Belgium v Senegal
Naielah Julius
Siti Nur Aida Zaidi
Khairunnajhan Khalid
Najwa Binti Mohd Nor
1
Questions relating to the Obligation to Prosecute or
Extradite
Hissane Habre :
2
SUMMARY OF THE CASE
3
- This dispute relates to the interpretation and
application of the United Nations Convention against
Torture of 10 December 1984, which has been
binding on the two States since 21 August 1986
(Senegal) and 25 June 1999 (Belgium), the Court’s
jurisdiction is also founded on the compromissory
clause included in Article 30 of that Convention.
4
- Hissene Habre (former president of Republic of
Chad, from 1982-1990). He was alleged to
commit a large scale violations of human rights
during that time through his political police,DCC.
He later was overthrown by his opponent and
was exile in Senegal. (para 16)
5
- 7 Chadians nationals together with an
association of victims filed a criminal complaint
against Habre in Dakar, Senegal in 2000. (para
17)
Then the proceedings against Mr. Habré was
annulled by COA, on the ground that they
concerned crimes committed not within the
territory of Senegal by a foreign national against
foreign nationals and that they would involve the
exercise of universal jurisdiction. (para 18) 6
- At that time (2000) the Senegalese Code of
Criminal Procedure (then) in force did not provide
for such jurisdiction. (para 18)
This judgement was affirmed by the highest court
there. (para 18)
7
- Later on, 21 victims filed suit against Habre in
Belgium and after 4 years of investigation, Belgium
issued an international warrant arrest against Habre,
requesting for Habre’s extradition. (para 19, 21)
The Chamber of D’accusation of the Dakar COA ruled
on Belgium’s extradition request, and decided that
Habré enjoyed jurisdictional immunity, despite the fact
that, in 1993, Chad had officially lifted from the former
president all immunity from legal process. (para 22)
8
- At that time (2000) the Senegalese Code of
Criminal Procedure (then) in force did not
provide for such jurisdiction. (para 18)
This judgement was affirmed by the highest
court there. (para 18)
9
- Senegal then sought advice from AU and AU declared
Senegal to prosecute and ensure that Habre is tried
on behalf of Africa by a competent Senegalese court
with guarantees for fair trial. (para 23)
Therefore, Senegal amend its penal code and code of
criminal procedure to comply with AU mandate
however the proceeding still cannot be continued due
to lack of international funding for all costs of the trial.
10
- Belgium later filed an application to ICJ stating
that Senegal had breached its obligation under
Article 6, paragraph 2 and Article 7 paragraph 1
of CAT by failing to bring criminal proceedings
against Mr Habre.
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ISSUES BEFORE THE
COURT
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1) Whether Belgium has the right to initiate
action against Senegal? (para 64-70)
13
- Senegal claimed that Belgium is not in position to invoke the
international responsibility of Senegal to submit Habre to be
prosecuted on the ground that none of Habre’s victims
were of Belgian nationality. However, one of the complainant
was of Belgian nationality (Chadian origin) hence Belgian
courts intend to exercise passive personal jurisdiction. So,
Belgium requested the ICJ to declare that its claim was
admissible.
14
Belgium also argued that under convention it has obligation
under CAT.
Obligation erga omnes - where the Belgium as the party to
CAT therefore it have a legal interest and standing to invoke
responsibility of Senegal for the alleged breaches. The claims
of Belgium then were admissible to the court.
15
2) Whether Senegal had breached its obligation
under Article 6 paragraph 2 and Article 7 paragraph 1
of CAT when it failed to prosecute Habre?
16
Article 6 paragraph 2 - “Such State shall immediately make a
preliminary inquiry into the facts”
Belgium alleged that there was no preliminary inquiry
conducted by Senegal therefore it violated CAT. Senegal
responded to it by stating that having inquiry doesn’t
necessary lead to prosecution since the prosecutor may found
there are no grounds for such proceedings (para 81-82)
17
Court viewed that preliminary inquiry is needed to be
carried out by the competent authorities in which to
corroborate or not the suspicions regarding the person in
question. (para 83)
They have the task of drawing a case file and collecting
facts and evidence (consist of documents or witness
statement relating to the suspect’s involvement in the
matter concerned) (para 83)
18
The court observed that Senegal has not included in the
case file any materials that showed Senegal had made
inquiry against Habre. This is because even though
Senegal had adopted legislative measures required,
Senegal must also exercise its jurisdiction over any act of
torture starting by establishing the facts.
It was found that questioning conducted to establish
Habre’s identity and his allegations was not amount to
performance of the obligation under Article 6 para 2 since
it doesn’t involve any inquiry into the charges against him
(para 85)
19
- There were also no preliminary inquiry initiated by
Senegal following to the complaint which was made
after the constitutional amendments in 2007 (para 87)
The court also found the Senegalese authorities did
not immediately initiate a preliminary inquiry as soon
as they suspect Habre, who was in their territory of
being responsible for acts of torture. Hence, Senegal
has breached its obligation under Article 6 paragraph 2
of the Convention. (para 88)
20
Article 7 paragraph 1 of CAT
“The State Party in the territory under whose
jurisdiction a person alleged to have committed any
offence referred to in Article 4 is found shall in the
cases contemplated in Article 5, if it does not extradite
him submit the case to its competent authorities for the
purpose of prosecution”
21
- 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 may or may not result in the institution
of proceedings, in light of the evidence before the
authorities (para. 94).
22
- 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).
23
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).
24
- 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).
25
- 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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COURT'S DECISION
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1. It has jurisdiction to entertain dispute between
parties in regards to interpretation and application of
Article 6 of the United Nations Convention against
Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment which Belgium submitted
to court in its application filed in registry on 2009.
It has no jurisdiction to entertain claims of of
Belgium relating to alleged breaches by Senegal of
obligations under customary international law.
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3. Claims of Belgium based on Article 6 and
Article 7 of United Nations Convention against
Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment are admissible.
4. Senegal fails to make preliminary inquiry into
the facts relating to the crimes committed by
Habre that he breached its obligation under
Article 6 of UNCT.
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5. Senegal failed to submit the case of Habre
to its competent authorities to prosecute him as
he has breached obligation under Article 7 of
UNCT.
6. Senegal must submit case of Habre to
competent authorities without further delay for
prosecution if it does not extradite him.
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LATEST NEWS ON
HISSÉNE HABRE
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● On May 30, 2016, he was ● On April 27, 2017, an appeals
convicted of crimes against court confirmed the verdict and
humanity, war crimes, and ordered Habré to pay
torture, including sexual approximately 123 million euros
violence and rape, by the in victim compensation. The
Extraordinary African advent of the trial, 25 years after
Chambers in the Habré was overthrown and fled
Senegalese court system to Senegal, was entirely due to
and sentenced to life in the perseverance and tenacity of
prison. Habré’s victims and their allies
such as Human Rights Watch.
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