (Thiam).
27See for example the Note Verbale of the Senegalese Emba ssy in Belgium to the Ministry of Foreign Affairs of
Belgium, 20 Feb. 2007 (Ann. B.1), and the Note Verbale from th e Ministry of Foreign Affairs of Senegal to the Belgian
Embassy in Dakar, 21Feb.2007 (Ann.B.13). See also the statements made by the African Union: Assembly of the
African Union, eighth ordinary session, 29-30Jan2007, Decision AU/Dec.157(VIII) (“ ENCOURAGES [Senegal] to
pursue its initiatives to accomplish thmandate entrusted to it.”; emphasis added); ibid., twelfth ordinary session,
1-3 Feb. 2009, decision AU/Dec.240(XII) (“RECALLS its Decision Assembly/AU/Dec.127(VII) taken in Banjul, the
Gambia, in July 2006 mandating the Republic of Senegal ‘to prosecute and ensu re that Hissène Habré is tried, on behalf
of Africa, by a competent Senegalese court with guarantees for fair trial’.”; emphasis added); ibid., thirteenth ordinary
session, 1-3July2009, Decision AU/Dec. 246 (XIII), 3July2009 (“REITERATES its appeal to all Member States to
contribute to the budget of the trial and extend the necessupport to the Government of Senegal in the execution of
the AU mandate to prosecute and try Hissène Habré.”; emphasis added); ibid., fourteenth ordinary session,
1-3 Feb. 2010, Decision AU/Dec.272(XIV) Rev. 1, 2 Feb 2010 (“REITERATES its appeal to all Member States to
contribute to the budget of the trial and extend the necessupport to the Government of Senegal in the execution of
the African Union (AU) mandate to prosecute and try Hissène Habré.”; emphasis added). See also para. 1.76 above.
27Ann. D.5.
27Ann. B.19. - 60 -
4.54. Furthermore, Belgium has repeatedly offered to receive, on the basis of an international
279
91 letter rogatory, the Senegalese judges appointed to investigate the case against Mr.Habré .
Although the Senegalese authorities have shown themselves to be in favour of accepting these
offers 280, no letter rogatory has been submitted by Senega l to date (end of June 2010). It is worth
recalling that, in the context of the investiga tion initiated in Belgium, the Belgian authorities
transmitted a letter rogatory to Senegal in October 2001, that is, less than one year after the filing of
the complaint against Mr. Habré in November 2000; this letter rogatory was aimed at obtaining a
copy of the existing case file in Senegal. Fi ve years after Belgium’s request for extradition,
Senegal, for its part, has still not transmitted a letter rogatory in order to obtain a copy of the
Belgian case file.
4.55. In February2010, the Senegalese Mini ster for Foreign Affairs assured his Belgian
counterpart that there was281 further obstacle to th e organization of the H. Habré trial, apart from
the matter of financing . But the fact remains that, to date, no inquiry ⎯ even a preliminary one
within the meaning of Article 6, paragr aph 2, of the Convention against Torture ⎯ has been made
into the facts and the H.Habré case has still not been submitted to the competent Senegalese
authorities for the purpose of prosecution.
4.56. Furthermore, in January 2010, before the Court of Justice of the Economic Community
of West African States, the representatives of Se negal confirmed that “no proceedings against
[Mr. Habré] were pending, nor are any pending at this date, in the Senegalese courts” 282.
92 4.57. Senegal’s failure to act is not cons istent with the requirements of Article6,
paragraph2, and Article7, pa ragraph1, of the Convention. This failure contravenes the
Convention.
4.58. What is more, the mere intention to try Mr.Habré, as expressed on various occasions
by the Senegalese authorities, is not sufficien t to implement the international commitments
accepted by Senegal when it became a party to the 1984Convention. The Convention does not
grant any period of time for the implementation of th e obligation to prosecute. This means that the
States Parties must have the necessary legislati on in place as soon as the Convention enters into
force in relation to them.
4.59. So long as Senegal has not submitted the H.Habré case to the competent Senegalese
authorities for the purpose of prosecution or, failing that, has not extradited him to any State which
has so requested, there is a violation of Article 7 of the Convention against Torture for which
Senegal incurs international responsibility.
279Note Verbale from the Belgian Embassy in Dakar to the Senegalese Ministry of Foreign Affairs, 2 Dec. 2008
(Ann.B.16); Note Verbale from the Belgian Embassy in Dakar to the Senegalese Mini stry of Foreign Affairs,
23June2009 (Ann.B.17); Note Verbale from the Belgian Em bassy in Dakar to the Senegalese Ministry of Foreign
Affairs, 14 Oct. 2009 (Ann. B.20); lette r dated 20 Oct. 2009 from the Belgian Ambassador in Senegal to the Senegalese
Minister for Foreign Affairs (Ann. B.21); Note Verbale from the Belgian Embassy in Dakar to the Senegalese Ministry
of Foreign Affairs, 23 Feb. 2010 (Ann. B.22).
280
Note Verbale from the Senegalese Ministry of Foreign Affairs to the Be lgian Embassy in Dakar, 14 Sep. 2009
(Ann.B.19); Note Verbale from the Se negalese Ministry of Fo reign Affairs to the Belgian Embassy in Dakar,
29 July 2009 (Ann. B.18); Note Verbale from the Senegalese Minist ry of Foreign Affairs to the Belgian Embassy in
Dakar, 30 Apr. 2010 (Ann. B.23).
281
See para. 1.58 above.
282ECOWAS Court of Justice, Hissein Habré v. Republic of Senegal, Judgment on Preliminary Objections,
14 May 2010, para. 14 (Ann. E.1). - 61 -
II. VIOLATIONS OF OTHER RULES OF CONVENTIONAL AND
CUSTOMARY INTERNATIONAL LAW
4.60. The arrest warrant of 19September2005 issued by the Belgian investigating judge in
charge of Mr.Habré’s case was based on the accusation that Mr.Habré had committed crimes
against humanity, war crimes and crimes of genocide. Such crimes are covered, respectively, by
Articles 136ter, 136quater, and 136bis of the Belgian Penal Code. They are additional to the crime
of torture within the meaning of the Convention against Torture 283 and imply the violation by
Senegal of other rules of conventional or customary international law.
4.61. Belgium will not go into the question of the relevance of these legal classifications or
the legitimacy of their application to Mr.Habré, as that is not the subject-matter of this dispute.
Moreover, Senegal has never questioned them. Suffice it to note that the arrest warrant against
Mr.Habré accuses him of criminal acts classified as crimes against humanity, war crimes and
crimes of genocide, that these classifications are not unfounded in view of what is known of the
93 history of Mr.Habré from the time of his presidency of Chad 28, and that, pursuant to the
obligation to combat impunity, international la w requires Senegal to prosecute the alleged
perpetrator of such crimes as long as he is in its territory or, if it does not prosecute, to extradite
him to a State which wishes to prosecute. Belgiu m will thus show, firstly, the source of this
obligation for each of the crimes that are the subj ect of the arrest warrant of 19September2005
(A); secondly, the terms and conditions of the oblig ation of punishment (B); and lastly, the basis
of the jurisdiction which Senegal must exercise and which the Belgian judicial authorities intend to
exercise if Senegal fails to do so (C).
A. Conventional and customary obligations regarding the punishment
of the other crimes alleged against Mr. Habré
4.62. The proceedings which the Belgian j udicial authorities intend to bring against
Mr. Habré are founded on the allegation made agains t him of the classic triad of crimes, which for
ease of reference will be presented in the followi ng order: crimes against humanity(1), war
crimes (2) and the crime of genocide (3).
1. Crimes against humanity
4.63. The definition and punishment of crimes against humanity are not the subject of any
specific convention, unlike the crime of torture. However, their classification as specific offences
is today considered a customary rule. It appears inter alia in the Statutes of the Nuremberg
International Military Tribunals (Art.6 (c), 1945) 285, the Tokyo Charter (Art.5 (c), 1946) 286, and
the Statutes of the International Criminal Tribunal for the former Yugoslavia (Arts.4-5, 1993) 287,
288
the International Criminal Tribunal for Rwanda (Arts. 2-3, 1994) and the International Criminal
Court (Art. 7, 1998) 289. The International Law Commission, in its codification of the “Principles of
283
See paras. 4.02 to 4.59 above.
284See paras. 1.09-1.10 above.
285Agreement for the Prosecution and Punishment of the Ma jor War Criminals of the European Axis and Charter
of the International Military Tribunal, London, 8 Aug. 1945, 82 UNTS 280.
286Charter of the International Military Tribunal for the Far East, 19 Jan. 1946, TIAS 1579.
287
Security Council, resolution 827 (1993), 25 May 1993, S/RES/827 (1993).
288Security Council, resolution 955 (1994), 8 Nov. 1994, S/RES/955 (1994).
289UNTS, Vol. 2187, p. 90 (I-38544). - 62 -
94 International Law Recognized in the Charter of th e Nürnberg Tribunal and in the Judgment of the
Tribunal”, as early as 1950 cited crimes against humanity as “crimes under international law”
(Principle VI). In the discussions in the Sixth Committee of the General Assembly between 2 and
14December1950, some 18States explicitly conf irmed the customary nature of the Nuremberg
290
Principles defined by the International Law Commission .
4.64. The obligation to punish crimes against humanity is also set out in resolutions of the
General Assembly, which require that the perpetrators of crimes against humanity be prosecuted or
extradited. For example, resolution2840(XXV I) (“Question of the punishment of war criminals
and of persons who have committed crimes against humanity”) of 18 December 1971 characterizes
as a violation of international law the failure of a State to co-operate in the arrest, prosecution or
extradition of perpetrators of war crimes or crimes against humanity. The Assembly
“ Affirms that refusal by States to co-operate in the arrest, extradition, trial and
punishment of persons guilty of war crimes and crimes against humanity is contrary to
the purposes and principle of the Charter of the United Nations and to generally
recognized norms of international law.” (Para. 4.)
4.65. In a similar vein, resolution 3074 (XXVIII) of 3 December 1973, entitled “Principles of
international co-operation in the detection, arrest, extradition and punishment of persons guilty of
war crimes and crimes against humanity”, proclaims the following as the first principle:
“War crimes and crimes against humanity, wherever they are committed, shall
be subject to investigation and the persons against whom there is evidence that they
have committed such crimes shall be subject to tracing, arrest, trial and, if found
guilty, to punishment.” (Para. 1.)
Paragraph 5 of the resolution provides that “States shall co-operate on questions of
extraditing such persons”. These resolutions thus recognize, albeit in general terms, a customary
rule constituting the classic obligation of prosecution or extradition.
95 The obligation to prosecute is also enunciate d in relation to torture by the United Nations
General Assembly and the Human Rights Council, which declare, in very similar wording, that
those who perpetrate acts of torture or other cruel, inhuman or degrading treatment or punishment
must be held responsible, “brought to justice and punished in a manner commensurate with the
severity of the offence” 291.
4.66. The explanatory memorandum to the Senegalese law which incorporates into the
Senegalese Penal Code the crime of genocide, cr imes against humanity and war crimes, so as to
implement the definitions of offences provided for by the Statute of the International Criminal
Court, specifies that “it is an opportunity to integrate international rules of conventional and
customary law” 292. This confirms that Senegal acknow ledges the customary nature of the
classification of crimes against humanity.
290
Extracts of declarations by States in E.DavÉléments de droit pénal international et européen , Brussels,
Bruylant, 2009, para. 16.6.76.
291
A/RES/64/153, §6, 18 Dec. 2009, adopted without vote; Human Ri ghts Council, A/HRC/RES/13/19, adopted
without vote, §10.
29Law No.2007-02 of 12 Feb.2007 amending the Penal Code, Journal officiel de la République du Sénégal,
10 Mar. 2007, p. 2377 (Ann. D.6); emphasis added. - 63 -
4.67. The draft Code of crimes against the peace and security of mankind, adopted by the
International Law Commission in 1996, also affirms that the State
“in the territory of which an individual alle ged to have committed a crime set out in
article 17 [genocide], 18 [crimes against humanity], 19 [crimes against United Nations
and associate293ersonnel] or 20 [war crimes] is found shall extradite or prosecute that
individual” .
4.68. The obligation to prosecute is not c onditional on a request for extradition from a third
State. The International Law Commission considered that “[t]he custodial State has a choice
between two alternative 294rses of action either of which is intended to result in the prosecution of
the alleged offender” , but it explains that:
“In the absence of a request for extradition, the custodial State would have no
choice but to submit the case to its national authorities for prosecution. This residual
obligation is intended to ensure that a lleged offenders will be prosecuted by a
competent jurisdiction, that is to say, the custodial State, in the absence of an
alternative national or international jurisdiction.” 295
96 4.69. The obligation to punish crimes against humanity is a component of the fight against
impunity which is dealt with in numerous resolutio ns of the General Assembly and the Security
Council. These resolutions were adopted in connection with serious violations of human rights
committed in a country or, more generally, in conn ection with respect for certain values. Thus, the
following contexts have given rise to resolutions in which States were invited to combat the
impunity of perpetrators of crimes against humanity and other serious crimes of international law;
these resolutions were adopted:
⎯ in response to a particular situation of unrest and violations of fundamental rights and freedoms
in a particular country; for example in connection with the unrest in Burundi, the Security
Council expressed its concern at the fact
“that impunity creates contempt for law and leads to violations of international
296
humanitarian law” ;
⎯ the Council has affirmed, in more than 70 resolutions, the obligation to combat impunity in the
wake of serious internal tensions with which other States have been confronted; without any
claim to exhaustiveness, mention may be made of: Cambodia 297, Iraq 29, the Democratic
293
Art. 9, ILC Yearbook, 1996, Vol. 2, Part 2, p. 30.
294
ILC Yearbook, 1996, Vol. II, Part 2, p. 31.
29Ibid., p. 32.
29S/RES/1012, 28Aug.1995, eighth preambular paragr aph; see also S/RES/1545, 21 May2004, ninth
preambular paragraph; S/RES/1602, 31 May 2005, fourteenth preambular paragraph and paragraph5; S/RES/1650,
21 Dec. 2005, para. 9; S/RES/1719, 25 Oct.2006, para.2 (j); S/RES/1858, 22 Dec.2008, tenth preambular paragraph
and paras. 13-14; S/RES/1902, 17 Dec. 2009, eleventh preambular paragraph and paras. 18-19.
29A/RES/50/178, 22 Dec. 1995 (without vot e), para.12; A/RES/51/98, 12 D ec.1996 (without vote), para.14;
A/RES/52/135, 12 Dec. 1997 (without vote), para. 9.
29A/RES/54/178, 17 Dec. 1999, para. 3 (d). - 64 -
Republic of the Congo 299, Haiti 300, Rwanda 301, Côte d’Ivoire 302, Sierra Leone 303, Timor
304 305 306 307 308 309
97 Leste , Sudan , Guinea Bissau , Georgia , Afghanistan , Somalia , the Central
African Republic and Chad 310, and Nepal 311 ;
⎯ in connection with certain more generic issues such as respect for “gender specificity”, where
the Security Council
“[e]mphasizes the responsibility of all States to put an end to impunity and to
prosecute those responsible for genocide, crimes against humanity, and war crimes
including those relating to sexual and other violence against women and girls, and in
this regard st312ses the need to exclude these crim es, where feasible from amnesty
provisions;”
⎯ similarly, in connection with children and ar med conflict, the Security Council has urged
Member States to
“put an end to impunity, prosecute those responsible for genocide, crimes against
humanity, war crimes, and other egregious crimes perpetrated against children and
299
A/RES/54/179, 17 Dec. 1999, para. 3 (d); S/RES/1468, 20 Mar. 2003, paras. 6-7; S/RES/1484, 30 May 2003,
paras.5-6; S/RES/1565, 1 Oct. 2004, paras. 5 (g) and 19; S/RES/1653, 27Jan. 2006, paras.6-7; S/RES/1711,
29 Sep. 2006, eleventh preambular paragraph; S/RES/1756, 15May2007, paras.3 (c), 12 and 14; S/RES/1856,
22 Dec. 2008, eleventh preambular paragraph and paras.4 (c) and 25; S/RES/1896, 30Nov. 2009, tenth and eleventh
preambular paragraphs; S/RES/1906, 23 De c. 2009, eighth preambular paragraph et seq., paras. 3 and 11; S/RES/1925,
28 May 2010, eleventh and twelfth preambular paragraphs and para. 12 (c)-(d).
30A/RES/54/187, 17 Dec. 1999, para. 8; S/RES/1529, 29Feb.2004, para . 7; S/RES/1542, 30 Apr. 2004,
fourthpreambular paragraph and para.8 (a); S/RES/1608, 22June2005, fifth preambular paragraph; S/RES/1743,
15Feb.2007, ninth preambular paragraph; S/RES/1840, 14Oct.2008, ninth preambular paragraph; S/RES/1892,
ninth preambular paragraph.
301
A/RES/54/188, 17 Dec. 1999, para. 8.
302
S/RES/1464, 4 Feb.2003; S/RE S/1528, 27 Feb.2004, para.6 (n); S/RES/1609, 24June2005, para.2 (t);
S/RES/1721, 1 Nov. 2006, para. 30; S/RES/1826, 29 July 2008, ninth preambular paragraph; S/RES/1865, 27 Jan. 2009,
tenth preambular paragraph and para .11; S/RES/1880, 30July 2009, tenth preambular paragraph and para.26;
S/RES/1911, 28 Jan. 2010, tenth preambular paragraph and para. 13.
30S/RES/1470, 28 Mar.2003, seventh preambular paragraph; S/RES/1610, 30June2005, sixth preambular
paragraph.
30S/RES/1543, 14 May2004, para.8; S/RES/1573, 17 Nov. 2004, para. 6; S/RES/1745, 22 Feb. 2007,
fifthpreambular paragraph; S/RES/ 1867, 26 Feb.2009, ninth preambular para graph; S/RES/1912, 26Feb.2010,
seventh preambular paragraph.
30S/RES/1556, 30 July2004, para.6; S/RES/1564, 18Sep.2004, ninth pr eambular paragraph and para.7;
S/RES/1574, 19Nov.2004, tenth preambular para graph; S/RES/1590, 24Mar.2005, para.4 (a) (viii); S/RES/1591,
29 Mar. 2005, tenth preambular paragraph and para.5; S/RES/1841, 15Oct.2008, sixt h preambular paragraph;
S/RES/1881, 30 July2009, eighth preambular paragraph an d para.11; S/RES/1891, 13Oc t.2009, sixth preambular
paragraph.
306
S/RES/1580, 22 Dec. 2004, para. 4.
307
S/RES/1582, 28 Jan. 2005, paras. 29-30.
308
S/RES/1746, 23 Mar.2007, para.13 ; S/RES/1806, 20 Mar.2008, para .21; S/RES/1890, 8Oct.2009,
eighteenth preambular paragraph; S/RES/1917, 22 Mar. 2010, paras. 22 and 30.
309
S/RES/1814, 15 May 2008, para.16; S/RES/1872, 26 May 2009, thirteenth preambular paragraph and
para. 22; S/RES/1897, 30 Nov. 2009, para. 12; S/RES/1910, 28 Jan. 2010, fourteenth preambular paragraph.
310
S/RES/1778, 25 Sep. 2007, para. 2 (e); S/RES/1861, 14 Jan. 2009, para. 6 (f).
311
S/RES/1909, 21 Jan. 2010, fifteenth preambular paragraph.
31S/RES/1325, 31 Oct.2000, para.11 ; S/RES/1820, 19 June2008, para . 4; S/RES/1888, 30 Sep. 2009,
paras. 6-8 and seventh preambular paragraph et seq.; S/RES/1889, 5 Oct. 2009, para. 3. - 65 -
exclude, where fea313le, these crimes from amnesty provisions and relevant
legislation . . .” .
98 ⎯ more generally, outside any geopolitical or sociological context: thus, on the occasion of the
Millennium Summit, the Security Council
“ Stresses that the perpetrators of crimes against humanity, crimes of genocide,
war crimes, and other serious violations of international humanitarian law should be
brought to justice.” 314
4.70. Alongside the repeated demands of th e General Assembly and the Security Council,
the principle of combating impunity also corresponds to a requirement deriving from respect for
human rights. Thus in 2004, the Human Right s Committee, in its general comment No.31,
affirmed in connection with the implementation of Article2, paragra ph3, of the Covenant
(obligation on States parties to the Covenant to gua rantee, by judicial, administrative or legislative
means, respect for the rights and freedoms provided for in the Covenant) that
“A failure by a State party to investigat e allegations of viol ations could in and
of itself give rise to a separate breach of the Covenant... Where the
investigations . . . reveal violations of certain Covenant rights, States parties must
ensure that those responsible are brought to ju stice. As with failure to investigate,
failure to bring to justice perpetrators of such violations could in and of itself give rise
to a separate breach of the Covenant... Indeed, the problem of impunity for these
violations . . . may well be an important c ontributing element in the recurrence of the
violations.” 315
The Commission on Human Rights and the Human Rights Council took a similar view in:
“[r]ecalling the Set of Principles for the protection and promotion of human rights
through action to combat impunity (E/CN.4/Sub.2/1997/20/Rev.1, annexII), and
taking note with appreciation of the updated version of these principles
316
(E/CN.4/2005/102/Add.1)” .
99 The United Nations General Assembly also refers to these principles as “a useful tool in efforts to
317
prevent and combat torture” . Among the principles referred to by the Commission on Human
Rights, the Human Rights Council and the Assembly, Principle 19 provides that:
“States shall undertake prompt, t horough, independent and impartial
investigations of violations of human ri ghts and international humanitarian law and
take appropriate measures in respect of the perpetrators, particularly in the area of
313S/RES/1379, 20 Nov.2001, para.9 (a); see also S/RES/1460, 30Jan.2003, fifth preambular paragraph;
S/RES/1539, 22Apr.2004, fourth preambular paragraph; Statement by the President of the Security Council,
S/PRST/2009/9, 29Apr.2009, eleventh preambular paragra ph; S/RES/1882, 4Aug.2009, fifth preambular paragraph
and para. 16.
314
S/RES/1318, 7 Sep. 2000, VI.
315General comment No.31 on the nature of the general legal obligation imposed on States parties to the
Covenant, 29Mar.2004, paras.15 and 18, Official Records of the General Assembly, Fifty-ninth Session, Supplement
No. 40 (A/59/40), pp. 175-179.
316Right to the truth , Commission on Human Rights resolution2005/ 66, 20Apr.2005 (adopted without vote),
seventhpreambular paragraph; Enforced and involuntary disappearances , Human Rights Council resolution14/10,
18 June 2010 (adopted without vote), twelfth preambular paragraph.
317A/RES/64/153, 18 Dec. 2009 (adopted without vote), para. 7. - 66 -
criminal justice, by ensuring that those responsible for serious crimes under
318
international law are prosecuted, tried and duly punished.”
4.71. The customary wording of the obligation to punish crimes against humanity is set out
in the preamble to the Statute of the Internationa l Criminal Court, to which 111States are parties
(end of June 2010), including Senegal and Belgium. The fourth, fifth, sixth and tenth paragraphs of
the preamble read as follows:
“The States parties to this Statute,
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Affirming that the most serious crimes of concern to the international
community as a whole must not go unpunished and that their effective prosecution
must be ensured by taking measures at the national level and by enhancing
international co-operation,
Determined to put an end to impunity for the perpetrators of these crimes and
thus to contribute to the prevention of such crimes,
Recalling that it is the duty of every State to exercise its criminal jurisdiction
over those responsible for international crimes,
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Emphasizing that the International Criminal Court established under this Statute
shall be complementary to national criminal jurisdictions . . .”
2. War crimes
4.72. The sources cited above which require Stat es to take criminal proceedings against the
perpetrators of crimes against humanity or, failing this, to extradite them to any State which seeks
to prosecute them, also apply to war crimes. Moreover, several of the extracts reproduced above
refer in the same sentence to the obligation to punish crimes against humanity and war crimes.
100 4.73. Moreover, in the specific case of war cr imes, the alternative obligation to prosecute or
extradite their perpetrators is set out in an ar ticle common to the four Geneva Conventions of
12 August 1949 (Arts. 49 (I), 50 (II), 129 (III) and 146(IV)) and in the first additional Protocol
thereto of 8 June 1977 (Art. 85, para. 1), instruments which are binding on both Belgium 319and
Senegal 320.
4.74. The obligation to punish war crimes is conventional inasmuch as it appears in treaties
binding on the two States parties to this disput e (the Geneva Conventions of 1949 and additional
Protocol I thereto of 1977). It is also custom ary inasmuch as this Court has recognized the Geneva
31E/CN.4/2005/102/Add.1, Principle 19.
319
Since 3 Sep. 1952 for the 1949 Geneva Conventions and since 20 May 1986 for additional Protocol I of 1977.
32Since 18 May 1963 for the 1949 Geneva Conventions and since 7 May 1985 for additional Protocol I of 1977. - 67 -
Conventions as having this characteristic 321. In addition, the ICRC study on customary
international humanitarian law provides that:
“States must investigate war crimes allegedly committed by their nationals or
armed forces, or on their territory, and, if appropriate, prosecute the suspects. They
must also investigate other war crimes ove r which they have jurisdiction and, if
appropriate, prosecute the suspects.” (Rule 158.)
3. The crime of genocide
4.75. Once again, the sources cited for crimes against humanity apply equally to the crime of
genocide.
4.76. Belgium is certainly not unaware that, in the case concerning Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro) , the Court affirmed that ArticleVI of the Convention in
question obliged only the State where the genoc ide was carried out to exercise criminal
322
jurisdiction . In that case, the Court, having been seised solely on the basis of Article IX of the
Convention, ruled only on that C onvention and not on customary international law. In this case,
101 however, the jurisdiction of the Court is also founded on the identical acceptances of its jurisdiction
323
by Senegal and Belgium with regard to “all legal disputes” . Since the obligat ion to punish the
crime of genocide derives from customary internationa l law, the territorial limitation stipulated by
the Convention is inapplicable in casu.
4.77. However, the universal customary nature of the obligation to punish genocide does not
appear to be in doubt. Thus, in its Opinion on Reservations to the Con vention on the Prevention
and Punishment of the Crime of Genocide, the Court held:
“The origins of the Convention show that it was the intention of the United
Nations to condemn and punish genocide as ‘a crime under international law’
involving a denial of the right of existen ce of entire human groups, a denial which
shocks the conscience of mankind and results in great losses to humanity, and which is
contrary to moral law and to the sp irit and aims of the United Nations
(Resolution96(I) of the General Assembly, December 11th1946). The first
consequence arising from this concepti on is that the principles underlying the
Convention are principles which are recognized by civilized nations as binding on
States, even without any conventional ob ligation. A second consequence is the
universal character both of the condemnation of genocide and of the co-operation
required ‘in order to liberate mankind from such an odious scourge’ (Preamble to the
Convention). The Genocide Convention was therefore intended by the General
Assembly and by the contracting parties to be definitely universal in scope. It was in
fact approved on December9th, 1948, by a resolution which was unanimously
adopted by fifty-six States.
The objects of such a convention must also be considered. The Convention was
manifestly adopted for a purely humanitarian and civilizing purpose. It is indeed
difficult to imagine a convention that might have this dual character to a greater
32Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 257, para. 79.
322
Application of the Convention on the Prevention andunishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 226, para. 442.
32See paras. 3.30-3.43 above. - 68 -
degree, since its object on the one hand is to safeguard the very existence of certain
human groups and on the other to confirm a nd endorse the most elementary principles
of morality. In such a convention the contracting States do not have any interests of
their own; they merely have, one and all, a common interest, namely, the
accomplishment of those high purposes which are the raison d'être of the convention.
Consequently, in a convention of this type one cannot speak of individual advantages
or disadvantages to States, or of the maintenance of a perfect contractual balance
between rights and duties. The high ideals which inspired the Convention provide, by
virtue of th324ommon will of the parties, the foundation and measure of all its
provisions.”
The Court underlines the customary nature of the principles contained in the Convention
102
when it states that:
“the principles underlying the Convention are principles which are recognized by
civilized nations as binding on States, even without any conventional obligation”.
In addition, through this text, the Court under lines the universal nature of the obligation of
punishment,
⎯ when it states:
“The origins of the Convention show that it was the intention of the United
Nations to condemn and punish genocide as ‘a crime under international law’ . . .”,
⎯ or when it refers to:
“the universal character both of the condemnation of genocide and of the co-operation
required ‘in order to liberate mankind from such an odious scourge’”,
⎯ or again when it emphasizes that:
“The Convention was manifestly adopted for a purely humanitarian and
civilizing purpose... since its object on the one hand is to safeguard the very
existence of certain human groups and on the other to confirm and endorse the most
elementary principles of morality”.
In mentioning “the intention of the United Nations to condemn genocide”, the “universal
character” of that condemnation and its “purely humanitarian and civilizing purpose”, the Court is
referring to fundamental principles of humanity central to the foundations of any civilized society.
325
Inasmuch as the punishment of the “crime of crimes” is inherent in civilization and humanity,
the forms of words used by the Court in 1951 constitute a way of emphasizing the universal
character of the obligation of punishment.
4.78. In the recent discussions in the Sixth Committee of the General Assembly on “the
scope and application of the principle of unive rsal jurisdiction”, several States stressed the
universal character of the prohibition of impunity with regard to the most serious crimes,
103
particularly genocide. For example, in the case of
324
Reservations to the Convention on the Prevention andPunishment of the Crime of Genocide, Advisory
Opinion, I.C.J. Reports 1951, p. 23.
32International Criminal Tribunal for Randa (ICTR), case No.ICTR-96-3-T, Rutaganda, 6Dec.1999,
para. 451. - 69 -
⎯ Australia:
“The principle [of universal jurisdic tion] had been developed in customary
international law in order to prevent pirates from enjoying impunity or safe haven and
had since been extended to include genocid e, war crimes, crimes against humanity,
slavery and torture, which, owing to their nature or exceptional326avity, were the joint
concern of all members of the international community.”
⎯ Switzerland:
“Justice played an essential role in crime suppression and prevention and while
States had the primary responsibility to prosecute persons who fell within their
jurisdiction, crimes such as genocide, crimes against humanity, war crimes and torture
were particularly offensive to the in ternational community and must not go
327
unpunished.”
⎯ South Africa:
“universal jurisdiction outside a treaty rela tionship should be applicable only to those
crimes regarded by the international commun ity as the mos328einous, namely slavery,
genocide, war crimes and crimes against humanity” .
⎯ the Democratic Republic of the Congo:
“It was right for States to exercise unive rsal jurisdiction so as to ensure that
cases of torture, war crimes, crimes against humanity and genocide did not go
unpunished.” 329
⎯ Kenya:
“the principle of universal jurisdiction... was a crucial tool for enabling victims of
grave international crimes, such as war crimes, crimes against humanity and genocide,
104 to obtain redress where the State in whic h the crime had been committed was unable
330
or unwilling to conduct an effective investigation and trial” .
⎯ Slovakia:
“it was generally accepted that customary in ternational law permitted the exercise of
such jurisdiction over piracy, the slave trade and trafficking in persons, and its
application to the delicta juris gentia ⎯ genocide, torture, crimes against humanity
and grave breaches of the 1949 Geneva Conventions ⎯ was widely recognized” 33.
⎯ Austria:
“of greater interest to the Committee, how ever, were cases in which States asserted
universal jurisdiction solely on the basis of customary international law. It seemed
326A/C.6/64/SR.12, para. 10.
327Ibid., para. 22.
328
Ibid., para. 43.
329
Ibid., para. 54.
330Ibid., para. 61.
331Ibid., para. 64. - 70 -
generally accepted that they were entitled to do so in respect of genocide, crimes
against humanity, war crimes, torture and piracy.” 332
⎯ Slovenia:
“In general, it was accepted that customary law allowed the exercise of
universal jurisdiction over the crimes of piracy, slavery, genocide, crimes against
humanity, war crimes and torture.” 333
⎯ Belgium:
“the application of universal jurisdiction w as... a tool of last resort in cases where
there was a risk that the perpetrators of genocide, crimes against humanity, war crimes
or torture might escape justice because both the State in which the crime was alleged
to have been committed and the State of nati onality of the suspect or the victims were
unwilling or unable to prosecute” 33.
⎯ the United States of America:
“Under United States law, federal courts were empowered to assert jurisdiction
105 over crimes of serious international concern, such as piracy, torture, genocide and
terrorism, even in the absence of a signifi cant link between the State and the crime in
335
question.”
⎯ Liechtenstein:
“In some situations, where those Stat es were unwilling or unable to bring the
perpetrators to justice, other States that had no direct connection to the crime should
do so on the basis of universal jurisdiction, which was thus an important subsidiary
tool for ensuring accountability for crimes su ch as genocide, war crimes, crimes
336
against humanity and torture.”
⎯ Togo:
“the principle of universal jurisdiction was designed to prevent impunity for serious
crimes such as genocide, crimes against humanity and torture . . .” 337.
*
4.79. An examination of the sources cited in this section shows that States are required to
ensure that they apply the obligation to combat impunity by establishing criminal sanctions for the
classic triad of crimes of genocide, crimes against humanity and war crimes.
332A/C.6/64/SR.12, para. 81.
333Ibid., para. 96.
334
Ibid., para. 102.
335
A/C.6/64/SR.13, para. 25.
336Ibid., para. 26.
337Ibid., para. 35. - 71 -
B. The modalities of the obligation of punishment
4.80. Customary international law prescribes no particular modalities for the punishment of
crimes of genocide, crimes against humanity and war crimes. While it is clear that the punishment
of these crimes implies the criminal prosecution of the alleged perpetrators, such prosecution may
be implemented either directly by the State in whic h the perpetrators are present, or indirectly by
extraditing them to a State which wishes to prosecute them. These two alternatives (prosecute or
extradite ⎯ aut dedere aut judicare) have the same aim: to combat impunity, that is, to ensure the
punishment of the crime. The Secretariat of the International Law Commission examined the
106 multilateral conventions which enunc iate this rule. By obliging States parties to prosecute the
perpetrator or to extradite him to a State which wishes to prosecute him, the Secretariat observed
that States fulfil the obligation to prosecute provided for in these conventions. The Secretariat
wrote that aut dedere aut judicare clauses
“impose upon States an obligation to ensure the prosecution of the offender either by
extraditing the individual to a State that will exe338se criminal jurisdiction or by
enabling their own judicial authorities to prosecute” .
Judicare and dedere are therefore in fact alternative means of implementing the obligation.
4.81. While most international criminal law conventions impose the obligation to prosecute
on the State where the crime was committed, the Stat e of nationality of the alleged perpetrator of
the crime and the State refusing to extradite that perpetrator, there is no rule requiring that the State
in which the alleged perpetrator is present should give priority to prosecution or extradition. Thus,
the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which is an
339
expression of customary law , provides on the one hand, that “Persons charged with genocide . . .
shall be tried by a competent tribunal of th e State in the territory of which the act was
committed . . .” (Art. VI), and on the other hand that
“Genocide and the other acts enumerated in article III shall not be considered as
political crimes for the purpose of extradition.
The Contracting Parties pledge themselves in such cases to grant extradition in
accordance with their laws and treaties in force.” (Art. VII.)
The Geneva Conventions of 1949 on the protec tion of victims of ar med conflicts provide
that:
“Each High Contracting Party shall be under the obligation to search for persons
alleged to have committed, or to have or dered to be committed, such grave breaches,
and shall bring such persons, regardless of their nationality, before its own courts. It
may also, if it prefers, and in accordance w ith the provisions of its own legislation,
107 hand such persons over for trial to anot her High Contracting Party concerned,
provided such High Contracting Party has made out a prima facie case.” (Common
Article 49/50/129/146, second paragraph.)
The draft code adopted by the Internationa l Law Commission in 1996 on crimes against the
peace and security of mankind provides that:
338
Survey of multilateral conventionwhich may be of relevance for the work of the International Law
Commission on the topic “The obligation to extradite or prosecute (aut dedere aut judicare) ”, Study by the Secretariat,
A/CN.4/630, para. 126.
339
See para. 4.77 above. - 72 -
“Without prejudice to the jurisdiction of an international criminal court, the
State Party in the territory of which an i ndividual alleged to have committed a crime
set out in article 17, 18, 19 or 20 is found shall extradite or prosecute that individual.”
(Art. 9.)
The General Assembly, in its resolution 3074 (XXVIII), declares:
“1. War crimes and crimes against humanity, wherever they are committed, shall be
subject to investigation and the persons against whom there is evidence that they
have committed such crimes shall be subject to tracing, arrest, trial and, if found
guilty, to punishment.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5. Persons against whom there is evidence that they have committed war crimes and
crimes against humanity shall be subject to trial and, if found guilty, to
punishment, as a general rule in the countries in which they committed those
crimes. In that connection, States shall co-operate on questions of extraditing such
persons.”
None of these texts gives more emphasis to either prosecution or extradition: judicare and
dedere are placed on the same footing.
4.82. At the most, it is found that, in the cas e of the crimes alleged against Mr.Habré, the
State’s obligation to prosecute exists independent ly of any request for ex340dition and is based on
the mere presence of the perpetrato r in the territory of that State : aut dedere aut judicare
becomes judicare vel dedere 341. It will now be seen that the extraterritorial character of the
jurisdiction to be exercised by Senegal with rega rd to Mr. Habré in no way detracts from the scope
of its obligation to prosecute Mr. Habré or, if it does not do so, to extradite him to Belgium.
108 C. Legal basis of the jurisdiction to be exercised by Senegal with regard
to the crimes alleged against Mr. Habré
4.83. Inasmuch as all the crimes alleged against Mr. Habré are crimes which were
⎯ committed outside Senegal, and
⎯ alleged against an individual, Mr. Habré, who is not Senegalese; and
⎯ committed against citizens who, for the most part, are not Senegalese.
It follows that the jurisdiction to be exerci sed by Senegal with regard to Mr.Habré is a
universal jurisdiction.
4.84. Whether such jurisdiction is of an extraterritorial nature in no way lessens the
obligation incumbent on Senegal. Suffice it to recall that none of the rules cited above 342limits the
obligation of punishment of serious crimes under in ternational law exclusively to the States where
the crime was committed or to States having a link of nationality with the perpetrator or his victim.
34A/CN.4/630, paras. 127-131.
341
See para. 4.68 above.
34See para. 4.64 above. - 73 -
The fight against impunity is in no way limited by considerations relating to the geography of the
crime, the nationality of the perpetrator or that of his victim. Some texts expressly provide that
343
such crimes shall be punished, “wherever they are committed” .
4.85. The only criterion of significance for tr iggering the obligation of prosecution on the
part of a State is the presence of the alleged perpetrator of the crime in its territory. The
commentary by the International Law Commission on Article 9 of its draft C ode of crimes against
the peace and security of mankind points out that th e mere presence of the person is sufficient to
oblige the State to prosecute him, even in the absence of any request for extradition 344.
109 4.86. These principles were referred to at great length in the recent deliberations of the Sixth
Committee of the General Assembly on universal jurisdiction. Wh345 universal jurisdiction must
obviously be exercised in good faith and not abusively , most speakers laid stress on the fact that
the exercise of such jurisdiction fell directly within the scope of the fight against impunity which,
as we have just seen, forms the basis for Sene gal’s obligation to prosecute or extradite
Mr. Habré 346. Thus,
⎯ for El Salvador,
“universal jurisdiction was useful in combating impunity and strengthening
international justice because it existed i ndependently of the place in which a crime
was committed or the nationality of the perpetrator . . .” 347;
⎯ for South Africa,
“acceptance of universal jurisdiction for cer tain international crimes of a serious
nature was based on its support for the effo rt to combat impunity and the search for
348
justice” ;
⎯ for the Democratic Republic of the Congo,
“impunity was also combated at the national level through the application of universal
jurisdiction . . . Moreover, the limits on the jurisdiction of the [International Criminal]
Court and the ad hoc tribunals and the large number of cases brought before national
courts showed that universal jurisdiction w as a central element of efforts to combat
349
impunity” ;
⎯ for Kenya,
34A/RES/3074 (XXVIII), 3 Dec. 1973, para. 1.
34See ILC Yearbook, 1996, Vol. II, Part 2, p. 33. See also para. 4.68 above.
345
A/C.6/64/SR.12, paras. 12 (Australia ), 13 (Tunisia), 20 (Iran), 47 (China), 93 (Sudan); A/C.6/64/SR.13,
paras. 12 (Iran), 18 (Israel), 31 (Rwanda), 35 (Togo), 40 (Senegal), 42 (Nigeria), 45 (Italy).
346
See paras. 4.64 et seq. above.
34A/C.6/64/SR.12, para. 25.
34Ibid., para. 38.
34Ibid., para. 52. - 74 -
“Its application [application of the pr inciple of universal jurisdiction] also
reduced the number of safe havens where those responsible for such crimes could
enjoy impunity” 350;
110 ⎯ for Thailand,
“while the two rules of international law [the rules of aut dedere aut judicare and
universal jurisdiction] were conceptually distinct, they were both instrumental in
351
combating impunity” ;
⎯ for Peru,
“while the two institutions [international cr iminal justice and universal jurisdiction]
had the same objective 352avoiding impunity ⎯ universal jurisdiction could be
exercised only by States” ;
⎯ for Norway,
“One of the major achievements of inte rnational relations and international law
over the past decades353s the shared understanding that there should be no impunity
for serious crimes” ;
⎯ for France, universal jurisdiction
“could apply only to acts which were universally condemned and which required, to
the extent possible, a global effort to comb at them. Thus, it was an essential tool in
combating impunity.” 354;
⎯ for Austria,
“universal jurisdiction w355an important tool for combating impunity, a primary goal
of the United Nations” .
⎯ for Germany,
“With regard to prosecution at the nati onal level, the principle of universal
jurisdiction was a legitimate and useful tool for the prevention of impunity and
111 customary international law clearly allo wed it to be invoked for international
crimes.” 356
⎯ Finland declared that it was
35A/C.6/64/SR.12, para. 61.
35Ibid., para. 66.
35Ibid., para. 69.
353
Ibid., para. 72.
354
Ibid., para. 76.
35Ibid., para. 81.
35Ibid., para. 85. - 75 -
“committed to promoting international acc ountability and would not shy away from
applying the principle of universal jurisdiction where there was a risk that failure to do
so could result in impunity” 357;
⎯ for Belgium,
“the application of universal jurisdiction was an essential tool in combating impunity
for grave international crimes and providing the victims with proper redress” 358.
4.87. Even States that were apprehensive about the risks of abuse of universal jurisdiction
acknowledged the relationship between universal juri sdiction and the requirements of the effort to
359
combat impunity . The fight against impunity therefore gave expression to a principle of
customary international law obliging all States to co-operate in the punishment of crimes against
humanity, war crimes and the crime of genocide. Th is obligation to co-operate required any State
in which the alleged perpetrator of such a crime was present to prosecute him in criminal
proceedings, unless it extradited him to a State authorized to prosecute him.
4.88. The legal basis of the case brought by Belgium against Senegal therefore lies in the
obligation, imposed on States by international law, to combat impunity for persons present in their
territory who are suspected of having committed serious crimes under international law.
4.89. This obligation, which is a feature of the conventional and customary international law
binding on Senegal and Belgium, requires Senegal to bring criminal proceedings against
Mr.Habré, or to extradite him to Belgium to an swer for the crimes alleged against him by the
Belgian judicial authorities.
357
A/C.6/64/SR.12, para. 91.
358Ibid., para. 102.
359Ibid., para. 99 (Tunisia); A/C.6/64/SR.13, paras. 1 (Indonesia), 5 (Iran), 32 (Rwanda), 36 (Togo).113
C HAPTER V
T HE RESPONSIBILITY OF S ENEGAL AND REMEDIES
I. INANCIAL ,LEGAL OR OTHER “DIFFICULTIES ” CANNOT RELEASE S ENEGAL
FROM ITS OBLIGATIONS OR JUSTIFY THE VIOLATION THEREOF
5.01. In its Order on provisional measures, the Court noted that the Parties had expressed
differing views as to whether financial, legal or other difficulties are relevant in considering
whether or not Senegal has failed to fulfil its obligations.
5.02. However, none of these difficulties can release Senegal from its international
obligations or otherwise constitute a circumstan ce excluding the unlawfulness of the violations
attributable to the Senegalese authorities.
5.03. Regarding the legal difficulties, Belg ium notes that, according to Article27 of the
1969Vienna Convention on the Law of Treaties, “[ a] party may not invoke the provisions of its
internal law as justification for its failure to perform a treaty . . .”
Similarly, Article3 of the Articles on Responsibility of States for Internationally Wrongful
Acts confirms: “The characterization of an act of a State as internationally wrongful is governed
by international law. Such 362racterization is not affected by the characterization of the same act
as lawful by internal law.”
5.04. Senegal cannot, therefore, rely on the di fficulties it may have encountered internally in
order to be released from its conventional or customary international oblig ations, on the one hand,
or to exclude the unlawful nature of the violations of international law attributable to it. As was
114
noted by the Permanent Court of International Justice:
“according to generally accepted principles, a State cannot rely, as against another
State, on the provisions of the latter’s C onstitution, but only on international law and
international obligations duly accepted... and conversely, a State cannot adduce as
against another State its own Constitution with a view to evading obligations
363
incumbent on it under international law or treaties in force” .
5.05. Furthermore, the Committee against To rture also emphasized in its decision of
17 May 2006 that
“the State party cannot invoke the complexity of its judicial proceedings or other
reasons stemming from domestic law to jus tify its failure to comply with these
obligations under the Convention. [The Co mmittee] is of the opinion that the State
party was obliged to prosecute Hissène Habré for alleged acts of torture unless it could
36Questions relating to the Obligation to Prosecute or Ex tradite (Belgium v. Senegal), Provisional Measures,
Order of 28 May 2009, para. 48.
361
UNTS, Vol. 1155, p. 332 (I-18232).
362
United Nations, General Assembly, resolution 56/83, 12 Dec. 2001, Annex.
36Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory
Opinion, 1932, P.C.I.J., Series A/B, No. 44, p. 24. - 77 -
show that there was not sufficient evidence to prosecute, at leas364t the time when the
complainants submitted their complaint in January 2000.”
5.06. In any event, the impossibility for the Senegalese authorities to prosecute Mr. Habré in
their own courts because of the unsuitability for that purpose of their domestic law constitutes, in
365
itself, a violation of international law . Under Article5, paragraph 2, of the Convention against
Torture, Senegal was obliged to bring its dom estic legislation into conformity with the
requirements of the Convention 366. The respondent State cannot now invoke its own breaches of
international law to justify or excuse othe r breaches of its international obligations. Nemo auditur
propriam turpitudinem allegans.
5.07. Moreover, in order to justify the ab sence of concrete measures and the delay in
instituting proceedings against Mr.Habré, Senega l invokes financial difficulties. In its Note
Verbale of 21 February 2007, the Ministry of Foreign Affairs of Senegal thus stated, in relation to
115 the execution of the “mandate given by the African Union to Senegal to judge Mr. Hissène Habré”,
that “such a trial requires substantial funds which Senegal cannot mobilize without the assistance of
367
the international community. The mandate of the African Union is explicit in this regard.”
Before the Court, the representatives of Senegal reaffirmed in their pleadings with regard to
the request for the indication of provisional measures:
“The only impediment, Mr. President, Members of the Court, to the opening of
Mr.HissèneHabré’s trial in Senegal is a financial one. Senegal agreed to try
Mr. Habré but at the very outset told the African Union that it would be unable to bear
the costs of the trial by itself.”368
5.08. Belgium is aware of the legal, logistical and financial implications of organizing a trial
in Senegal. Nevertheless, the failure to fulfil th e requirement under Article7, paragraph1, of the
Convention against Torture and under customary international law concerning the obligation aut
dedere aut judicare cannot be justified, in international law, by such considerations. Compliance
with these international obligations cannot be ma de subject to obtaining financial support, and
financial difficulties do not constitute a state of necessity such as to exclude the unlawfulness of
violations of these obligations 369.
5.09. It should be borne in mind that the ob ligation to try Mr. Habré falls upon Senegal not
by reason of a mandate given by the African Union, but by reason of Mr.Habré’s presence in
Senegalese territory and the pertinent rules of international law, in particular, Article7,
paragraph1, of the Convention against Torture. Even without any support from the political
authorities of the African continent, Senegal must fulfil the obligations it accepted as a party to the
1994 Convention. No provision of that Convention entitles it to evade compliance with the
provisions thereof or to suspend its application.
364Committee against Torture, Suleymane Guengueng et al. v. Senegal, communication No. 181/2001, decision
of 17 May 2006, CAT/C/36/D/181/2001, para. 9.8 (Ann. E.2).
365See paras. 4.29-4.37 above.
366
See paras. 4.12-4.18 above.
367
Ann. B.13.
368CR 2009/6, 6 Apr. 2009, p. 29, para. 47 (Kandji).
369See in particular the Russian Indemnity case (Russia/Turkey), Arbitral Award of 11 Nov. 1912, United Nations,
Reports of International Arbitral Awards, Vol. XI, p. 443. - 78 -
5.10. In addition, and without it being necessary to explain in detail the negotiation process
116
currently under way between the international comm unity, in particular the African Union and the
European Union, on the one hand, and the Senegalese authorities, on the other, it is apparent from
the case file that the problems relating to financial support for Mr.Habré’s trial in Senegal ⎯ a
support which, in principle, was pledged by several States and the European Union ⎯ have been
caused by unreasonable cost assessments 370. Currently, a European Union mission is assisting the
Senegalese authorities in the establishment of a solid and reasonable budget. Moreover, the
conduct of preliminary inquiries ⎯ a classic judicial procedure of a largely formal nature which is
conducted by the Public Prosecutor and is also prescribed by Article6, paragraph2, of the
Convention against Torture ⎯ requires no particular budget. The difficulties encountered in
raising funds from Senegal’s partners cannot in any way justify the lack of any preliminary inquiry,
particularly in view of the quantity of documen ts and information already gathered by Chad,
Belgium and many other parties which are seeking only to help Senegal. This is all the more true
of the execution of an international letter roga tory in Belgium. The Senegalese authorities,
however, by their Note of 15June2010, clearly made the execution of such a letter rogatory
371
conditional on the holding of a Donors’ Round Table .
5.11. In its Note on the latest developmen ts of 15 June2010, Sene gal confirmed moreover
that it “would not be invoking an y argument based on a lack of financial resources in order to
escape its obligations” and that it “had not considered doing so” 37.
5.12. If it is really impossible for Senegal to try Mr. Habré because of financial or logistical
difficulties, Belgium wishes to draw the attention of the Court and the respondent State to the fact
that the obligation aut dedere aut judicare comprises two elements: the obligation to try must be
assumed only if the forum State decides not to extradite the alleged perpetrator of acts of torture.
Senegal can still fulfil its international obligations by extraditing Mr. Habré to Belgium.
*
117 5.13. In view of these considerations, Senegal cannot escape its international responsibility
by invoking legal, financial or other “diffi culties”. Its actions and omissions constitute
373
internationally wrongful acts which entail its international responsibility .
37See Application instituting proceedings, 16 Feb. 2009, pp. 3 and 4.
371
Ann. B.25. See also para. 1.64 above.
372
Ann. D.9, p. 3.
37See Articles 1 and 2 of the Arties on Responsibility of States fo r Internationally Wrongful Acts, op. cit.
(footnote 362). - 79 -
II. BELGIUM IS ENTITLED TO INVOKE THE RESPONSIBILITY
OF SENEGAL
5.14. Belgium is entitled to invoke the responsibility of Senegal for internationally wrongful
acts attributable to the latter in accordance with Article 42 (b) (i) of the Articles on Responsibility
374
of States for Internationally Wrongful Acts .
5.15. As Belgium explained in its reply to th e questions of JudgeCançadoTrindade in the
proceedings on the indication of pr ovisional measures, the obligation aut dedere aut judicare is
imposed, under the Convention against Torture, on all States Parties 375. In the context of
customary international law, every State must comply with the aut dedere aut judicare obligation
vis-à-vis the international community as a whole, having regard to the object and purpose of this
obligation: to combat impunity. The rule is ai med at realizing an interest which concerns all
States. The Court held in 1970 that:
118 “an essential distinction should be drawn between the obligations of a State towards
the international community as a whole, and those arising vis-à-vis another State in the
field of diplomatic protection. By their ve ry nature the former are the concern of all
States. In view of the importance of the ri ghts involved, all States can be held to have
376
a legal interest in their protection.”
5.16. In these circumstances, Belgium, like an y other State Party to the Convention against
Torture (as regards compliance with the latter), or any other State (as regards compliance with
customary international law), is entitled to invoke the responsibility of Senegal. The International
Law Commission considered in its commentaries to Article48 of the Articles on State
Responsibility that “in case of breaches of specific ob ligations protecting the collective interests of
a group of States or the interests of the international community as a whole, responsibility may be
377
invoked by States which are not themselves injured in the sense of Article 42” .
5.17. However, Belgium is not simply a “Sta te other than an injured State” within the
meaning of Article48 of the Articles on State Responsibility ⎯ even if this characterization is
sufficient to invoke the responsibility of Senegal. The Belgian State is “affected by the breach in a
374
Articles on Responsibility of States for Internationally Wrongful Actsop. cit. (footnote 362). Article42
provides:
Article 42
Invocation of responsibility by an injured State
A State is entitled as an injured State to invoke the responsibility of another State if the obligation
breached is owed to:
(a) That State individually; or
(b)A group of States including that State, or the inte rnational community as a w hole, and the breach of
the obligation:
(i) Specially affects that State; or
(ii) Is of such a character as radically to change the position of all the other States to which the
obligation is owed with respect to the further performance of the obligation.
375
Reply by Belgium to Judge Cançado Trindade, 8 Apr. 2009, para. 11.
37Barcelona Traction, Light and Power Company, Limited (New Application:1962) (Belgium v. Spain),
Judgment, I.C.J. Reports 1970, p. 32, para. 33.
37ILC Yearbook, 2001, Vol. II, Part 2, p. 126, para. (2) of the commentary. - 80 -
378
way which distinguishes it from the generality of other States to which the obligation is owed” .
On the one hand, the Belgian courts are actively seised of the H.Habré case as a result of the
379
complaints filed in 2000; some of the victims are of Belgian nationality . On the other hand,
Belgium has formally requested Mr. Habré’s extradition on the basis of the aut dedere aut judicare
obligation under the 1984 Convention and customary international law. Belgium therefore has a
special interest in Mr. Habré being extradited or, faili ng that, tried in Senegal, or in other words, in
Senegal complying with its international commitments.
5.18. For all these reasons, Belgium is entitled to invoke the responsibility of Senegal as an
119 “injured State”. Although the international obligations violated by Senegal are owed to a group of
States or to the international community as a whole, these violations have affected Belgium in
380
particular .
III. T HE CONTENT OF SENEGAL ’S RESPONSIBILITY
5.19. The internationally wrongful acts that are attributable to Senegal and involve its
responsibility entail several consequences which ar e set out in the Articles on Responsibility of
States for Internationally Wrongful Acts:
381
⎯ cessation of the wrongful act in question if it is continuing ;
382
⎯ continued performance of the obligation breached ;
383
⎯ reparation for the injury sustained by the injured State .
378ILC Yearbook, 2001, Vol. II, Part 2, p. 119, para. (12) of the commentary to Article 42.
379Ann. C.11.
380
Art. 42 (b()i) of the Articles on Responsibility of States for Internationally Wrongful Acts,
op. cit. (footnote 362).
381
Article 30 (a) of the Articles on Responsibility of States for Internationally Wrongful Acts, op. cit.
(footnote 362). Article 30 provides:
Article 30
Cessation and non-repetition
The State responsible for the internationally wrongful act is under an obligation:
(a) To cease that act, if it is continuing;
(b) To offer appropriate assurances and guarantees of non-repetition, if circumstances so require.
382Article 29 of the Articles on Responsibility of States for Internationally Wrongful Acts, op. cit. (footnote 362).
Article 29 provides:
Article 29
Continued duty of performance
The legal consequences of an internationally wrongful act under this part do not affect the
continued duty of the responsible State to perform the obligation breached.
383
Article 31, paragraph1, of the Articles on Responsibility of States for Internationally Wrongful Actop. cit.
(footnote 362). Article 31 provides:
Article 31
Reparation
1. The responsible State is under an obligation to make full reparation for the injury caused by the
internationally wrongful act.
2. Injury includes any damage, whethe r material or moral, caused by the internationally wrongful act of
a State. - 81 -
120 5.20. Senegal has violated and continues to violate its conventional and customary
international obligations, namely, on the one hand, Article5, paragr aph 2, Article 6, paragraph 2,
and Article 7, paragraph 1, of the Convention against Torture and, on the other hand, the customary
rules requiring States to combat impunity.
5.21. Inasmuch as these violations are ongoing, Senegal is obliged to cease the wrongful act.
As the International Law Commission noted in its commentary to Article30 of the Articles on
State Responsibility:
“Cessation of conduct in breach of an international obligation is the first
requirement in eliminating the consequences of wrongful conduct.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The function of cessation is to put an end to a violation of international law and
to safeguard the continuing validity and effectiveness of the underlying primary rule.
The responsible State’s obligation of cessation thus protects both the interests of the
injured State or States and the interests of the internat384al community as a whole in
the preservation of, and reliance on, the rule of law.”
5.22. In its Judgment in the case concerning the Dispute regarding Navigational and Related
Rights (Costa Rica v. Nicaragua), the Court noted in this regard:
“[W]hen the Court has found that the conduct of a State is of a wrongful nature,
and in the event that this conduct persists on the date of the judgment, the State
concerned is obliged to cease it immediat ely. This obligation to cease wrongful
conduct derives both from the general obligation of each State to conduct itself in
accordance with international law and from the specific obligation upon States parties
to disputes before the Court to comply with its judgments, pursuant to Article 59 of its
Statute.” 385
5.23. Senegal is thus obliged to cease its violations of Article 6, paragraph 2, and Article 7,
paragraph 1, of the Convention against Tortur e, and its violation of the customary rule aut dedere
aut judicare. Such cessation consists in the performance of the obligations by which Senegal is
bound and by which, in accordance with Article 29 of the Articles on State Responsibility, it
121 continues to be bound: “the legal consequences of an internationally wrongful act do not affect the
386
continued duty of the State to perform the obligation it has breached” .
5.24. Senegal must therefore discharge the obligations that are incumbent upon it. To that
end, it is obliged promptly to submit the H. Habr é case to its competent au thorities for prosecution
or, failing that, to extradite Mr. Habré to Belgium.
5.25. Belgium is aware of the fact that:
“[i]t is not necessary, and it serves no useful purpose as a general rule, for the Court to
recall the existence of this obligation [to cease the internationally wrongful act] in the
38ILC Yearbook, 2001, Vol. II, Part 2, p. 89, paras. (4) and (5) of the commentary.
385
Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, para. 148.
38ILC Yearbook, 2001, Vol. II, Part 2, p. 88, para. (2) of the commentary to Article 29. - 82 -
operative paragraphs of the judgments it renders: the obligation incumbent on the
State concerned to cease such conduct derives by operation of law from the very fact
that the Court establishes the existence of a violation of a continuing character” 387.
However, in view of the circumstances of this case, it is essential that the Court determine
unambiguously that Senegal must cease the violation of Article7, paragra ph2, and must perform
this obligation promptly. Indeed, although the two Parties do not seem to disagree on the actual
existence of the obligation ⎯ and the Note on the latest devel opments of 15June2010 is further
388
confirmation o389his ⎯ they have expressed differing views on the modalities for its
performance . It is therefore not enough to make a fi nding of a breach of an international legal
obligation; Belgium requests the Court to declar e that Senegal must effectively prosecute or
extradite Mr.Habré to Belgium, as provided for by Article7, paragraph1, of the Convention
against Torture and customary international law. In other words, it is not enough for Senegal to
recognize that it must prosecute Mr. Habré; it must also prosecute him in actual fact and promptly,
without pleading practical difficulties which cannot justify inaction by a State governed by the rule
of law.
5.26. Regarding the violation of Article5, pa ragraph2, of the Convention against Torture,
Senegal, in January 2007, took the necessary steps to bring its domestic law into conformity with
the requirements of the Convention. The in ternationally wrongful act resulting from the
122 inconsistency of its domestic law with the require ments of the Convention therefore ceased. In the
circumstances, it is neither necessary nor expedien t to require Senegal to cease the internationally
wrongful act and to continue performance of the obligation breached. On the other hand, it remains
essential that Senegal fulfil its obligation to pr osecute or, failing prosecution, to extradite
Mr. Habré to Belgium.
5.27. Moreover, Senegal is obliged to make reparation for any injury sustained by Belgium
in order to “wipe out all the consequences of the illegal act”, including under Article5,
390
paragraph 2 . In Belgium’s opinion, the finding by th e Court of the breaches attributable to
Senegal constitutes appropriate satisfaction 391.
123 SUBMISSIONS
For the reasons set out in this Memorial, th e Kingdom of Belgium requests the International
Court of Justice to adjudge and declare that:
1. (a) Senegal breached its international obligations by failing to incorporate in its domestic law
the provisions necessary to enable the Sene galese judicial authorities to exercise the
387
Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, para. 148.
388
See para. 1.63 above.
38Questions relating to the Obligation to Prosecute or Ex tradite (Belgium v. Senegal), Provisional Measures,
Order of 28 May 2009, para. 48.
39Factory at Chorzów, Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, p. 47.
391
Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 35. See also LaGrand
(Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 508, para. 116; Land and Maritime Boundary
between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002,
p. 452, para. 319; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), Merits, Judgment, paras.463, 465 and 469; Certain Questions of Mutual
Assistance in Criminal Matters (Djibouti v. France), Judgment, I.C.J. Reports 2008, para. 204. - 83 -
universal jurisdiction provided for in Article 5, paragraph2, of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
(b) Senegal has breached and continues to breach its international obligations under Article 6,
paragraph 2, and Article 7, paragraph 1, of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment and under customary international law by
failing to bring criminal proceedings agains t Mr.Hissène Habré for acts characterized in
particular as crimes of torture, genocide, war crimes and crimes against humanity alleged
against him as perpetrator, co-perpetrator or accomplice, or to extradite him to Belgium for
the purposes of such criminal proceedings;
(c) Senegal may not invoke fina ncial or other difficulties to justify the breaches of its
international obligations.
2. Senegal is required to cease these internationally wrongful acts
(a) by promptly submitting the Hissène Habré case to its competent authorities for prosecution;
or
(b) failing that, by extraditing Mr. Habré to Belgium.
124 Belgium reserves the right to revise or amend these submissions as appropriate, in
accordance with the provisions of the Statute and the Rules of Court.
1 July 2010,
(Signed) Paul R IETJENS , ( Signed) Gérard D IVE ,
Agent of the Government Co-Agent of the Government
of the Kingdom of Belgium, of the Kingdom of Belgium,
Director-General of Legal Affairs, Head of the International
Federal Public Service for Foreign Affairs, Humanitarian Law Division,
Foreign Trade and Development Co-Operation. Federal Public Service for Justice.
___________
Memorial of Belgium