12253
INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING QUESTIONS RELATING TO THE
OBLIGATION TO PROSECUTE OR EXTRADITE
(BELGIUM v. SENEGAL)
COUNTER-MEMORIAL OF THE
REPUBLIC OF SENEGAL
VOLUME I
23 AUGUST 2011
[Translation by the Registry] T ABLE OF CONTENTS
Introduction................................................................................................................................... 1
C HAPTER 1 THE FACTS ....................................................................................................................... 4
C HAPTER 2 THE S TATE OF S ENEGAL ’S PRINCIPLED POSITION IN RESPONSE TO THE RAISING
OF THE CASE BY VARIOUS INTERNATIONAL BODIES .................................................................... 15
I. Before the United Nations Committee against Torture ........................................................... 15
II. Before the African Union....................................................................................................... 17
III. Before the ECOWAS Court of Justice.................................................................................. 19
C HAPTER 3 THE OBSTACLES TO EXAMINING THE APPLICATION ON ITS MERITS .............................. 21
I. The clear absence of any dispute concerni ng the interpretation and application of the
United Nations Convention against Torture of 10 December 1984....................................... 21
II. The inadmissibility of the Application................................................................................... 31
C HAPTER 4 S ENEGAL ’S COMPLIANCE WITH ITS OBLIGATIONS AS A PARTY TO THE 1984
C ONVENTION ............................................................................................................................... 36
I. Rebuttal of Belgium’s accusations .......................................................................................... 36
A. Domestic implementing measures prescr ibed by the 1984 Convention against
Torture .............................................................................................................................. 36
B. The obligation to “prosecute or extradite” ........................................................................ 37
C. Weaknesses in Belgium’s argument relating to the use of the time factor........................ 40
II. First steps towards fulfilling Senegal’s obligations................................................................ 40
A. Initiatives taken by Senegal in order to fu lfil its obligations as a State Party to the
1984 Convention............................................................................................................... 40
B. The non-existence of an internationally wrongful act attributable to Senegal.................. 46
Submissions ................................................................................................................................ 512 INTRODUCTION
Before addressing the merits of the case, mention should be made of the following points:
⎯ the procedure followed;
⎯ the structure of the present Counter-Memorial;
⎯ recapitulation of Senegal’s position before the Court.
The procedure followed
1. The case before the Court was initiated by an Application dated 16 February 2009, filed in
the Registry of the Court by the Kingdom of Belgium (hereinafter “Belgium”) on 19February,
against the Republic of Senegal (hereinafter “S enegal”). The Belgian Application concerned a
“dispute” relating to the interpretation and app lication of the 1984 United Nations Convention
against Torture, a convention to which both of the States are parties. It is based on the existence of
proceedings instituted against the former Head of State of Chad, currently residing in Senegal, in
which Mr. Hissène Habré is accused of acts characterized as crimes of torture or other crimes under
international law. These proceedings, whic h were initiated in 2000 , 2001 and 2005 before
Senegalese courts, do not appear to have provided satisfaction to the applicants.
2. Belgium, which also made a request for the extradition of the former Head of State in
2005, but was unable to obtain satisfaction, considers that Senegal has failed to fulfil its obligations
as a State party to the Convention against Torture, which requires in particular that any person
alleged to have committed offences under the Conven tion and found in the territory of the State
party should be “extradited” or “prosecuted”.
3. The Court’s jurisdiction to hear and dete rmine such a case is founded, according to
Belgium, on the one hand on Article30 of the C onvention against Torture— which provides for
referral to the Court in case of difficulty in theinterpretation or application of the Convention—
and, on the other hand, on the declarations recognizing the compulsory jurisdiction of the Court
made by the two States in accordance with Article 36, paragraph 2, of the Statute of the Court.
3 [3.] When filing its Application, Belgium also submitted a request to the Court for the
indication of provisional measures having regard to the risk that Senegal might, at any time, end the
house arrest to which the former President of Chad is currently subject on its territory. At that
time, Belgium requested the Court to indicate, pending a final judgment on the merits, measures to
be taken by Senegal to ensure that Mr.Habré could not escape the surveillance of the Senegalese
authorities.
In the Order made on 28May 2009, the Court, “taking note of the assurances given by
Senegal” held “that the risk of irr21arable pr ejudice to the rights claimed by Belgium is not
apparent on the date of this Order” .
21
Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures,
Order of 28 May 2009, para. 33. - 2 -
4. After consulting the Parties, the Court issued an Order on 9 July 2009 fixing 9 July 2010
for the submission of a Memorial by Belgium and 11July 2011 for the submission of a
Counter-Memorial by Senegal. Be lgium filed its Memorial on the date indicated. Senegal filed
this Counter-Memorial pursuant to the Order of 9 July 2009 and that of 11 July 2011 fixing a new
time-limit, 29 August 2011, for the filing of this Counter-Memorial.
5. In the meantime, more precisely by letter da ted 15 June 2010, Sene gal transmitted to the
Court a “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”. It subsequently transmitted two further notes
dated 22 June 2011 and [29] August 2011 respectively.
The structure of the present Counter-Memorial
Senegal’s Counter-Memorial is structured as follows:
⎯ Chapter 1 recapitulates the facts, as they occurred at both national and international level;
⎯ Chapter 2 concerns the position of principle adopt ed by Senegal with regard to the handling of
certain aspects of the case by various international bodies:
4 the United Nations Committee against Torture (I),
the African Union (II),
the Court of Justice of the Economic Community of West African States (ECOWAS) (III);
⎯ Chapter 3 relates to the jurisdiction of th e Court and the admissibility of Belgium’s
Application;
⎯ Chapter 4 concerns Senegal’s compliance with its obligations as a State party to the
Convention against Torture. This provides the opportunity not only to rebut the allegations
made by Belgium (I), but also to provide evidence that Senegal has already taken measures that
are clearly consistent with fulfilment of its conventional undertakings and compliance with its
customary obligations (II). On the first point, the Court will be able to find that no fault can be
attached to Senegal, either in terms of adopting domestic measures to implement the
Convention (A), or in terms of performing its obligation to “extradite or prosecute” (B). As for
the second point— “first steps by Senegal to perform its obligations”—, initiatives can be
mentioned (A) that are utterly irreconcilable with any allegation of an internationally wrongful
act (B).
Recapitulation of Senegal’s position before the Court
6. On the eve of the Court’s consideration of th e merits of this dispute, the Republic of
Senegal wishes solemnly to recall that it has always conducted and continues to conduct its
diplomatic affairs and international relations in accordance with the requirements laid down in the
Charter of the United Nations, namely promoti on of international peace and security, friendly
relations among nations and the pacific settlement of any disputes that might arise between them. - 3 -
7. Concerned that international law should be respected, the Republic of Senegal signed a
declaration recognizing the jurisdiction of the Court on 22October1985. It has no qualms
therefore about its case going before the principal judicial organ of the United Nations.
5 8. Wishing to see the pacific settlement of di sputes between States, Senegal is also deeply
concerned that the international criminal justice system should be developed. It believes that
combating impunity and punishing flagrant violations of human rights are major requirements of
modern times, from which no State may be exempted. Any member of the international
community that fails to comply with this essential duty is guilty of a particularly serious act. It was
with this overriding obligation in mind that Senega l wished, in particular, to mark clearly and
conspicuously the occasion of its accession to the Rome Statute of the International Criminal Court
of 17 July 1998, which it was the first State to ratif y, and that it expressed its intention to fulfil all
of its obligations as a State party to the 1984 Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, the observance of which is today at issue before the Court.
9. As it made clear in the previous phase of the proceedings (Request for the indication of
provisional measures), the Republic of Senegal believes that the fact that its disagreement with
Belgium has become a legal dispute must not be allowed to damage relations between the two
countries. It hopes that note will be taken of its genuine intention to assume its duties as a party to
the 1984 Convention and that, when the proceedings pending before the Court are concluded, the
two Parties will have succeeded in demonstrating their shared desire not to let crimes of torture and
other cruel, inhuman or degrading treatment or punishment go unpunished.
10. The Kingdom of Belgium is requesting the Court to find Senegal guilty of breaching its
international obligations under Ar ticle 6, paragraph 2, and Article 7, paragraph 1, of the
Convention against Torture, and under customary international law,
“by failing to bring criminal proceedings against Mr.Hissène Habré for acts
characterized in particular as crimes of torture, genocide, war crimes and crimes
against humanity alleged against him as perp etrator, co-perpetrator or accomplice, or
to extradite him to Belgium for the purposes of such criminal proceedings”.
11. As it recalled at length during the previ ous phase of the dispute, Senegal has never
denied either its status as a party to the 1984 C onvention or its duty, in the present circumstances,
to implement the procedures necessary to shed light on whether Mr.Hissène Habré bears any
6 responsibility for the acts of which he is accused. Ho wever, what it has denied is the assertion that
it is “failing” to perform its obligations as a party to the Convention against Torture.
12. Such an accusation is at odds with decl arations made several times by the Senegalese
authorities, and — beyond “declarations” — is not borne out by Senegal’s actions. Senegal wishes
to contest the very substance of Belgium’s accusation: that it has “failed” to fulfil its obligations as
a party to the Convention. What is more, the Re public of Senegal believes that, by acting as it has
since publicly declaring its intention to assume its duties, it is in full compliance with the
requirements of the Convention’s cardinal rule whereby States are obliged to “extradite or
prosecute”.
13. It is appropriate to recall the remarks made during the hearings on the request for the
indication of provisional measures by the Agent of Senegal: - 4 -
“Senegal is meeting its obligations to prosecute Hissène Habré stemming from
the Convention against Torture, on which the African Union’s decision is based.
Consequently, there is no request for extradition which has to be met in this case. Aut
dedere aut judicare: either one thing or the other. And above all, it is extradition if
there can be no trial. When the extradition avenue is blocked, and the country pledges
to conduct a trial, it is hard to see — in relation to the Convention against Torture —
where any dispute could lie on the app lication and interpretation of that
Convention . . . Under cover of an invitati on to ensure compliance with international
law, the purpose of the proceedings instituted by Belgium is to get the Court to order
Senegal to extradite Hissène Habré as soon as possible so that he can be tried in
Belgium in disregard of Senegal’s rights and obligations under the Convention against
Torture and which task Senegal is tackling with unflagging determination.”22
This position is clear: the Republic of Sene gal has rights under the 1984 Convention against
Torture, rights that it intends to exercise in fulIt has resolved not to extradite Mr.Habré but to
organize his trial, to prosecute him.
7 CHAPTER 1
THE FACTS
14. Mr.Hissène Habré, President of the Republic of Chad from 1982 to 1990, was
overthrown on 1December 1990. After a brief st ay in Cameroon, he requested political asylum
from the Senegalese Government, a request which w as granted. Since then he has made his home
in Dakar, where he lives with his family and some of his close relatives.
15. In January 2000, Suleymane Guengueng and othe rs, claiming to be victims of abuses
committed against them by President Habré’s régime, filed a complaint with civil-party application
with the senior investigating judge at the Dakar Tribunal régional hors classe , alleging the
following offences:
⎯ crimes against humanity;
⎯ torture;
⎯ acts of barbarity and discrimination;
⎯ violation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment;
⎯ torture or murder (Articles 288 and 295-1 of the Senegalese Penal Code);
⎯ enforced disappearance (Article7, paragraph2 (i) of the Rome Statute of the International
Criminal Court).
16. On 3 February 2000, the then senior investigating judge indicted Hissène Habré for these
offences before releasing him pending trial, under court supervision.
22
CR 2009/9, 6 April 2009, p. 20, para. 56 (Thiam). - 5 -
17. On 18February2000, through his counsel , Hissène Habré filed an application to annul
the proceedings before the Chambre d’accusation of the Dakar Court of Appeal, citing the
provisions of Article27 of the Convention agains t Torture, Article6 of the Constitution of the
Republic of Senegal, Article669 of the Code of Criminal Procedure and Article4 of the Penal
Code, on grounds of lack of legal justification and expiry of the time-limit for prosecution.
18. On 4July2000, the Chambre d’accusation of the Dakar Court of Appeal annulled the
record of the indictment and the subsequent pro ceedings on the ground that the court seised lacked
jurisdiction.
19. On 20March2001, the Court of Cassation, ruling on an appeal brought by the civil
parties on 7 July 2000, dismissed the appeal ag ainst the judgment handed down on 4 July 2000 by
8 the Chambre d’accusation, thus confirming that the investigating judge to whom the case had been
referred lacked jurisdiction.
The Court of Cassation gave the following reasons for its ruling:
“Whereas Article5, paragraph2, of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 requires
each State Party to take such measures as may be necessary to establish its jurisdiction
over the offences referred to in Article 4 in cases where the alleged offender is present
in any territory under its jurisdiction and it does not extradite him;
Whereas, therefore, Article79 of the Constitution could not be applied, since
Senegal needs to enact legislation before the Convention can be implemented;
Whereas no procedural text provides th e Senegalese courts with universal
jurisdiction to prosecute and try— if found in the territory of the Republic— the
presumed perpetrators (or their accomplices) of acts falling within the provisions of
the Law of 28August 1996 adapting Senegale se legislation to the provisions of
Article4 of the Convention, when those acts have been committed by foreigners
outside the territory of Senegal.”
20. Being no doubt dissatisfied with this ruling, the victims then brought a case before the
Belgian courts based on the same acts.
21. On 19 September 2005, after years of inves tigation, a Belgian judge issued a warrant for
the arrest of Hissène Habré, thus enabling the King dom of Belgium to request Senegal to extradite
him.
22. On 25 November 2005, the Chambre d’accusation of the Dakar Court of Appeal, ruling
this time on the request for the extradition of Hissèn e Habré made by Belgium, held that it lacked
jurisdiction for the following reasons:
“Article101 of the Constitution of Senegal and the Organic Law of
14February2002 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; - 6 -
9 That . . . the Chambre d’accusation, a court of ordinary law, cannot extend its
jurisdiction to matters relating to the inves tigation or prosecution of a Head of State
for acts . . . committed in the exercise of his functions;
That therefore this exception must ne cessarily apply to the extradition request
since the implementation of the procedure de pends on fundamental investigative steps
being carried out beforehand, in particular the appearance and examination of the
accused;
That, in addition, given that the extradition itself arises from steps in criminal
proceedings or measures of execution delegated by the applicant State to the requested
State, it must comply, at least in its judi cial phase, with the mandatory rules of law
concerning jurisdiction and the organization of criminal courts, which are a bastion of
national sovereignty;
That Hissène Habré should be given jurisdictional immunity, which, far from
causing him to be exonerated from criminal responsibility, is of a purely procedural
nature within the meaning of the Abdulaye Yerodia Ndombasi judgment of
14 February 2002, which was handed down by the International Court of Justice in the
case between the Kingdom of Belgium and the Democratic Republic of the Congo;
That it is worth recalling that this priv ilege is intended to survive the cessation
of his duties as President of the Republic, whatever his nationality and regardless of
any convention on mutual assistance.
On these grounds, the Chambre d’accusation concludes that it has no
jurisdiction to adjudicate the lawfulness of proceedings and the validity of the arrest
warrant against a Head of State.” [Translation by the Registry]
23. It was in this context that the Republic of Senegal, wishing to find a solution to what had
become known as “the Hissène Habré case”, referred the matter to the African Union, which on
2July 2006 followed the recommendations of emin ent African jurists that it had appointed in
January 2006 and asked Senegal to put Hissène Habré on trial.
The request of the African Union
24. The request made by the African Union took the form of a decision
(doc. Assembly/AU/3 [VII]) and contained the following recommendations:
⎯ to consider the “Hissène Habré case” as falling within the competence of the African Union;
10
⎯ to mandate the Republic of Senegal to prosecute and ensure that Hissène Habré is tried by a
competent Senegalese court with guarantees for fair trial;
⎯ to mandate the Chairperson of the Union, in consultation with the Chairperson of the
Commission, to provide Senegal with the necessa ry assistance for the effective conduct of the
trial;
⎯ to request all the Member States to cooperate with the Government of Senegal on this matter;
⎯ to call upon the international community to avail its support to the Government of Senegal. - 7 -
25. The wording of the mandate left no doubt that the African Union as a whole was
determined to support Senegal in its efforts to prepare for and conduct the proposed trial of
Mr. Hissène Habré.
26. It should also be mentioned that, prio r to this position being adopted by the African
organization, the civil parties that had seised the senior investigating judge at the Dakar Tribunal
régional hors classe, had on 18April 2001 filed a compla int with the United Nations Committee
against Torture. On 17May 2006, pursuant to Ar ticle22, paragraph7, of the Convention against
Torture, the Committee issued recommendations to the Government of Senegal.
[26.] The Committee, noting all of the court decisions described above, recalled that, in
accordance with Article5, paragraph2, of the Conve ntion, “each State Party shall... take such
measures as may be necessary to establish its juri sdiction over such offences in cases where the
alleged offender is present in any territory under its jurisdiction and it does not extradite him”.
27. In its observations on the merits, the Committee noted that Senegal, a party to the
Convention, had not contested the fact that it had not taken such measures as might be necessary in
keeping with Article5, paragraph2, of the Conve ntion, and observed that the Court of Cassation
itself considered that Senegal had not taken such measures.
11 28. The Committee also considered that the reasonable time frame within which the State
party should have complied with this obligation had been considerably exceeded.
29. The Committee recalled that, under Article7 of the Convention, “the State Party in the
territory under whose jurisdiction a person allege d 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”.
30. It noted in this regard that the obligati on to prosecute the alleged perpetrator of acts of
torture did not depend on the prior existence of a request for his extradition. The alternative
available to the State party under Article7 of the Convention existed only when a request for
extradition had been made and put the State party in the position of having to choose between
proceeding with extradition and 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.
31. The Committee concluded that the State party could not invoke the complexity of its
judicial proceedings or other reasons stemming fro m domestic law to justify its failure to comply
with these obligations under the Convention.
32. The Committee, acting under Article22, paragraph7, of the Convention, therefore
considered that Senegal had “violated Article 5, paragraph 2, and Article 7 of the Convention”.
33. And that, in accordance with Article5, pa ragraph2, of the Convention, the State party
was obliged to adopt the necessary measures to make all forms of torture punishable offences. - 8 -
34. Moreover, under Article7 of the Conventio n, the State party was obliged to submit the
present case to its competent authorities for th e purpose of prosecution or, failing that, since
another State had made an extradition request, to comply with that request in accordance with the
Convention.
12 35. This decision in no way influenced th e possibility of the complainants’ obtaining
compensation through the domestic courts for th e State party’s failure to comply with its
obligations under the Convention.
36. Finally, the Committee against Torture stated:
“Bearing in mind that, in making the declaration under article22 of the
Convention, the State party recognized th e competence of the Committee to decide
whether or not there has been a violation of the Convention, the Committee wishes to
receive information from the State party within 90 days on the measures it has taken to
give effect to its recommendations.”
37. Senegal, being anxious to comply with its obligations, was bound on the one hand to act
on the recommendations of the Committee against To rture and, on the other, to execute the
mandate that it had received from the African Union.
Implementation of the recommendations of the Committee against Torture
38. The State of Senegal responded to the recommendations of the Committee against
Torture by bringing its legislation into conformity with the relevant rules of international law with
a view to putting Mr.Hissène Habré on trial. The President of the Republic made a solemn
undertaking to his counterparts to hold the trial, while pointing out that the first step would be to
mobilize the financial resources required, resources that Senegal could not secure on its own.
39. This unequivocal political undertaking c onfirms the legal obligation arising from the
Convention against Torture and Other Cruel, I nhuman or Degrading Treatment or Punishment,
which was ratified by Senegal on 21August1986 and which forms the legal basis for all the
proceedings initiated against Hissène Habré.
40. On 23 November 2006 the Minister of State, Keeper of the Seals and Minister of Justice
therefore issued an order establishing a comm ission charged with examining the matter and
proposing the necessary legislative and institutional reforms.
41. All the legislative and constitutional reform s, of both form and substance, have already
been made in order to give full effect to the pr ovisions of the Convention and to create the ideal
13 conditions for Mr.HissèneHabré’s trial by the Senegalese courts and judges, on a fair and
equitable basis.
The legislative reforms initiated
42. Several reforms amending, supplementing or repealing certain provisions of the Penal
Code and the Code of Criminal Procedure have been effected. - 9 -
Law No.2007-02 of 12February 2007 introduced Articles431-1, 431-2, 431-3, 431-4 and
431-5 into our Penal Code. These articles define and formally sanction the crime of genocide,
crimes against humanity, war crimes and other crimes of international humanitarian law as
specified by the 1954 Hague Convention, the 1976 Convention and the 1980 Convention, which
were not previously included in the domestic arsenal of criminal legislation.
Article 431-6 of the Penal Code provides that, notwithstanding the provisions of Article 4 of
the Code, perpetrators of the offences referred to in Articles431-1 to 431-5 may be tried and
sentenced for any act or omission, which, at the time and place where it was committed, was
regarded as a criminal offence according to th e general principles of law recognized by the
community of nations, whether or not it constituted an infringement of the law in force at that time
and in that place.
Article 669 of the Code of Criminal Procedure has been amended as follows:
“Any foreigner who, outside the territo ry of the Republic, is accused of being
the perpetrator of or accessory to one of th e crimes referred to in Articles431-1 to
431-5 of the Penal Code . . . or of acts re ferred to in Articles 279-1 to 279-3 and 295
of the Penal Code may be prosecuted a nd tried according to the provisions of
Senegalese laws or laws applicable in Sene gal... or if the Government obtains his
extradition.”
43. A new article, Article 664bis, has been inserted in Title XII of Book Four of the Code of
Criminal Procedure. It reads as follows:
“The national courts shall have juri sdiction over all criminal offences,
punishable under Senegalese law, that ar e committed outside the territory of the
Republic by a national or a foreigner, if th e victim is of Senegalese nationality at the
time the acts are committed.” [Translation by the Registry]
14 44. No legislative reforms were necessary in r espect of torture, as it was already included in
Article 295-1 of Law No. 96-15 of 28 August 1996, which made it a punishable offence.
45. The final phase in this important task of revising the legislative texts was the far-reaching
reform of the composition of the Cour d’assises and the way in which cases were referred to it.
The two-tier court system in force in Senegal ese criminal proceedings, which applied to the
investigation— an obligatory step in criminal proceedings— was criticized for slowing down
proceedings. It is therefore no longer compulsory fo r the investigating judge to order the file to be
submitted to the higher-level Chambre d’accusation.
46. Now, after closing his criminal investigation, the investigating judge orders the file to be
transmitted directly to the Cour d’assises.
T4he. Cour d’assises has also undergone reform in that jurors, ordinary men and women
who were involved in dispensing justice at this high level, no longer sit alongside the professional
judges who constitute the court proper.
48. Observers had consistently criticized the presence of jurors as members of the Cour
d’assises, since their lack of training could seriously jeopardize the aim of fairness in criminal
proceedings. - 10 -
49. Now that jurors have been removed from the Cour d’assises and proceedings are
conducted solely by professional judges, the court will be able to dispense justice more quickly.
However, this initiative had to be accompanied by guarantees for the accused and the civil parties.
An appeals system has therefore been created, whereby appeals can be brought against the
first-instance rulings handed down by this court before another Cour d’assises appointed by order
of the First President of the Supreme Court.
50. These measures reflect Senegal’s desire to incorporate in its domestic legislation the
rules of the African Charter on Human and Peoples’ Rights concerning fair and equitable trials.
15 The constitutional reform
51. Article9 of the Constitution of Senegal sets out the principle of strict conformity with
statute with regard to criminal offences. Before the Rome Statute and the above-mentioned
legislative reforms were ratified, the Senegalese legislature, concerned to ensure that the laws were
constitutional, took steps to introduce an exception to that principle in accordance with the legal
system for serious crimes covered by jus cogens and with the relevant provisions of the
International Covenant on Civil and Political Rights.
52. The former Article9 of the Constitution has therefore been replaced by the following
provisions:
“Any infringement of these freedoms and any intentional restriction of the
exercise of a freedom shall be punishable by law.
No one may be convicted other than by virtue of a law which became effective
before the act was committed.
However, the provisions of the preced ing subparagraph shall not prejudice the
prosecution, trial and punishment of any pers on for any act or omission which, at the
time when it was committed, was defined as criminal under the rules of international
law concerning acts of genocide, crimes against humanity and war crimes.”
53. While the legislative reforms constitute a legal basis for the proposed proceedings to
execute Senegal’s mandate from the African Union, appropriate organs are needed to implement
them.
The organs established with the aim of executing the request of the African Union
54. The organs that have already been establis hed with a view to holding the proposed trial
under the aegis of the African Union and in co- operation with the European Union are: four
investigating judges, three prosecuting judges, a pool of registrars, a co-ordinator and a Committee
on Follow-up and Communication.
16 The judges and registrars appointed
55. The number of investigating judges’ offices at the Dakar Tribunal régional hors classe,
which are responsible for investigating criminal cases, has been increased from six to ten. The
same measures have been taken at the Public Prosecutor’s Office, where the number of Deputy
Public Prosecutors has been significantly increased. - 11 -
56. This increase is justified by the opening of Mr. Hissène Habré’s trial, which must not be
allowed to have an adverse impact on the day-to-day administration of justice.
The Co-ordinator
57. By Order No. 04310 dated 21 May 2008, the Minister of State, Keeper of the Seals and
Minister of Justice appointed a trial co-ordinat or, namely Mr.Ibrahima Gueye, Judge Emeritus,
President of the Chambre civile et commerciale of the Supreme Court. This senior judge is
charged with preparing and organizing the trial of Mr. Hissène Habré.
58. In this capacity he will establish contact with the authorities, structures and entities
involved in the trial, at both national and internationa l level. He will deal with the logistics of the
trial, including the administrative and financial asp ects. However, he will not have any judicial
role.
The Committee on Follow-up and Communication
59. Order No.04310 of 21May 2008 also established a Committee on Follow-up and
Communication. This committee is charged with communication and the smooth running of the
Habré trial.
60. All of these organs have been operational since they were established and they have
already produced a training plan for the judges and other staff involved in the trial.
61. A provisional budget of 18billion CFA francs was drawn up, assuming that
500 witnesses would be called and that the trial would have a duration of 38 months. This estimate
17 does not include the sum of 2 billion CFA francs required to meet the operating costs of the organs
responsible for co-ordinating and following up the trial.
62. This provisional budget has been reduced to 14 billion CFA francs by Senegal’s partners,
which have limited the number of witnesses to be summoned to 100 and the duration of the trial to
28months. This new period of 28months is divided into segments of 20months for the
investigation and gathering of evidence, five m onths for the proceedings in the court of first
instance and three months for the appeal.
The decision handed down by the ECOWAS Court of Justice
63. On Thursday 18November 2010, the ECOWAS Court of Ju stice handed down a
judgment that called into question the process that was to lead to the trial of Mr. Hissène Habré.
64. For the record, Senegal was summoned to appear before the Court of Justice of the
Economic Community of West African States (ECOWAS) and the African Court on Human and
Peoples’ Rights by, respectively, Mr. Habré himself and Mr. Michelot Yogogombaye in two cases
directly related to the trial that the State of Senegal intends to open on its own territory, in
accordance with its international obligations and national legislation, against Mr. Hissène Habré. - 12 -
65. In the case before the ECOWAS Court of Ju stice, Mr. Habré asked the Court to find that
Senegal had violated his human rights in the course of preparing his trial, and to order a halt to all
proceedings against him. Senegal took part in all the hearings before the Court in this case, the first
of which was devoted to examining the requ est to intervene submitted by the “Victims’
Collective”, which was seeking to join the proceedings as a party. Since the Court rejected the
victims’ application by preliminary judgment No.ECW/CCJ/ADD/11/09 of 27November2009,
the case involved the original parties only.
66. In its judgment No.ECW/CCJ/JUD/06/10 of 18November 2010, the Court found that
“the mandate which Senegal received from the African Union was in fact a remit to devise and
18 propose all the necessary arrangements for the pro secution and trial [of HissèneHabré] to take
place, within the strict framework of special ad hoc international proceedings as practised in
international law by all civilized nations”.
67. As a full member of ECOWAS, Senegal has signed and ratified the ECOWAS Treaty. It
has also ratified ProtocolA/P.1/7/91 on the Comm unity Court of Justice, which handed down the
above-mentioned decision.
68. Senegal is a State that is based on the rulof law, that respects international law and is
concerned to promote and defend human rights. Yet it has no choice but to comply with this
decision at the risk of violating its international commitments.
69. Moreover, pursuant to the provisions of Ar ticle22, paragraph3 of ProtocolA/P.1/7/91
on the Community Court of Justice, “Member States and Institutions of the Community shall take
immediately all necessary measures to ensure execution of the decisions of the Court”.
70. Despite this decision being handed dow n by the above-mentioned Court, Senegal’s
efforts to prepare for the proposed trial of Mr.Hissène Habré have continued unabated, in
accordance with the principle of universal jurisd iction enshrined in Articles 5 and 7 of the United
Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment of 10 December 1984. Senegal’s firm desire to respect its commitments and to attempt
to reconcile two obligations which, in appearance at least, are contradictory, motivated its decision
to go ahead with the Donors Round Table following the ECOWAS Court’s ruling.
The decision adopted by the African Union at its sixteenth ordinary session, held in
Addis Ababa on 30 and 31 January 2011
71. At its sixteenth ordinary session, held in Addis Ababa (Ethiopia) on 30 and
31January 2011, at which the presence of the Se negalese delegation was recorded, the Assembly
of the African Union adopted a decision stating, amongst other things, that the Assembly:
⎯ confirms the mandate given by the African Uni on to Senegal to try Hissène Habré considering
the continued readiness of Senegal to try him;
⎯ also reiterates its commitment to fight impun ity in conformity with the provisions of
Article 4 (h) of the Constitutive Act of the African Union;
⎯ welcomes the conclusions of the Dono rs Round Table for the funding of the
19
Hissène Habré trial, held in Dakar (Senegal) on 24 November 2010; - 13 -
⎯ requests the Commission to undertake consultations with the Government of Senegal in order
to finalize the modalities for the expeditious trial of Hissène Habré through a special tribunal
with an international character consistent with the Economic Community of West African
States (ECOWAS) Court of Justice Decision;
⎯ further requests the Commission to follow up a nd to report on the implementation of (this)
Decision in June 2011.
72. In order to give substance to the African Union’s Banjul Decision and the
above-mentioned ruling of the Court of Justice, an ad hoc court with an international character was
therefore to be created, the founding act of which would be an African Union decision.
73. The legal basis for creating such a body would be Articles 3 (h), 4 (h), 4 (o), 5 (2), 6 (2)
and 9 (1) of the Constitutive Act of the African Union.
74. This decision gave a mandate to the AU Commission to determine, in particular, the
headquarters, composition, jurisdiction, applicable rules and organs of the court.
75. Pursuant to the above-mentioned Decision Assembly/AU/Dec.340(XVI) on the
HissèneHabré case, which was adopted on 31January 2011 by the sixteenth ordinary session of
the Assembly of Heads of State and Government of the African Union (AU), representatives of the
African Union Commission and a delegation from th e Government of the Republic of Senegal led
by Mr.CheikhTidianeSy, Minister of State, Keep er of the Seals and Minister of Justice, held
consultations on these matters on 23 and 24March2011 in Addis Ababa (Ethiopia), at
AU headquarters.
76. The consultations were co-chaired, at th e political level, by Mr.CheikhTidianeSy,
Minister of State, Keeper of the Seals and Minist er of Justice of the Republic of Senegal, and
Ambassador Ramtane Lamamra, AU Commissioner for Peace and Security, and, at the technical
20 level, by Ambassador Bassirou Sene, Permanent Re presentative of the Republic of Senegal to the
AU, and Mr. Ben Kioko, Legal Counsel of the AU Commission.
77. On concluding their work, the Par ties agreed on the need to create an ad hoc
international court to try Mr.Hissène Habré fo r crimes committed in Chad between 7June1982
andD1ecember 1990, in accordance with the above-mentioned Decision
Assembly/AU/Dec.34( 0XVI), the judgment of the ECOWAS Court of Justice of
18 November 2010 and the United Nations Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment.
78. The draft Agreement establishing this in ternational court would be drawn up by the
African Union Commission and then submitted to th e Government of the Republic of Senegal for
its opinion and observations before being signed.
79. The proceedings before the ad hoc international court woul d be conducted using the
resources mobilized at the Donors Round Table for the funding of the trial of Mr. Hissène Habré,
held on 24November 2010, and on the basis of the budget and documents relating thereto.
Additional resources could be mobilized as and when required. - 14 -
80. It should be noted that, according to expert s, the estimated budget for the trial was in the
amount of eightmillionfivehundred and seventy thousand dollars (US$8,570,000) (report of
European Union experts drafted in collaboration with the African Union and Senegal).
81. The Donors Round Table for the funding of the trial of Mr. Hissène Habré, held in Dakar
on 24November 2010 under the aegis of the African Union Commission, generated sufficient
funding pledges from donors to cover the budget in full.
82. These funds have not yet been actually mobilized and made available to the
authorities — independent of Senegal — that are charged with managing them.
83. Nevertheless, the participants in the Donor s Round Table stressed the need for the funds
to be disbursed within a reasonable time.
21 84. To this end they had asked the United Nations Office for Project Services (UNOPS)
quickly to take the appropriate measures to en able the funds pledged to be disbursed, in
collaboration with the countries and institutions that had made funding pledges or any other partner
interested in funding the organization of the trial.
85. It is therefore clear that, had the ECOWAS Court not handed down its ruling of
18November 2010, the budgetary procedure mana ged by UNOPS could have delivered the
necessary funding and therefore enabled the trial to start.
86. Regarding the establishment of the future ad hoc international court, a draft Statute
drawn up by AU Commission experts was adopted as amended by the meeting. It was then agreed
that the draft Rules of Procedure and Evidence of the ad hoc international court should be drawn
up. To this end it was agreed that the AU Commission would prepare the draft Rules of Procedure,
which would be submitted to the Senegalese Party for its opinion and observations.
87. With a view to accelerating the establishment of the ad hoc international court, the
meeting decided to hold a second Consultative Meeting in Dakar in the last week of April 2011, in
order to consider and finalize the draft Agreemen t between the African Union and the Government
of the Republic of Senegal on the creation of the ad hoc international court, the draft Rules of
Procedure and Evidence, and also the road map for the establishment of the said court.
88. Furthermore, the participants agreed that the inaugural meeting of the Follow-up
Committee on the implementation of the conclusions of the Donors Round Table of
24November2010 should be held in Dakar, as soon as the documents required for the
establishment of the ad hoc international court had been finalized.
The second Consultative Meeting between experts from the African Union and Senegal
89. Following the first Consultative Meeti ng between experts from the African Union and
Senegal, which was held in Addis Ababa on 23 and 24March 2011, a second meeting was
scheduled to take place in Dakar from 30 May to 3 June 2011, for the purpose of studying both the
22 draft Agreement between Senegal and the African Union on the creation of the ad hoc international
court and the draft Rules of Procedure and Evidence of the future court. - 15 -
90. The documents that were to be studied at the meeting were sent to the Senegalese Party
two days before the meeting. Given the volume of the documents and, in particular, of the Rules of
Procedure and Evidence, which comprised 80pages, there was insufficient opportunity to study
them before the meeting, which made fruitful discussions all but impossible.
91. Furthermore, the Rules of Procedure and Evidence included, in particular, numerous
provisions on the judges’ status and code of conduc t, and this at a time when Senegal was in the
process of implementing far-reaching reforms of its judicial system, including the regulations
governing the judiciary. At this stage, Senegal on ce again reiterated its firm desire to continue the
process begun in 2006, which has, moreover, resulted in its being brought before two African
courts, including the ECOWAS Court of Justice of which it is a member.
92. The above-mentioned decision of the said Court and the need to have more time to study
the documents relating to the futurad hoc international criminal court properly are the only
considerations that motivated Senegal’s request for a reasonable amount of time to finalize the
arrangements with the African Union for creatng the judicial body empowered to manage the
proposed trial.
93. As a careful reading of the documents ta bled by the AU will show, it will be extremely
difficult for Senegal to perform its obligation to try Mr. Hissène Habré on its own, through its own
courts, if the trial is to take place in the proad hoc international criminal tribunal, as the
latter, after all, would be characterized by its specificity, its independence and the fact of being
separate from the Senegalese legal system.
The decision of the Chambre d’accusation of the Court of Appeal on Belgium’s request for
extradition
94. This decision was handed down very recently, on 18August 2011, following a
re-submission, by Belgium, of its extradition requ est. While demonstrating a readiness to examine
23 the said request in the light of the requirements of Senegalese law on extradition, the Court rejected
it, finding it to be inadmissible because it did not comply with the conditions laid down by law.
CHAPTER 2
T HE STATE OF SENEGAL ’S PRINCIPLED POSITION IN RESPONSE TO THE
RAISING OF THE CASE BY VARIOUS INTERNATIONAL BODIES
95. A large portion of the argument that the Kingdom of Belgium has submitted to the Court
is based on an erroneous interpretation of Sengal’s comportment before various international
bodies: the United Nations Committee against Torture, the African Union and the Economic
Community of West African States (ECOWAS). The position that Senegal has adopted before
each of these bodies is in full conformity with its statement that it intends to perform its obligations
as a State party to the 1984 Convention.
I. BEFORE THE U NITED N ATIONS C OMMITTEE AGAINST T ORTURE
96. Upon the case being referred to it by a number of individuals of Chadian origin , the
Committee against Torture, a body established by the Convention itself to ensure that it is properly
implemented, stated in its decision of [19] May 2006 that: - 16 -
“the Court of Cassation of Senegal ruled that ‘no procedural text confers on
Senegalese courts a universal jurisdiction to prosecute and judge, if they are found on
the territory of the Republic, presumed pe rpetrators of or accomplices in acts [of
torture]. . . when these acts have been co mmitted outside Senegal by foreigners; the
presence in Senegal of Hissène Habré cannot in itself justify the proceedings brought
against him’”.
Further on, the Committee
“also notes that, on 25 November 2005, the Indictment Division of the Dakar Court of
Appeal stated that it lacked jurisdicti on to rule on Belgium’s request for the
extradition of Hissène Habré”.
24 97. The Committee then recalled that each State pa rty is obliged to take “such 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”.
98. The Republic of Senegal never contested the findings of the Committee against Torture
at the time that they were made. At that time, the Senegalese authorities themselves
acknowledged that their failure to adopt domestic measures implementing the Convention against
Torture constituted an omission. They have never sought to evade this obligation and the
Committee against Torture itself noted 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, paragraph 2,
of the Convention, and observes that the C ourt of Cassation itself considered that the
State party had not taken such measures”.
99. Nevertheless, the Court will have the opport unity to note that, although Senegal did not
hesitate to acknowledge before the Committee agai nst Torture that it had not fully complied with
its obligation to ensure that it could meet its international commitments, as soon as it had examined
the Committee’s observations it took appropriate ac tion to perform that obligation and adopt the
“necessary measures” to give full effect to th e Convention, in other words to establish the
jurisdiction of the Senegalese courts. Indeed, as early as the beginning of August2009, Senegal
invited the Committee to come and see for itself the efforts that the State of Senegal had made to
establish the jurisdiction of its national courts . The Committee’s confidential fact-finding mission
took note of the statements of the national author ities and resolved to “monitor” implementation of
the commitment made.
100. Today, this commitment has largely been implemented. As matters stand at present,
and at a time when the trial of the former Preside nt of Chad has not yet opened, it is impossible to
maintain, as was possible previously, that Senegal has failed to perform its duty as a State party to
the Convention. The terms of the debate have certainly changed and, now that the Court is
being requested to rule “on the merits” of the case, it is difficult to see how it could be
25 considered relevant to mention circumstances th at have now been completely “overtaken by
events”, except for purely “historical” reasons.
101. It should be added that the change in Se negal’s attitude naturally invalidates the idea
that it would be unlawful for it to refuse an extradition request now. Although it was legitimate to
question the lawfulness of such a refusal at a time when the conditions were not in place to enable - 17 -
the national courts to deal with the “Habré case”, such a refusal could even be necessary in the
present circumstances, where Senegal is claiming jurisdiction.
102. It is therefore unreasonable to suggest that Senegal had somehow persisted in a
premeditated refusal to discharge its obligation to prosecute Mr.Habré. Senegal’s conduct is
governed by precise circumstances and reflects a specific context: previously, it was the context of
failing to discharge an unquestionable obligation — the duty to bring domestic law into conformity
with the 1984 Convention; today it is the context of declaring and asserting a claim to jurisdiction.
This being the case, the factors that informed the discussions in the Committee against Torture
should be immediately set aside from these proceedings.
II. BEFORE THE A FRICAN U NION
103. In the Memorial that it submitted to the Court, Belgium also returns to the raising of the
“Hissène Habré case” by the African Union (AU), or more precisely the supreme body of the
pan-African organization, the Assembly of Head s of State and Government. In its Memorial
Belgium writes:
“The involvement of the African Union in the proceedings against H.Habré
dates back to December 2005 and continues to this day. During the period of four and
a half years that has thus elapsed, the Se negalese public prosecutor’s office has taken
no judicial steps to institute proceedingsagainst Mr.Habré. Moreover, before the
Court of Justice of the Economic Community of West African States (ECOWAS),
Senegal itself affirmed that, to date,23 no proceedings against [Mr.Habré] were
pending . . . in the Senegalese courts’.”
26 104. The Belgian Memorial goes on to recall th e circumstances in which the Senegalese
authorities referred the case to the pan-African politi cal organization, after the Senegalese courts
had declared that they lacked jurisdiction.
105. On this point too, Senegal wishes to ensu re that its position is clearly understood and to
clarify the precise significance of the twists and tu rns in the handling of the dossier by the African
Union.
106. In the first place, as the Court will see, the State of Senegal’s decision to refer the case
of the former President of Chad to the AU at leas t reflects an intention that is the reverse of any
willingness to tolerate impunity. Its only motive in raising the matter at the level of the
pan-African organization was precisely to highlight the importance of the issues at stake and to
provide an unprecedented and formal opportunity for Africa, a continent that has witnessed
massive violations of international law from time to time, to make clear to the world its firm and
collective commitment to punish su ch offences. Incidentally, this purpose was achieved, as the
Assembly of Heads of State and Government:
“D ECIDES to consider the Hissène Habré cas e as falling within the competence
of the African Union;
23
Memorial of Belgium, p. 36. - 18 -
M ANDATES the Republic of Senegal to prosecute and ensure that Hissène Habré
is tri24, on behalf of Africa, by a compet ent Senegalese court with guarantees for fair
trial.”
107. The raising of the case of the former Presi dent of Chad by the African Union therefore
needs to be seen in context: rather than being motivated purely by legal considerations, this was a
symbolic act, providing an opportunity to speak with one voice on a serious subject that not so very
long ago might have been considered “taboo”. Since becoming involved in the case, the AU has
been advocating that a trial should be held and has taken various initiatives to ensure that such
judicial action is taken.
108. This was the intent — the sole intent — th at can be attributed to Senegal. Senegal has
never sought to imply that the pan-African organiza tion should be subject to the obligations set out
27 in the Convention against Torture. Senegal, a sovereign State and party to the Convention, believes
that it is incumbent upon it alone to perform, in particular, the obligation under the Convention to
“extradite” or “prosecute”. This point, which has been made several times in the past, was
expressed in the clearest possible terms during the hearings on the request for the indication of
provisional measures. It is worth recalling th e statement made: “at no point has Senegal
established any link between the decision of the A frican Union and the obligations incumbent on it
under the 1984 Convention” . It was further stated that:
“The backdrop of the trial for which prep arations are now being made is indeed
one of co-operation across Africa— and ev en beyond. In this connection Senegal
wishes to make clear once and for all, so as to dispel for good all ambiguity and
misunderstanding, that as a State it is bound by the 1984 Convention. The fact that an
organization like the African Union may be involved in organizing the Habré trial in
no way lessens Senegal’s duties and rights as a party to the Convention. Indeed, it is
as a party to the Convention, not pursuant to a mandate from the African Union, that
26
the Republic of Senegal is fulfilling its obligations.”
109. The idea that, in agreeing that the AU should discuss the “Habré case”, Senegal was
seeking to evade its obligation to punish the acts specified in the Convention against Torture is
therefore doubly disputable.
110. First, the act of establishing a continent- wide discussion of the subject is, if anything,
indicative of a bias towards punitive action, a predis position to prosecute — and not to tolerate —
the acts specified in the Convention against Torture.
111. Secondly, from a more strictly legal poi nt of view, Senegal has never repudiated its
duty. On the contrary, it has acknowledged its obligation to deal with the complaints lodged
against Mr. Habré.
112. In other words, the “involvement” or “intervention” of the AU has no fundamental
28
impact on the terms of the debate before the Court. At issue before the Court is a dispute between
two States about how the execution of an obligati on arising from an international instrument to
24Assembly/AU/Dec.127 (VII).
25
CR 2009/11, 8 April 2009, p. 13, para. 10 (Diouf).
26
CR 2009/11, 8 April 2009, p. 18, para. 11 (Sall). - 19 -
which both States are parties should be understood. Th at is the reality of the dispute that has been
brought before the Court. Senegal therefore believ es that anything that fa lls outside the scope of
this clear and simple presentation of the facts should be set aside from the debate on the ground that
it is irrelevant.
113. The State of Senegal has consistently decl ared its intention to respect its commitments
as a State party. In fact it wishes to organize a tria l to deal with the acts of which the former Head
of State of Chad, who is now present in its territory, stands accused. However, it does not intend to
act under pressure, even though such pressure is understandable, particularly when it is being
exerted by alleged victims. A trial on this scale and of this complexity deserves to be conducted
calmly and in compliance with international standards of due process. In Senegal’s view, what is at
stake here is the very credibility of its judicial in stitutions and even of the judicial institutions of
Africa as a whole, which are being confronted with such a situation for the first time.
114. In this regard it is worth recalling the wo rds addressed to the Court by the Co-Agent of
Senegal during the hearings on the request for the indication of provisional measures:
“The fight against impunity must not overshadow the no-less-important duty on
us all to afford the accused, no matter how serious the acts with which he is charged, a
presumption of innocence until such time as he is convicted after a fair trial; and it is
for that fair trial that Senegal is making the preparations.
It is for all of these reasons that Senegal has not yet begun the trial, fearing that
it would be interrupted for long periods in which funds, hypothetical funds, would
have to be sought. Accordingly, advance fi nancing adequate to ensure uninterrupted
proceedings all the way to the end in accord ance with our domestic law is what is
27
needed.”
III.BEFORE THE ECOWAS C OURT OF J USTICE
29
115. In its Memorial, Belgium also refers to the proceedings instituted before the Court of
Justice of the Economic Community of West A frican States (ECOWAS), which culminated in a
judgment being delivered on 18 November 2010.
116. Belgium filed its Memorial before the above-mentioned ruling was delivered. It did not
therefore record any developments in the case. Ho wever, here too it is a ppropriate to recall the
points at issue to show that they have no beari ng on the case referred to the International Court of
Justice in The Hague, or on the positions adopted by the Republic of Senegal.
117. It was Mr. Hissène Habré himself who initiated proceedings before the ECOWAS Court
of Justice against the State of Senegal after it adopted general legislative and regulatory measures
that were designed to bring Senega l’s domestic law into conformity with its obligations as a State
party to the 1984 Convention. The applicant, Mr. Habré, seised the ECOWAS Court and requested
it to:
“⎯ adjudge and declare that any proceedings instituted on the grounds indicated in
[the] application would be liable to perpet uate the... violations [of his human
rights];
27
CR 2009/9, 6 April 2009, p. 30, paras. 53 and 54 (Kandji). - 20 -
⎯ 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 conse quence to uphold the rights and principles
referred to above and cease any pro ceedings and/or actions against
8
Mr. Hissein Habré” .
In its judgment of 18 November 2010 on the merits, the Court
“⎯ finds that evidence exists to demonstrate that Mr.Hissein Habré’s . . . rights are
likely to be violated as a result of the constitutional and statutory reforms
undertaken by the State of Senegal;
⎯ finds that in this regard, the State of Senegal must respect the rulings handed down
by its national courts and, in particular, abide by the principle of res judicata;
30 ⎯ consequently, the Court orders Senegal to comply with the absolute principle of
non-retroactivity;
⎯ finds that the mandate which Senegal received from the African Union was in fact
a remit to devise and propose all the necessary arrangements for the prosecution
and trial to take place, within the strict framework of special ad hoc international
proceedings as practised in international law by all civilized nations;
⎯ dismisses all of Mr. Hissein Habré’s other claims as inoperative”.
118. This is the verdict that was rendered. The Government of the Republic of Senegal has
taken note of it. The line of defence adopted by the Republic of Senegal before the Community
Court was never directly called into question, e ither by the Court itself or, incidentally, by the
opposing party. It consists of remaining faithful to the principles of international law, according to
which a State that enters into an international commitment must accept all of the implications of
that commitment at national level. The meas ures that Senegal has undertaken to implement ⎯
most of which were definitively adopted some time ago ⎯ are designed first and foremost to bring
it into conformity with those provi sions with which it had previously failed to comply, earning it a
reprimand from the United Nations Committee against Torture, as we have seen.
119. Senegal believes that the judgment handed down by the ECOWAS Court of Justice
constitutes a significant event, creating a conflict between two obligations with different, indeed
opposing, objectives: to prosecute if it has not extradited him, on the one hand, and not to
prosecute (in the national courts) on the other ha nd. The State of Senegal has always had the
option of prosecuting, an option that is again r ecalled before the Court t oday, and now it suddenly
finds this route barred by an external event, placing it in an extremely difficult dilemma. This must
be resolved so as to avoid a situation of paralysi s in terms of its obligation to fulfil commitments
that are, all the same, essentially valid. It isnecessary, therefore, to en sure that the prosecution
option is not cut off by the position of inertia advocated by the ECOWAS Court of Justice.
8
ECOWAS Court of Justice, Hissène Habré v. Republic of Senegal, Judgment on Preliminary Objecti,ns
14 May 2010, para. 2. - 21 -
C HAPTER 3
31
T HE OBSTACLES TO EXAMINING THE APPLICATION ON ITS MERITS
120. Senegal believes that the grounds invoked by the Kingdom of Belgium in support of its
request to the Court to adjudge and declare that Senegal has breached its international obligations
and more particularly the obliga tions under the Convention against Torture by failing to amend its
domestic legislation and bring criminal proceed ings against HissèneHabré are not well-founded
and that this will be clearly demonstrated by the alternative submissions on the merits.
121. Here and now, however, Senegal solemnly requests the Court to find not only that no
dispute exists between the Parties, which shoulead the Court to declare that it does not have
jurisdiction, but also and above all that the applican t State failed to fulfil its obligation to initiate
the negotiation and arbitration procedure beforeferring the case to the Court, which should
render the Belgian Application inadmissible.
I. HE CLEAR ABSENCE OF ANY DISPUTE CONCERNING THE INTERPRETATION
AND APPLICATION OF THE U NITED N ATIONS C ONVENTION
AGAINST T ORTURE OF 10 DECEMBER 1984
122. The Court, in its wisdom, has always verified that it has jurisdiction before ruling on the
merits of any claim laid before it. This is closely bound up with the existence of a dispute.
123. The primary condition for the exercise of contentious jurisdiction by the International
Court of Justice is the existence of a contentious issue. This requirement is reflected in the concept
of “dispute”, which first appears in Article38the Statute of the Court: “The Court, whose
function is to decide in accordance with internati onal law such disputes as are submitted to it, shall
apply . . .”
124. The requirement of a dispute then appears in all of the instruments capable of founding
the Court’s capacity to hear the present case.
125. This is true, firstly, of Article 30, paragraph 1, of the Convention whose application is at
issue, the 1984 Convention against Torture:
32 “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 Partimay refer the dispute to the International
Court of Justice by request in conformity with the Statute of the Court.”
126. The concept of “dispute” also appears in the Declarations Recognizing as Compulsory
the Jurisdiction of the Court submitted by the States. Belgium’s Declaration, which is dated
3April 1958, states that it recognizes the jurisdic tion of the Court in “legal disputes arising after
13 July 1948 concerning situations or facts subsequent to that date”. - 22 -
127. Senegal’s Declaration Recognizing as Compulsory the Jurisdiction of the Court, which
is dated 22October1985, states that it applies to “all legal disputes arising after the present
declaration”.
128. When seised of a case, the Court has, more over, always endeavoured to verify that an
underlying dispute does indeed ex ist. In the case concerning the Mavrommatis Palestine
Concessions, which gave rise to the Judgment of 30 A ugust 1924, the international court to which
the case was referred stated:
“Before considering whether the case of the Mavrommatis concessions relates
to the interpretation [or] application of the Mandate and whether consequently its
nature and subject are such as to bring it within the jurisdiction of the Court as
defined... Does the matter before th e Court constitute a dispute between the
Mandatory and another Member of the Lea gue of Nations? Is it a dispute which
cannot be settled by negotiation?”
129. The Court went on to provide a definition of the concept of “dispute”, a definition that
has now become the classic definition in international law: “A dispute is a disagreement on a point
of law or fact, a conflict of legal views or of interests between two persons.”
33 130. Furthermore, given that the 1984 Conven tion makes the referral of a case to the ICJ
subject to the failure of negotiations between the parties ⎯ as in the Mavrommatis case ⎯ it is
worth taking a closer look at what the Court means by such failure. The Court regards negotiations
as fruitless when “a dead lock is reached, or if fina lly a point is reached at which one of the Parties
definitely declares himself unable, or refuses, to gi ve way, and there can therefore be no doubt that
the dispute cannot be settled by diplomatic negotiation” . 9
131. In its Opinion of 30March 1950 on the Interpretation of Peace Treaties , the Court
reiterated its definition of the concept of “dispute” . It stated that “international disputes have
arisen” when “[the] two sides [hold] clearly opposite views10oncerning the question of the
performance or non-performance of certain treaty obligations” .
132. Later, in its Judgment in the case concerning the Right of Passage over Indian
Territory, the Court referred to “clearly-defined legal [positions] as against each other” . 11
133. Finally, in the case concerning the Northern Cameroons, the Court held that
“it is sufficient to say that, having regard to the facts already stated in this Judgment,
the opposing views of the Parties as to the interpretation and app lication of relevant
Articles of the Trusteeship Agreement, reveal the existence of a dispute in the sense
recognized by the jurisprudence of the Court and of its predecessor, between the
12
Republic of Cameroon and the United Kingdom at the date of the Application” .
9Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 13 and Series C, No. 5.
1I.C.J. Reports 1950, p. 74.
11
I.C.J. Reports 1960, p. 34.
1I.C.J. Reports 1963, p. 27. - 23 -
134. Given the facts submitted to the Court in the present case, is it possible to say that a
“disagreement on a point of law or fact, a conf lict of legal views” exists between Belgium and
Senegal or that they hold “clearly opposite views”?
135. The Republic of Senegal has always doubted this, from the very beginning of the case.
In actual fact, Senegal has never indicated that it opposed or refused to accept the principle or
extent of the obligations implied by the Convention against Torture. At no time have the Parties in
34 question held opposing views about the meaning or sc ope of their central obligation, to “prosecute
or extradite”. There is nothing in the arguments put forward by Belgium to contradict Senegal’s
interpretation of the Convention. At the mo st, as has been shown above, Belgium might ⎯ if
nothing else ⎯ argue that the way in which Senegal in tends to perform its obligations does not
accord with its own understanding of the matter or th at progress is not being made at the pace that
it would like, but there is certainly nothing to jus tify a debate on “the principles”, a requirement
that the Court would seem consistently to uphold and consolidate through the case law cited above.
136. Reflecting this vision of the Court, an e xpert in the doctrine of public international law
has written that
“disagreement, opposition... do not cons titute a dispute unless they arise when one
State makes a claim against another and that State refuses to accede to it; international
litigation does not include either abstract dis putes... or even differences of opinion
about the action to be taken in a particular instance: it involves contradictory claims
being advanced, and not just contradictor y arguments, and the dispute only arises in
cases where a State demands certain c onduct from another and this demand is
refused” . [Translation by the Registry]
137. A dispute between two States does not necessarily exist just because one of them asserts
that it does exist. An examination of the practice of the Court itself reveals that it is for the judge,
and the judge alone, to decide whether or not a dis pute exists between the parties, as the legal basis
for the definition of a dispute does not depend on the States’ subjective wishes. In its Opinion on
the Interpretation of Peace Treaties , the Court held that “[w]hether there exists an international
14
dispute is a matter for objective determination” . In its Judgment of 21December1962 in the
South West Africa case, the Court held that “it is not sufficient for one party to a contentious case to
assert that a dispute exists with the other party. A mere assertion is not sufficient to prove the
existence of a dispute any more than a mere de nial of the existence of the dispute proves its
35 15
non-existence” . In the same Judgment, the Court again made it clear that “[i]t must be shown that
the claim of one party is positively opposed by the other” 16.
138. In fact, given the nature of the request th at Belgium has submitted to the Court, there is
a serious risk, if the Court allows the request, of its delivering a “declaratory judgment”, something
that it has refused to do.
13Jean Combacau and Serge Sur, Droit international public, 8th edition, Paris, Montchrestien, 2008, p. 556: our
emphasis.
14I.C.J. Reports 1950, p. 74.
15
I.C.J. Reports 1962, p. [328].
16Ibid.; our emphasis. - 24 -
139. The Court is the “principal judicial or gan of the United Nations” in the words of the
Charter of the United Nations itself. For some considerable time, the Court has consistently
regarded this status, and the role that it imp lies, as excluding a function confined merely to
solemnly stating the applicable law, quite apart from the impact such a jurisdiction would have in
practical terms. The Court has taken pains to provide concrete solutions to the disputes placed
before it.
140. It has therefore always preferred pragma tic solutions, that have concrete effect, to
judgments that simply declare the law. Here it is worth recalling what the Court itself stated in its
Judgment of 2 December 1963 in the Northern Cameroons case:
“The function of the Court is to state the law, but it may pronounce judgment
only in connection with concrete cases where there exists at the time of the
adjudication an actual controversy involving a conflict of legal interests between the
parties. The Court’s judgment must have some practical consequence in the sense that
it can affect existing legal rights or obligations of the parties, thus removing
uncertainty from their legal relations.”
141. In the case concerning Certain expenses of the United Nations (Opinion given by the
Court in 1962), Judge Koretsky expressed himself as follows in his dissenting opinion: “The Court
36 must not shut its eyes to reality. The im17e of Themis with her eyes blindfolded is only an image
from a fairy-tale and from mythology.”
142. On the basis of this approach, the Court has always refused to adjudicate disputes that
are devoid of practical implications or to offer solu tions that bear no relation to the actual situation
in which the parties find themselves. Once a diffi culty that has arisen between States has been
resolved or eliminated, the Court refrains from delivering a verdict, as this would run the risk of not
influencing the situation as it stands at the time the case is referred to it.
143. This is the direct source of the case law relating to unilateral acts.
“It is well recognized that declara tions made by way of unilateral acts,
concerning legal or factual situations, may have the effect of creating legal
obligations. Declarations of this kind may be, and often are, [very] specific. When it
is the intention of the State making the declaration that it should become bound
according to its terms, that intention c onfers on the declaration the character of a
legal undertaking, the State being thenceforth legally required to follow a course of
conduct consistent with the declaration. An undertaking of this kind, if given publicly,
and with an intent to be bound, even though not made within the context of
international negotiations, is binding. In these circumstances, nothing in the nature of
a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or
reaction from other States, is required for the declaration to take effect, since [such a
requirement] would be inconsistent with the strictly unilateral nature of the judicial act
by which the pronouncement by the State was made.”
144. The Judgment of 20 December 1974 added: “Once the Court has found that a State has
entered into a commitment concerning its futu re conduct it is not the Court’s function to
contemplate that it will not comply with it.”
17
I.C.J. Reports 1962, p. 268. - 25 -
145. The Court then concluded, taking into acc ount the unilateral declarations made by the
French authorities, that “the claim of Australia no longer has any object”.
37 146. The Court’s case law displays a concern for judicial realism, the application of
which would seem to us to be particularly appropriate in this case. Belgium’s claim possesses
an inherent dynamic that might lead to the Court delivering a genuine declaratory judgment. Given
that Senegal has adopted a clear position on the application of the 1984 Convention against Torture
and given that, over and above a mere declaration of intent, it has taken steps to prepare to
implement a specific commitment ⎯ which is to “prosecute” ⎯ there is no reason why the Court
should be asked to disturb this clear state of affair s, to create an artificial conflict in a situation
where essentially no such conflict exists.
147. The Court has always shown itself to be c oncerned less simply to state the law than to
settle the disputes that are submitted to it once and for all. Moreover, this concern was not missing
in the approach of its predecessor, the Permanent Co urt of International Justice (PCIJ). In the case
concerning the Factory at Chorzów, the Court recalled the need to take into account the practical
consequences of its verdict to justify the reasoni ng behind its interpretation. It indicated clearly
that
“[a]n interpretation which would confine the Court simply to recording that the
Convention had been incorrectly applied or that it had not been applied, without being
able to lay down the conditions for the re- establishment of the [treaty] rights affected,
would be contrary to what would, prima facie, be the natural object of the clause; for
a jurisdiction of this kind, instead of settling a dispute once and for all, would leave
open the possibility of further disputes” 18.
148. In fact, it is inevitably part of the duty of all judges, and of international judges in
particular, to consider the appropriateness of th eir conclusions. The Court has always regarded
itself as having a role to play in easing tensions and conciliating situations of conflict. This,
indeed, is part of the specific nature of its judi cial function as an organ of the United Nations. The
Court serves the purposes of the United Nations itsel f; it cannot be considered as a separate body,
disconnected from the rationale and mission of the United Nations. Moreover, this is a task
assigned to it by the Charter.
149. The judicial organ itself has always regarded its specific nature as entailing the need for
a degree of detachment from the way in which the parties submit problems to it. The Court has a
38 measure of liberty in this regard. Not only is it not bound by the characterizations that the parties
submit to it ⎯ a principle of judicial procedure that is fairly widespread ⎯ but it also retains its
prerogative to determine whether it is even appropr iate to decide a case, not necessarily discerning
a subject-matter for judgment where States might belie ve such a subject-matter to exist. In the
above-mentioned Nuclear Tests case, it again considered that it was the Court’s duty, after having
heard the Parties, “to isolate the real issue in the case” .
150. The requirements of the Court’s judici al mission sometimes ta ke precedence over an
excessive adherence to the principle that the parties control the course of the proceedings.
1Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, p. 25.
19
I.C.J. Reports 1974, para. 29. - 26 -
151. When it examined the request for an opinion on Certain Expenses of the United
Nations, the Court held, after declaring that it was entitled to rule on the question of the conformity
of the expenses with the Charter, that it sh ould see whether it “finds such consideration
appropriate”.
152. Further on, the Court wrote, even more explicitly, that it “must have full liberty to
20
consider all relevant data available to it in forming an opinion” .
153. The Court’s liberty to assess the content a nd scope of the disputed matters submitted to
it was also underlined by JudgeLauterpacht in his separate opinion in the case concerning the
Admissibility of Hearings of Petitioners by the Committee on South West Africa. In that opinion, he
considered that the Court had “considerable latit ude in construing the question put to it or in
21
formulating its answer in such a manner as to make its . . . function effective and useful” .
154. In the case concerning the Western Sahara, the Court established that its function “is to
give an opinion . . . once it has co me to the conclusion that the question[] put to it [is] relevant and
[has] a practical and contemporary effect and . . . [is] not devoid of object or purpose” . 22
39 155. This is so because the Court has always embraced a constructive conception of its role,
to the point of considering that its right to rede fine the terms of the case submitted to it stems from
its “inherent jurisdiction”. This was stated in the same Nuclear Tests case, which bears a striking
resemblance to the present case in more than one respect:
“it should be emphasized that the Court po ssesses an inherent jurisdiction enabling it
to take such action as may be required, on th e one hand to ensure that the exercise of
its jurisdiction over the merits, if and when established, shall not be frustrated, and on
the other, to provide for the orderly settleme nt of all matters in dispute... Such
inherent jurisdiction, on the basis of whic h the Court is fully empowered to make
whatever findings may be necessary for the [purposes] just indicated, derives from the
mere existence of the Court . . .” 23
156. However, it is the clarity of the arguments with which it concludes its reasoning that
makes this decision so important for the present proceedings between Senegal and Belgium. The
Court took note of the statements of the French authorities, indicated the scope of such unilateral
acts and concluded that it was not relevant to adopt a contentious approach to the question
submitted to it. When a State, in the international order, not only declares its intention to perform a
specific action but carries it out as part of its conventional obligations, which do not raise any
problems of interpretation, there is no reason not to take into account such a declaration and every
reason to consider that there is no cause for contenti ous proceedings on this specific point. This is
a simple and logical argument that is fully consis tent with the requirements of a system of social
organization, such as the international order. In the Nuclear Tests case, the Court formulated a
statement of principle that applies perfectly to the dispute at present before it: “The Court,” it
stated,
20I.C.J. Reports 1962, p. 157.
21I.C.J. Reports 1956, separate opinion of Judge Lauterpacht, p. 36.
22
I.C.J. Reports 1975, p. 37.
23I.C.J. Reports 1974, para. 23. - 27 -
“sees no reason to allow the continuance of proceedings which it knows are bound to
be fruitless. While judicial settlement may provide a path to international harmony in
circumstances of conflict, it is none the less true that the needless continuance of
40 litigation is an obstacle to such harmony ... It does not enter into the adjudicatory
functions of the Court to deal with issues in abstracto.” 24
157. The Court’s reluctance to deliver judgmen ts that are purely declaratory is a logical
consequence of a realistic approach. In this in stance, not only has Senegal taken steps that are
consistent with beginning to fulfil its obligations but also it is difficult to imagine the implications
of the Court’s accepting Belgium’s claim. Is it conceivable that the Court would ask Senegal to
execute a commitment that that State has begun to fulfil? Unless the Court were to adopt an
excessively managerial role, issuing actual comma nds to States and drawing up a precise and
rigorous timetable for them to fulfil their oblig ations, it is difficult to see how the Kingdom of
Belgium’s submissions might be allowed. The case law from the Northern Cameroons case also
contains some salutary lessons. There the Court indicated that it was concerned about the objective
impact of its ruling, declaring that if it “were to proceed and were to hold that the Applicant’s
contentions were all sound on th e merits, it would still be impossible for the Court to render a
judgment capable of effective application” . 25
158. A ruling delivered in accord ance with the terms of the Belgian claim would be of only
questionable utility. It would not help either Be lgium or Senegal to perform their obligations.
Indeed, it might on the contrary constitute a sort of unwelcome intrusion into a normal process, in
which a State assents to a request made by another State under a Convention to which they are both
parties. In this case, Belgium is requesting the Court to declare that Senegal must prosecute or
extradite Mr.HissèneHabré. In fact, Senegal, in accordance with the 1984Convention against
Torture to which it is party, and which allows ex tradition to be refused provided that there is a
prosecution, has long been striving to implement all of the necessary measures to enable Mr. Habré
to be put on trial.
159. Senegal believes that punishing the acts refe rred to in the Convention against Torture is
a peremptory requirement for all States. The fight against impunity, the importance of which
41 Belgium wished to recall, is supported by a broad consensus, which was particularly apparent when
the 1984 Convention was adopted. It is incumbent on the entire international community to engage
in that vital fight. Senegal is a State that is co mmitted to punishing the crimes referred to in this
international instrument. It believes, therefore, that it should spare no effort to combat violations of
international law. It does not see this positi on as in any way exceptional; its obviousness is
commensurate with the gravity of the acts concerned.
160. Senegal would have preferred the consensus in favour of punishing acts of torture not to
be overshadowed by any cloud of suspicion or by any initiative that might give the impression that
there are some States whose willingness to combat impunity is fading or weakening.
161. It is as determined now as it was in the past to remain part of the international
consensus against allowing practices that shock the conscience of humanity to go unpunished.
2I.C.J. Reports 1974, [paras.] 58 [and 59].
25
I.C.J. Reports 1963, p. 33. - 28 -
162. Therefore, to avoid delivering purely d eclaratory decisions, the Court does not
examine a claim laid before it on its merits if it believes that the case falls outside its
jurisdiction, which is true in this instance because no dispute exists between the Parties.
163. In this case, Belgium founds the Court’s jurisdiction on the provisions of Article 30 of
the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment of 10 December 1984. In its view, four conditions must be satisfied before a party
can submit an application to the Court on the basis of this text:
“⎯ 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 arbitration’”.
42 164. This argument is not new. It had alr eady been used by Belgium in its Application
instituting proceedings and its request for the indication of provisional measures, as follows:
“The two States have been parties to the United Nations Convention against
Torture of 10December1984 since 21August1986 [Senegal] and 25June1999
[Belgium]. The Convention has been in force since 26June1987. Article30 of the
Convention provides that any dispute be tween two States parties concerning the
interpretation or application of the Conven tion which it has not been possible to settle
through negotiation or arbitra tion may be submitted to the ICJ by... the States. In
this instance, Belgium has been negotiating with Senegal since 2005 for the latter to
prosecute Mr.H.Habré directly, failing his extradition to Belgium. As Senegal has
taken no action on these alternatives in practi cal terms, Belgium is now in a situation
where the other party has declared itself una ble, or refuses, to give way, thereby
exhausting the obligation to settle the dispute by negotiation.” (See paragraph 14, first
subparagraph, of the Application instituting proceedings of 16 February 2009.)
165. Senegal has sincere doubts about whethe r the positions defended by the two States
before the Court really do conflict in this wa y. A demand was made for an obligation to be
fulfilled and the party to which it was addressed so lemnly confirmed its willingness to assume the
obligation concerned. The matter could have been left as it stood, the rest being a question of
mutual trust and good faith. Be lgium would have been entitled to seise the Court if Senegal had
given any intimation that it was suspending its commitments or laying them open to different
assessments. In fact, nothing of the kind has occurred.
166. In Senegal’s view, even a superficial ex amination of the Application submitted by the
Kingdom of Belgium reveals that there is no real le gal dispute in this case. Indeed, it is clearly
apparent from the terms of the Application that Belgium is requesting the Court to adjudge and
declare that the Republic of Senegal is oblig ed to begin criminal proceedings against
Mr.HissèneHabré. In fact, Senegal has already ta ken all of the appropriate measures to achieve
this objective and the steps that it has taken hitherto demonstrate its willingness to hold the trial. - 29 -
167. Senegal has now completed all the necessary legal reforms to enable it to hold a fair and
equitable trial reasonably quickly. Amendments ha ve been made not only to its substantive and
43 procedural criminal rules but also to the Constitu tion, with the result that no legal obstacles now
remain to proceeding with the prosecution.
168. How can there be talk of a dispute con cerning the interpretation and application of the
1984 Convention when Senegal has fulfilled all the conditions that the Convention requires of it?
169. Mention may be made in this connecti on of the introduction into the Senegalese Penal
Code of provisions (Articles431-1 to 431-5) to punish the crime of genocide, crimes against
humanity, war crimes and, in general, crimes of international humanitarian law. Although these
provisions were only introduced in to Senegalese legislation after the commission of the acts of
which Mr. Hissène Habré is accused, they can perfectly well serve as a basis for the proceedings as
they are explicitly declared to be retroactive, as permitted by the Constitution. It is worth recalling
that our Basic Law, in its current form, provides for a derogation from the principle of
non-retroactivity for any act or omission which, at the time when it was committed, was defined as
criminal under the rules of international law con cerning acts of genocide, crimes against humanity
and war crimes.
170. These reforms of substantive criminal la w are accompanied by far-reaching changes to
the rules on jurisdiction and procedure: the intern ational jurisdiction of th e Senegalese courts has
been extended so that they can henceforth prosecute certain crimes committed abroad by
foreigners; in addition, there is the guarantee of expedited proceedings in accordance with the
requirement that a fair trial should take place within a reasonable period of time.
171. However, this intense legislative activity could not produce the desired effect if the
appropriate organs and resources were not in place; this explains why, some considerable time
ago, the competent authorities appointed four investigating judges, three prosecuting judges, a pool
of registrars and secretaries, a co-ordinator and a Committee on Follow-up and Communication.
This demonstrates the desire of the Senegalese aut horities to ensure that Mr. Hissène Habré is tried
under proper conditions.
172. Senegal has taken all of these steps because it believes that its courts, given the scope of
44
their jurisdiction, are well placed to hold the contemplated trial.
173. Apart from Mr. Hissène Habré’s presence in Senegalese territory ⎯ a not insignificant
factor if only because it averts all the compli cations associated with an extradition request ⎯ the
fact that Senegal has the option of exercising uni versal jurisdiction means that the Senegalese
courts can hear all the facts at issue, regardless of the nationality of the victims.
174. Belgium, it should be recalled, has am ended its legislation to make its courts’
jurisdiction over certain acts committed abroad conditional on certain factors demonstrating a
connection to Belgium, so that passive personal jurisdiction, the only possible basis for prosecution
in the Belgian courts, severely limits the possibility of referral to those courts because they will be
able to take cognizance only of acts to which pers ons of Belgian nationalit y have allegedly fallen
victim. - 30 -
175. If no judicial investigation has been opened, it is because Senegal wished to ensure that
all the necessary conditions, in particular the fina ncial conditions, were met so that the trial could
take place reasonably quickly. It is Senegal’s conviction that everyone has the right, no matter how
serious the acts with which they are charged, to be tried within a reasonable time. It cannot
therefore take the risk of starting a trial that mi ght be interrupted because of insufficient resources.
Once the proceedings have started, they must be carried through to completion without being
interrupted for longer or shorter pe riods in order to mobilize the n ecessary funds to enable them to
continue, as happens in some international courts.
176. It is true that the case has evolved since the Court was seised because of the judgment
of the ECOWAS Court of Justice. Senegal has therefore worked with the African Union to explore
possible ways of overcoming the obstacle presented by that judgment.
177. Furthermore, Belgium has obviously “ma nufactured” a dispute in order to seise the
Court. Given all of the amendments that have b een made to the Code of Criminal Procedure to
45 enable the Senegalese courts to prosecute offe nces committed abroad by foreigners once those
offences have been classified as “torture”, how can it request the Court to adjudge and declare that:
“1. (a) Senegal breached its international obliga tions by failing to incorporate in its
domestic law the provisions necessary to enable the Senegalese judicial
authorities to exercise the universal jurisdiction provided for in Article5,
paragraph2, of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment”?
178. How can a dispute exist as to the interpre tation and application of the Convention when
Senegal has fulfilled all its obligations?
179. These arguments should show convincingly that there is no real dispute between the
Parties, particularly if reference is made to the Court’s case law ( Mavrommatis Palestine
Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2).
180. There is no need, in this instance, to u ndertake a detailed analysis of the Applicant’s
claims to realize that there is no opposition between the Parties in the form of a claim made by one
against the other to which the latter refuses to accede.
181. Given that the conditions provided for in Article 30 of the Convention against Torture
are cumulative, as the Kingdom of Belgium itself accep ts, it is enough for one of them, in this case
the existence of a dispute, to be lacking for the Court to be obliged to find that it lacks jurisdiction.
182. It is true that, when the Court examined the request for the indication of provisional
measures, it held that it had prima facie jurisdiction to hear the case under Article30 of the
Convention against Torture and therefore, if necessary, to indicate provisional measures. 26
However, we should not lose si ght of the fact that this is simply, as has been observed , a
manifestation of the “precautionary principle” in respect of jurisdiction, which the Court
finds it necessary sometimes to apply when the Applicant is unable to invoke any serious title
46 of jurisdiction. A decision by which the Court finds that it has prima facie jurisdiction within the
26
See Pierre-M. Martin, Un différend entre la Belgique et le Sé négal: l’affaire Habré, [Recueil Dalloz] , 2009,
[No. 31], p. 2125. - 31 -
context of a request for the indication of pr ovisional measures does not therefore constitute res
judicata, which means that when, on examining the cas e on its merits, the Court finds, as in the
present case, that there is nothing to decide as no cu rrent dispute exists, it must decline jurisdiction
despite its previous decision.
183. Having regard to the foregoing, Senegal requests the Court to find that there is no need,
today, for it to exercise its jurisdiction or to ma ke an adjudication on which the two States agree,
despite Belgium’s persistent claims to the contrary.
184. Even if the Court were to deem it appr opriate to proceed regardless and to uphold its
jurisdiction, the patent inadmissibility of the Application, based on the violation of Article 30 of the
Convention against Torture, should lead to the rej ection, without any examination on their merits,
of the measures sought.
II. HE INADMISSIBILITY OF THE A PPLICATION
185. To justify its action before the Cour t and support its assertion that the Court has
jurisdiction to decide this dispute, the Kingdom of Belgium relies, firstly, on the two unilateral
declarations made under Article36 of the Statut e of the Court, by the two Parties to the
proceedings, and, secondly, on the provisions of Article30 of the United Nations Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of
10 December 1984.
186. According to paragraph 1 of the latter,
“[a]ny dispute between two or more Stat es 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 ar e unable to agree on the organization of the
arbitration, any one of those Parties may refe r the dispute to the International Court of
Justice by request in conformity with the Statute of the Court.”
Two questions arise here.
187. The first question to be answered by the Court is therefore whether the Kingdom of
Belgium, which initiated the proceedings, has complie d with this provision. In other words, have
47 the avenues first of diplomatic negotiation and then of arbitration been explored and exhausted?
188.In the document submitted to the C ourt, the Kingdom of Belgium, referring to
these “negotiations”, mentions the following initiatives that it claims to have taken:
⎯ 30November2005: it “asks” the Government of Senegal to explain “the implications” of a
judgment by the Chambre d’accusation of the Dakar Court of Appeal in which it held that it
lacked jurisdiction. It should be noted that Senegal responded to this request through its
ambassador in Brussels. In particular, this response shows that, notwithstanding the judicial
decision, the Republic of Senegal intended to raise the “[Habré] matter” during the African
Union (AU) summit, scheduled to take place a few months later in Banjul; - 32 -
⎯ 11 January 2006: according to Belgium, it “notes” the decision of the Senegalese authorities to
raise the matter with the AU and, it writes, “refers” to the negotiation procedure contemplated
in Article 30 of the 1984 Convention against Torture;
⎯ 9March 2006: Belgium “points out” the ne gotiation process and “asks” Senegal whether the
raising of the “Habré matter” means that Sene gal will neither extradite Mr. Habré to Belgium
nor try him. Senegal responded to this question as well. Its response was that, in raising the
matter with the African Union, the Republic of Senegal did not seek to shirk its obligation
under the 1984Convention (namely, to try or to extradite), but, on the contrary, intended to
assume its duty to prosecute.
189. By Belgium’s own admission, and as di scerned from its description of the process
leading up to the proceedings before the Court, tho se were the main stages said to have marked the
negotiations which Article30 of the 1984Conven tion makes a precondition to any action before
the International Court of Justice.
190. The Court will thus have the opportunity to observe the liberty taken by the applicant
State in interpreting the obligation to negotiate . International negotiation presupposes a minimum
number of contacts and a minimum amount of fo llow-up and definition of the terms of the
discussion; the Kingdom of Belgium has clearly pa id no heed to these minima in the present case.
There has never been any offer to negotiate, never any of the exchanges characteristic of diplomatic
48
negotiations. The only approaches cited by Belg ium in this regard consisted of addressing
questions to the Senegalese authorities, questions simply calling for answers, and the Republic of
Senegal always gave these. Moreover, why should negotiations have taken place given that
Senegal is fulfilling its obligations? Negotiations would be conceivable and welcomed by Senegal
only if it were in breach, which is not the case, as Senegal has shown.
191. Thus, everything points to the applican t State wishing to move “by surprise” and to
bring proceedings against the Republic of Senegal before the Court by retrospectively interpreting
some of its approaches as connected with a pr econdition imposed by the 1984 Convention against
Torture.
192. Everything points to Belgium having had a preconceived intention to bring proceedings,
the rest ⎯ that is to say, its earlier démarches ⎯ being mere formalities or pretexts for
meticulously planned legal proceedings.
193. The obligation to negotiate is not a rath er “vague” instruction to States to perform
duties that are not perfectly clear. It has a pos itive content that international case law has long
underlined. In the arbitral award delivered on 9December1978 in the case concerning the Air
Service Agreement of 27March1946 between the United States of America and France , the
Arbitral Tribunal recalled that,
“the duty to negotiate may, in present times, take several forms and thus have a greater
or lesser significance. There is the very ge neral obligation to negotiate which is set
forth by Article 33 of the Charter of the United Nations and the content of which can
be stated in some quite basic terms. Bu t there are other, more precise obligations.
The Tribunal recalls the terms of Article VIII of the 1946 Agreement, which reads as
follows: ‘In a spirit of close collaborati on, the aeronautical authorities of the two
Contracting Parties will consult regularly w ith a view to assuring the observance of - 33 -
the principles . . . outlined in the present Agre ement . . .’ This Article provides for an
obligation of continuing consultation between the Parties.”
194. International negotiation is understood to require “transpa rency” and good faith on the
49 part of States. It bars “surprises” or dissembling; and it must, so to speak, present itself as such. It
is on this condition that it may be invoked against a State.
195. The Kingdom of Belgium never expressed its intention to engage in negotiations with
any real conviction to the Republic of Senegal. Moreover, how could it have done so since Senegal
was fulfilling its obligation? As Belgium itself writes, it merely “pointed out” the precondition laid
down by Article30 of the Convention against Tortur e. Such conduct is not in strict accordance
with the requirements of good faith in inter-Sta te relations. The Court itself has repeatedly
established a link between the obligation to negotiate and good faith.
196. In its Advisory Opinion of 8 July 1996 on the Legality of the Threat or Use of Nuclear
Weapons, it indicated, in connection with the obligation to negotiate expressed in Article VI of the
Treaty on the Non-Proliferation of Nuclear Weapons, that this obligation
“includes its fulfilment in accordance with the basic principle of good faith. This
basic principle is set forth in Article 2, paragr aph 2, of the Charter. It was reflected in
the Declaration on Principles of Internati onal Law concerning Friendly Relations and
Co-operation among States (resolution2625 (XXV) of 24October1970) and in the
Final Act of the Helsinki Conference of 1August1975. It is also embodied in
Article26 of the Vienna Convention on the Law of Treaties of 23May1969,
according to which ‘[e]very treaty in force is binding upon the parties to it and must be
performed by them in good faith’.”
197. In the Nuclear Tests case, the Judgment of 20December1974 delivered by the Court
also recalls that, “[o]ne of the basic principles governing the creation a nd performance of legal
obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent
in international co-operation, in particular in an age when this co-operation in many fields is
becoming increasingly essential.” (I.C.J. Reports 1974, p. 268, para. 46.)
198. The link that the Court establishes between the obligation to negotiate, the principle of
good faith and mutual trust is particularly apposite in the present case.
199. The Republic of Senegal considers not onl y that the applicant State did not properly
observe its duty to negotiate, but also that the App licant’s action before the Court, and the sort of
50 excessive haste accompanying it, reflect a clear defian ce and abuse of the right to take proceedings
for which there is neither any basis nor any justifi cation, in the light of the measures that Senegal
has taken thus far to organize the trial of the former Chadian Head of State.
200. In the present context, it must be recognized that there was no reason for the
“negotiation” required by Article 30 of the 1984 C onvention against Torture and none took place.
When a party intends to enter into a process of disc ussion, it should clearly say so. More or less
“general” questions aimed at eliciting factual information cannot suffice. - 34 -
201. The Kingdom of Belgium will therefore be hard put to demonstrate the failure of an
initiative that never really took place. In order fo r judicial proceedings to be initiated against a
State party to the Convention, the negotiations en tered into must have failed; all the avenues
explored to reconcile the points of view must have reached an impasse. However, the Kingdom of
Belgium fails to demonstrate the existence of any such impasse; it cannot say that any efforts it
supposedly made ended in failure. If we go by its own presentation of the facts, we cannot help but
observe the strangeness of the circumstances in which it claimed to have exhausted its obligation to
negotiate. In fact, it was subsequent to a reply from the Government of the Republic of Senegal,
providing assurances that it intended to prosecute or extradite Mr. H. Habré, in accordance with the
Convention (statement of 9May2006), that Belg ium pointed out that the negotiations based on
Article30 of the Convention had “not succeeded” ( 20June2006). As strange as this may seem,
Belgium thus considered that it had to “point out” a failure after receiving a reply which should
actually have satisfied it. This conduct lends creden ce to the idea that the judicial proceedings that
have now started had been planned well in advance and that the clai med failure of the negotiations
is merely an “alibi”.
202. The second question that arises in this cas e is whether there has been a failure of
negotiations. The Court takes a very strict view of what constitutes the “failure of negotiations”.
In the Mavrommatis Palestine Concessions case (Judgment of 30August1924), the Permanent
Court of International Justice defined what was me ant by the failure of a negotiation, justifying
recourse to judicial settlement. The State relyin g on the failure of negotiations to take court
proceedings can justify its position only if, in the ne gotiations, “a dead lock is reached, or if finally
51 a point is reached at which one of the Parties defini tely declares himself unable, or refuses, to give
way, and there can therefore be no doubt that the dispute cannot be settled by diplomatic
negotiation” (P.C.I.J. Reports, Series A, No. 2, p. 13).
203. Can it be said in the present case that the Government of the Republic of Senegal
adopted any such attitude or gave the slightest evidence of any such refusal? Were negotiations
ever begun and, a fortiori, did they ever reach a deadlock of the kind which the Court defines as the
test for the failure of negotiations?
204. The fact is that the Kingdom of Belgium has never entered into any real negotiations
with the Government of the Republic of Senegal. Its only approach to the Senegalese authorities
was through Notes Verbales consisting of questions about the status of the proceedings or about the
Senegalese Government’s plans in respect of the Habré case. Answers were provided to all those
questions. The truth is that Belgium has never wanted Mr. Hissène Habré to be tried in Senegal.
205. It might be added that Belgium has also failed to comply properly with another
precondition laid down by Article30 of the 1984 Convention against Torture: the recourse to
arbitration.
206. It will be recalled that, according to the relevant provision,
“[a]ny dispute between two or more Stat es 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 ar e unable to agree on the organization of the
arbitration, any one of those Parties may refe r the dispute to the International Court of
Justice by request in conformity with the Statute of the Court.” - 35 -
207. Not only did the Kingdom of Belgium not enter into any negotiations in the strict sense
of the term with the Government of the Republic of Senegal ⎯ and consequently could not
legitimately argue that negotiations in any sense failed ⎯ but also, by its conduct, it skirted round
the other precondition laid down by Article30 of the 1984Convention. The only reference to
arbitration is in a statement by the Belgian Government dated 20 June 2006, which Belgium claims
to have sent to the State of Senegal, and it is evasive. According to its own presentation of the
52 facts, Belgium “[observed] that the negotiations based on Article 30 of the Convention have failed;
it [noted] that there [was] a dispute between the two States concerning the interpretation of
Article 7 of the Convention and [asked] Senegal to submit to the arbitration process contemplated
by Article 30 of the Convention”.
208. The three assertions lurking in this seemingly innocuous sentence are all questionable:
⎯ Belgium speaks of the failure of negotiations that never actually took place;
⎯ it refers to the existence of a “dispute con cerning the interpretation of Article7” of the
Convention when nowhere in the Notes exchanged with the Republic of Senegal was there ever
any discussion of or dispute over this provision of the Convention; on the contrary, Senegal’s
response of 9May2006, the only document in which it refers to this provision, clearly states
that Senegal “is complying with the spirit of the rule aut dedere aut punire” laid down in
Article 7”;
⎯ the invitation that Belgium claims to have addr essed to Senegal to submit to the arbitration
procedure was extended only once, in a very surreptitious manner, in a statement whose subject
was not the invitation in question (statement of 20 June 2006).
209. At a time when the African Union had ju st taken charge of the HissèneHabré matter
and referred to the Convention against Torture, Be lgium disregarded that fact and invited Senegal
to negotiate.
210. As an essential prerequisite for action be fore the International Court of Justice was
involved, Senegal was entitled to expect a cl earer, less evasive proposal. Here, too, the
circumstances reflect Belgium’s desire to “exped ite” the formalities required by Article30 of the
Convention, so as to satisfy as quickly as possible the conditions required for the Court to be
seised.
211. Most importantly, however, the Kingdom of Belgium’s desire to bring the matter to
litigation was doomed to fail since the Republic of Senegal had begun the process that was, in
principle, to lead to the trial of the former Ch adian Head of State. The applicant State itself
53 recognized, soon afterwards, that constitutional an d legislative reforms had taken place to remove
the obstacles barring jurisdiction on the part of th e Senegalese courts, obstacles which had justified
the findings against jurisdiction previously handed down by the national courts.
212. Taken together, these circumstances show that the Republic of Senegal’s good faith
cannot be called into question. A detailed account has already been given of the steps taken and
reforms implemented by Senegal since receiving the mandate from the African Union, with a view
to trying Mr. Habré. Once it had been established in principle that the trial was to be held by the
State of Senegal, the necessary arrangements had to be made for such a trial, the nature of those
arrangements being not only legislative (necessar y reforms), but also practical and budgetary
(Senegal having entered into discussions with the European Union, of which Belgium is a member, - 36 -
on this subject, as well as with the African Union,which, as we will see, has pledged budgetary
support to the Republic of Senegal).
213. The Court will easily appreciate the striking contrast between the attitude of the
Kingdom of Belgium, unquestionably in a hurry to try the case in its courts and skipping the steps
required for that purpose, and the conduct of the Stat e of Senegal: legitimately cautious to begin
with but then sedulous once it became clear that it had the possibility to put Mr. Habré on trial.
214. In conclusion, the Kingdom of Belgium has not satisfied the condition laid down by
Article30 of the 1984Convention against Torture: exhaustion of the negotiation procedure
and a proposal to submit to arbitration. The Court is therefore requested to declare its
action inadmissible.
CHAPTER 4
SENEGAL S COMPLIANCE WITH ITS OBLIGATIONS AS
A PARTY TO THE 1984 C ONVENTION
215. In the Memorial that it submitted to the C ourt, Belgium persists in arguing that Senegal
has committed “violations of international law”. Senegal vigorously contests these allegations. It
intends to show, firstly, that the accusations made in the Belgian Memorial should not be
accepted (I), and, secondly, that it has already begun to perform its obligations as a State
party (II).
54 I. EBUTTAL OF BELGIUM ’S ACCUSATIONS
216. Belgium makes a series of assertions th at Senegal cannot, of course, accept. These
assertions relate to both the obligation to take the measures prescribed by various provisions of the
1984Convention, aimed at ensuring the domestic implementation of convent ional rules (A), and
the specific obligation to “prosecute or extradite” (B ). In addition, there is a further weakness in
the Belgian démarche in the form of its use of the time factor in its Application (C).
A. Domestic implementing measures prescribed by the
1984 Convention against Torture
217. Despite all of the steps taken by Senegal since it undertook to comply with the
obligation to bring its national law into line w ith its commitments as a State party to the
Convention against Torture, Belgium, curiously, puts forward a version of the facts that is out of
step with reality. The Belgian Memorial states:
“Through its actions and omissions, Se negal has violated the obligations
deriving from Articl5, paragraph1, Ar tic6, paragraph2, and Artic7,
paragraph 1, of the Convention against Torture . . .
Up to the end of January 2007, Senegal had not incorporated in its domestic law
the necessary provisions to enable the Senega lese judicial authorities to exercise the
universal jurisdiction provided for in the Convention. This omission violated
Article 5, paragraph 2, of the Convention.
[D]uring consideration of the second periodi c report of Senegal, six years later,
in 1996, the Committee had requested Senegal to - 37 -
‘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.’
Despite this reminder by the Committee, Senegal failed to fulfil its obligation to
take appropriate legislative measures to reme dy this gap in Senegalese legislation and
55
to introduce the universal jurisdiction provided for in the Convention. This omission
and the inconsistency of Senegalese legi slation with the 1984Convention became
particularly sensitive matters in 2001 duri ng the Court of Appeal and Court of
Cassation proceedings concerning the annulme nt of the procedure instituted against
27
Mr. Habré on the grounds of the lack of jurisdiction of the Senegalese courts.”
218. Senegal cannot fail to express its astonishment at such an argument. The accusations
that Belgium makes in its Application obviously date from a period relatively far back in the
past ⎯ 1990, 1996, 2000, 2001 ⎯ and refer to an outdated legal situation, the description of which
is undoubtedly of only little help for the Court’s purposes. The Court is seised of a specific legal
and factual situation, which has nothing to do w ith the description given in Belgium’s Memorial.
In fact, Senegal could not have been clearer on this point. It has always said that, although
domestic measures to implement the Convention were not adopted by Senegal until 2006-2007,
meaning that previously it was undeniably in breach of its conventional obligations, that has
certainly no longer been the case since that omission was rectified more than four years ago.
219. The Memorial submitted by Belgium to th e Court says nothing about this development,
even though it clearly forms part of the eviden ce before the Court. Everything would seem to
suggest that the Belgian State closed its eyes to th e steps taken by the Senegalese authorities, thus
reinforcing an impression ⎯ created during the hearings on the request for the indication of
provisional measures ⎯ of a desire to bring to litigation a situation which is undoubtedly less tense
than the rather “dated” description of it suggests.
220. The Court is requested to rule on a legal situation as it stands at present, not in the past.
It is called on to declare whether, at the time of its seisin, Senegal is in breach, as Belgium claims,
of its obligations as a State party to the Convention against Torture.
B. The obligation to “prosecute or extradite”
221. In its Memorial produced before the Cour t, Belgium writes that “Senegal failed in its
56
obligation to prosecute or extradite Mr.Habré to Belgium”, and that “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 concerned. In fact, it is a
responsibility incumbent on Senegal as the forum State.” 28
222. Senegal intends vigorously to contest that statement or, at the very least, the
implications which Belgium attaches to it. It considers that Belgium is thereby high-handedly
dismissing all the measures that Senegal has been taking for some time in preparation for the Habré
2Memorial of the Kingdom of Belgium, pp. 81-82.
28
Ibid., pp. 85 and 88. - 38 -
trial, which are described here as constituting the “first steps towards fulfilling” the obligation to
“prosecute” inferred from the Convention against Torture.
223. Suffice it merely to note the following initiatives, which are, incidentally, not the only
ones which Senegal has taken with a view to bringing Mr. Habré to trial:
⎯ on 9 November 2006, two bills amending the Senegalese Penal Code and the Code of Criminal
Procedure were adopted by the Council of Ministers and then tabled in Senegal’s Parliament;
⎯ on 23 November 2006 a National Commission ch arged with defining the modalities for
Mr. Habré’s trial was established;
⎯ on 31 January 2007 the National Assembly of Se negal adopted two laws amending the Penal
Code and the Code of Criminal Procedure. The explanatory introduction thereto makes it clear
that the intention of the Senegalese authoriti es in proposing those laws is to fulfil their
international commitments and, as is traditional in their foreign policy, to help to combat
impunity, a major issue in international relations today. New Articles431-1 to 431-6 of the
Penal Code introduce into national criminal law the crimes of genocide, crimes against
57 humanity, including torture, and war crimes. Ar ticle669 of the Code of Criminal Procedure
has been amended to give Sene galese courts jurisdiction over the above-mentioned crimes if
they are committed by a foreigner outside Senegal, if the perpetrator of the crime is present in
Senegalese territory, if his victim is Senegal ese, or if the alleged perpetrator has been
extradited to Senegal. Senegal also estab lished a working group charged with producing
proposals to define the conditions and pro cedures suitable for prosecuting and judging
Mr. Habré, with the guarantees of a just and fair trial;
⎯ on 29 May 2010 ⎯ after both States had set out their positions before the International Court
of Justice in The Hague ⎯ Senegal’s Minister of Justice stated that four judges had been
appointed to lead the investigation against the former Chadian Head of State;
⎯ in October 2009 terms of reference for the organi zation of Mr. Habré’s trial were prepared by
the Committee on Follow-up and Communication established by Senegal;
⎯ on 5 December 2009 the President of the Republic of Senegal received the Belgian Minister of
Development Co-operation in Dakar; he reite rated Senegal’s intention to try Mr.Habré
provided that the conditions for the trial were met. That statement was reaffirmed by the
Senegalese Minister for Foreign Affairs to his Belgian counterpart on the sidelines of the
African Union Summit in Addis Ababa (Ethiopia) in February 2010.
224. If, as the Memorial which Belgium pre sented to the Court suggests, Senegal had
intended to shirk its obligations, it would certain ly not have taken the trouble to amend its
Constitution, adopt laws, and organize regular diplom atic exchanges with a number of States; nor
would it have hosted international meetings to decide the conditions for conducting the trial of the
former Chadian Head of State, including the Donors’ Round Table to raise funds for the trial, etc.
In respect of the alleged breach of the “aut dedere aut judicare” rule, Belgium also contends
that the current lack of funds to organize the tr ial does not constitute a “justification”. In its
Memorial, Belgium notes that
“The seisin of the African Union does not constitute an alternative to
compliance with Senegal’s conventional oblig ations . . . The ‘mandate’ conferred on
Senegal by the African Union to try Mr. Habré does not in any way exempt Senegal
58 from its obligation, as the forum State, to submit the case to its competent authorities - 39 -
or to extradite him to a State which so re quests. This obligation continues to exist
despite the intervention of the African Uni on. 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 concerned. In fact,
it is a responsibility incumbent on Senegal as the forum State.” 29
225. Senegal regrets to note, on this point as on others, the rather artificial nature of the
disagreement which Belgium is attempting to hi ghlight. In actual fact, the question of the
interpretation of the African Union’s “mandate” h as already been discussed at the hearings on the
request for the indication of provisional measures. Senegal has more than once explained to the
Court the meaning and scope which it attached to the African Union’s intervention. It has stated on
a number of occasions that it did not see that interv ention as the source of its obligation to try, but
that it was, of course, legally bound only by its status as a Party to the 1984 Convention. That
being so, Senegal finds it difficult to understand Belgium’s insistence on an interpretation which
has never been that of the State liabl e to fulfil the obligation in question ⎯ which is, precisely, to
“try”. Senegal therefore reiterates, in the hope of finally closing this discussion, that it regards the
1984 Convention against Torture as the sole legal basis for all the measures it has taken with a view
to putting Mr. Habré on trial. In other words, the interpretations which the two Parties give to that
“mandate” do not differ, but fully coincide. More over, the African Union decision conferring that
“mandate” on Senegal mentions the Convention ag ainst Torture and refers to its content as the
source of Senegal’s commitments. Furthermor e, the various measures and initiatives which
Senegal has taken more than prove that it is ind eed planning to honour its commitments as a State
Party to the Convention against Torture, as is apparent from the following arguments.
226. Senegal would also like to clarify its position on another point in Belgium’s argument,
having to do with the “financial difficulties” to which it refers.
The interpretation given to that aspect of Senegal’s submission should certainly be corrected.
59 Belgium appears to view this factor as a sort of excuse relied on by Senegal in order to evade its
commitment. The Belgian Memorial states that
“Financial . . . difficulties cannot release Senegal from its obligations or justify
the violation thereof... Belgium is awar e of the legal, logistical and financial
implications of organizing a trial in Senega l. Nevertheless, the failure to fulfil the
requirement under Article 7, paragraph 1, of the Convention against Torture and under
customary international law concerning the obligation aut dedere aut judicare cannot
be justified, in international law, by su ch considerations. Compliance with these
international obligations cannot be made subject to obtaining financial support, and
financial difficulties do not constitute a stat e30f necessity such as to exclude the
unlawfulness of violations of these obligations.”
227. Senegal cannot accept this view. It has never presented the problem of financial
support for Mr. Habré’s trial as justification for faili ng to fulfil an obligation. Senegal has never at
any point in the judicial proceedings sought to free itself from its commitment. The Court cannot
therefore point to lack of funds or difficulties in establishing a special budget as exonerating
factors, for the simple reason that that has never been Senegal’s position.
29
Memorial of the Kingdom of Belgium, p. 88.
30
Belgian Memorial, pp. 113 and 115. - 40 -
228. For the Senegalese authorities it has simp ly been a question of ensuring that basic
preparations were made for a trial which really is unique. Senegal has already described to the
Court the particular problems associated with having to try the former Head of State in Dakar. It
has consistently drawn attention to the large number of his alleged victims and the need for them to
be heard in any judicial proceedings. Likewise, the complaints received show that the allegations
cover more than a decade, corresponding to the time spent by the accused as Chad’s Head of State.
Belgium’s own account of the facts shows that at least 3,780 people were affected by Mr. Habré’s
alleged actions, but it is claimed that this figure it self represents only one tenth of the total number
of victims, which some sources put at around 40,000. The latter figure does not take account of the
54,000political prisoners allegedly registered between 1982 and 1990. In total, therefore,
Mr. Habré’s alleged victims could number at least 94,000. These are not figures which Senegal has
60
produced, but are based on the complaints of the a lleged victims. In those circumstances, it is
understandable that the trial of the former Chadian Head of State is a case like no other. The scale
of the challenge has not, however, prevented Se negal from taking the first steps along the lines
required by the Convention against Torture.
C. Weaknesses in Belgium’s argument relating to
the use of the time factor
229. These weaknesses are on two levels.
230. First of all, Belgium has no hesitation in applying the Convention against Torture
retroactively in order to take account of situati ons which occurred well befo re its own ratification
of that instrument.
231. Second, the nationality of the alleged Be lgian victims was acquired very recently, long
after the period when the wrongful acts were alle gedly committed. Here again, Belgium has no
scruples about applying its jurisdiction over them retroactively. These observations may be
expanded in due course.
II. FIRST STEPS TOWARDS FULFILLING SENEGAL ’S OBLIGATIONS
232. Senegal’s determination to comply with its obligations is evident, first of all, from a
series of initiatives which it has taken over a number of years, and which, as the Court will note,
would serve no purpose other than in connection with the organization of Mr. Habré’s trial (A).
233. Alongside these considerations relating to the application of the 1984 Convention
against Torture itself, it must be added that Belgium’s allegations concerning the commission of an
internationally wrongful act by Senegal can have no basis in the principles governing the
international responsibility of States in general or in the work of the International Law Commission
(ILC) in particular (B).
61 A. Initiatives taken by Senegal in order to fulfil its obligations as
a State Party to the 1984 Convention
234. Senegal cannot agree with the central cl aim in Belgium’s argument, that it is not
fulfilling its international obligations. Unless itintends to dictate precisely how Senegal should
fulfil those commitments, Belgium cannot argue that Senegal has failed to discharge, or has not
adequately discharged, its duties as a State Party to the 1984 Convention against Torture. - 41 -
235. How a State fulfils an international obligatio n, particularly in a case such as that before
the Court, where the State must take internal measur es of application, is to a very large extent left
to the discretion of that State. Belgium cannot therefore imply that there is a specific way in which
Senegal should comply with the 1984 Conventi on, which, in any case, does not contain any
provision contradicting the overriding principle of freedom under international law.
236. That principle of freedom is evident from a series of decisions which the Court itself
has delivered.
237. In the case concerning Military and Paramilitary Activities in and against Nicaragua ,
the Court stated that
“an act cannot be said to be one calculated to deprive a treaty of its object and
purpose, or to impede its due performance, if the possibility of that act has been
31
foreseen in the treaty itself” .
238. The possibility for a State Party to the 1984 Convention to “try” rather than to
“extradite” is clearly provided for in the Convention. Article7, paragraph1, is very clear on this
point:
“1. The State Party in the territory under whose jurisdiction a person alleged to have
committed any offence referred to in article4 is found shall in the cases
contemplated in article5, if it does not extradite him, submit the case to its
competent authorities for the purpose of prosecution.”
62 239. Arbitral jurisprudence h as also stressed the State’s freedom to choose how it intends to
fulfil international obligations. In the dispute be tween the Islamic Republic of Iran and the United
States of America, the arbitrator gave an assessment in the form of a principle, stating that
“Unless otherwise agreed by treaty, general international law permits a
state to choose the means by which it implem ents its international obligations within
its domestic jurisdiction.” [Iran- United States Claims Tribunal, Award
No. 590-A15(IV)/A24-FT, para. 96.]
240. The principle that a State is free to choose how to fulfil its commitments also prevails at
the regional level. In the Colozza case the European Court of Human Rights declared that the
Contracting States enjoy a wide discretion as regard s the choice of the means calculated to ensure
that their legal systems are in compliance with conventional requirements, particular32 those laid
down in Article 6, paragraph 1, of the European Convention on Human Rights . The Court notes
that:
“The Contracting States enjoy a wide discretion as regards the choice of the
means calculated to ensure that their le gal systems are in compliance with the
requirements of Article6 para.1 (art. 6-1) in this field. The Court’s task is not to
31
Military and Paramilitary Activitiein and against Nicaragua (Nicaragua v. United States of America) ,
Judgment, I.C.J. Reports 1986, p. 136, para. 272.
32
Colozza v. Italy case, ECHR, Series A No. 89 (1985). - 42 -
indicate those means to the States, but to determine whether the result called for by the
Convention has been achieved.” 33
241. From the outset, as soon as Senegal rea lized its commitments as a Party to the
Convention, it made its choice and decided not to extradite, but to try. The finding of the
Senegalese courts that it was not possible to tr y corresponded to the law as it stood, which did not,
in fact, allow a trial to be conducted. That s ituation is now behind us, and as things stand at
present ⎯ which is the “normal” situation for a State Party ⎯ Senegal has, more than once,
explained why it has chosen to try rather than the alternative offered by the 1984 Convention. Here
again, it is appropriate to recall the position expr essed by the Agent of Senegal at the opening of
the hearings concerning the request for the indication of provisional measures:
“Senegal is meeting its obligations to prosecute Hissène Habré stemming from
the Convention Against Torture, on which the African Union’s decision is based.
Consequently, there is no request for extradition which has to be met in this case. Aut
63 dedere aut judicare: either one thing or the other. And above all, it is extradition if
there can be no trial. When the extradition avenue is blocked, and the country pledges
to conduct a trial, it is hard to see ⎯ in relation to the Convention Against Torture ⎯
where any dispute could lie on the application and interpretation of that Convention.
A request for provisional measures which consisted of the Court reminding Senegal of
its obligations could not endow those meas ures with any protective quality. Under
cover of an invitation to ensure compliance with international law, the purpose of the
proceedings instituted by Belgium is to ge t the Court to order Senegal to extradite
Hissène Habré as soon as possible so that he can be tried in Belgium in disregard of
Senegal’s rights and obligations under the Convention Against Torture and which task
Senegal is tackling with unflagging determination.” 34
The decision delivered on 18 November 2010 by the ECOWAS Court of Justice has
introduced a new factor external to the proceedings before the Court, which is designed to block
the proper implementation of Senegal’s still very stro ng resolve to hold a trial. It creates a conflict
between international obligations, which the Court might find as a fact and assess as to its scope.
Belgium is not unaware of this situation and has on several occasions questioned Senegal
about what is to become of its earlier extradition request of 2005, which it wished to resubmit.
In response, the Chambre d’accusation of the Court of Appeal considered Belgium’s
request. Its examination led it to conclude that the extradition request did not fulfil the formal
conditions laid down by Senegalese Law No. 71-77 of 1971 on extradition. It rejected the request
as inadmissible because it had not taken account of the legal requirements.
That decision is particularly important in the present case. Its immediate implications are
that it paves the way for Belgium to present a fresh extradition request should it so desire.
That request will therefore have to comply w ith the law if it is to succeed and result, if
appropriate, in a decision in favour of extradition. The two alternatives offered by the principle aut
64 dedere aut judicare are thus once again both available, allowing Senegal to choose to give serious
consideration to extradition alongside the option of a trial.
242. The obligation to prosecute or extradite laid down in Articles 5 and 7 of the Convention
is a way of expressing the general obligation to combat impunity. Under that Convention, and as is
3Ibid., pp. 15 and 16, para. 30.
34
CR 2009/9, p. 20, para. 56 (Thiam). - 43 -
35
clear from the preparatory work on it, a State Party is perfectly entitled to refuse extradition .
Since there is provision in the 1984 Convention for extradition to be refused, a refusal cannot under
any circumstances breach the object and purpose of the Convention.
243. In the Convention against Torture, extradition occurs only where, for one reason or
another, the State cannot “prosecute”. The obligation to combat impunity, of which the principle of
universal jurisdiction is an instrument, is not in it self a legal obligation. It serves to interpret the
legal obligations to prosecute or extradite the perpetrator of acts referred to by the Convention. It is
in that overall perspective that the States’ commitments must be seen.
244. At issue here, first and foremost, is a general principle for interpreting international
conventions, as provided for in Article 31 of the 1969 Vienna Convention on the Law of Treaties:
“1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning
to be given to the terms of the treaty in their context and in the light of its object
and purpose.”
245. It is a principle which the International C ourt of Justice in The Hague has also affirmed
on a number of occasions, such as in the judgment it delivered in the Oil Platforms case between
the Islamic Republic of Iran and the United States of America:
“Article1 must be regarded as fixing an objective, in the l36ht of which the
other Treaty provisions are to be interpreted and applied.”
65 246. The obligation “aut dedere aut judicare” is an alternative obligation, prescribing the
duty to try or to extradite. In ternational law gives neither of these possibilities precedence. The
commentary on the Draft Code of Crimes 37nsiders th at States did not intend to “give priority to
either alternative course of action” .
247. The Report of the International Law Commi ssion (ILC) also stresses the equivalence of
the two alternatives offered to States, and the f act that “The physical presence of the alleged
38
offender provides a sufficient basis for the exercise of jurisdiction by the custodial State.”
248. The International Law Commission naturally concludes that the State has “discretion to
39
decide which part of the obligation it would execute” .
249. The efforts which Senegal has thus made may seem slow to Belgium, but there is no
disputing their reality and the good faith in wh ich they have been carried out. The most
conspicuous evidence of the international community’s recognition of those efforts lies in the series
of positive assessments and even praise voiced by al most all institutions, States or bodies which
3Preparatory work on the United Nations Convention against Torture, doc. E/CN.4/1984/72, para. 34.
3I.C.J. Reports 1996, p. 814, para. 28.
37
Article 9, p. 31, para. 6, Draft Code of Crimes . . . with commentaries.
3Article 9, p. 31, para. 7.
3ILC Report A/CN.4/603, p. 22, para. 104. - 44 -
have been led to enquire, in Sene gal itself, about progress in the preparations for the trial. Suffice
it to say that:
⎯ on 15 March 2008, the European Union, of wh ich Belgium itself is a member, acknowledged
and welcomed the steps Senegal had taken to comply with its international commitments;
⎯ Ms Louise Arbour, the former United Nations High Commissioner for Human Rights, praised
the efforts which Senegal had made since indicating that it had opted to try the former Chadian
Head of State;
⎯ Mr. Manfred Nowak, the Special Rapporteur on to rture and other cruel, inhuman or degrading
treatment or punishment, highlighted in his report to the United Nations Human Rights Council
66 Senegal’s commitment to try Mr. Habré, a commitment which, in his own words, “may provide
a positive example to other States which so fa r have been reluctant to exercise universal
jurisdiction over alleged perpetrators of torture present on their territory” ;
⎯ in February 2009, at its Assembly in Addis Ababa, the African Union welcomed the progress
Senegal had made towards bringing Mr. Habré to trial.
250. Senegal considers that the issues raised by Belgium’s claim cannot be discussed
without regard to a fundamental concept of the la w of international relations: the concept of
good faith.
251. When Senegal solemnly declared, inter alia before the Court during the hearings
relating to the request for the indication of provisio nal measures, that it undertook to do everything
in its power to bring Mr. Habré to trial, it was giving a public undertaking which, in the tradition of
international relations just as in the tradition of the Court’s own judgments, should suffice or, at the
very least, put the contentious issues into perspec tive. It appears that that undertaking was not
enough for Belgium, which is pursuing its claim.
252. In these circumstances, Senegal appeals to the good faith which should govern relations
between States. In its view, Belgium’s Application somewhat undermines this fundamental rule of
international law, which says that States are bound by the good faith of their declarations and can
therefore have confidence in each other.
253. The Court itself recalled the fundamental nature of this rule in the Nuclear Tests case:
“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.” 41
67 254. This is a further expression of the procedural principle of “estoppel” which the Court
applied in, among others, the cases concerning Military and Paramilitary Activities in and against
Nicaragua and the Land and Maritime Boundary between Cameroon and Nigeria.
40Document No. 7 filed by Senegal on 2 April 2009, doc. A/HRC/4/33.
41
I.C.J. Reports 1974, para. 46. - 45 -
255. The structural need, within the internati onal legal order, for the principle of mutual
confidence was underlined by a former judge at the Court in The Hague, President Jules Basdevant:
“The principle of good faith is really a principle which dominates the whole of
international law and must be applied when endeavouring to define or implement any
rule of the law of nations.” 42
256. The Court itself declared that:
“Trust and confidence are inherent in international co-operation, in particular in 43
an age when this co-operation in many fields is becoming increasingly essential.”
257. It matters little whether the binding character of a unilateral declaration of intent is
based on the good faith of the declarant or on that of the party or parties to whom that expression of
intent is addressed. Whether it expresses a desire to undertake an obligation or whether it refers to
a social fact entailing specific consequences, a unilateral act by which a State expresses or promises
a particular form of conduct create s an expectation which must always be respected. It has been
analysed in this relatively simple light by a respected authority in the field of international law:
“The [fundamental] idea is the protec tion of confidence. According to that
principle, everyone has the right not to be disappointed in the legitimate expectations
which he entertained concerning the development of a legal relationship in which he is
a partner.” 44
It has also been affirmed that
68 “The justification for the binding character of a promise must... lie in the
protection of that confidence: it is theref ore evident that, even in the international
legal order, that confidence is necessary for the binding character of a unilateral
promise.” 45
258. Senegal was aware of all the expectations that might be engendered when it undertook
to try the former Chadian Head of State. The so lemnity of that undertaking and the seriousness of
its consequences now lead Senegal to request that it be given sufficient space to carry out that plan.
The judicial proceedings brought by Belgium ar e disrupting the calm approach required, even
though Senegal has, for some time now, been taking steps to discharge its duties as a Party to the
1984 Convention against Torture.
259. However, over and above the actual steps taken by Senegal, which prove that it is
complying with its international commitments, Belg ium also faces the difficulty of demonstrating
that Senegal has committed an internationally wr ongful act capable of entailing its international
responsibility.
42
J. BASDEVANT, “Règles générales du droit de la paix”, RCADI (Collected Courses of the Academy of
International Law) 1936 IV (Vol. 58), pp. 521-522. [Translation by the Registry]
43
I.C.J. Reports 1974, p. 268.
44E. KAUFMANN, “Règles générales du droit de la paix”, RCADI 1935 IV (Vol. 54), pp. 510-511. [Translation
by the Registry]
45G. VENTURINI, “La portée et les effets juridiquesdes attitudes et des actes unilatéraux des EtaRCADI
1964 II (Vol. 112), p. 404. [Translation by the Registry] - 46 -
B. The non-existence of an internationally wrongful
act attributable to Senegal
260. Belgium writes in the Memorial which it presented to the Court that it
“is entitled to invoke the responsibility of Senegal for internationally wrongful acts
attributable to the latter in accordance with Article42 (b)(i) of the Articles on
Responsibility of States for Internationally Wrongful Acts” . 46
261. Senegal intends firmly to refute this view. No internationally wrongful act can be
attributed to it. In order to demonstrate this, it is sufficient to recall the wording of the Articles
drawn up by the International Law Commission (ILC) in its work on State responsibility.
According to Article 1
69 “Every internationally wrongful act of a State entails the international
responsibility of that State.”
Article 2 identifies the elements of an internationally wrongful act:
“There is an internationally wrongful act of a State when conduct consisting of
an action or omission:
(a) is attributable to the State under international law; and
(b) constitutes a breach of an international obligation of the State.”
262. The first question raised by Article1, which sets out the principle on which all the
following articles are based ⎯ that the violation of international law by a State entails its
international responsibility ⎯ is how to define the substance of the obligation deemed to have been
breached. In the present case, that obligation is la id down in the 1984 Convention against Torture:
the obligation for every State Party to “try or extradite” persons accused of committing the acts
referred to in the Convention. The question in the case before the Court, therefore, is the
following: is Senegal refusing to fulfil its obligations?
263. Never at any point in the course of th e “Habré case”, either nationally or in an
international context, has it been claimed that Senegal refuses to fulfil its obligations. An
internationally wrongful act involves an attitude of repudiation, an at least implied denial, of a duty.
The International Court of Justice itself h as expressly stated that “it is clear that refusa1 to fulfil a
47
treaty obligation involves international responsibility” .
264. Not only has Senegal never in any way denied its duty to try Mr.Habré, it has even
undertaken to bring him before its courts. It mu st surely be accepted that Senegal’s conduct does
not really raise a question of responsibility arising from the commission of an internationally
wrongful act which itself consists of the avoidance of an obligation. In presenting the problem in
terms of opposition or refusal to carry out a commitment, Belgium is therefore, at least in Senegal’s
46
Idem, p. 117.
4Interpretation of Peace Trea ties with Bulgaria, Hungary and Romania, First Phase, Ad visory Opinion, I.C.J.
Reports 1950, p. 221; emphasis added. - 47 -
view, departing somewhat from the accepted in terpretation of the principles governing State
70
international responsibility.
265. Senegal’s conduct is also not legally wr ongful if we refer to the conditions for the
existence of a breach of an international obliga tion laid down in Article12 of the Articles on the
international responsibility of States, according to which
“There is a breach of an international ob ligation by a State when an act of that
State is not in conformity with what is requi red of it by that obligation, regardless of
its origin or character.”
266. A breach of an international obligation ther efore lies in the lack of conformity between
the conduct expected of a State, “required of it” by that obligation, and the conduct it actually
adopts. The International Court of Justice itsel f has felt bound to express this idea in a number of
cases it has judged. In the case concerning United States Diplomatic and Consular Staff in Tehran,
48
it referred to acts’ “compatibility or incompatibility with the obligations of [a State]” .
267. In the case concerning Military and Paramilitary Activities in and against Nicaragua ,
49
the Court spoke of acts “contrary..., inconsistent” with a State’s given obligation. In the
Gabčikovo-Nagymaros Project case between Hungary and Slovakia, the Court used the expression
“failure to comply with . . . treaty obligations” .50
268. Lastly, in the Elettronica Sicula S.p.A. (ELSI) case, the Court asked “whether the
71 requisition was in conformity with the requireme nts o51[the Treaty of Friendship, Commerce and
Navigation between the United States and Italy]” .
269. The wording of Article12 indicates that an internationally wrongful act essentially
consists of the non-conformity of the State’ s actual conduct with the conduct it should have
adopted in order to fulfil a particular internati onal commitment. The breach thus derives from the
contradiction between the legal requirements and a State’s practice.
270. Article12 thus emphasizes “what is required” of a State. In the present case, it is to
prosecute or to extradite. The act of prosecuti on is not a single, momentary action which a State
can perform all at once, but comprises a series of steps. A trial ⎯ the action in question here ⎯ is
sometimes part of a process, a judicial procedure which, by definition, comprises stages. A legal
basis for bringing the former Chadian Head of Stat e to justice was, for a time, not available in
Senegal. That irregularity was rectified by th e measures taken by Senegal, which have already
been described.
271. Since Senegal has made a start on fulfilli ng its obligation to prosecute Mr.Habré, by
first creating the legal basis for a trial, as is only logical, it cannot be accused of not having
assumed its responsibilities or of having committed an internationally wrongful act. Senegal
48I.C.J. Reports 1980, p. 29, para. 56.
49I.C.J. Reports 1986 (Merits), p. 64, para. 115, and p. 98, para. 186 (respectively).
50
I.C.J. Reports 1997, p. 46, para. 57.
51I.C.J. Reports 1989, p. 50, para. 70. - 48 -
definitely cannot be accused of reluctance or refusal to comply with an obligation, which
constitutes an act giving rise to international responsibility.
272. It is possible to adopt a different perspective and to analyse Belgium’s claim in the light
of the extension in time of the breach of an inte rnational obligation. However, Senegal cannot be
accused of an internationally wrongful act from that point of view either.
273. The ILC provisions relating to the extensi on in time of the breach of an international
obligation are contained in Article 14, which provides:
72 “1. The breach of an international obliga tion by an act of a State not having a
continuing character occurs at the moment when the act is performed, even if its
effects continue.
2. The breach of an international obligation by an act of a State having a continuing
character extends over the entire period during which the act continues and
remains not in conformity with the international obligation.
3. The breach of an international obligation requiring a State to prevent a given event
occurs when the event occurs and extend s over the entire period during which the
event continues and remains not in conformity with that obligation.”
274. According to that article, the characteristic of a continuing wrongful act is that it
extends over the entire period during which the act continues and remains not in conformity with
the international obligation, which here consists of the alternative of “prosecuting or extraditing”.
Normally the examples of a continuing wrongful act which tend to be cited are: the unlawful
detention of a person, the unlawful occupation of the premises of a diplomatic mission, the
continuation of an unjust colonial occupation, or ⎯ an example with particular resonance in the
present case ⎯ the maintenance of legislative provisions incompatible with the treaty obligations
of the State which adopted them, etc. It follows that a continuing wrongful act is characterized by
the fact that it does indeed persist, it is an act which has begun and is continuing at the relevant
point in time, an act which is not yet finished or exhausted.
275. The question then is whether today, at the point in time when the Court is to rule on the
merits of the case, Senegal has committed an act or omission contrary to its obligations, the effects
of which are continuing. Belgium’s insistence on referring to factors which no longer apply forces
us to raise this question, to which the answer h as to be no. Senegal can only be accused of having
been rather late in adopting national measures to fulfil its treaty obligations. That omission has
been rectified. Not only is it no longer appropriate to refer to it in the current context, but the only
effect it was likely to have in practice ⎯ that of opening a breach in the enforcement mechanism
established by the Convention against Torture ⎯ has been averted by the clear assumption of the
duty to prosecute.
276. After all, Senegal has s hown itself to be mindful of this enforcement requirement for
some time now. Even though the legislation enabling the former Chadian Head of State to be tried
73 was not yet in place, but rumours were spreading of the allegations against him and the prosecution
to which they were likely to lead, the Senegal ese authorities introduced a mechanism to prevent
him from evading justice. Need we remind the Court of the measures Senegal had taken at the
time, which were described to the Court in detail at the hearings on the request for the indication of
provisional measures? - 49 -
As Senegal made clear, Mr.Habré now has no travel documents allowing him to leave
Senegalese territory. The Senegalese authorities refu sed to grant his request for a passport or safe
conduct. The former Head of State’s residence is watched round-the-clock by Senegalese police
officers. Under those circumstances it is di fficult to imagine how he could escape Senegal’s
control.
277. In taking those actions, Senegal is fulfilling a secondary obligation under the
Convention, set out in Article 6:
“Upon being satisfied, after an examinati on of information available to it, that
the circumstances so warrant, any State Part y in whose territory a person alleged to
have committed any offence referred to in article4 is present shall take him into
custody or take other legal measures to ensure his presence.”
278. Senegal would respectfully draw the Court’ s attention to the fact that these measures to
restrict the liberty of a person a lleged to have committed the acts referred to in the Convention are
entirely consistent with the obligation “aut dede re aut judicare”. The 1984 Convention in a sense
breaks down the obligation to “extradite or try” in to a series of actions which a State required to
comply with it should take. The measures which Senegal has taken up to now are not therefore
peripheral to the Convention; they are not prelimin aries to the fulfilment of obligations under the
Convention, but are themselves components of the commitment “aut dedere aut judicare”. It is
therefore not entirely consistent with the Conven tion itself to suggest that Senegal has not yet
fulfilled its commitments. It is one thing to bring Mr. Habré before the courts, and another to take
further measures required by the Convention: the act of trying Mr. Habré is merely the culmination
of a process, but it remains a commitment like other commitments; it cannot conceivably be
74 claimed that until that culminating action is complete, the State is not fulfilling its obligations.
279. Not only is Senegal taking measures which are directly inspired or justified by the
Convention against Torture, but the Senegalese auth orities have clearly stated, again on more than
one occasion, that the purpose of those measures is indeed to “try” Mr.Habré. Is it really
necessary to recall the solemn and firm commitment made by Senegal before the Court to seek to
make it possible for Mr. Habré to be tried by th e Senegalese courts? We would remind the Court
of the words of Senegal’s Co-Agent in response to a specific question from an eminent Member of
the Court during the proceedings concerning the request for the indication of provisional measures:
“Before I complete this presentation by the Republic of Senegal, I should like to
respond to the important question put by the honourable Judge Greenwood. At the
conclusion of the first round of oral argument, Judge Greenwood asked:
‘In view of what was said this afternoon, by the distinguished
Agent of Senegal, and by learned Coun sel of Senegal, first, does Senegal
give a solemn assurance to the Court that it will not allow Mr.Habré to
leave Senegal while the present case is pending before this Court? And
secondly, if so, does Belgium accept that such assurance is a sufficient
guarantee of the rights which it claims in the present case?’
To respond: Senegal is of course prepared solemnly to confirm what it has
already said:
By order of my Government, and as Co -Agent of Senegal, I hereby confirm
what Senegal said last Monday, that is ⎯ and I shall say this in English to
Judge Greenwood, who put the question ⎯ ‘Senegal will not allow Mr. Habré to leave - 50 -
Senegal while the present case is pending before the Court. Senegal has not the
intention to allow Mr.Habré to leave th e territory while the present case is pending
52
before the Court.’”
75 280. The Court will note that in acting as it did then, Senegal kept faith with the
1984 Convention. Nothing could be more inaccurate than to let it be thought that the Convention
is, for Senegal, just a “piece of paper”, no sooner signed than forgotten. All the measures that have
been taken in relation to Mr. Habré over at least the last 15 years have been entirely consistent with
the 1984Convention. That being so, the finding by the Senegalese courts, against a specific
background, of a lack of jurisdiction should not gi ve the wrong impression. It reflected a failure to
exercise due care which, though important, certainly did not mean that Senegal was flouting all the
provisions of the Convention. The surveillance me asures against the former President of Chad are
based on a specific provision, Article 6, paragraph 1, of the Convention, which states:
“1. Upon being satisfied, after an examination of information available to it, that the
circumstances so warrant, any State Part y in whose territory a person alleged to
have committed any offence referred to in article4 is present shall 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 such time as is necessar y to enable any criminal or extradition
proceedings to be instituted.”
281. Senegal cannot, particularly now that it has introduced the legal basis for bringing
Mr. Habré to trial, be suspected of taking liber ties with the Convention or accused of any wrongful
act. It cannot now be accused, any more than before, of preparing the ground for or premeditating
a wrongful act, or in other words of planning such an act.
282. Belgium’s persistent requests to the Court call for clarification on this point too. In
international law, a State can be judged only on its actual deeds. Even if there is any doubt about
the sincerity of what a State says, it is still absolutely impossible to infer any wrongful act from that
doubt. Even where an internationally wrongful act consists of a precise action ⎯ which is not the
case here ⎯ the mere preparatory measures for that action do not themselves constitute an
internationally wrongful act. The Court made this clear in the Gabčikovo-Nagymaros Project case.
The question asked of the Court concerned when th e system for diversion of the waters had come
76 into operation. It replied that the breach of th e law constituted by that act occurred only from the
time when the waters of the Danube were actually diverted. According to the Court,
“between November 1991 and October 1992, Czechoslovakia confined itself to the
execution, on its own territory, of th e works which were necessary for the
implementation of Variant C, but which c ould have been abandoned if an agreement
had been reached between th e parties and did not therefore predetermine the final
decision to be taken. For as long as the Danube had not been unilaterally dammed,
Variant C had not in fact been applied. Such a situation is not unusual in international
law or, for that matter, in domestic law. A wrongful act or offence is frequently
preceded by preparatory actions which are not to be confused with the act or offence
itself. It is as well to distinguish be tween the actual commission of a wrongful act
52
CR 2009/11, 8 April 2009, p. 23, para. 5 (Kandji). - 51 -
[whether instantaneous or continuous] and th e conduct prior to that act which is of a
preparatory character and which ‘does not qualify as a wrongful act’.”53
283. The “possibility of an internationally wrongful act” therefore does not exist. Belgium’s
claim is essentially based on a factual and legal situ ation which no longer applies, and it will not in
future be able to rely on criticizing Senegal’s conduct. Senegal has broadly begun the process
which should culminate in the trial of Mr. Habré, and is thus already fulfilling its obligations.
284. In the light of the above arguments, show ing that Senegal is fulfilling its conventional
commitments and has not, to date, committed any in ternationally wrongful act, it asks the Court to
find in its favour on the following submissions.
SUBMISSIONS
For the reasons set out in this Counter-M emorial, the State of Senegal requests the
International Court of Justice 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 resu lt of the absence of a dispute between Belgium
77
and Senegal, and the inadmissibility of that Application;
2. In the alternative , Senegal has not breached any of the provisions of the 1984 Convention
against Torture, in particular those prescribing the obligation to “extradite or try” (Article6,
paragraph2, and Article7, para graph1, of the Convention), or, more generally, any rule of
customary international law;
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 measur es and steps to prepare for the trial of Mr.Habré, Senegal is
complying with the declaration by which it made a commitment before the Court.
285. Senegal reserves the right to revise or amend these submissions, as appropriate, in
accordance with the provisions of the Statute and the Rules of Court.
Dakar, 23 August 2011
(Signed) Prof. Cheikh Tidiane T HIASig,ned) DembK a ANDJI ,
Ambassador, Agent of the Government, Co-Agent of the Republic
Republic of Senegal. of Senegal.
___________
53
I.C.J. Reports, 1997, p. 54, para. 79. The Court is citing the co mmentary on Article 30 resulting from the work
of the ILC.
Counter-Memorial of Senegal