SENEGAL ’S COMMENTS ON BELGIUM ’S RESPONSE TO THE QUESTION
PUT BY JUDGE CANÇADO TRINDADE ON 8 A PRIL 2009
In accordance with Article72 of the Rules of Court, Senegal has been invited to comment
upon Belgium’s response, of 15 April 2009, to the question put by Judge Cançado Trindade.
The Senegalese Government notes that, in th e first paragraph of its response, Belgium
expresses the view it shares with Senegal that the va rious elements of this question relate to the
merits of the case.
The lack of comment by Senegal on one of Belgium’s responses does not signify Senegal’s
approval of the position set out by the Applicant.
For the sake of convenience, the comments below will follow the order of those elements of
the question on which Belgium has responded. Sene gal remains mindful of the aim to be achieved
through the question: “for the purposes of a prop er understanding of the rights to be preserved
(under Article 41 of the Statute of the Court)”.
These comments are as follows:
I. In respect of the first element of the question asked (paragraphs 2 to 7 of Belgium’s
response) and the third element (paragraph 13 of the Belgian response ⎯ conclusion),
given the connection between these elements, Senegal wishes to state as follows:
Reasoning from the provisions of Articles7, paragraph1, and 5, paragraph2, of the
Convention against Torture (para. 3), Belgium asserts that Senegal bears an obligation to prosecute
or extradite Mr. Hissène Habré (para. 4) and that, corresponding to this obligation, there is a right
on the part of other States to enforce compliance with the obligation (para.5). Senegal does not
disagree with that position.
However, in support of its argument, Belgiu m relies on a commentary of the International
Law Commission. This reliance is mistaken , because the commentary serving as the basis for
Belgium’s reasoning concerns a particular situation, wherein bilateral treaty relations give rise to
obligations borne by one State and corresponding to correlative rights of the other. This
commentary covers a specific situation, one where two “States have agreed to engage in particular
conduct . . .”.
Every State possesses the right to investigate, to prosecute and to punish or extradite
perpetrators of acts of torture present in its territory . It is the universality of crimes of this nature
which explains why these prerogatives have been vested in States. As the International Criminal
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Tribunal for the former Yugoslavia rightly observed in its decision of 10December1998 (in the
Furundzija case): “international crimes being universally condemned wherever they occur, every
State has the right to prosecute and punish the authors of such crimes” .
If Belgium can claim the right to try Mr.Hissène Habré, it is by virtue of this principle,
which is also the basis of Senegal’s right to bring proceedings.
The case presently before the Court involves Belgium and Senegal, both States Parties to the
1984 Convention against Torture. In Senegal’s vi ew, all States Parties to the Convention are
entitled to require that their rights ⎯ to prosecute or extradite ⎯ be respected. But the Convention
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Case No. IT-95-17/1-T.
2The crime of torture is one of the international crimes in question. - 2 -
is silent on the question of whether the holders of the right to seek prosecution or extradition are
solely those States whose nationals are the purported victims of the alleged acts of torture.
Having already made the changes throughout its entire domestic legal system necessary to
achieve conformity with the Convention against To rture, Senegal is in a position to exercise the
right to try Mr. H. Habré. The consequence of th is should be to bring to a halt the implementation
of Belgium’s right to seek extradition.
In so far as a conflict would thus arise between the two rights to be preserved, Senegal’s and
Belgium’s, the conflict should be resolved in favour of Senegal.
II.In respect of the third element of the quest ion asked (paragraphs 11 to 12 of Belgium’s
response), Senegal has already stated that the rights set out in the Convention are possessed by
every State Party; Senegal would like to add:
Belgium was not content to respond “in the abstract” to the Court. It related its response to
Senegal’s conduct and asserted that this conduct involved an “internationally wrongful act”.
In Belgium’s view, Senegal has thus breached the obligation to “prosecute or extradite”
referred to in Article 7.
This contention is open to challenge on two counts:
(a) Senegal has not committed an “internationally wrongful act”.
An internationally wrongful act is defined as “an action or omission attributable to a subject of
international law, constituting a breach of an international obligation borne by said subject
which engages its interna tional responsibility” ( Dictionnaire de droit international public ,
J. Salmon (ed.), Brussels, Bruylant, 2001, p. 497) [translation by the Registry].
The fact that Senegal has by now complete d the process required by the 1984 Convention for
amending its law makes any allegation of responsibility inappropriate and unjustified. What is
expected of Senegal is the reform of its laws and the initiation of judicial proceedings. The first
stage has now been achieved and Senegal is ac tively seeking the means to begin the second.
Let us recall in this connection that, under Ar ticle12 of the International Law Commission’s
Draft on State Responsibility: “There is a breach of an international obligation by a State when
an act of that State is not in conformity with what is required of it by that obligation.”
Accordingly, it cannot be concluded that there is a breach of an international obligation by the
State of Senegal.
(b) Senegal’s conduct corresponds with what is exp ected of it in performing its obligations as a
State Party to the 1984 Convention.
Under Articles 2 and 4 of the 1984 Convention, States must take the domestic measures called
for by their capacity as Parties to the Convention. Senegal has met its obligations in this
respect.
Belgium, in the exercise of its own judgment, might consider that the pace at which these
measures have been taken is not in keeping w ith that expected of a State Party, but it
undoubtedly cannot see “an internationally wrongful act” in this, save by playing the role of
both judge and Party.
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III. In respect of the fourth element of the question asked (paragraph14 of Belgium’s
response), it is Senegal’s view that Belgium’s response calls for the same comments as those
made under heading I above.
In conclusion to these responses on the subject of the rights to be preserved in the present
case, under Article41 of the Statute, Senegal reite rates that the circumst ances of the present case
do not require any measure provisionally protecting Belgium’s right to request the extradition of
Mr. Hissène Habré.
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Senegal's comments on Belgium's response to the question put by Judge Cançado Trindade at the end of the public sitting of 8 April 2009 (translation)