INTERNATIONAL COURT OF J USTICE
Questions relating to the Obligation to Prosecute or Extradite
(Belgium v. Senegal)
Reply of the Kingdom of Belgium to the question put
by Judge Greenwood
INTRODUCTION
1. Judge Greenwood’s question 1 was worded as follows:
“With regard to the argument that Senegal is in breach of a customary
international law obligation to prosecute or extradite, please indicate:
(a) which States have provided for their courts to possess jurisdiction over
(i) war crimes committed in an armed conf lict not of an international character;
and
(ii) crimes against humanity;
in cases where the alleged offence occurred outside their territory and neither the
alleged offender nor the victims were their nationals;
(b) what instances there are of States exerci sing jurisdiction or granting extradition in
such cases; and
(c) what evidence exists that States consider that international law require them to
prosecute or extradite in such cases.
The question relates solely to custom ary international law and not to action
taken pursuant to treaty obligations such as those arising under the Convention against
Torture.”
2. These questions have already been partially answered by Belgium in its Memorial of
2 3
1 July 2010 and in its two rounds of oral argument . Belgium would like to formally confirm and
also supplement these considerations.
3. However, before providing more de tailed answers to the different parts of
Judge Greenwood’s question, Belgium considers that two introductory remarks are necessary.
4. Firstly, it wishes to point out, as it did in its oral argument, that it is not seeking, in the
context of its dispute with Senegal, to establish a general and abstract obligation to prosecute or
extradite provided for by general international law 4. The following observations concern the
present dispute alone and demonstrate that, in its re lations with Belgium, Senegal has breached its
obligation under general international law to pr osecute HissèneHabré for the war crimes, crimes
CR 2012/5, 16 March 2012, p. 43.
2
Memorial of Belgium (MB), paras. 4.60-4.89.
CR 2012/3, 13 March 2012, pp. 22-34 (David) and CR 2012/6, 19 March 2012, pp. 32-35, paras. 18-25 (David).
CR 2012/3, 13 March 2012, p. 22, para. 1 (David). - 2 -
against humanity and crimes of genocide of whic h he stands accused. In Belgium’s view, this
obligation to prosecute is firmly embedded in general international law.
5. Secondly, in the case concerning Jurisdictional Immunities of the State (Germany v. Italy:
Greece intervening), the Court stated:
“It follows that the Court must dete rmine, in accordance with Article 38 (1) (b)
of its Statute, the existence of ‘international custom, as evidence of a general practice
accepted as law’ conferring immunity on States and, if so, what is the scope and extent
of that immunity. To do so, it must appl y the criteria which it has repeatedly laid
down for identifying a rule of customary inte rnational law. In particular, as the Court
made clear in the North Sea Continental Shelf cases, the existence of a rule of
customary international law requires that th ere be ‘a settled practice’ together with
opinio juris (North Sea Continental Shelf (Federal Republic of Germany/Denmark;
Federal Republic of Germany/Netherl ands), Judgment, I.C.J. Reports, 1969 , p.44,
para. 77).” 5
6. Although it is “of course axiomatic that the material of customary international law is to
be looked for primarily in the actual practice and opinio juris of States” , it is not always possible
or necessary to draw such a clear distinction between the material element and the mental element
of custom. In the past, the Court has established the existence of an opinio juris through the
existence of a certain State practice in the matter . 7
7. This is particularly true of the obliga tion to prosecute under international humanitarian
law. Indeed, as observed in the study on customary international humanitarian law by the
International Committee of the Red Cross:
“During work on the study, it proved very difficult and largely theoretical to
strictly separate elements of practice and legal conviction. Often, the same act reflects
both practice and legal conviction. As the International Law Association pointed out,
the International Court of Justice ‘has not in fact said in so many words that just
because there are (allegedly) distinct elem ents in customary law the same conduct
cannot manifest both. It is in fact often difficult or even impossible to disentangle the
8
two elements’ . This is particularly so because verbal acts, such as military manuals,
count as State practice and often reflect the legal conviction of the State involved at
the same time.” 9
8. This does not and cannot mean that a cust omary international rule can exist without the
need to establish the existence of opinio juris. It implies only that practice and opinio juris are not
as clearly and logically distinct as might be thought. The one can in fact inform the other:
5
Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) , Judgment of 3 February 2012 ,
para. 55.
6
Ibid. See also Continental Shelf (Libyan Arab Jamahiri ya/Malta), Judgment, I.C.J. Reports 1985 , p.29,
para. 27.
7
Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Judgment,
I.C.J. Reports 1984, p.299, para.111; Military and Paramilita ry Activities in and agai nst Nicaragua (Nicaragua v.
United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 98, para. 184; Jurisdictional Immunities of the State
(Germany v. Italy: Greece intervening), Judgment of 3 February 2012, para. 55.
8
International Law Association, Final Report of th e Committee on the Formation of Customary (General)
International Law, Statement of Principles Applicable to the Formation of General Customary International Law, Report
of the Sixty-Ninth Conference , London, 2000, para.10 (c), p.718. For an in-depth study of this subject, see
PeterHaggenmacher, “La doctrine des deux elements du droit coutumier dans la pr atique de la Cour internationale”,
Revue générale de droit international public, Vol. 90, 1986, p. 5.
9J.-M. Henckaerts and L. Doswald-Beck, Customary Inte rnational Humanitarian Law, Volume I: Rules,
Bruylant, Brussels, 2008, p. LVIII. - 3 -
“When there is sufficiently dense practice, an opinio juris is generally contained
within that practice and, as a result, it is not usually necessary to demonstrate
separately the existence of an opinio juris . In situations where practice is ambiguous,
however, opinio juris plays an important role in determining whether or not that
10
practice counts towards the formation of custom.”
9. On the basis of these remarks, Belgium w ill answer the three parts of Judge Greenwood’s
question in the order in which they were put:
⎯ a list of States which have jurisdiction over crimes against humanity and war crimes committed
in an armed conflict not of an international character, where the offence was committed outside
their territory and neither the alleged offende r nor the victims are nationals of the forum
State (I);
⎯ instances of States having exercised their jurisdiction in such cases (II);
⎯ evidence that States consider that customary in ternational law requires them to prosecute or
extradite in such circumstances (III).
I. States which have jurisdiction over crimes against humanity and war crimes committed
in an armed conflict not of an international character, where the offence occurred
outside their territory and neither the alleged perpetrator nor the
victims are nationals of the forum State
10. Belgium notes that at least 51 States have designated as offences under their national law
crimes against humanity and war crimes committed in an armed conflict not of an international
character, even if those offences were committed outside their territory by persons who ar11not
nationals of those States and even if the victims too are not nationals of those States . These
States may be grouped into two categories:
⎯ States explicitly conferring jurisdiction on thei r courts to prosecute crimes against humanity
and war crimes committed in an armed conflict not of an international character (A);
⎯ States conferring jurisdiction on their courts to prosecute by reference to the crimes against
humanity and war crimes cited in the Rome Statute (which implies the inclusion of war crimes
committed in an armed conflict not of an international character) (B).
It should be noted that some national laws simply provide for domestic courts to have
jurisdiction over crimes defined as such by intern ational law, without giving any further details
(e.g., El Salvador, 2010 Penal Code, Art.10). Belgium has not included these States in the two
lists below, in view of the absence of specifi cally designated offences, whether “crimes against
humanity” or “war crimes” committed in an armed conflict not of an international character.
10Ibid. See also J.-M. Henckaerts, “Customary International Humanitarian Law: a response to US Comments”,
International Review of the Red Cross , Vol. 89, No. 866, June 2007, p. 482 nce, the Study did not simply infer
opinio juris from practice. The conclusions that practice establis hed a rule of law and not merely a policy was never
based on any single instance or type of practice but was the result of all the relevant practice”).
11See in particular the surveys carried out by the IChttp://www.icrc.org/customary-ihl/eng/docs/home), by
Amnesty International ( Universal JurisdictionA Preliminary Survey of Legislation around the World , London,
Amnesty Int. Publ., 2011, 390pp.) and by Redress and the FIDH ( La compétence extraterritoriale dans l’UE ⎯ Etude
des lois et des pratiques dans les 27 membres de l’UE, Redress and FIDH, 2010, 284 pp.). - 4 -
A. States explicitly conferring jurisdiction on their courts to prosecute crimes against
humanity and war crimes committed in an armed conflict not of an international
character
11.
1. Armenia (2003 Criminal Code, Article 387 et seq.; Article 15)
(http://www.parliament.am/legisla tion.php?sel=show&ID=1349&lang=eng)
2. Australia (Criminal Code Act, Chapter 8, Article 268.1 et seq.)
(http://www.comlaw.gov.au/Details/C2011C00261 )
3. Azerbaijan (Criminal Code)
(http://www.legislationline.org/download/ac tion/download/id/1658/file/4b3ff87c005675cfd740
58077132.htm/preview)
4. Belarus (Criminal Code, Articles 6, 128 et seq.)
(http://www.icrc.org/ihlnat.nsf/WebLAW! OpenView&Start=1&Count=300&Expand=16.3.1#1
6.3.1)
5. Belgium (Preliminary Title of the Code of Criminal Procedure, Article 12 bis and Penal Code,
Articles 136ter and 136 quater)
6. BosniaandHerzegovina (for definitions: 2003 Criminal Code, Article 172 et seq.)
7. Bulgaria (Penal Code, Article 6)
(http://www.icrc.org/ihlnat.nsf/6fa4d35e 5e3025394125673e00508143/0254e69910d7aae8c125
73b5004cecf8/$FILE/Bulgaria-Penal-Code.pdf)
8. Burundi (2009 Penal Code, Articles 10, 196 et seq.) (http://www.oag.bi/spip.php?article733)
9. Canada (Crimes against Humanity and War Crimes Act 2000)
(http://lawslois.justice.gc.ca/e ng/acts/C-45.9/page-1.html#docCont)
10. Croatia (2003 Criminal Code; Articles 14, 157 (a) et seq.)
( https://www.unodc.org/tldb/pdf/Croatia_Criminal_Code_Full_text.pdf)
11. Czech Republic (2009 Criminal Code, section 401 et seq.; sections 6-8)
12. Estonia (2007 Penal Code, sections 7-8)
(http://www.legislationline.org/download/ action/download/id/1280/file/4d16963509db70c09d2
3e52cb8df.htm/preview)
13. Finland (Criminal Code, Chapter 11, War Crimes and Crimes against Humanity)
(http://www.legislationline.org/documents/section/criminal-codes ) - 5 -
14. France (Penal Code, Articles 212-1, 461-1 et seq.; Code of Criminal Procedure, Article689
et seq.; Laws Nos.95-1 and 96-432 on the Intern ational Criminal Tribunal f12 13e former
Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) , )
(http://perlpot.net/cod/penal.pdf )
( http://legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000742868)
15. Germany (Code of Crimes against International Law)
(http://www.iuscomp.org/gla/statutes/VoeStGB.pdf )
(See also 1998 Criminal Code) (http://www.iuscomp.org/gla/statutes/StGB.htm)
16. Kenya (International Crimes Act 2008)
(http://www.kenyalaw.org/kenyalaw/klr_app/frames.php )
17. Luxembourg (1999 Law on co-operation with internati onal tribunals, Article2; universal
jurisdiction limited to crimes against human ity committed in the former Yugoslavia and
Rwanda)
(http://www.icrc.org/ihlnat.nsf/a24d1cf3344e99934125673e00508142/9eb9e84…
6a8000315dac!OpenDocument)
18. Malta (2005 Criminal Code, Crimes against humanity and war crimes, Articles 5, 54C et seq.)
(http://www.icrc.org/ihlnat.nsf/6fa4d35e 5e3025394125673e00508143/6051b666d2bfffccc1257
0fb00518d43!OpenDocument)
19. Moldova (2009 Criminal Code, Articles 11 (3), 137 et seq.)
(http://www.legislationline.org/documents/section/criminal-codes/country… )
20. Montenegro (2003 Criminal Code, Articles 137, 427 et seq.)
(https://www.unodc.org/tldb/pdf/M ontenegro_Criminal_Code.pdf)
21. Netherlands (International Crimes Act 2003)
(http://www.google.be/url?sa=t&rct=j&q=the+ne therlands+international+crimes+act&source=
web&cd=1&ved=0CDIQFjAA&url=http%3A%2F%2Fwww.nottingham.ac.uk%2Fshared%2F
shared_hrlcicju%2FNetherlands%2FInternational_Crimes_Act__English_.doc&ei=poVrT-6lC
KWm0QW6otTQBg&usg=AFQjCNG9EhokEmei5vN2Eql06LFuhY9IwQ)
22. Norway (War Crimes Law 1946, Article1; 2005 General Civil Penal Code, [Chapter1,
Section 12]) (http://www.ub.uio.no/ujur/ulovdata/lov-19020522-010-eng.pdf)
1Code of Criminal Procedure, Art.689: “Perpetrators of or accomplices to offences committed outside the
territory of the Republic may be prosecuted and tried by Fren ch courts either when French law is applicable under the
provisions of Volume I of the Penal Code or any other statute, or when an international Convention gives jurisdiction to
French courts to deal with the offence.”
1Penal Code, Art. 416-1: “War crimes or offences are the offences defined in this Volume committed during an
international or non-international armed conflict and in connectio n with that conflict, in brea ch of the laws and customs
of war or of the international conventions applicabarmed conflicts, against the persons or goods referred to in
Articles 461-2 to 461-31.” [Translation by the Registry.] - 6 -
23. Philippines (Crimes against International Law Act 2009; sections 3-6, 15 and 17)
(http://www.icrc.org/ihlnat.nsf/6fa4d35e 5e3025394125673e00508143/7857188a2b2bca66c125
76b900297ccb!OpenDocument)
24. Poland (Criminal Code, Articles 110(2), 113 and 119-126)
(http://www.icrc.org/customary ihl/eng/docs/v2_cou_pl_rule157)
B. States conferring jurisdiction on their cour ts to prosecute by reference to the crimes
against humanity and war crimes cited in the Rome Statute
12. The Rome Statute does not contain an equivalent article to Article7 of the Convention
against Torture. It recalls in its preamble that it is “the duty of every State to exercise its criminal
jurisdiction over those responsible for international crimes”. In this respect, the changes to national
legislation indicated below cannot be regarded as “action taken pursuant to treaty obligations such
as those arising under the Convention agains t Torture”, measures which Judge Greenwood
excluded from the scope of his question. In addition, it should be pointed out that the list below is
continuing to grow as more States become parties to the Rome Statute.
1. Argentina
(http://www.infoleg.gov.ar/infolegInternet/anexos/120000-124999/123921/n…)
2. Bolivia (Note: Bolivia is currently preparing a law to implement the Rome Statute:
http://www.un.org/en/ga/sixth/65/ScopeAppUniJuri_StatesComments/Bolivia…)
3. Burkina Faso
(http://www.iccnow.org/documents/Decret_n2009-894-PRES_promulguant_la_lo…-
AN.pdf)
4. Cameroon (Military Manual, p. 296, para. 662; Amnesty International p. 38)
( http://www.icrc.org/customary-ihl/eng/docs/v2_cou_cm_rule157)
5. CostaRica (2003 Penal Code, Articles 7, 378 and 379)
(http://www.pgr.go.cr/scij/busqueda/normativa/ normas/nrm_repartidor.asp?param1=NRTC&n
Valor1=1&nValor2=5027&nValor3=68813&strTipM=TC)
6. Cuba (1987 Penal Code, Article 5; Amnesty International, p. 45)
(http://www.icrc.org/customaryihl/eng/docs/v2_cou_cu_rule157 )
7. Cyprus (Rome Statute Ratification Law 2002)
(http://www.adhgeneva.ch/RU LAC/pdf_state/Cyprus.pdf)
8. Denmark (2005 Criminal Code, section 7 et seq.)
(https://www.unodc.org/tldb/pdf/Den mark_Criminal_Code_2005.pdf)
9. Ethiopia (2005 Penal Code, Article 17)
(http://www.ilo.org/dyn/natlex/docs/ELEC TRONIC/70993/75092/F1429731028/ETH70993.pd
f) - 7 -
10. Georgia (Criminal Code, Articles 5, 408 et seq.)
(http://www.legislationline.org/docu ments/action/popup/id/16049/preview)
11. Latvia (Criminal Law 2009, sections 4, 71 and 74)
(http://www.legislationline.org/documents/section/criminal-codes )
12. Lithuania (2010 Criminal Code, Articles 5, 7, 100 et seq.)
(http://www3.lrs.lt/pls/inter3/dok paieska.showdoc_l?p_id=366707)
13. Mexico (2010 Federal Penal Code, Article 6)
( http://www.pgr.gob.mx/Que%20es%20PGR/Documentos/CodigoPenalFederal.pdf)
14. New Zealand (International Crimes and International Criminal Court Act 2000)
( http://www.legislation.govt.nz/act/public/2000/0026/latest/DLM63091.html)
15. Nicaragua (2008 Penal Code, Articles 486-522)
(http://legislacion.asamblea.gob.ni/Nor maweb.nsf/%28$All%29/1F5B59264A8F00F90625754
0005EF77E?OpenDocument)
16. Panama (2007 Penal Code, Articles 19, 21, 432 et seq.)
(http://www.iccnow.org/documen ts/Panama_nuevo_codigo_penal2.pdf)
17. Portugal (Law No. 31/2004, Articles 5, 9 et seq.)
(http://www.icrc.org/ihl-nat.nsf/a24d1c f3344e99934125673e00508142/6af0950f91cbc493c125
6ef500419718!OpenDocument)
18. Samoa (International Criminal Court Act 2007, sections 6, 7 and 13 (d))
(http://www.paclii.org/ws/le gis/consol_act_2010/icca2007303/)
19. Senegal (Law No. 06/2007 modifying the Penal Code, Article 431-2 et seq.)
(http://www.icrc.org/ihlnat.nsf/6fa4d35e 5e3025394125673e00508143/2312e920ae081336c125
7292005578af!OpenDocument)
20. Slovenia (2008 Criminal Code, Articles 11, 13, 100 et seq.)
(http://www.wipo.int/wipolex/en/text.jsp?file_id=180880 )
21. South Africa (International Criminal Court Act 2002, sections 4 and 5)
( http://www.info.gov.za/gazette/acts/2002/a27-02.pdf)
22. Spain (Judiciary Law 2009, Article 23 (4))
(http://noticias.juridicas.com/base_da tos/Admin/lo6-1985.l1t1.html#a23)
23. Switzerland (2011 Criminal Code, Article 6) (http://www.admin.ch/ch/e/rs/c311_0.html) - 8 -
24. Timor-Leste (Penal Code, Article 8 (e))
(http://www.laohamutuk.org/econ/ corruption/CodigoPenalEn.pdf)
25. Trinidad and Tobago (International Criminal Court Act 2006, Section 8)
(http://www.icrc.org/ihl-nat.nsf/6fa4d 35e5e3025394125673e00508143/2bbdd7c1affd8d7bc125
7563005c8833/$FILE/International%20Criminal%20Court%20Act.pdf)
26. Uganda (International Criminal Court Act 2010, Article 18)
(http://www.icrc.org/ihl-nat.nsf/6fa4d 35e5e3025394125673e00508143/764ecda109407b7bc12
577bd0038b623!OpenDocument)
27. Uruguay (Law No. 18.026 on Co-operation with the International Criminal Court in respect of
the struggle against genocide, war crimes and crimes against humanity, Article 4.2)
(http://pdba.georgetown.edu/Security/citi zensecurity/uruguay/leyes/lesahumanidad.pdf)
II. Instances of prosecution for crimes against humanity and/or war crimes committed in an
armed conflict not of an international character, where the offence occurred outside the
forum State and neither the alleged perpetrator nor the victims are its nationals
13. To Belgium’s knowledge, there are some hal f-dozen cases in which the courts of certain
countries have tried non-nationals for “crimes agai nst humanity” or “war crimes” committed in an
armed conflict not of an international character . In each of these cases, the offences had been
committed outside the forum State and neither the victims nor the alleged perpetrators were
nationals of that State. These instances are presented in chronological order below.
14. Hungary
⎯ Constitutional Court, 13 October 1993
The Constitutional Court of Hungary was required to rule on the constitutionality of a law
proclaiming the non-applicability of statutor y limitation to war crimes and crimes against
humanity. The court classes breaches of common Ar ticle3 as criminal offences, characterizing
them as crimes against humanity and concluding that statutory limitation is not applicable to them:
“The activities enumerated in common Article 3 of the Geneva Conventions
constitute crimes against humanity and th ey contain those minimal requirements
which every State Party in an armed conflict is obligated to comply with and which
are ‘at any time and in any place’ are (sic) prohibited . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
the statute of limitation for the punishment of the activities enumerated in common
Article 3 of the Geneva Conventions does not expire either; in case these offences do
not fall within the category of war crimes defined by ArticleI (a) of the New York
Convention [the 1968 UN Convention on th e Non-Applicability of Statutory
Limitations to War Crimes and Crimes against Humanity] ⎯ either with respect to the - 9 -
scope of protected persons or because of the manner of the commission of the act ⎯
they would be unavoidably covered by the non-applicability of statutory limitations
requirement imposed by ArticleI (b) of the Convention on Crimes against
Humanity.” 14
Although this is not strictly an example from case law of prosecution for war crimes
committed in an armed conflict not of an intern ational character, it is included here because it
constitutes a form of recognition that such acts ar e crimes which fall within the scope of common
Article 3 of the Geneva Conventions.
15. Switzerland
⎯ Division 1 Military Tribunal, G., 14-18 April 1997
G., a Bosnian Serb, was prosecuted before a Swiss military tribunal for breaches of the Third
and Fourth Geneva Conventions (including common Article3), Additional ProtocolI and
Additional Protocol II (Articles 4, 5 and 13) (judgment, p. 1). These acts were alleged to have been
committed in the camps of Keraterm and Omarsk a in Bosnia-Herzegovina. The tribunal acquitted
the defendant on the grounds of insufficient eviden ce, but did not question the characterization of
the charges. The judgment states:
⎯ “In the context of this general conflict [in form er Yugoslavia], various internal armed conflicts
broke out, including the conflict among Bosnians” (judgment, p. 2);
⎯ “the scope of Article 109 et seq. of the MPC [Military Penal Code] extends to all armed
conflicts... thus, since the acts of which the defendant is accused, if they were committed,
constitute breaches of the laws of war within the meaning of Article109 of the MPC, this
tribunal therefore has jurisdiction” (judgment, p. 6). [Translations by the Registry.]
⎯ Military Court of Cassation, Niyonteze, 27 April 2001
F.Niyonteze, “a Rwandan national residing in Switzerland as a refugee” (judgment, p.1),
had been sentenced to life imprisonment on 30 April 1999 by the Division 2 Military Tribunal, in
particular for “grave breaches of the prescriptions of international conven tions on the conduct of
war and the protection of persons and goods (Article109 of the MPC)” (ibid.); the Military
Appeals Tribunal had upheld the conviction of the defendant for “grave breaches of the
prescriptions of international conventions on the conduct of war and the protection of persons and
goods (Article 109 of the MPC)” and reduced the se ntence to 14 years’ imprisonment. The Court
of Cassation essentially confirmed the appeal judgment. It observed in particular that
“the ‘prescriptions of international conve ntions on the conduct of war and the
protection of persons and goods ’ which apply to conflicts not of an international
character ⎯ and therefore have a broader scope th an those of conventions applicable
only to international conflicts ⎯ are also covered by Article109(1) of the MPC”
(ibid., p. 3).
The Court of Cassation also held that:
⎯ “[t]he appealed judgment refers to common Article3 of the four Geneva Conventions
concluded on 12 August 1949” (ibid.);
14
Text at http://www.icrc.org/ihl-nat.nsf/39a82e2ca42b52974125673e00508144/e78166…
039e303!OpenDocument - 10 -
⎯ “a foreign perpetrator of breaches of the laws of war, who has acted against foreign persons in
the context of a non-international conflict in the territory of a foreign State, can be prosecuted
and sentenced by Swiss courts under Article 109 of the MPC” (ibid., p. 5);
⎯ “[t]he Military Tribunals are competent, since Article 218 of the MPC provides that any person
to whom military law is applicable is subject to the military tribunals (paragraph 1), including
when the offence was committed abroad (paragraph 2)” (ibid.);
⎯ “[m]oreover it was not in dispute . . . that in Rwanda, during the months of April to July 1994,
a non-international armed conflict within the meaning of common Article3 took place in the
territory of that country between the gove rnment army (the Rwandan Armed Forces ⎯ FAR)
and the dissident forces (the Rwandan Patriotic Front ⎯ FPR); this conflict also falls under the
definition in Article 1 of Protocol II” (ibid.);
⎯ “the defendant met the conditions required, as pe rpetrator of the offences, to fall within the
ambit of common Article3 and the provisions of ProtocolII” ( ibid., p.23). [Translations by
the Registry.]
16. Netherlands 15
⎯ Court of Appeal, The Hague, 29 January 2007
An Afghan, head of the Afghan military intelligence service ⎯ the Khad-e-Nezami ⎯
between 1979 and 1989, had been sentenced by a Du tch court of first instance on 14 October 2005,
inter alia on the basis of common Article3 of the Geneva Conventions, to nine years’
imprisonment for acts of violence and torture committ ed against seven persons. In his appeal, the
defendant relied in particular on the fact that the Geneva Conventions did not provide for
jurisdiction to prosecute or extradite in respect of violations of common Article3. His argument
was as follows:
“in the present case, the Dutch criminal legisl ation[s] lacks (universal) jurisdiction if,
during the period charged, this would con cern a non-international armed conflict to
which ‘only’ the common Article3 of th e Geneva Conventions applies. These
conventions (or other provisions pertaining to international law) do not offer universal
criminal jurisdiction with regard to violations of those articles; establishment of such
a jurisdiction needs an authorization pertai ning to international law which can neither
be found in the unwritten legislation pertaini ng to international law, as was also stated
by the Yugoslavia Tribunal (ICTY) in its Tadi c decision of October2, 1995. In the
opinion of the defence the issue in Afghanistan was at the time, in any case in as far as
important to the practices suspect is charged with, not a non-international armed
conflict. Therefore the public prosecutions department, who are exercising their
authority to prosecute contrary to international law, should be declared non-admissible
in that prosecution.” (Judgment, para. 5.1 (a).)
The Court of Appeal first held that, in the 1980s, an armed conflict not of an international
character was taking place in Afghanistan, despite the intervention of the USSR army:
“With relation to the nature of the co nflict, the Court of Appeal, as was the
court, is together with the defence an d (more implicitly) the public prosecutions
department, of the opinion that the combat in Afghanistan during the eighties of the
last century primarily concerned a non- international armed conflict taking place
between the régime in Kabul and the ‘Mujahedin’ who ⎯ also armed ⎯ rebelled
15
Texts of the judgments at http://zoeken.rechtspraak.nl/Default.aspx. - 11 -
against that. It is true that this régime was also supported by Russian advisers and
parts of the army (who also participated in the battles), but in the judgment of the
Court of Appeal does not negatively affect the primarily non-international character of
the combat.” (Judgment, para. 5.3.)
The Court of Appeal further held that Dutch law gave its courts jurisdiction to prosecute war
crimes other than “grave breaches” of the Geneva Conventions, but that this was in accordance
with a development in law based on the conventio nal law adopted after the Second World War.
The Court found, in particular, that:
“our country has an exceptional position not only because it penalizes ‘grave
breaches’, but also less serious violations, with universal jurisdiction. Support for the
establishment of secondary universal jurisdic tion (not trial by default) may however
be found in the development of the conven tional law after the Second World War, as
this is represented in separate points of vi ew of judges in the decision of the ICJ on
February 14, 2002 in the case Yerodia (Congo v. Belgium) . . .
The court moreover establishes, with rega rd to the history of the formation of
the Criminal War Act, that ⎯ as analysed by the Supreme Court in its KnesevicII
ruling ⎯ the legislator at the time had the absolu te intention to fully comply with the
conventional obligation of the Geneva Conventions. The main thought then was – as
has to be admitted to the defence – especi ally the obligation to penalize ‘grave
breaches’, which against the background of the then very recent worldwide conflict
should not be surprising. From the verbal treatment of the legislative proposal
(pp.2247 and 2251) it however also beco mes clear that (also at that time) the
possibility was kept open that crimes committed in a non-international armed conflict
(this was about the coup d’état in Bolivia ) would be dealt with in this country.
Whatever it may be: the Court of Appeal concludes from the following legal grounds
in the latter ruling of the Supreme Court that it should be accepted that also in case of
violations of the common Article 3 there is jurisdiction.
6.1 In the disputed ruling, the Court of Appeal has obviously based itself on the
fact that the offences described and further detailed in the... demand referred to, if
proven, are acting contrary to the comm on Article3 of the Red Cross Geneva
Conventions of 1949 and on the basis thereof result in the crime described in Article 8
of the WOS [ Wet Oorlogsstrafrecht, the Dutch Wartime Offenc es Act].” (Judgment,
paras. 5.4.3-6.1.)
⎯ Dutch Supreme Court, 8 July 2008
The facts are similar to those in the preced ing case: this too involved a member of the
Afghan military intelligence service who was prosecuted in the Netherlands for acts of torture. He
had been sentenced at the appeal stage, on 29 July 2007, to 12 years’ imprisonment for torture and
for having authorized a subordinate to violate the laws and customs of war.
The Supreme Court first held that breaches of common Article 3 were designated as crimes
by the WOS:
“It should be noted at the outset that since the entry into force of the
Convention, acts in breach of Article 3 of the Convention [the 4th Geneva
Convention] have constituted the crime described in section8 of the Wartime
Offences Act and that in such a case ⎯ pursuant to the decision of the Supreme Court
of 11November1997, LJN ZD0857, NJ 1998, 463 ⎯ the Dutch courts are entitled
under section 3 (old) of the Wartime Offences Act to exercise what is termed universal
jurisdiction.” (Judgment, para. 6.2.) - 12 -
More specifically regarding the defendant’s argument that torture “was not a criminal
offence in the case of an internal armed conflict” (judgment, para. 10.1), the Court responded that:
“the offence of violating the laws and customs of war as created in section8 of the
Wartime Offences Act should be understood as including the offence of acting in
breach of Article3 of the Convention [t he 4th Geneva Convention], including the
commission of acts of physical violence, cruel treatment and torture against the
persons listed there in an internal armed conflict, which criminal liability came into
effect when the Convention entered into force.” (Judgment, para. 10.2.)
17. Canada
⎯ Superior Court, Criminal Division, 22 May 2009, Munyaneza
The defendant, DésiréMunyaneza, is a Rw andan citizen prosecuted in Canada for
“genocide, crimes against humanity and war crimes” (judgment, paras. 68 et seq., 108 et seq. and
129 et seq.) committed in Rwanda between April and July 1994. Without going into the detail of
this 200-page judgment, it will be noted that the defendant is found guilty of, amongst other things,
“crimes against humanity” and “war crimes” (ibid., paras. 2083-2089).
With regard to war crimes, the court asserted its jurisdiction to deal with such crimes
committed in an armed conflict not of an international character. It stated that:
“For a war crime to occur in a non-international armed conflict, the victim must
be a protected person taking no direct part in the hostilities, a civilian, or a person who
has laid down his or her arms or has been placed hors de combat.” (Ibid., para. 153.)
The defendant was sentenced to life impris onment (Superior Court, Criminal Division,
29 October 2009).
*
18. This practice of the courts, which does not include Belgium’s practice as already
mentioned in its oral argument 16, reflects State practice with regard to the obligation to prosecute.
Although Belgium cannot claim to have been ex haustive, it is nonetheless unable to cite any
example of a case where a domestic court has refused either to deal with crimes against humanity
or war crimes committed in a non-in ternational conflict, or to extradite the suspected person for a
reason associated with the internal nature of the conflict or with the foreign status 17 the perpetrator
or the victims. States have hardly ever objected to the exercise of this jurisdiction .
III. Evidence that States prosecute persons suspected of the above-mentioned offences
because they consider that they are required to do so under
customary international law
19. Judge Greenwood asks Belgium to indicate wh at evidence exists that States “consider”
that customary international law “requires” them to prosecute the alleged perpetrators of the
above-mentioned offences. Belgium will begin by outlining its understanding of how custom is
formed(A). It will then examine the evidence th at a customary obligation exists to prosecute or
extradite a person suspected of a war crime or a crime against humanity (B).
16
CR 2012/6, 19 March 2012 (David), para. 24, footnote 75.
1Cf. Jurisdictional Immunities of the State (Germany v. Italy: Greece inte rvening), Judgment of
3 February 2012, para. 72. - 13 -
A. How custom is formed
20. In addition to what has already been sai d in the introduction (see paras.2-8 above), it
will be noted that, among the rules of interna tional law applied by the Court, Article38,
paragraph 1 (b), of the Statute of the Court cites custom “as evidence of a general practice accepted 18
as law”. In reality, “international custom is evidenced by practice and not the reverse”
[translation by the Registry] , as the Court recognized when it held that the presence of customary
rules “in the opinio juris of States can19e tested by induction b ased on the analysis of a sufficiently
extensive and convincing practice” . Since the legislation of at least 51States has conferred
jurisdiction on international courts to prosecute crimes against humanity and war crimes such as
those referred to by JudgeGreenwood (crimes committed outside the forum State by foreign
nationals against foreign nationals in an armed conflict not of an international character), it is clear
that there is a significant and growing practice in respect of such jurisdiction.
21. Belgium also wishes to point out that custom may be general, regional or local. The
Court has accepted that a custom could “be established between only two States” 20. This point
should be borne in mind, is so far as Belgium be lieves that the obligation to prosecute or, failing
that, to extradite is applicable to all States, and in its mutual relations w ith Senegal in particular
(see para. 37 below).
B. Evidence that a customary obligation exists to prosecute or extradite a person suspected of
a war crime or a crime against humanity
22. There is various evidence to show that States consider themselves bound by a customary
obligation to prosecute or extradite a person suspect ed of a war crime or a crime against humanity.
The idea that States have to “feel” that they are “conforming to what amounts to a legal
21
obligation” can be found in the resolutions of the United Nations General Assembly(1) and in
treaty texts which appear to express a customary rule (2); the obligation to prosecute also derives
from the obligation to combat impunity(3) an d from the obligation to contribute to the
maintenance of international peace and security (4). The idea of a “feeling” can also be seen in the
speeches made by States during the work of the Sixth Committee of the United Nations General
Assembly on “[t]he scope and application of the prin ciple of universal jurisdiction”(5). Finally,
academic writers also take the view that pro secuting or extraditing a person suspected of a war
crime or a crime against humanity is a customary obligation (6).
1. The obligation to prosecute or extradite in the relevant resolutions of the United Nations
General Assembly
23. In its Opinion on the Threat or Use of Nuclear Weapons (1996), the Court recognized
“that General Assembly resolutions, even if they are not binding, may sometimes have
normative value. They can, in certain circ umstances, provide evidence important for
establishing the existence of a rule or the emergence of an opinio juris. To establish
whether this is true of a given General A ssembly resolution, it is necessary to look at
its content and the conditions of its adoption; it is also necessary to see whether an
opinio juris exists as to its normative character. Or a series of resolutions may show
1Dictionnaire de droit international public, J. Salmon (ed.), Brussels, Bruylant, p. 283.
19
Delimitation of the Maritime Boundary in the Gulf of Maine Area, I.C.J. Reports 1984, p. 299, para. 111.
20
Right of Passage over Indian Territory, I.C.J. Reports 1960, p. 39.
2North Sea Continental Shelf (Denmark/Federal Republ ic of Germany; Netherl ands/Federal Republic of
Germany), Judgment, I.C.J. Reports 1970, p. 44, para. 77. - 14 -
the gra22al evolution of the opinio juris required for the establishment of a new
rule.”
24. On several occasions, the Court has considered the Assembly’s resolutions to express the
opinio juris of States and has thus relied on those resolutio ns in order to recognize the existence of
a customary rule within the meaning of Article 38 (1) (b) of the Statute of the Court:
⎯ on the subject of the right of peoples to self-determination, as set out in resolution 1514 (XV),
the Court declared that this General Assembly resolution
“provided the basis for the process of deco lonization which has resulted since 1960 in
the creation of many States which are today Members of the United Nations” ; 23
⎯ in respect of the Declaration on Friendl y Relations and Co- operation among States
(resolution 2625 (XXV), 24 October 1970), the Court stated that
“the adoption by States of this text affords an indication of their opinio juris as to
customary international law on the question” ; 24
⎯ and with regard to resolution3314(XXIX), wh ich defines aggression and categorizes as such
the sending of armed bands by one State against another, the Court found that
“[t]his description, containe d in Article3, paragraph (g), of the Definition of
Aggression annexed t25. . . resolution 3314 (XXIX), may be taken to reflect customary
international law” .
25. More specifically regarding the obligation to prosecute a person suspected of a war crime
or a crime against humanity, the resolutions of the General Assembly plainly express the
conviction of States that this is a legal duty imposed by international law. Belgium has invoked
numerous General Assembly resolutions which set out in a prescriptive manner the obliga26on
borne by States to prosecute the perpetrato rs of war crimes and crimes against humanity . Thus,
resolution2840(XXVI) (“Question of the punishment of war criminals and of persons who have
committed crimes against humanity”) provides:
“ The General Assembly . . .
1. Urges all States to implement the relevant r esolutions of the General Assembly
and to take measures in accordance with in ternational law to put an end to and
prevent war crimes and crimes against hu manity and to ensure the punishment of
all persons guilty of such crimes, includi ng their extradition to those countries
where they have committed such crimes;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
22
Advisory Opinion of 8 July 1996, I.C.J. Reports 1996, p. 255, para. 70.
23
Western Sahara, Advisory Op inion, I.C.J. Reports 1975 , p.31, para.57. See alsoLegal Consequences for
States of the Continued Presence of South Africa in Namibia (South West Af rica) notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 31, para. 52.
24Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits,
Judgment, I.C.J. Reports 1986, p. 101, para. 191; see also ibid., p. 100, para. 188; see also H. Thierry, “Cours général de
droit international public”, CCHAIL, 1990, III, Vol. 222, p. 37.
25Military and Paramilitary Activities in and against Nicaragua, loc. cit., p. 103, para. 195.
26CR 2012/3, 13 March 2012, p. 24, para. 7 (David). - 15 -
4. Affirms that refusal by States to co-operate in the arrest, extradition, trial and
punishment of persons guilty of war crimes and crimes against humanity is
contrary to the purposes and principles of the Charter of the United Nations and to
generally recognized norms of international law.” [Underlining added.]
That resolution was adopted without a dissenting vote on 18 December 1971, by 71 votes to
none, with 42 abstentions 27. The abstaining States cited problems relating to the definition of the
crimes in question 28, domestic law 29 and the statute of limitations 30. Not one contested the
obligation to co-operate in order to extradite or tr y the perpetrators of war crimes or crimes against
humanity. It is clear, therefore, that there is consent among States to the obligation to punish, as set
out in the resolution.
26. Resolution 3074 (XXVIII) states:
“1. War crimes and crimes against humanity, wherever they are committed , shall be
subject to investigation and the persons ag ainst whom there is evidence that they
have committed such crimes shall be subject to tracing, arrest, trial and, if found
guilty, to punishment.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5. Persons against whom there is evidence that they have committed war crimes and
crimes against humanity shall be subject to trial and, if found guilty, to
punishment, as a general rule in the countries in which they committed those
crimes. In that connection, States shall co-operate on questions of extraditing such
persons.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7. In accordance with article1 of the Declaration on Territorial Asylum of
14December1967, States shall not grant asylum to any person with respect to
whom there are serious reasons for considering that he has committed a crime
against peace, a war crime or a crime against humanity.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .”
[Underlining added.]
This resolution was also adopted without a dissenting vote on 3 December 1973, by 94 votes
31
to none, with 29 abstentions . As with the adoption of resolution 2840 (XXVI), no State contested
the obligation to prosecute or to co-operate for the purpose of extr adition. The abstentions can be
attributed to the rejection of an amendment favourable to asylum 32 and, in the opinion of some
33
States, to an inadequate definition of the offences in question .
One author writes in respect of those resolutions:
27A/PV.2025, p. 10.
28Ibid., France; A/C.3/SR.1902, Philippines, para. 79.
29
A/C.3/SR.1902, Chile, para. 78.
30
Ibid., Norway, para. 80.
31A/PV.2187, p. 8.
32Ibid., pp. 1-8, passim.
33
Kuwait, A/C.3/SR.2021, 9November1973, para.33; Qa tar, Oman, Cameroon, Bahrain, Botswana, Spain,
Nigeria, id., SR.2022, 9 November 1973, para. 12; Argentina, A/PV.2187, 3 December 1973, para. 33. - 16 -
“Their weight in the formation of a customary obligation to extradite or
prosecute is remarkably strong, especially given that no state voted against the
resolutions and the reasons for abstention we re not concerned with the recognition of
an obligation to extradite or prosecute.” 34
2. The obligation to prosecute or extradite in treaty texts which appear to express a customary rule
27. The 1949 Geneva Conventions (binding on Senegal and Belgium since 18 May 1963 and
3 September 1952, respectively) and the Statute of the International Criminal Court (ICC) (binding
on Senegal and Belgium since 2 Fe bruary 1999 and 28 June 2000, respectively) define war crimes
and crimes against humanity and demand their punishment by the States parties to those
instruments. The definition of war crimes features in common Article50/51/130/147 of the four
Geneva Conventions and in Article 8 of the Statute of the ICC. The obligation of States to punish
those crimes is set forth in common Article49/50/129/146 of the Geneva Conventions and in the
Preamble of the ICC Statute (recitals 4-6).
As Belgium wrote in its Memorial 35 and stated in its oral argument 36, the Geneva
Conventions and the Statute of the ICC express customary rules:
⎯ the Court has recalled that the Geneva Conventio ns set forth “fundamental rules... to be
observed by all States whether or not they have ratified the conventions that contain them,
because they constitute intransgressible principles of international customary law” ; 37
⎯ referring to the ICC Statute, the ICTY has declared that “the Rome Statute by and large may be
taken as constituting an authoritative expression of the legal views of a great number of
38
States” .
3. The obligation to prosecute or extradite as a consequence of the obligation to combat impunity
28. In its Memorial 39and in its oral pleadings 40, Belgium cited a hundred or so Security
Council resolutions calling on States to combat impunity which very clearly confirmed the
obligation of States to prosecute the perpetrator of a war crime or a crime against humanity. To
give but one example, at the Millennium Summit the Security Council:
“[s]tresse[d] that the perpetrators of crimes against humanity, crimes of genocide, war
crimes, and other serious violations of international humanitarian law should be
41
brought to justice” .
34R. Van Steenberghe, “The Obligation to Extradite or Prosecute: Clarifying its Nature”, Journal of International
Criminal Law, 2011, p. 1100.
35MB, para. 4.74.
36
CR 2012/3, 13 March 2012, pp. 29-30, para. 20 (David).
37
Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 257, para. 79.
38ICTY, case IT-95-17/1-T, Furundzija, 10December1998, para.227; see also, id., case IT-94-1-A, Tadic,
15 July 1999, para. 223.
39MB, para. 4.69.
40CR 2012/3, 13 March 2012, p. 24, para. 8 (David).
41
S/RES/1318, 7 September 2000, VI. - 17 -
4. The obligation to prosecute or extradite as a consequence of the obligation to contribute to the
maintenance of international peace and security
29. The serious human rights violations co mmitted in the former Yugoslavia as fro421991 43
and in Rwanda in 1994 led to the creation by the Security Council of the ICTY and the ICTR .
The preambles of the Security Council resolutions which contain the Statutes of those two tribunals
state, in similar terms, that situations of human rights violations characterized by “mass killings”,
“[mass] rape”, “ethnic cleansing” 44, “genocide and other systema tic, widespread and flagrant
violations of international humanitarian law” 45constitute a threat to “international peace and
46
security” .
The Preamble of resolution 827 reads:
“ The Security Council,
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Expressing once again its grave alarm at continuing reports of widespread and
flagrant violations of international humanitarian law occurring within the territory of
the former Yugoslavia, and especially in the Republic of Bosnia and Herzegovina,
including reports of mass killings, massive, organized and systematic detention and
rape of women, and the continuance of the practice of “ethnic cleansing”, including
for the acquisition and the holding of territory,
Determining that this situation continues to constitute a threat to international
peace and security,
Determined to put an end to such crimes and to take effective measures to bring
to justice the persons who are responsible for them,
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .”
The Preamble of resolution 955 similarly reads:
“ The Security Council,
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Expressing once again its grave concern at the re ports indicating that genocide
and other systematic, widespread and flagrant violations of international humanitarian
law have been committed in Rwanda,
Determining that this situation continues to constitute a threat to international
peace and security,
Determined to put an end to such crimes and to take effective measures to bring
to justice the persons who are responsible for them,
42S/RES/827, 25 May 1993.
43S/RES/955, 8 November 1994.
44
S/RES/827, 25 May 1993, Preamble, recital 3.
45S/RES/955, 8 November 1994, Preamble, recital 4.
46S/RES/827, 25 May 1993, Preamble, recital 4; S/RES/955, 8 November 1994, Preamble, recital 5. - 18 -
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .”
During the discussions within the Security Council on the occasion of the adoption of
resolution955, some States made a connection be tween the crimes committed in Rwanda and the
existence of a threat to international peace and security. For example, France declared:
“Because of their particular seriousn ess, the offences which fall within the
competence of the Tribunal are a threat to peace and international security which
justifies recourse to Chapter VII of the Charter.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Tribunal itself will have to determine which cases it can appropriately deal
with. The other sus47cts will remain subject to the national jurisdiction of Rwanda or
of other States.”
Similarly, China, condemning “crimes in violation of international humanitarian law,
including acts of genocide”, declared that:
“China is in favour of bringing to justice those responsible for such crimes.
The establishment of an international tribunal for the prosecution of those who
are responsible for crimes that gravely viol ate international humanitarian law... is
only a supplement to domestic criminal ju risdiction and the current exercise of
48
universal jurisdiction over certain international crimes.”
Since the purposes of the United Nations are to “maintain international peace and security”
(Charter, Art.1, para.1) and to promote and encourage “respect for human rights and for
fundamental freedoms” (Charter, Art. 1, para. 3), Be lgium therefore considers there to be a judicial
connection between the maintenance of international peace and security and the punishment of war
crimes and crimes against humanity.
5. The obligation to prosecute or extradite in the context of the work of the Sixth Committee of the
General Assembly on “[t]he scope and application of the principle of universal jurisdiction”
30. While the Sixth Committee of the General Assembly was working on “[t]he scope and
application of the principle of universal jurisdic tion”, a number of States (not already listed in
paras.11 and 12 above) clearly affirmed that uni versal jurisdiction applied to war crimes and
49 50
crimes against humanity. Those States were Egypt , Chile, Sweden, Lesotho , Colombia,
Malaysia, Algeria 51 and El Salvador . For example, the representative of Algeria stated:
47S/PV.3453, 8November1994, p.3. See also the posit ion of Pakistan, which observed that the resolution
“clearly establish[ed] that gross and systematic violationsof international humanitarian law constitute a threat to
international peace and security” (ibid., p. 10). In addition, according to Spain, “[t]he international community could not
remain indifferent in the face of those deeds. It is not only the Rwandese peop le that is affected by such grave violations
of human rights and the fundamental valu es of mankind, but the entire internati onal community. This is why, for the
second time in its history, the Security Council, acting under Chapter VII of the Ch arter, has established a jurisdictional
organ . . . to hand down judgments in these very serious cases.” (Ibid., pp. 11-12).
48
Ibid., p. 11.
49
UN doc. A/C.6/65/SR.10, para. 68.
50Id., A/C.6/65/SR.12, paras. 6, 15, 38.
51Id., A/C.6/66/SR.12, paras. 27, 63, 66.
52
Id., A/66/93, Report of the Secretary-General , The scope and application of the principle of universal
jurisdiction, para. 143. - 19 -
“The nature of a crime should determin e whether it [falls] within the scope of
the principle of universal jurisdiction. It [is] largely agreed that piracy qualifie[s] for
inclusion on that basis, as d[o] crimes against humanity, war crimes, genocide, slavery
53
and torture.”
It must be noted, however, that in respect of war crimes, no State has taken a clear position on the
application of universal jurisdiction to the perpetrato rs of such offences solely in the context of an
armed conflict not of an international character; nevertheless, almost all of those States (Malaysia
being the exception) cite war crimes as grounds for the exercise of that jurisdiction, without
specifying whether the ar54d conflict during which those offences were committed must be of an
international character .
31. It is also interesting to note that in these discussions, the African Union, of which
Senegal is a member, asserted that such jurisdic tion applied to war crimes (without distinguishing
between international armed conflic ts and armed conflicts not of an international character) and
crimes against humanity. According to the Union, the offences falling under universal jurisdiction
“should be restricted to piracy, slavery, crimes against humanity, war crimes, genocide
and torture, and the application of universal jurisdiction should be invoked only under
exceptional circumstances and when it has been recognized that there are no other
means of bringing criminal action against the alleged perpetrators” . 55
33. Finally, still in the context of this work, attention may also be drawn to the statement of
the ICRC, according to which:
“The basis for universal jurisdiction over serious violations of international
humanitarian law is found in both treaty law and customary international humanitarian
law.” 56
6. The obligation to prosecute or extradite in academic writings
35. The International Law Commission(ILC) , whose object is “the promotion of the
progressive development of interna tional law and its codification” (Statute of the ILC, Art.1),
confirms the customary nature of the obligation to prosecute a person suspected of a war crime or a
crime against humanity in its draft Code of Crim es against the Peace and Security of Mankind.
Article 9, entitled “Obligation to extradite or prosecute”, provid
es:
“Without prejudice to the jurisdiction of an international criminal court, the
State Party in the territory of which an i ndividual alleged to have committed a crime
set out in article17[genocide], 18[crimes against humanity], 19[crimes against
United Nations personnel] or 20 [war crimes] is found shall extradite or prosecute that
individual.”
In its commentary, the ILC writes that the ob ligation to prosecute is not subordinate to a
prior request for extradition. The mere presence of the alleged perpetrator of the offence in its
territory is sufficient to engage the State’s obligation:
53Id., A/C.6/66/SR.12, para. 66.
54
Id., A/C.6/65/SR.10, para. 68; id., SR.12, paras. 6, 15, 38; A/C.6/66/SR.12, paras. 27, 66.
55Id., A/66/93, Report of the Secretary-General , The scope and application of the principle of universal
jurisdiction, para. 158.
56Ibid., para. 121. - 20 -
“In the absence of a request for extradition, the custodial State would have no
choice but to submit the case to its national authorities for prosecution. This residual
obligation is intended to ensure that a lleged offenders will be prosecuted by a
competent jurisdiction, that is to say, the cust57ial State, in the absence of an
alternative national or international jurisdiction.”
34. Several writers have drawn attention to the customary nature of the obligation to
prosecute. Thus, L.A. Steven writes:
“As a matter of custom, universal jurisdiction adheres only to the most
egregious offenses under international law; that is, to those offenses that by their very
nature undermine the foundations of the intern ational community. (p. 441) . . . Most
importantly, the duty to extradite or pro secute under customary international law
applies as a mandatory, affirmative obligati on for serious crimes such as war crimes,
crimes against humanity, and genocide. (p. 442)” 58
R. van Steenberghe clearly states that:
“a customary obligation to extradite or prosecute may be derived from the state
practice but only with respect to a limited number of crimes, namely core international
crimes such as genocide, crimes against humanity or war crimes, and only to the
extent that such a customary nature is ascribed to the obligation as it is correctly
59
understood” .
He explains his thinking by recognizing, as Belg ium does, that certain limits apply to this
obligation:
“According to the classical conception of the customary law formation and
given the numerous state declarations made on the subject, it would be difficult to
deny ascribing a customary status to the ob ligation to extradite or prosecute. This
customary obligation is nonetheless limited in some respects. First, as evidenced by
state practice, it is only concerned with co re international crim es such as genocide,
crimes against humanity or war crimes. A second fundamental limit comes from the
declarations in which prominent states ha ve strongly opposed affording a customary
nature to the obligation to extradite or prosecute due to concern over incompatibility
with domestic provisions regarding extradition and state jurisdiction. This opposition
is overcome, however, by limiting the ascription of a customary status to the
obligation as ‘a rule’, that is, to the ob ligation as conceived independently of the
implementation system to which it is generally associated and which provides
obligations concerning both extradition and state jurisdiction. In other words, the
existence of a customary obligation to extrad ite or prosecute can be asserted only if it
leaves the discretionary nature of extrad ition and state jurisdiction unaffected.
Thirdly, the customary obligation does not imply any automatic obligation to extradite
or prosecute. As the obligation to extradite or prosecute does in most of the treaties
embodying it, it only requires the custodial state to submit the case to the competent
authorities for the purpose of extradition or prosecution.” 60
57
Yearbook of the International Law Commission, 1996, Vol. II, Part Two, p. 33.
58
“Genocide and the Duty to Extradite or Prosecute: Why the United States is in Breach of Its International
Obligations”, Virginia Journal of International Law, 1999, pp. 441-442.
59“The Obligation to Extradite or Prosecute: Clarifying its Nature”, Journal of International Criminal Law, 2011,
p. 1095.
60Ibid., pp. 1115-1116. - 21 -
36. In conclusion, it is clear both from the prac tice cited in partsI and II of this reply and
from the positions of States set out above that States consider that international law requires them
to prosecute or extradite persons suspected of cr imes against humanity or war crimes committed in
an armed conflict not of an international char acter, where those offences occur outside their
territory and neither the alleged perpetrator nor th e victims are their nationals. Clearly, this does
not mean that this obligation may not be subject to other bonds of attachment with the forum State.
Thus, in Belgium’s view, the obligation to prosecute or, failing that, to extradite can only exist —
by its very nature, as the word “extradite” suggests — when the person suspected of those crimes is
present in the territory of the forum State. Of course, this does not prejudice the right of other
States to assert their jurisdiction in respect of those crimes, by virtue of universal jurisdiction, in the
absence of such a bond of attachment with the forum State. However, these aspects of the exercise
of universal jurisdiction fall outside the scope of the question put to Belgium by Judge Greenwood;
accordingly, Belgium will not elaborate on them any further.
37. Finally, supposing there to be a doubt as to the universal character of the rule—
quod non, according to Belgium— there is, however, no doubt that Senegal agrees with Belgium
on the obligatory nature of the rule, which it confirmed when:
⎯ it stated during the work of the Sixth Committee of the General Assembly on the obligation to
prosecute or extradite that
“[i]t [is] therefore vital to reach a common understanding of universal jurisdiction by
clearly defining its essence, scope, applicati on and limits and setting guidelines for its
61
application with a view to ending impunity for the perpetrators of serious crimes” ;
⎯ the explanatory memorandum to the Senegalese law of 12February2007 defined war crimes,
62
crimes against humanity and crimes of genocide on the basis of international custom ;
⎯ it repeatedly affirmed during the oral proceedings in this case that Senegal is committed to
63
combating impunity .
38. This is the evidence which, in Belgium’s view, demonstrates that States in general, and
Senegal— like Belgium— in particular, are requi red and consider that they are required under
customary international law to prosecute or ex tradite a person suspected of a crime against
humanity or a war crime committed in an armed co nflict not of an international character, where
those offences occurred outside the forum State and neither the alleged perpetrator of those
offences nor the victims are nationals of the forum State.
___________
61
UN doc. A/C.6/66/SR.12, para. 67.
62
Law No. 2007-02 of 12 February 2007 amending the Penal Code, Journal officiel de la République du Sénégal,
p. 2377, in MB, Ann. D.6.
6Ref. in CR 2012/6, 19 March 2012, p. 33, para. 20 (David).
Supplementary replies from Belgium to the question put to it by Judge Greenwood at the close of the hearing held on 16 March 2012 (translation)