By Otto Spijkers

Oral hearings in what looks like a very interesting case between Belgium and Senegal started at the International Court of Justice yesterday. This blog post will briefly introduce the case.   

JURISDICTION 

The jurisdiction of the International Court of Justice is based on Declarations Recognizing the Jurisdiction of the Court as Compulsory of both Senegal and Belgium, transmitted to the Court in accordance with Article 36 of the ICJ Statute. Another basis for jurisdiction is Article 30 of the Torture Convention.  

FACTS AND LEGAL QUESTION 

Belgium has requested the International Court of Justice (ICJ) to determine that Senegal is legally obliged to extradite the former dictator of Chad, Mr. Hissène Habré, to Belgium or to prosecute him in Senegal.  

According to Belgium, Senegal is obliged to do so on the basis of the Torture Convention (regarding the crimes of torture allegedly committed by Mr. Habré), and customary international law (regarding the crimes against humanity he allegedly committed). 

Habré, who is now 69 years old, has lived in exile in Senegal for 21 years already. He is wanted by Belgium on suspicion of crimes against humanity, war crimes and torture committed during his time as dictator of Chad. Habré ruled Chad from 1982 until he was deposed in 1990 by President Idriss Deby Itno and fled to Senegal.  

According to the UN Torture Convention, Senegal has to either prosecute Habré itself or extradite him to another country willing to do so, such as Belgium. This follows from Articles 5 (2) and 7:  

Article 5  

1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over [all acts of torture] in the following cases:  

(a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;  

(b) When the alleged offender is a national of that State;  

(c) When the victim is a national of that State if that State considers it appropriate.  

2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph I of this article.  

3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.  

Article 7  

1. The State Party in the territory under whose jurisdiction a person alleged to have committed [an act of torture] 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.

 Other relevant articles are Article 8 and 9 of the same Convention: 

Article 8  

1. [All acts of torture] shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.  

2. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Convention as the legal basis for extradition in respect of such offences. Extradition shall be subject to the other conditions provided by the law of the requested State.  

3. States Parties which do not make extradition conditional on the existence of a treaty shall recognize such offences as extraditable offences between themselves subject to the conditions provided by the law of the requested State.  

4. Such offences shall be treated, for the purpose of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in the territories of the States required to establish their jurisdiction in accordance with article 5, paragraph 1.  

Article 9  

1. States Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of any [acts of torture], including the supply of all evidence at their disposal necessary for the proceedings.  2. States Parties shall carry out their obligations under paragraph I of this article in conformity with any treaties on mutual judicial assistance that may exist between them.

It is not the case that Senegal has done nothing for 21 years. Quite the opposite in fact: Senegalese courts have tried to prosecute Habré numerous times. Habré was first indicted in Senegal in 2000, but the Senegalese courts then ruled that they were not authorized to prosecute Habré for torture committed abroad. In other words, the Senegalese legislator had not created extraterritorial criminal jurisdiction for the crime of torture, and when there is no legal basis to exercise such jurisdiction, the courts cannot do so. This is derived from the legality principle (nullum crimen sine lege), and also the basic rules on the limits of the exercise of jurisdiction by one State regarding facts committed on the territory of another.

The Senegalese court thus had no choice but to conclude that, failing the implementation of the Articles 5 and 7 of the Torture Convention into domestic Senegalese criminal law, the Senegalese courts had no jurisdiction for torture committed abroad, even if the alleged offender (Habré) was on Senegalese territory at the time of issuing the arrest warrant.

Of course, this might excuse the Senegalese courts, but it does not excuse the State of Senegal on the international level. After all, inadequate national legislation is no excuse for violating an international legal obligation, in this case the duty to establish extraterritorial jurisdiction as prescribed in Article 5 Torture Convention, and to exercise such jurisdiction or extradite (Article 7).  

In 2006, the Committee against Torture confirmed this, in response to an individual complaint against Senegal deposited by a number of Chadian victims of Habré’s regime. 

The Government of Chad has expressed a desire to have Habré extradited to Belgium. And, very importantly, in 2002 the Chadian government waived Habré’s immunity as former head of state. This means he cannot claim before a domestic court that his crimes were committed in his official capacity of Head of State, and that these acts are thus covered by his immunity ratione materiae granted to him as former head of State. (Of course, looking at the Pinochet-case, one might wonder whether this immunity would have shielded him from criminal prosecution for torture.)