Questions relating to the Obligation to Prosecute or Extradite
(Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 422
Authored By: Richa Gunawat (Research Intern)
On 20th July 2012, the International Court of Justice (ICJ) delivered a landmark judgment on a case (c) concerning the question 'whether states have an obligation to prosecute the perpetrators of crime against humanity, a war crime, and torture or extradite them for prosecution.
Decision date: 20th July 2012
Court: International Court of Justice, The Netherlands.
Parties to the case: Kingdom of Belgium (P/f); Republic of Senegal (D/f)
Decision Title: Questions relating to the Obligation to Prosecute or Extradite.
President Tomka; Vice-President Sepúlveda-Amor; Judges Owada, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue Hanqin, Donoghue, Gaja, Sebutinde; Judges ad hoc Sur, Kirsch; Registrar Couvreur.
Facts of the case:
- During the tenure of Mr Hissène Habre as the President of Chad (1982-1990), there were numerous (alleged) human rights violations committed inclusive of torture and disappearances.
- After his removal from the position of president in 1990, various complaints were filed against him in Belgium and Senegalese courts for violation of International Humanitarian Law including crimes like torture, genocide (by victims bearing nationalities of Belgian and Chadian).
- In 2005, an arrest warrant was issued by Belgium against Mr Hissène Habre.
- But Chamber d'accusation of Dakar Court (Senegal) of appeal held that "as a court of ordinary law, Belgium could not extend its jurisdiction to matters relating to the investigation or prosecution of a Head of State for acts allegedly committed in the exercise of his functions."
- Later in February 2009, an application was filed by Belgium to institute proceedings against Senegal before the International Court of Justice (hereinafter ICJ).
- Belgium claimed that under Article 7 of the UN Convention against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment (hereinafter UNCAT) and other relevant international laws, Senegal did not meet its international obligations. And requested the court (ICJ) to declare that Senegal was obliged to bring criminal proceedings against Mr Habré, or extradite him to Belgium to face trial there.
- Whether ICJ had purview to hear and decide on the matter.
- Whether Belgium Claims were admissible or not.
- Whether Senegal had obligation to prosecute Mr Habré or extradite him to Belgium for the same if Senegal could not indict.
In this case, the ICJ held that Senegal was to be sure in breach of its obligations under the Convention and ought to continue immediately to the prosecution of Habré. It can't depend on its internal law or financial difficulties to avoid the execution of this obligation.
Concerning the first issue, the court (ICJ) concluded that it had the necessary jurisdiction to hear the matter and decide upon it. The main contention concerning ICJ's jurisdiction was based on the ground that according to Article 30 of UNCAT there exists no dispute among Belgium and Senegal and Senegal never opposed the obligations imposed by the UNCAT. Thus, the only dispute existed over the pace at which the obligations were to be executed. However, the court also observed that the dispute existed with respect compliance of Article 6 of UNCAT by Senegal, which requires a state to the convention to conduct a preliminary inquiry whenever a person is accused of torture within its state territory and Article 7 of torture convention which further requires the state to yield the case to the competent authority, for prosecution or extradition of the accused to another state for prosecution.
Concerning the second issue, the court held that all the parties to the convention, including Senegal and Belgium, have a common interest to ensure the prevention of acts constituting torture and that the perpetrators escape punishment. And these obligations many be considered as ergo Omnes partes obligation as it is an obligation of the state towards the international community as a whole. The court also held that the obligations of the state who are party to the convention are prompt by the presence of the alleged offender, irrespective of the nationalities of victims in its jurisdiction. Thus, the claims made by Belgium were admissible.
Concerning the third issue, the court held that Senegal had obligation to prosecute Mr Habré or extradite him to Belgium for the same if Senegal could not indict under Article 5 of UNCAT. The court observed that the prohibition of torture is part of international law and has become jus cogens (peremptory norms). However, the parties to the convention are obliged to prosecute alleged perpetrators for torture that had been committed after UNCAT came into force, but there is no such provision mentioned in UNCAT which prohibits to prosecute act committed before the commission of convention. Which is the case, implies that while Senegal was not obliged to prosecute Mr Habré for acts committed before 26 June 1987 (date of entry into force of UNCAT in Senegal), Senegal was obliged to prosecute Mr Habré for those acts committed after that date.
This Decision is indeed a landmark within the sense that it had been the primary time that ICJ admitted the standing of the state-supported the claim of an "era omnes" (towards everyone) obligation. And it is a well-accepted principle of international law. However, the court did not answer the question relating to Belgium's jurisdiction to prosecute the matter. Furthermore, in one of the dissenting observation by Hon'ble Judge Xue Hanqin in above-discussed judgment, there exists one major issue which requires to be checked- whether the state has any monitoring authority over such obligation. The convention does not require any of its state party to act as an authority to monitor or implement in matters requiring obligation to extradite or prosecute. As in this above-mentioned case, Senegal argued that the prosecution of the alleged offender was entrusted with the authority, then do Belgium's actions affect the concept of reciprocity and good faith in international law that states enjoy in their inner state relations? Thus, this observation needs to be reviewed.
Judgment available at