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

Senegal)

OVERVIEW OF THE CASE

On 19 February 2009, Belgium filed an Application instituting proceedings against Senegal

relating to Mr. Hissène Habré, the former President of Chad and resident in Senegal since
being granted political asylum by the Senegalese Government in 1990. Belgium submitted
that, by failing to prosecute Mr. Habré for certain acts he was alleged to have committed during
his presidency, including acts of torture and crimes against humanity, or to extradite him to
Belgium, Senegal had violated the so-called obligation aut dedere aut judicare (that is to say,
“to prosecute or extradite”) provided for in Article 7 of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment and in customary international
law.

On the same day, Belgium filed a request for the indication of provisional measures, asking
the Court to order “Senegal to take all the steps within its power to keep Mr. H. Habré under
the control and surveillance of the judicial authorities of Senegal so that the rules of
international law with which Belgium requests compliance may be correctly applied”.
Belgium justified this request by reference to certain statements made by Mr. Abdoulaye
Wade, President of the Republic of Senegal, which, according to Belgium, indicated that, if
Senegal could not secure the necessary funding to try Mr. Habré, it would “cease monitoring
him or transfer him to another State”.

In its Order of 28 May 2009, referring to the assurances given by Senegal during the oral
proceedings that it would not allow Mr. Habré to leave its territory while the case was pending,
the Court concluded that there was no risk of irreparable prejudice to the rights claimed by
Belgium and that there did not exist any urgency to justify the indication of provisional
measures.

In its Judgment dated 20 July 2012, the Court began by examining the questions raised by
Senegal relating to its jurisdiction and to the admissibility of Belgium’s claims. Having pointed
out that the existence of a dispute is a condition of its jurisdiction under both bases of
jurisdiction invoked by Belgium — Article 30, paragraph 1, of the Convention against Torture
and the declarations made by both States under Article 36, paragraph 2, of the Statute — the
Court considered that, since any dispute that may have existed between the Parties with regard
to the interpretation or application of Article 5, paragraph 2, of the Convention against Torture
had ended by the time the Application was filed, it lacked jurisdiction to decide on Belgium’s
claim relating to that provision. Article 5, paragraph 2, of the said Convention obliges the
States parties thereto to establish the universal jurisdiction of their courts over the crime of
torture. The Court found, however, that it did have jurisdiction to entertain Belgium’s claims
based on the interpretation and application of Article 6, paragraph 2, and Article 7, paragraph
1, of the Convention. It further considered, on the basis of the international arrest warrant
issued against Mr. Habré by Belgium, the extradition request transmitted to Senegal and the
diplomatic exchanges between the two Parties, that, at the time of the filing of the Application
instituting proceedings, there was no dispute between the Parties regarding Senegal’s
obligation to prosecute or extradite Mr. Habré for crimes he was alleged to have committed
under customary international law. The Court observed that, consequently, while the facts
which constituted those alleged crimes may have been closely connected to the alleged acts of
torture, it did not have jurisdiction to entertain the issue whether there existed an obligation
for a State to prosecute crimes under customary international law allegedly committed by a
foreign national abroad.

The Court then turned to the conditions which have to be met in order for it to have jurisdiction
under Article 30, paragraph 1, of the Convention against Torture, namely that the dispute
cannot be settled through negotiation and that, after a request for arbitration has been made by
one of the parties, they have been unable to agree on the organization of the arbitration within
six months from that request. Having found that these conditions had been met, the Court
concluded that it had jurisdiction to entertain the dispute between the Parties concerning the
interpretation and application of Article 6, paragraph 2, and Article 7, paragraph 1, of the
Convention. It ruled, however, that it was not necessary for it to establish whether its
jurisdiction also existed with regard to the same dispute on the basis of the declarations made
by the Parties under Article 36, paragraph 2, of its Statute.

With respect to the admissibility of Belgium’s claims, the Court ruled that once any State party
to the Convention against Torture was able invoke the responsibility of another State party
with a view to ascertaining the alleged failure to comply with its obligations erga omnes
partes, i.e., obligations owed toward all States parties, Belgium, as a party to the said
Convention, had standing to invoke the responsibility of Senegal for the alleged breaches of
its obligations under Article 6, paragraph 2, and Article 7, paragraph 1, of that Convention.
The Court thus found that Belgium’s claims based on those provisions were admissible.

As regards the alleged violation of Article 6, paragraph 2, of the Convention against Torture,
which provides that a State party in whose territory a person alleged to have committed acts
of torture is present must “immediately make a preliminary inquiry into the facts”, the Court
noted that Senegal had not included in the case file any material demonstrating that it had
carried out such an inquiry. The Court further observed that, while the choice of means for
conducting the inquiry remained in the hands of the States parties, taking account of the case
in question, Article 6, paragraph 2, of the Convention requires that steps must be taken as soon
as the suspect is identified in the territory of the State, in order to conduct an investigation of
that case. In the present case, the establishment of the facts had become imperative at least
since the year 2000, when a complaint was filed in Senegal against Mr. Habré. Nor had an
investigation been initiated in 2008, when a further complaint against Mr. Habré was filed in
Dakar, after the legislative and constitutional amendments made in 2007 and 2008,
respectively. The Court concluded from the foregoing that Senegal had breached its obligation
under the above-mentioned provision

With respect to the alleged violation of Article 7, paragraph 1, of the Convention against
Torture, the Court first examined the nature and meaning of the obligation laid down in that
provision. It observed that the obligation to submit the case to the competent authorities for
the purpose of prosecution (the “obligation to prosecute”) deriving from that provision was
formulated in such a way as to leave it to the said authorities to decide whether or not to initiate
proceedings, thus respecting the independence of States parties’ judicial systems : those
authorities thus remain responsible for deciding on whether to initiate a prosecution, in the
light of the evidence before them and of the relevant rules of criminal procedure. The Court
further observed that the obligation to prosecute requires the State concerned to submit the
case to its competent authorities for the purpose of prosecution, irrespective of the existence
of a prior request for the extradition of the suspect. It noted, however, that, if the State in whose
territory the suspect is present has received a request for extradition in any of the cases
envisaged in the provisions of the Convention, it may relieve itself of its obligation to
prosecute by acceding to that request. It thus concluded that extradition was an option offered
to the State by the Convention, whereas prosecution was an international obligation under the
Convention, the violation of which was a wrongful act engaging the responsibility of the State.

The Court then turned to the temporal scope of the obligation laid down in Article 7, paragraph
1, of the Convention. It noted in this respect that, while the prohibition of torture was part of
customary international law and had become a peremptory norm (jus cogens), the obligation
to prosecute the alleged perpetrators of acts of torture under the Convention applied only to
facts having occurred after its entry into force for the State concerned. The Court concluded
from the foregoing that Senegal’s obligation to prosecute pursuant to Article 7, paragraph 1,
of the Convention did not apply to acts alleged to have been committed before the Convention
entered into force for Senegal on 26 June 1987, although there was nothing in that instrument
to prevent it from instituting proceedings concerning acts that were committed before that date.
The Court found that Belgium, for its part, was entitled, with effect from 25 July 1999, the
date when it became party to the Convention, to request the Court to rule on Senegal’s
compliance with its obligation under Article 7, paragraph 1, of the Convention.

Finally, the Court examined the question of the implementation of the obligation to prosecute.
It concluded that the obligation laid down in Article 7, paragraph 1, required Senegal to take
all measures necessary for its implementation as soon as possible, in particular once the first
complaint had been filed against Mr. Habré in 2000. Having failed to do so, Senegal had
breached and remained in breach of its obligations under Article 7, paragraph 1, of the
Convention.
The Court found that, by failing to comply with its obligations under Article 6, paragraph 2,
and Article 7, paragraph 1, of the Convention, Senegal had engaged its international
responsibility. Therefore, it was required to cease that continuing wrongful act and to take,
without further delay, the necessary measures to submit the case to its competent authorities
for the purpose of prosecution, if it did not extradite Mr. Habré.