BELGIUM S RESPONSE TO J UDGE C ANÇADO T RINDADE
1. The questions put by Judge Cançado Trindade may be set out as follows:
1. For the purposes of a proper understanding of the rights to be preserved (under Article41 of
the Statute of the Court), are there rights corresponding to the obligations set forth in Article 7,
paragraph1, in combination with Article5, paragraph2, of the 1984 United Nations
Convention Against Torture?”
2. “[. . .] if so, what are their legal nature, content and effects?”
3. “[...] Who are the subjects of those rights, States having nationals affected, or all States
Parties to the aforementioned Convention?”
4. “[. . .] Whom are such rights opposable to, onl y the States concerned in a concrete case, or any
State Party to the aforementioned Convention?”
It is of course true that these questions relate to the merits of the dispute; but, as
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JudgeCançadoTrindade makes clear, and as Belgium said during the oral proceedings , as the
Court is empowered under Article 41 of its Statute to take provisional measures to protect the rights
of the parties, the incidental treatment of questions relating to the merits of the case is unavoidable.
Belgium will answer these questions in the order in which they were asked.
1. “For the purposes of a proper understanding of the rights to be preserved (under Article 41
of the Statute of the Court), are there rights corresponding to the obligations set forth in
Article7, paragraph1, in combination with Article5, paragraph2, of the 1984United
Nations Convention Against Torture?”
2. As Belgium understands the question, it bears on the existence of “rights” which Belgium
may derive from Article7, paragraph1, in combination with Article5, paragraph2, of the United
Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment of 10 December 1984 (hereinafter the “1984 Convention”).
3. Article 7 paragraph 1, of the 1984 Convention provides:
“The State Party in the territory unde r whose jurisdiction a person alleged to
have committed any offence referred to in ar ticle4 [acts of torture] is found shall in
the cases contemplated in article 5 [obligation borne by the State Party to establish its
jurisdiction over the person alleged to have committed an act of torture], if it does not
extradite him, submit the case to its co mpetent authorities for the purpose of
prosecution.”
Article7, paragraph1, thus lays down an ob ligation to prosecute on the part of the State in
which the alleged perpetrator of an act of torture is present.
1
CR 2009/8, 6 April 2009, p. 27, paras. 15 et seq. (David). - 2 -
Article 5, paragraph 2, of the 1984 Convention 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
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. Thus, these two provisions do indeed establish an obligation to prosecute or extradite and
they apply to Senegal, which is the State Pa rty in the territory under whose jurisdiction
Mr.HissèneHabré (the person alleged to have co mmitted offences referred to in Article4 of the
1984 Convention) has been found.
5. In this connection it bears recalling that where there is an obligation of one State to other
States, those States have a corresponding right to performance of that obligation. The Dictionnaire
de droit international public defines an obligation as a “subjective situation which is the
counterpart to a right in the objective sense” [“situation subjective qui est la contre partie d’un
droit au sens objectif”] (Dictionnaire de droit international public, edited by J. Salmon, Brussels,
Bruylant, 2001, p. 765).
Similarly, the International Law Commission has written, in the commentary to Article 31 of
its Draft Articles on Responsibility of States:
“Where two States have agreed to enga ge in particular conduct, the failure by
one State to perform the obligation necessarily concerns the other. A promise has
been broken and the right of the other State to performance correspondingly
infringed.” (Report of the International Law Commission on the work of its fifty-third
session, 2001, United Nations document A/56/10, p. 226.)
6. The Court has taken a view along the same lines. Thus, on the subject of unilateral
undertakings, of which, incidentally, it drew a comparison with the rule of pacta sunt servanda, the
Court has written:
“Just as the very rule of pacta sunt servanda in the law of treaties is based on
good faith, so also is the binding character of an international obligation assumed by
unilateral declaration. Thus interested States may take cognizance of unilateral
declarations and place confidence in them, and are entitled to require that the
obligation thus created be respected” ( Nuclear Tests (Australia v. France), Judgment,
I.C.J. Reports 1974, pp. 268 and 473; id., Frontier Dispute (Burkina Faso/Republic of
Mali), Judgment, I.C.J. Reports 1986 , p.573; id., Border and Transborder Armed
Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J.
Reports 1988, p. 105).
In comparing unilateral undertakings to treaty commitments and declaring that States in both
cases “are entitled to require that the obligation t hus created be respected”, the Court upholds the
right of States to performance of the obligation.
7. Accordingly, the obligation set out in Article 7, paragraph1, of the 1984 Convention, in
combination with that laid down in Article5, paragraph2, of the Convention, gives rise to a
correlative right held by Belgium: as Belgium requested, by Note Verbale of 22 September 2005,
that Senegal extradite Mr. Hissène Habré, and as Senegal has not acceded to Belgium’s extradition
request, Belgium has the specific right to require Senegal to submit the case “to its competent
authorities for the purpose of prosecution” (Art. 7, para. 1). - 3 -
2. “[ . . .] if so, what are their legal nature, content and effects?”
8. As regards the legal nature of these rights, these are, in the case of the 1984 Convention,
rights of a conventional character. They are indeed founded on a treaty. The rule pacta sunt
servanda applies in this respect (Vienna Convention on the Law of Treaties, Art.26), naturally
without prejudice to the application of customary international law with regard to the crimes
alleged against Mr. Hissène Habré.
9. As regards the content of the rights referred to by the 1984 Convention, this consists in the
present case of the right to have Senegal prosecute Mr. Hissène Habré if it does not extradite him,
as indicated above (see para. 7).
10. As regards the effects of these rights, they confer a legal entitlement upon the States
Parties to the Convention. In this instance, Belgium therefore possesses rights in relation to
Senegal.
3. “[...] Who are the subjects of those rights, States having nationals affected, or all States
Parties to the aforementioned Convention?
11. All the States Parties to the Convention are entitled to obtain compliance with these
rights in accordance with the rule pacta sunt servanda (see para. 8). This is a treaty obligation of
Senegal in relation to all other States Parties to the Convention, naturally including Belgium. As
stated by the International Law Co mmission in Article 48, paragraph 1 (a), of its Draft Articles on
Responsibility of States, the obligation “is owed to a group of States”, which, in the present case, is
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the group of States Parties to the 1984 Convention .
In the case Goiburú et al. v. Paraguay, the Inter-American Court of Human Rights observed
that all the States Parties to the American Convention on Human Rights should collaborate in good
faith in the obligation to extradite or prosecute the perpetrators of crimes relating to human rights;
it is interesting to note that, in order to illus trate this obligation, the Court refers to the
1984 Convention (see footnote 3):
“The Court therefore deems it pertinent to declare that the States Parties to the
Convention should collaborate with each other to eliminate the impunity of the
violations committed in this case, by th e prosecution and, if applicable, the
punishment of those responsible. Furthermore, based on these principles, a State
cannot grant direct or indirect protection to those accused of crimes against human
rights by the undue application of legal mechanisms that jeopa rdize the pertinent
international obligations. Consequently, the mechanisms of collective guarantee
established in the American Convention, t ogether with the regional and universal
international obligations on this issue, bi nd the States of the region to collaborate in
good faith in this respect, either by conceding extradition or prosecuting those
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responsible for the facts of this case on their territory.”
( Note: since the last sentence of the English tr anslation of the above extract is ambiguous,
reference should be made to the authentic Spanish text, which reads:
2
See the ILC’s commentary on Art. 48 in I.L.C. Report 2001, United Nations doc. A/56/10, p. 320, para. 6.
3Inter-American Court of Human Right s, 22September 2006, para.132 and in particular footnote87, which
provides a full list of the relevant universal instruments, including the 1984 Conven tion; see also the separate opinion of
Judge Cançado Trindade, paras. 67-68. - 4 -
“En consecuencia, el mecanismo de garantia colectiva establecido bajo la
Convención Americana, en conjunto con las obligaciones internacionales regionales y
universales en la materia, vinculan a los Es tados de la región a co laborar de buena fe
en ese sentido, ya sea mediante la extradición o el juzgamiento en su territorio de los
responsables de los hechos del presente caso.” (Emphasis added.))
All the States Parties to the 1984 Conventi on can therefore be regarded as possessing the
rights deriving from that Convention. In other words, any State Party has the right to claim from
Senegal “[c]essation of the internationally wrongful act” ⎯ in this instance, cessation of the breach
of Article 7 ⎯ together with “assurances and guarantees of non-repetition” and “[p]erformance of
the obligation of reparation” in the interest of the injured State or of the beneficiaries of the
obligation breached (ILC, Draft Articles on Responsibility of States, Art. 48, para. 2).
12. Belgium has the status of an “injured St ate” (within the meaning of Art.42 of the ILC
Draft Articles on Responsibility of States), si nce the non-performance of the 1984 Convention
affects it as a State Party to that Convention (ILC Draft Articles, Art. 42 (b)). In the present case,
moreover, it has the status of a “specially” affect ed State, because of the criminal proceedings
opened in Belgium against Mr. Hissène Habré (idem, Art. 42 (b) (i)).
The notion of a breach which “specially affects” a State, within the meaning of Art. 42 (b) (i)
of the ILC Draft Articles, is analysed by the ILC as follows:
“L26tcle (b) of the Vienna Convention [on the Law of Treaties],
subparagraph (b)(i) does not define the nature or extent of the special impact that a
State must have sustained in order to be c onsidered ‘injured’. This will have to be
assessed on a case by case basis, having regard to the object and purpose of the
primary obligation breached and the facts of each case. For a State to be considered
injured it must be affected by the breach in a way which distinguishes it from the
generality of other States to which the obligation is owed.” 4
In the present case, an analysis of the facts of the matter shows that Belgium is certainly a
“specially affected” State: on the one hand, it is in Belgium that a criminal action has been brought
against Mr. Hissène Habré, inter alia for crimes of torture; on the other, some of the victims are of
Belgian nationality, which matches a rule of jurisdiction referred to in Article 5, paragraph 1 (c), of
the 1984 Convention. It was following their comp laints and the investigation carried out in
Belgium that the latter requested Senegal to extradite Mr.Hissène Habré, on the basis of the
1984 Convention.
13. In conclusion, Belgium possesses the rights deriving from the 1984Convention as a
State Party to it, namely the right to see Mr.Hissène Habré prosecuted and tried in Senegal or,
failing that, the right to obtain his extradition. Belgium is all the more entitled to secure
compliance with these rights because it has received co mplaints filed by victims of acts of torture
which are offences under the Convention, because so me of the victims are Belgian, and because it
has presented Senegal with a request for the extradition of Mr. Hissène Habré.
4. “[ . . .] Whom are such rights opposable to , only the States concerned in a concrete case, or
any State Party to the aforementioned Convention?”
14. As the 1984 Convention is a multilateral treat y, it is binding on all the States that are
party to it.
4
I.L.C. Report 2001, United Nations doc. A/56/10, p. 300, para. 12. - 5 -
Since, by definition, “every treaty in force is binding upon the parties to it ” (emphasis
added) (Vienna Convention on the Law of Treaties, Art.26), the rights set forth in the
1984 Convention are therefore opposable to all the States Parties to that Convention.
This applies all the more to Belgium, which as a specially affected State (see para. 12) has a
specific right that is opposable to Senegal.
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Response of Belgium to the question put by Judge Cançado Trindade at the end of the public sitting of 8 April 2009 (translation)