Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) - The Court finds that the Republic of Senegal must, without further delay, submit the case of Mr. Hissène Habré to

INTERNATIONAL COURT OF JUSTICE

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Website: www.icj-cij.org

Press Release
Unofficial

No. 2012/24
20 July 2012

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

The Court finds that the Republic of Senegal must, without further delay, submit the
case

of Mr. Hissène Habré to its competent authorities for the purpose
of prosecution, if it does not extradite him

THE HAGUE, 20 July 2012. The International Co urt of Justice (ICJ), the principal judicial

organ of the United Nations, today delivered its Judgment in the case concerningestions relating
to the Obligation to Prosecute or Extradite (Belgium v. Senegal).

In its Judgment, which is final, without appeal and binding on the Parties, the Court

(1) finds, unanimously, that it has jurisdiction to entertain the dispute between the Parties

concerning the interpretation and application of Article6, paragraph2, and Article7,
paragraph 1, of the United Nations Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment of 10December1984, which the Kingdom of Belgium
submitted to the Court in its Applicationfiled in the Registry on 19 February 2009;

(2) finds, by fourteen votes to two, that it has no jurisdiction to entertain the claims of the Kingdom
of Belgium relating to alleged breaches, by th e Republic of Senegal, of obligations under
customary international law;

(3) finds, by fourteen votes to two, that the claims of the Kingdom of Belgium based on Article 6,

paragraph 2, and Article 7, paragraph 1, of the United Nations Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment of 10December1984 are
admissible;

(4) finds, by fourteen votes to two, that the Republic of Senegal, by failing to make immediately a
preliminary inquiry into the facts relati ng to the crimes allegedly committed by

Mr.HissèneHabré, has breached its obligation under Article6, paragraph2, of the United
Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment of 10 December 1984;

(5) finds, by fourteen votes to two, that the Republiof Senegal, by failing to submit the case of

Mr. Hissène Habré to its competent authorities fo r the purpose of prosecution, has breached its
obligation under Article 7, paragraph 1, of th e United Nations Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984; - 2 -

(6) finds, unanimously, that the Republic of Senegal must, without further delay, submit the case of
Mr.HissèneHabré to its competent authorities for the purpose of prosecution, if it does not

extradite him.

History of the proceedings

On 19February2009, Belgium filed in the Re gistry of the Court an Application instituting
proceedings against Senegal in respect of a di spute concerning “Senegal’s compliance with its
obligation to prosecute Mr.H[ issène]Habré[, former President of the Republic of Chad, for acts
including crimes of torture and crimes against humanity which are alleged against him as

perpetrator, co-perpetrator or accomplice,] or to extradite him to Belgium for the purposes of
criminal proceedings”. In its Application, Belgium based its claims on the United Nations
Convention against Torture and Other Cruel, Inhum an or Degrading Treatment or Punishment of
10 December 1984 (hereinafter “the Convention ag ainst Torture” or the “Convention”), as well as

on customary international law. On 19 February 2009, in order to protect its rights, Belgium also
submitted a request for the indication of provisiona l measures, on which the Court made an Order
on 28 May 2009 (see Press Release Nos. 2009/13, 2009/21 and 2009/22).

At the oral proceedings, the Parties presented the following submissions:

On behalf of the Government of Belgium (at the hearing of 19 March 2012):

“For the reasons set out in its Memorial and during the oral proceedings, the
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 due
time in its domestic law the provisions necessary to enable the Senegalese
judicial authorities to exercise the un iversal jurisdiction provided for in
Article5, paragraph2, of the Convent ion against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment;

(b) Senegal has breached and continues to breach its international obligations
under Article6, paragraph2, and Article 7, paragraph 1, of the Convention

against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment and under other rules of international law by failing to bring
criminal proceedings against HissèneHabré for acts characterized in

particular as crimes of torture, war crimes, crimes against humanity and the
crime of genocide alleged against him as perpetrator, co-perpetrator or
accomplice, or, otherwise, to extradite him to Belgium for the purposes of
such criminal proceedings;

(c) Senegal may not invoke financial or ot her difficulties to justify the breaches
of its international obligations.

2. Senegal is required to cease these internationally wrongful acts

(a)by submitting without delay the HissèneHabré case to its competent
authorities for prosecution; or

(b) failing that, by extraditing Hissène Habré to Belgium without further ado.” - 3 -

On behalf of the Government of Senegal (at the hearing of 21 March 2012):

“In the light of all the arguments and reasons contained in its
Counter-Memorial, in its oral pleadings and in the replies to the questions put to it by
judges, whereby Senegal has declared and sought to demonstrate that, in the present
case, it has duly fulfilled its international commitments and has not committed any

internationally wrongful act, [Senegal asks] the Court... to find in its favour on the
following submissions and to adjudge and declare that:

1. Principally, it cannot adjudicate on the merits of the Application filed by the

Kingdom of Belgium because it lacks jurisdiction as a result of the absence of a
dispute between Belgium and Senegal, and the inadmissibility of that Application;

2. In the alternative, should it find that it has jurisdiction and that Belgium’s

Application is admissible, that Senegal has not breached any of the provisions of
the 1984 Convention against Torture, in pa rticular those prescribing the obligation
to ‘try or extradite’ (Article6, paragra ph 2, and Article 7, paragraph 1, of the
Convention), or, more generally, any other rule of conventional law, general

international law or customary international law in this area;

3. In taking the various measures that have been described, Senegal is fulfilling its
commitments as a State Party to the 1984 Convention against Torture;

4. In taking the appropriate measures and steps to prepare for the trial of
Mr.H.Habré, Senegal is complying with the declaration by which it made a
commitment before the Court;

5. It consequently rejects all the requests set forth in the Application of the Kingdom
of Belgium.”

I. HISTORICAL AND FACTUAL BACKGROUND

Before pronouncing on the merits, the Court describes the historical and factual background
to the case (paras.15 to 41). It notes that af ter taking power on 7June1982 at the head of a

rebellion, Mr. Hissène Habré was President of the Republic of Chad for eight years, during which
time large-scale violations of human rights were allegedly committed. Mr. Habré was overthrown
on 1 December 1990. After a brief stay in Cameroon, he requested political asylum from the
Senegalese Government, a request which was granted. He then settled in Dakar, where he has been

living ever since.

From 25 January 2000 onwards, a number of pr oceedings relating to crimes alleged to have
been committed during Mr. Habré’s presidency were instituted before both Senegalese and Belgian

courts by Chadian nationals, Belgian nationals of Chadian origin and persons with dual
Belgian-Chadian nationality, together with an association of victims. The matter was also referred
by Chadian nationals to the United Nations Committee against Torture and the African Court on
Human and People’s Rights. For its part, Senegal referred the issue of the institution of proceedings

against Mr. Habré to the African Union.

On 19September2005, the Belgian investiga ting judge issued an international warrant in
absentia for the arrest of Mr.Habré , indicted as the perpetrator or co-perpetrator , inter alia, of

serious violations of international humanitarian law, torture, genocide, crimes against humanity and
war crimes, on the basis of which Belgium requ ested the extradition of Mr.Habré from Senegal
and Interpol circulated a “ red notice” serving as a request for provisional arrest with a view to

extradition. Three further requests for extradition have since been transmitted to the Senegalese - 4 -

authorities by Belgium, of which two, dated 15 March 2011 and 5September2011 respectively,
were declared inadmissible by the competent Senegalese au thorities; the Dakar Court of Appeal

has not yet taken a decision on the last request, dated 17 January 2012.

II. URISDICTION OF THE C OURT

The Court recalls that, to found the jurisdiction of the Court, Belgium, in its Application,
relies on Article30, paragraph1, of the Conventio n against Torture and on the declarations made
by the Parties under Article 36, paragraph 2, of the Statute of the Court on 17 June 1958 (Belgium)

and 2December1985 (Senegal). The Court also notes that Senegal contests the existence of the
Court’s jurisdiction on either basis, maintaining that the conditions set forth in the relevant
instruments have not been met (paras. 42-43).

A. The existence of a dispute

Pointing out that the existence of a dispute is a condition of its jurisdiction under both bases
of jurisdiction invoked by Belgium, the Court firs t examines this issue and concludes that, since

any dispute that may have existed between the Parties with regard to the interpretation or
application of Article 5, paragraph 2, of the C onvention had ended by the time the Application was
filed, it lacks jurisdiction to decide on Belgium’s claim relating to that provision (Article5,
paragraph2, of the Convention obliges the States parties to that Convention to establish the

universal jurisdiction of their courts over the crime of torture ⎯ see the annex to this press release).
The Court states, however, that it is not precluded from considering the consequences which
Senegal’s conduct in relation to the measures requ ired by this provision may have had on its

compliance with certain other obligations under the Convention (para.48). The Court notes,
however, that Belgium’s claims based on the interpretation and appli cation of Article6,
paragraph2, (which provides that a State party in whose territory a person alleged to have
committed acts of torture is present must immediately make a preliminary inquiry into the facts ⎯

see the annex to this press release) and Article 7, paragraph 1, of the Convention (under the terms
of which, a State party has an obligation to submit the case to its competent authorities for the
purpose of prosecution ⎯ see the annex to this press release) were positively opposed by Senegal;

it infers that a dispute existed at the time of the filing of the Appl ication and notes that this dispute
still exists (para.52) . It further concludes that, at the time of the filing of the Application, the
dispute between the Parties did not relate to breaches of obligations under customary international
law and that, accordingly, it has no jurisdiction to decide on Belgium’s claims related thereto

(para. 55).

B. Other conditions for jurisdiction

The Court next turns to the other conditions which must be met for it to have jurisdiction
under Article 30, paragraph 1, of the Convention against Torture, namely that the dispute cannot be
settled through negotiation and that, after a request for arbitration has been made by one of the

parties, they have been unable to agree on the or ganization of the arbitration within six months
from that request. The Court concludes from its analysis that each of these conditions has been
met; it thus finds that it has jurisdiction to ente rtain the dispute between the Parties concerning the
interpretation and application of Article6, para graph2, and Article7, paragraph1, of the

Convention. However, the Court states that it is not necessary to consider whether its jurisdiction
also exists with regard to the same dispute on the basis of the declarations made by the Parties
under Article 36, paragraph 2, of its Statute (paras. 56-62). - 5 -

III.ADMISSIBILITY OF B ELGIUM ’S CLAIMS

The Court considers that any State party to the Convention against Torture may invoke the
responsibility of another State party with a view to ascertaining the alleged failure to comply with
its obligationserga omnes partes (obligations owed toward all States Parties), such as those under

Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention, and to bring that failure to an
end (para.69). It concludes that, in the present proceedings, Belgium , as a State party to the
Convention against Torture, has standing to invoke the respons ibility of Senegal for the alleged
breaches of its obligations under those provisions. Accordingly, the Court finds that the claims of

Belgium based on these provisions are admissible and that there is no need for it to pronounce on
whether Belgium also has a special interest with respect to Senegal’s compliance with the relevant
provisions of the Convention in the case of Mr. Habré (para. 70).

IV. T HE ALLEGED VIOLATIONS OF THE CONVENTION AGAINST T ORTURE

Although the Court has already established that it has no jurisdiction in this case over

Belgium’s claims under Article 5, paragraph 2, of the Convention, it notes that the performance by
the State of its obligation to establish the universal jurisdiction of its courts over the crime of
torture is a necessary condition for enabling a pr eliminary inquiry (Art.6, para.2), and for
submitting the case to its competent authorities for the purpose of prosecution (Art. 7, para. 1). The

Court considers that, by not adopting the necessar y legislation until 2007, Senegal delayed the
submission of the case to its competent authorities for the purpose of prosecution, thus affecting the
implementation of its obligations un der Article6, paragraph2, and Article7, paragraph1, of the

Convention (paras. 74-78).

A. The alleged breach of the obligation laid down in Article 6,

paragraph 2, of the Convention

Having observed that the preliminary inquiry provided for in Article6, paragraph2, is
intended to corroborate or not the suspicions rega rding a person alleged to have committed acts of

torture, the Court notes that Senegal has not in cluded in the case file any material demonstrating
that it has carried out such an inquiry (paras.79-83). It observes that, in the present case, the
establishment of the facts at issue is an essential stage which has been imperative at least since the
year 2000, when a complaint was filed in Senegal against Mr. Habré. The Court further notes that

there is nothing in the materials submitted to the Court to indicate that a preliminary inquiry was
opened following the filing of a second complaint against Mr. Habré in Dakar in 2008. It therefore
concludes that Senegal has breached its obligation under Article 6, paragraph 2, of the Convention

(paras. 85-88).

B. The alleged breach of the obligation laid down in Article 7,

paragraph 1, of the Convention

The Court first states that the obligation of the State party to submit the case to its competent
authorities for the purpose of prosecution was formul ated in such a way as to leave it to those

authorities to decide whether or not to initiate proceedings, thus respecting the independence of
States parties’ judicial systems (paras.89-91). Itthen examines certain questions relating to the
nature and meaning of the obligation laid down in Article 7, paragraph 1, its temporal scope and its
implementation in this case. - 6 -

1. The nature and meaning of the obligation laid down in Article 7, paragraph 1

The Court first observes that Article7, paragr aph1, requires the State concerned to submit
the case to its competent authorities for the purpose of prosecution, irrespective of the existence of
a prior request for the extradition of the suspect. It then notes, however, that if the State in whose
territory the suspect is present has received a requ est for extradition in any of the cases envisaged

in the provisions of the Convention, it can relieve itself of its obligation to prosecute by acceding to
that request. It thus concludes that extradition is an option offered to the State by the Convention,
whereas prosecution is an international obligation under the Convention, the violation of which is a
wrongful act engaging the responsibility of the State (paras. 94-95).

2. The temporal scope of the obligation laid down in Article 7, paragraph 1

In the Court’s opinion, the prohibition of torture is part of customary international law and it

has become a peremptory norm (jus cogens). It is grounded in a widespread international practice
and on the opinio juris of States, and appears in numerous international instruments of universal
application. However, the obligation to prosecute the alleged perpetrators of acts of torture under

the Convention applies only to facts having occu rred after its entry into force for the State
concerned. The Court concludes that Senegal’s obligation to prosecute pursuant to Article7,
paragraph1, of the Convention does not apply to acts alleged to have been committed before the
Convention entered into force for Senegal on 26 June 1987 (paras. 99-102).

The Court next considers the effect, on the scope of the obligation to prosecute, of the date of
entry into force of the Convention, for Belgium; it finds that Belgium has been entitled, with effect
from 25 July 1999 — the date when it became party to the Convention —, to request the Court to

rule on Senegal’s compliance with its obligation under Article 7, paragraph 1 (para. 104).

3. Implementation of the obligation laid down in Article 7, paragraph 1

The Court considers that Senegal’s duty to comply with its obligations under the Convention
cannot be affected by the decision of 18 November 2010 of the ECOWAS Court of Justice, which
found that Senegal’s amendment to its Penal Code in 2007 might be contrary to the principle of
non-retroactivity of criminal laws and that pro ceedings against Hissène Habré should be conducted

before an ad hoc court of an international character. It is also of the opinion that the financial
difficulties raised by Senegal cannot justify the f act that it failed to initiate proceedings against
Mr. Habré and that the referral of the matter to the African Union cannot justify Senegal’s delays in

complying with its obligations under the Convention. The Court further observes that, under
Article 27 of the Vienna Convention on the Law of Treaties, which reflects customary law, Senegal
cannot justify its breach of the obligation provided for in Article 7, paragraph 1, of the Convention
against Torture by invoking provisions of its internal law. It concludes that the obligation provided

for in Article 7, paragraph 1, required Senegal to take all measures necessary for its implementation
as soon as possible, in particular once the first complaint had been filed against Mr. Habré in 2000.
Having failed to do so, Senegal has breached an d remains in breach of its obligations under
Article 7, paragraph 1, of the Convention (paras. 111-117).

V. R EMEDIES

The Court recalls that Senegal’s failure to adopt until 2007 the legislative measures

necessary to institute proceedings against Mr. Habré on the basis of universal jurisdiction delayed
the implementation of its other obligations under the Convention. It further states that Senegal was
in breach of its obligation under Article6, paragr aph2, to make a preliminary inquiry into the

crimes of torture alleged to have been committe d by Mr. Habré, as well as of the obligation under - 7 -

Article7, paragraph1, to submit the case to its competent authorities for the purpose of
prosecution. In failing to comply with its oblig ations under those provisions, Senegal has engaged

its international responsibility. Consequently, Senegal is required to cease this continuing wrongful
act, in accordance with general international law on the responsibility of States for internationally
wrongful acts. The Court concludes, therefore, that Senegal must take, without further delay, the
necessary measures to submit the case to its competent authorities for the purpose of prosecution, if

it does not extradite Mr. Habré (paras. 119-121).

Composition of the Court

The Court was composed as follows: President Tomka; Vice-President Sepúlveda-Amor;
Judges Owada, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood,
Xue, Donoghue, Gaja, Sebutinde; Judges ad hoc Sur, Kirsch; Registrar Couvreur.

JudgeOwada appends a declaration to the Judgment of the Court; JudgesAbraham,
Skotnikov, CançadoTrindade and Yusuf append separate opinions to the Judgment of the Court;
Judge Xue appends a dissenting opinion to the J udgment of the Court; Judge Donoghue appends a
declaration to the Judgment of the Court; JudgeSebutinde appends a se parate opinion to the

Judgment of the Court; Judge ad hocSur appends a dissenting opinion to the Judgment of the
Court.

*

A summary of the Judgment appears in the document “Summary No.2012/4”. This press

release, the summary and the full text of th e Judgment can be found on the Court’s website
(www.icj-cij.org), under the heading “Cases”.

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Note: The Court’s press releases do not constitute official documents.

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Information Department:

Mr. Andrey Poskakukhin, First Secretary of the Court, Head of Department (+31 (0)70 302 2336)
Mr. Boris Heim, Information Officer (+31 (0)70 302 2337)

Ms Joanne Moore, Associate Information Officer (+31 (0)70 302 2394)
Ms Genoveva Madurga, Administrative Assistant (+31 (0)70 302 2396) Annex to Press Release No. 2012/24

Articles 5, 6 and 7 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment

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 I of this article.

3. This Convention does not exclude any crim inal jurisdiction exercised in accordance with
internal law.

Article 6

1. Upon being satisfied, after an examination 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 an d 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 aph I 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 sha ll promptly report its findings to the said States and
shall indicate whether it intends to exercise jurisdiction.

Article 7

1. The State Party in the territory under whose jurisdiction a person alleged to have
committed any offence referred to in article 4 is f ound shall in the cases contemplated in article 5, - 2 -

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.

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