Written comments of Senegal on the supplementary replies of Belgium to the question put by Judge Greenwood at the close of the hearing held on 16 March 2012 (translation)

INTERNATIONAL C OURT OF JUSTICE

Case concerning Questions relating to the Obligation to Prosecute or Extradite
(Belgium v. Senegal)

Further written comments of the Government of Senegal on the supplementary replies of the

Belgian Government to the question put to Belgium by Judge Greenwood at the close of
the hearing held on 16 March 2012, presented by Mr. Cheikh Tidiane Thiam,
Ambassador and Agent of Senegal

Mr.President, Members of the Court, the Government of the Republic of Senegal, through
its Agent, has the honour to communicate to you below its further written comments on the
supplementary replies of the Belgian Government to the question put to Belgium by

Judge Greenwood at the close of the hearing held on 16 March 2012.

Senegal regards the fight against impunity fo r serious crimes under international law as a
fundamental principle which is beyond dispute. However, the eminently political nature of

extradition and the way in which the aut dedere aut judicare obligation is framed, allowing States
to choose their course of action, are such as to give the latter broad discretion in terms of its
interpretation.

While the prohibition of torture has certainly acquired the status of a (primary) peremptory
norm (and has done so irrespective of its origins, conventional or customary), it is not clear that the
secondary aut dedere aut judicare obligation deriving from that norm has also assumed the status
of a peremptory norm of customary origin. Such a status is far from accepted by the international

community as a whole, as shown by the positions taken by States during the work of the
International Law Commission (Sixty-third session, doc. A/CN.4/648).

Moreover, the reference to General Assembly resolutions in Belgium’s document (para. 24),

aimed at definitively establishing a customary basis for the obligation in question, gives rise to two
observations.

Firstly, the drafting procedure for some of the resolutions invoked by Belgium in support of

its argument actually shows that:

“[t]he majority of members stressed that the draft declaration under consideration was
not intended to propound legal norms or to change existing rules of international law,

but to lay down broad humanitarian and moral principles upon which States might rely
in seeking to unify their practices relating to asylum” ( Yearbook of the United Nations
1967, p. 759).

Secondly, the General Assembly resolutions a dduced as evidence of the customary status of
the rule in question suggest that the principles contained therein fall into the category of moral
ideals, and in any event were not intended to create legal obligations.

All these factors convince Senegal that, by in voking the customary status of the secondary
rule aut dedere aut judicare, Belgium is seeking to stifle the debate on the nature of the obligation
in question. Is it an obligation of conduct or of result? Does it belong to the category of
obligations which are binding on all States, but separately? Senegal believes that the aut dedere

aut judicare rule is a general obligation of conduct, si nce the fight against impunity is a process - 2 -

whose possible objectives, under the Convention ag ainst Torture, are either prosecution or
extradition. Moreover, the Government of the Republic of Senegal wishes to reiterate that this

obligation borne by Senegal can be owed to Belgium only from the point at which the latter
became a Party to that Convention.

For the Government of Senegal, it stands to reason that the references in both its written

pleadings and its oral argument to the general pr inciples and customary norms applicable in this
context are valid only in so far as Belgium has demonstrated the peremptory nature of those
principles and norms in respect of Senegal.

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