Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal)
- International Court of Justice (ICJ) — Torture — Jurisdiction of states, universality principle — Extradition and mutual assistance
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.
A. Factual Background
1 Hissène Habré was the president of the Republic of Chad from 1982 to 1990. During this time, large-scale violations of human rights were allegedly committed by government forces. After being overthrown, in December 1990, by his opponent, Idris Déby, Habré took refuge in Senegal and has resided in Dakar ever since. The victims of the alleged violations sought redress in several for a. Thus, complaints relating to the actions of Chad’s governmental forces during Habré’s presidency were filed in Senegal (2000 and 2008), in Belgium (2000–01), and before the UN Committee against Torture (2001).
2 The first complaint against Habré was filed in Senegal in January 2000. In July 2000, the Chambred’ accusation of the Dakar Court of Appeal annulled the proceedings on the ground that they concerned crimes committed outside Senegalese territory by a foreign national against foreign nationals and would thus involve the exercise of universal jurisdiction not provided for by Senegalese law in force at the time. In March 2001, the Court of Cassation upheld the judgment.
3 Belgium was the second State whose judicial authorities were seized by the Chadian victims. Between November 2000 and December 2001, 21 persons filed complaints against Habré for, among others, crimes of torture covered by the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (‘Convention against Torture’) and crimes covered by the Belgian Act of 16 June 1993 on the Punishment of Grave Breaches of the Geneva Conventions of 12 August 1949 and their Additional Protocols I and II of 18 June 1977. Two of the plaintiffs had dual Belgian–Chadian nationality and another was a Belgian national of Chadian descent, although none of them was a Belgian national at the time the alleged crimes occurred. On 19 September 2005, an international arrest warrant for Habré was issued. On 22 September 2005, Belgium transmitted the warrant to Senegal requesting Habré’s extradition. On 25 November 2005, the Chambred’ accusation of the Dakar Court of Appeal ruled on Belgium’s extradition request, deciding that Habré enjoyed jurisdictional immunity, despite the fact that, in 1993, Chad had officially lifted from the former president all immunity from legal process. According to Senegal, this judgment put an end to the judicial stage of the proceedings. The next day, Senegal referred the issue of the institution of proceedings against Habré to the African Union. In July 2006, the African Union’s Assembly of Heads of State and Government mandated Senegal to ensure that Habré was tried on behalf of Africa by a Senegalese court. In this context, discussions were held between Senegal, the African Union, the European Union, and third States on the funding and organization of Habré’s trial.
4 The third forum seized by the Chadian victims was the UN Committee against Torture. In April 2001, after the rejection of the complaint by the Senegalese courts, one of the persons who had filed the complaint together with other alleged victims submitted a communication against Senegal, claiming that it was in breach of the Convention against Torture, namely Art. 5 (2) (failure to adapt its legislation in order to establish jurisdiction for the crimes listed in the Convention) and Art. 7 (failure to prosecute or extradite Habré). In a decision rendered in May 2006, the Committee found that Senegal was indeed in violation of Art. 5 (2) and Art. 7 (1) Convention against Torture. In response to this decision, Senegal adopted the legislation necessary under Art. 5 (2). Moreover, in 2008, it amended its Constitution providing for an exception to the principle of non-retroactivity for acts of genocide, crimes against humanity, and war crimes. Following these legislative changes, a new complaint was filed in 2008 in Senegal against Habré.
5 Two other international courts dealt with some aspects of the case against Habré. Firstly, in 2008, the African Court on Human and Peoples’ Rights (ACtHPR) was seized by a Chadian national requesting the withdrawal of the proceedings instituted against Habré in Senegal. The Court rejected the application in 2009 for lack of jurisdiction. Secondly, Habré himself applied to the Court of Justice of the Economic Community of West African States (ECOWAS) claiming that the institution of proceedings against him by Senegal would violate several human rights. By a judgment delivered in 2010, the Court ordered Senegal to comply with the principle of non-retroactivity and called for the creation of ‘a special ad hoc procedure of an international character’ in order to prosecute Habré.
6 Meanwhile, in 2011, Belgium extended two more extradition requests in relation to the proceedings against Habré still pending before the Belgian judiciary. Both requests were declared inadmissible for procedural reasons by the courts of Senegal (due to a lack of the documents necessary under Senegalese law). On 17 January 2012, a fourth extradition request was transmitted by Belgium to the Senegalese authorities.
B. History of the Proceedings
7 On 19 February 2009, Belgium filed an application with the International Court of Justice (ICJ) requesting it to declare that Senegal was under the obligation to bring criminal proceedings against Habré or, failing such proceedings, to extradite him to Belgium. The claim was founded on the Convention against Torture and on customary international law.
8 On the same date, Belgium filed a request for the indication of provisional measures requiring Senegal to take all the steps within its power to keep Habré under the control and surveillance of the Senegalese judicial authorities. The request was in reaction to declarations made by the president of Senegal that Habré’s house arrest would be lifted. During the oral procedure, the Agent of Senegal gave formal assurances that Senegal would not allow Habré to leave its territory before the Court delivered its final decision. Belgium accepted these assurances and the Court rejected the request for provisional measures in its order of 28 May 2009.
9 In its memorial of1July2010, Belgium submitted: (i) that Senegal had violated its obligation to adjust its domestic legislation in order to allow for the exercise of the universal jurisdiction provided for under Art. 5 (2) Convention against Torture; and (ii) that, by failing to bring criminal proceedings against Habré or to extradite him to Belgium, Senegal had violated and continued to violate both the Convention and customary international law. With respect in particular to customary international law, Belgium asserted that it established an obligation to prosecute or extradite persons allegedly responsible for acts of genocide, crimes against humanity, and war crimes (Autdedereautiudicare). In its counter-memorial submitted 23 August 2011, Senegal rejected all claims put forth by Belgium, submitting that it was complying with all its obligations both under the Convention against Torture and under customary international law. The Court delivered its judgment on 20 July 2012 (Questions relating to the Obligation to Prosecute or Extradite [Belgium v Senegal]).
C. The Judgment of 20 July 2012
10 For Belgium, the ICJ’s jurisdiction rested on two legal bases: (i) Art. 30 (1) of the Convention against Torture, a clause conferring jurisdiction to the Court for disputes arising under the Convention between States Parties; and (ii) the declarations recognizing the compulsory jurisdiction of the Court under Art. 36 (2) of the Court’s Statute made by Belgium and Senegal respectively on 17 June 1958 and 2 December 1985. Senegal rejected the ICJ’s jurisdiction on either ground. More specifically, it claimed that no dispute existed between the parties and that the conditions necessary for the exercise of the Court’s jurisdiction were not met.
11 As to the existence of the dispute, three questions arose before the Court. The first was whether a dispute existed between the parties concerning Senegal’s violation of its obligation to adopt the legislative measures required by Art. 5 (2) Convention against Torture. In this respect, Senegal had adopted the required legislative measures following the 2006 decision by the Committee against Torture. Belgium did not contest this. Thus, the Court concurred with Senegal that no dispute existed between the parties at the time Belgium’s application was filed. However, since Senegal’s delay in complying with this obligation impacted significantly its compliance with the other obligations at issue, the Court came back to Art. 5 (2) in the paragraphs dealing with the merits of the case.
12 The second question concerned the existence of a dispute on Arts 6 (2) and 7 (1) Convention against Torture. In view of the parties’ radically opposite views as to whether Senegal was in breach of those articles or not, the ICJ had no difficulty confirming the existence of a dispute.
13 The third question turned to the violation by Senegal of its obligation to prosecute or extradite a person allegedly responsible for acts of genocide, crimes against humanity, and war crimes under customary international law. Belgium had devoted several pages of its memorial to the question and reiterated the claim during the oral phase of the proceedings before the Court. On the other hand, aside from asserting that it had not violated customary international law on the subject, Senegal did not specifically address the issue. Noting that in its diplomatic correspondence with Senegal, Belgium invoked only the Convention against Torture, the Court held that no dispute existed between the parties on customary international law.
14 Turning to the other conditions for the exercise of jurisdiction under Art. 30 (1) of the Convention against Torture, namely negotiations and arbitration, the ICJ held that they were both fulfilled in the present case. The Court noted that ‘[s]everal exchanges of correspondence and various meetings were held between the parties concerning the case of Habré’ (Judgment para. 58). In this context, Belgium had explicitly stated in its Notes Verbales that it was acting under Art. 30 Convention against Torture, while ‘Senegal did not object to the characterization by Belgium of the diplomatic exchanges as negotiations’ (Judgment para. 58). Given that the positions of the Parties had not evolved during this process, the Court concluded that the dispute could not be settled by negotiations. As to arbitration, Belgium had addressed to Senegal a request to this effect, to which Senegal did not reply. The Court affirmed that ‘[t]he present case is one in which the inability of the Parties to agree on the organization of the arbitration results from the absence of any response on the part of the State to which the request for arbitration was addressed’ (Judgment para. 61).All the conditions of Art.30 being fulfilled, the Court asserted that it had jurisdiction in the present case, within the limits of the dispute as identified above, ie only in relation to Arts 6 (2) and 7 (1) Convention against Torture. In view of this conclusion, the Court found it unnecessary to decide whether it also had jurisdiction on the basis of the declarations made under Art. 36 (2) ICJ Statute.
15 None of the persons that filed the complaint against Habré in Belgium had Belgian nationality at the time when the acts were committed. Based on this fact, Senegal contested Belgium’s standing in the present case. Belgium defended its entitlement to invoke Senegal’s responsibility before the Court by invoking the ergaomnes character of the obligations established by the Convention. On the basis of this character, it claimed to be either (i) an injured State under Art. 42 (b) (i) ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, ‘specially affected’ by Senegal’s breach because the Belgian authorities had exercised their jurisdiction according to Art. 5 Convention against Torture; or (ii) at least, a ‘State other than an injured State’ under Art. 48 (1) (a) ILC Draft Articles.
16 The ICJ decided to consider first, whether Belgium had standing as ‘a State other than an injured State’. In this respect, it confirmed that the obligation to conduct a preliminary inquiry into the facts (hereafter: obligation to investigate) and the obligation to submit the case to the competent authorities for prosecution (hereafter: obligation to prosecute) set forth in Arts 6 (2) and 7 (1) are obligations ergaomnes. It held that ‘[t]he States Parties to the Convention have a common interest to ensure… that acts of torture are prevented and that, if they occur, their authors do not enjoy impunity… That common interest implies that the obligations in question are owed by any State Party to all the other States Parties to the Convention’ (Judgment para. 68). Thus ‘[a]ll the States Parties “have a legal interest” in the protection of the rights involved’ and are entitled to request compliance with the Convention against Torture of another State Party, starting from the date when both States are parties to the Convention (Judgment para. 68). No special interest is required for that purpose. In view of the above, the ICJ recognized Belgium’s standing and declared the case admissible, without examining whether Belgium was also an injured State.
17 Turning to the merits of the case, Belgium contended that Senegal had breached and continued to breach both its obligation to investigate under Art. 6 (2) Convention against Torture, and its obligation to prosecute established by Art. 7 (1) Convention against Torture. Senegal replied that it had adopted the necessary legislation in 2007–08, that Habré’s assignment to house arrest was taken pursuant to Art. 6 (2) Convention against Torture and that it had taken the first steps towards fulfilling its obligation to prosecute. In this respect, it referred to the discussions held with the European Union, the African Union, and third States on the subject of prosecuting Habré, and invoked the 2010 ECOWAS Court of Justice judgment as an element justifying the delay in its course of action. The Court was not convinced and found Senegal to be in breach of both obligations. In doing so, it seized the opportunity to clarify the scope and content not only of Arts 6 (2) and 7 (1) but also of Art. 5 (2) Convention against Torture.
18 The ICJ asserted that the object and purpose of the Convention is to make the struggle against torture more effective. It confirmed that the obligations to establish universal jurisdiction for the crimes set down by the Convention, to investigate the relevant facts, and to prosecute are all ‘elements of a single conventional mechanism’ (Judgment para. 91). The first obligation has a preventive and deterrent character and has to be implemented as soon as the State becomes bound by the Convention. Compliance with it is a necessary condition for the realization of the other two obligations. Thus, a delay in the adoption of the necessary legislation in order to prosecute suspects for acts of torture necessarily affects the implementation of the obligations to investigate and prosecute these suspects (Judgment paras 76, 77).
19 As to the obligation to investigate, the Court outlined that it is intended to corroborate or not the suspicions regarding a person allegedly responsible for acts of torture. The establishment of the relevant facts is the starting point of this procedure, and an essential stage in the process of the struggle against torture. The obligation takes effect as soon as the State has reason to suspect that a person present in their territory may be responsible for acts of torture, and at the latest, when the first complaint is filed against the said person. As to the modalities of the fulfilment of the obligation to investigate, the Court held that it has to be conducted according to the same standards in terms of evidence, that it ‘is conducted by the authorities who have the task of drawing up a case file and collecting forms of evidence’ (documents, witness statements etc), and that the State should seek the cooperation of all the involved States in order to fulfil its obligation to investigate, namely not only the State where the crime was committed, but also any other State where related complaints have been filed (Judgment para. 83). In any case, the simple questioning of the suspect is not sufficient.
20 With regard to the obligation to prosecute or extradite, which gave its name to the case, the Court asserted that the two alternatives of the obligation to prosecute or extradite do not have the same weight: ‘prosecution is an international obligation under the Convention, the violation of which is a wrongful act engaging the responsibility of the State’, which exists irrespective of an extradition request (Judgment paras 94–5); on the other hand, ‘[e]xtradition is an option offered to the State by the Convention’, allowing it to ‘relieve itself of its obligation to prosecute by acceding to an extradition request’ (Judgment para. 95). Thus, the ICJ’s reading of Art. 7 Convention against Torture attributes primacy to the obligation to prosecute over the option of extradition, in a way reminiscent of the formulation of the relevant obligation in the Geneva Conventions I–IV (1949).
21 Furthermore, the ICJ confirmed that the obligation to prosecute does not involve an obligation to initiate a prosecution, but is actually an obligation to submit the case to the prosecuting authorities. It is up to them to decide, in light of the evidence, whether or not to initiate proceedings. As it was the case with the obligation to investigate, in view of the object and purpose of the Convention against Torture, the obligation to prosecute must be implemented within a reasonable time and should be undertaken without delay, particularly once the first complaint has been filed against the suspect. As for extradition, the Court insisted that it may only be ‘to a State which has jurisdiction in some capacity, pursuant to Art. 5 Convention against Torture, to prosecute and try’ the offender (Judgment para. 120).
22 Moreover, the obligations to investigate and prosecute exist only with respect to facts that occurred after the Convention against Torture has entered into force for the State concerned. They do not apply to acts committed prior to the entry into force of the Convention vis-à-vis that State, although nothing prevents the State from investigating and prosecuting acts committed prior to the entry into force of the Convention.
23 Finally, the ICJ affirmed that the breach of the obligation to prosecute is a continuing wrongful act, which cannot be justified by invoking internal law, financial difficulties, or referral of the matter to an international organization.
24 In view of the above, Senegal’s breach of Arts 6 (2) and 7 (1) Convention against Torture was confirmed. Moreover, the ICJ found that Senegal was under the obligation, ‘without further delay, [to] submit the case of Habré to its competent authorities for the purpose of prosecution, if it [did] not extradite him’ (Judgment para. 122 (6)). It is interesting to note in this respect that the Court did not specify the State to which Habré was to be extradited, if Senegal chose not to prosecute him.
25 Following the ICJ’s judgment, and in order to comply with the 2010 judgment by the ECOWAS Court of Justice, Senegal and the African Union agreed to establish in Senegal the Extraordinary African Chambers in order to prosecute Habré. The Chambers were created in December 2012. According to their Statute, they are special chambers established within Senegal’s judicial system, much like the extraordinary chambers in Cambodia and in Bosnia-Herzegovina, in order ‘to prosecute and try the person or persons most responsible for crimes and serious violations of international law, customary international law and international conventions ratified by Chad, committed in the territory of Chad during the period from 7 June 1982 to 1 December 1990’ (Art. 3 Statute of the Extraordinary African Chambers), ‘in accordance with Senegal’s international commitments’ (Art. 1 Statute of the Extraordinary African Chambers). The Chambers’ rationemateriae jurisdiction extends to the crime of genocide, crimes against humanity, war crimes, and torture (Art. 4 Statute of the Extraordinary African Chambers). On 2 July 2013, the Chambers’ investigating judges charged Habré with crimes against humanity, torture, and war crimes.
26 The ICJ’s judgment is important in many respects. For the second time since its creation, the first being the 2006 judgment in Armed Activities on the Territory of the Congo (New Application 2002) and the prohibition of acts of genocide, the Court affirmed the iuscogens character of the prohibition of torture (Armed Activities on the Territory of the Congo Cases). Moreover, the ICJ examined for the first time the obligation to prosecute or extradite, offering much needed insight into its scope and content. It is expected that the Court’s findings will contribute significantly to the analysis of the obligation to extradite or prosecute, currently under consideration by the ILC.
27 This does not mean that the Court’s findings have not met with criticism. For example, the conception of extradition as being merely ‘an option’ and not a proper obligation has been considered as being potentially counterproductive to the object and purpose of the treaty, namely the struggle against impunity. Indeed, had Senegal decided not to prosecute Habré, the Court’s reasoning suggests that no distinct obligation to extradite him would be incumbent upon it. In case the breach of Senegal’s obligation not to prosecute could be justified by invoking a circumstance precluding wrongfulness, the objective of the struggle against impunity would be compromised.
28 Furthermore, the Court did not specify explicitly whether Belgium was entitled to put forth claims relating to Senegal’s breach of the Convention against Torture that occurred before the Convention’s entry into force with respect to Belgium (25 July 1999). In relation to this, the fact that the acts of torture that triggered the whole case predated 1999 is irrelevant. In reality, Belgium’s legal interest was not linked to these facts as such, but rather to Senegal’s breaches of the Convention against Torture. These breaches are of a continuous character. Therefore, Belgium was entitled to invoke Senegal’s responsibility independently of the exact time the violation of the Convention had begun, ie, even if it began before 25 July 1999. Thus the ICJ was not obliged to clarify the issue further.
29 Another issue sidestepped by the Court was Belgium’s assertions concerning the existence under customary international law of an obligation to prosecute or extradite alleged perpetrators of acts of genocide, crimes against humanity, and war crimes. In a written supplementary reply to a question by Judge Greenwood, Belgium offered further material in support of its claim. Bypassing indications that Senegal subscribed to Belgium’s position, the Court did not discuss the question in the judgment. Judge Abraham in his separate opinion and Judge ad hoc Sur in his dissenting opinion expressed reservations as to the existence of such a customary rule. The question is thus left open by the judgment.
30 One of the Court’s boldest findings related to the influence exercised by the ergaomnespartes character of the obligations at issue on Belgium’s standing and on the admissibility of the case. Unsurprisingly, this issue proved controversial for several judges. Indeed, Judges Skotnikov and Xue, Judge ad hoc Sur, and perhaps implicitly Judge Owada, were critical of the connection established by the Court between the ergaomnespartes character of the Convention against Torture’s obligations and the entitlement of any State Party to the Convention to be qualified as a ‘State other than an injured State’ and to bring a claim against another State Party. Judge Xue, for example, expressed doubts as to Belgium’s right to request Habré’s extradition. By choosing to ground Belgium’s standing on Art. 48 ILC Draft Articles on State Responsibility, the Court avoided this salient issue. However, this choice had a consequence for the remedies ordered by the Court: it resulted in the general formulation of Senegal’s extradition option in the operative part of the judgment and the omission of the claim that Habré be extradited specifically to Belgium. In any case, and despite the criticism voiced by the judges, in this author’s view, the judgment correctly applies Art. 48 ILC Draft Articles on State Responsibility, in line with what Judge Simma had suggested some years ago in his separate opinion in Armed Activities on the Territory of the Congo (at para. 35). The judgment constitutes the first example of the application of Art. 48 in judicial proceedings before the ICJ. Whether other States will choose to follow this path remains to be seen.
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