Questions put by Members of the Court at the close of the hearing held on 16 March 2012: replies or supplementary replies of the Senegalese Government to the questions put to both Parties by Judges Ab

INTERNATIONAL C OURT OF J USTICE

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

Supplementary written replies of the Government of Senegal to the questions put
by judges at the close of the hearing held on 16 March 2012

submitted by

Mr. Cheikh Tidiane Thiam,
Ambassador, Agent of Senegal

Mr. President, Members of the Court, the Government of the Republic of Senegal, through
its Agent, has the honour to transmit herewith to the Court the supplementary replies or replies to
some of the questions put by judges.

I. Question put by Judge Abraham

To conclude the reply provided by the Agent of Senegal at the public hearing of
21 March 2012 (CR 2012/7, para. 7), it will be recalled that, in Senegal’s view, the victims should

have had Belgian nationality at the time when the harmful act was committed (para.6).
International jurisprudence does not accept any break in the bond of nationality which must here
form the basis of Belgium’s jurisd iction. In this case, the time in question is when the alleged

Chadian victims, who subsequently acquired Belgian nationality, suffered the harmful acts.

In other words, the legal basis on which Belgiu m claims to be entitled to rely in order to
invoke Senegal’s alleged international responsibility under the Convention against Torture is the
legal connection between the victims and the Belgian State. Yet it is a “well-established principle

of international jurisprudence” (Arbitral Award in the case concerning British Property in Spanish
Morocco (Spain v. United Kingdom), 1 May 1925, Claim No. XXXVI, Benchiton, RIAA, Vol.II,
p. 706) that the law which forms the basis of Belgium’s action must, from the very outset, apply to

the victims on whose behalf Belgium seeks extrad ition in order for it thento invoke Senegal’s
responsibility. Thus, it is thecritical date which should be taken into account, namely the time
when the Chadian victims suffered harm (Panevezys-Saldutiskis Railway, Judgment, 1939, P.C.I.J.,
Series A/B, No. 76, p. 17).

It is clear from the foregoing that Belgiu m is not entitled to invoke the responsibility of
Senegal for the alleged breach of its obligation to submit the H.Habré case to its competent
authorities for the purpose of prosecution, unless it extradites him.

Moreover, it is doubly surprising that Belgium remains silent on this issue.

Firstly, since Belgium did not deem it necessary to give either a full or even a provisional
response at the hearing of Monday 19 March 2012 to such an important and crucial question as that

put by Judge Abraham.

Secondly, while it has always deemed itsel f competent on the basis of passive personal
jurisdiction, and whereas it still relies on the criterion of the bond of nationality, Belgium has never

considered trying Mr. Habré by default, that is, in absentia (cf. the case concerning Ely Ould Dah,
a Mauritanian officer prosecuted by France and tried in absentia, who challenged the judgment
against him before the European Court of Human Rights ⎯ application No.1314/03 ⎯ which

rejected his appeal (17 March 2009); see also the case of the Libyan official, al-Senoussi). - 2 -

II. Additional comments on the question put by Judge Greenwood

The comments provided to the Court at the hearing of 21March2012 (CR2012/7, paras.9
to 32) on the question put to Belgium by Judge Greenwood can be confirmed and supplemented by
the following.

The reference to the Geneva Conventions of 12August1949 rather than to the Additional
Protocols of 8 June 1977, as made by the judge wh en he speaks of war crim es and crimes against
humanity, can be taken as a reference to the rules of customary law that have been codified in these
international treaty instruments.

Thus, in the view of the Government of Senegal, in light of the foregoing remarks in the
above-mentioned pleading, Belgium’s arguments do not make it possible to establish any violation
of the provisions of the Convention against Torture, let alone of customary international obligations

(cf. the final submissions of the Government of Senegal, CR 2012/7, point 2).

III. Question put by Judge Donoghue

Reply

Recent developments in respect of the puni shment of serious crimes under international
humanitarian law suggest that the prohibition of to rture belongs to a category of obligations that
should be binding on all States ( Prosecutor v. Furundzija, ICTY, judgment). Similarly, the

obligations incumbent upon Senegal under Article 7, paragraph1, of the Convention against
Torture, a necessary corollary (and essential comple ment) to the primary obligation cited above,
are of the same order. Senegal is aware of this fact and has not sought to deviate from that path.

Moreover, it does not deny that the obligation provided for in the Convention can be applied to the
offences allegedly committed before 26June1987, when the Convention entered into force for
Senegal.

However, the Senegalese Government dis putes Belgium’s right to invoke Senegal’s

responsibility (on the basis of this Convention) for acts alleged to have occurred before
25 July 1999, when the Convention entered into force for Belgium, for the following reasons.

While the norm in question creates obligations which are incumbent upon all States, that is

to say erga omnes obligations, it nonetheless belongs to the category of divisible erga omnes
obligations. Such obligations bind one State to all the other States of the international community
separately. States may derogate from them by agre ement. In the event of a breach, only the State

whose right has been infringed may seek its enforcement. Howeve r, Belgium could not claim the
status of injured State, on the basis of the said Convention, for acts committed prior to 1999. The
obligation exists, but is not owed to Belgium. The obligation is owed to Belgium only from the
date on which it ratified the Convention, namely from 1999. The Convention can therefore only

apply in relation to acts subsequent to 1999. The relevant provisions of the Vienna Convention on
the Law of Treaties are decisive in this respect. Thus, Article28 of that Convention provides as
follows: “Unless a different intention appears fro m the treaty or is otherwise established, its
provisions do not bind a party in relation to any act or fact which took place or any situation which

ceased to exist before the date of the entry into force of the treaty with respect to that party.”

It is a commonplace to say that there are many such examples in international case law. One
might mention the Ambatielos case, in which the Court acknowledged that “[retroactivity can only

apply if there is a] special clause or... sp ecial object necessitating retroactive interpretation”
(Ambatielos (Greece v. United Kingdom), Preliminary Objection, Judgment, I.C.J. Reports 1952 ,
p. 28). In its judgment of 24 March 1999, the Judi cial Committee of the House of Lords held that
the principle of non-immunity could only be app lied to former President Pinochet for extraditable - 3 -

acts from the time when the British Parliament ratified the Convention against Torture and
incorporated it into the British criminal justice system, namely December 1988.

For all these reasons, Senegal considers that the obligation at issue does not exist in its
relations with Belgium during the time that the latter was not a party to the Convention against
Torture.

IV. Question put by Judge Keith

Reply

In accordance with its declaration, Senegal is entitled to ask that a method of settlement
other than the one imposed by Belgium be sought by common accord.

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