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(Source picture: Rama/Wikipedia)

(Source picture: Rama/Wikipedia)

Belgium v. Senegal

Court International Court of Justice, The Netherlands
Decision title Questions Relating to the Obligation to Prosecute or Extradite
Decision date 20 July 2012
Parties
  • Kingdom of Belgium
  • Republic of Senegal
Categories Crimes against humanity
Keywords crimes against humanity, jurisdiction, torture
Links
Other countries involved
  • Chad
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Summary

Hissène Habré, currently a resident of Senegal, was the President of the Republic of Chad from 1982 until 1990. During that time, he established a brutal dictatorship which, by the bias of its political police, the Bureau of Documentation and Security (Direction de la Documentation et de la Sécurité (DDS)) caused the deaths of tens of thousands of individuals.

Proceedings have commenced and failed against him in the Republic of Chad, Senegal, and most recently in Belgium. The latter State issued an international arrest warrant for Habré in 2005 for charges of crimes against humanity, war crimes, torture and serious violations of international humanitarian law. The request was never complied with; the Court of Appeal of Dakar in Senegal held that Habré enjoyed immunity and it was incompetent to rule on the validity of the arrest warrant for a former Head of State. Belgium instituted proceedings before the International Court of Justice (ICJ) alleging that Senegal was in violation of its obligation to prosecute or extradite Habré under the Convention Against Torture.

The present decision by the ICJ is the culmination of these proceedings. In its decision, the ICJ ruled that Senegal was indeed in breach of its obligations under the Convention and should proceed without further delay to the prosecution of Habré. It cannot rely on its internal law or financial difficulties to evade the implementation of this obligation.

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Procedural history

On 30 November 2000, a Belgian national of Chadian origin filed a complaint with civil-party application against Habré with a Belgian investigating judge. By 11 December 2001, some 20 additional persons had filed similar complaints before the same judge.

On 19 September 2005, the Belgian investigating judge issued an international arrest warrant for Habré as perpetrator or co-perpetartor of serious violations of international humanitarian law, torture, genocide, crimes against humanity and war crimes.

On 25 November 2005, the Court of Appeal of Dakar in Senegal ruled that it did not have jurisdiction to investigate or prosecute a Head of State for crimes allegedly committed in the exercise of his functions, and that Habré enjoys jurisdictional immunity. The Court concluded that it could therefore adjudicate the lawfulness of the proceedings and the validity of the arrest warrant.

On 26 November 2006, Senegal referred to the African Union the issue of instituting proceedings against Habré.

On 19 February 2009, Belgium instituted proceedings against Senegal before the International Court of Justice in respect of a dispute concerning Senegal’s obligation to prosecute or extradite Hissène Habré pursuant to the 1984 Convention Against Torture and customary international law. On that same date, Belgium requested the Court to indicate provisional measures requiring Senegal to take all steps within its power to keep Habré under the control and surveillance of the Senegalese judicial authorities.

By an order of 28 May 2009, the Court declined the request.

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Related developments

On 22 August 2012, Senegal and the African Union signed an agreement to establish the Extraordinary African Chambers in Senegal to prosecute, amongst others, Habré for crimes committed by his regime in Chad.

Habre (again) brought a suit at the ECOWAS Court seeking an order for the immediate suspension of all investigations and proceedings, alleging that the EAC were an illegitimate court and that his trial would be unfair. However, on 5 November 2013, the Court held that since the EAC was established pursuant to a treaty between Senegal and the AU, it had no jurisdiction to rule on the case. The case was dismissed, clearing the way for the trial to start.

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Legally relevant facts

Hissène Habré was the President of Chad from 1982 until his overthrow in 1990. During his eight year rule, large scale violations of human rights were allegedly committed including arrests of actual or presumed political opponents, detentions without trial or detentions under inhumane conditions, mistreatments, torture extrajudicial executions and enforced disappearances (para. 16).

He has since resided in Senegal where he was granted political asylum from the Senegalese Government (para. 16).

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Core legal questions

  • What is the nature and meaning of the obligation to prosecute laid down in Article 7(1) of the Convention Against Torture?
  • What is the temporal scope of the obligation to prosecute? Can it apply to acts committed before the entry into force of the Convention in 1987?
  • Can Senegal rely on the decision of the Court of Justice of the Economic Community of the States of West Africa (ECOWAS) or its financial difficulties to justify a failure to initiate proceedings against Habré?

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Specific legal rules and provisions

  • Articles 5(2), 6(2) and 7(1) of the Convention Against Torture.

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Court's holding and analysis

The Court considers that Article 7(1) obliges 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. This obligation may or may not result in the institution of proceedings, in light of the evidence before the authorities (para. 94). However, if the State in whose territory the suspect is present has received a request for extradition, it can relieve itself of its obligation to prosecute by acceding to that request. Extradition is an option offered to the State by the

Convention, whereas prosecution is an international obligation under the Convention, the violation of which is a wrongful act engaging the responsibility of the State (para. 95).

Although the prohibition of torture is a norm of jus cogens and customary international law (para. 99), the obligation to prosecute alleged perpetrators of acts of torture under the Convention only applies to facts that have occurred after the entry into force of the Convention for the State concerned (para. 100). Thus, Senegal’s’ obligation to prosecute does not apply to acts allegedly committed before the Convention entered into force for Senegal on 26 June 1987 (para. 102).

Senegal’s duty to comply with its Convention obligations is not affected by the decision of the Court of Justice of ECOWAS (para. 111) nor can its failure to comply be justified by financial difficulties (para. 112) or its internal law (para. 113). It is implicit in Article 7(1) that the obligation to prosecute must be implemented within a reasonable time, in a manner compatible with the object and purpose of the Convention (para. 114).

Having failed to adopt all measures necessary for the implementation of its obligation under Article 7(1) as soon as possible, in particular, once the first complaint had been filed in 2000, Senegal has breached and remains in breach of its obligations under Article 7(1) (para. 117).

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Further analysis

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Instruments cited

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Related cases

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Additional materials

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