Table of Contents

RESEARCH DESIGN ................................................................................................................ 2

INTRODUCTION ....................................................................................................................... 3

BACKGROUND......................................................................................................................... 4

CASE DESCRIPTION ................................................................................................................ 8

ANALYSIS ............................................................................................................................... 11

CONCLUSION ......................................................................................................................... 12

BIBLIOGRAPHY .........................................................................................................................

1
RESEARCH DESIGN

Research Methodology

Doctrinal research has been followed for the completion of this project. Textbooks related to this
topic have been referred to. Several primary sources such as statutes have also been referred for
this project. The other major source of information is the internet. Articles available on the
internet concerning the project have been taken into account for this project through the internet.
Major source of information for this project have been books and internet. Those websites have
been referred to which have information regarding the topic to explain the relevance of this topic.

Research Questions

 What was the Admissibility of Belgium’s claim (Erga Omnes Partes)?

 Was there any violation of CAT?
 What was the future for Habre?

Objectives of the research

The objective of this project is to find the main issues with regard to the case and analyze them.

2
INTRODUCTION
As a result of recent developments in interstate travel, criminals may easily cross international
borders and escape prosecution by the authorities of the state in the territory of which they have
committed their crime. The obligation to extradite or prosecute, embodied in a large number of
treaties1 and other international binding documents2, is one of several criminal cooperation tools
that states design in order to counter this phenomenon. This obligation is now a vigorously
debated issue before the International Law Commission (ILC) and is at the heart of the dispute
brought by Belgium against Senegal before the International Court of Justice (ICJ) in relation to
the Hissene Habre case3. The desire to prosecute Hissene Habre for crimes of torture committed
during his eight year presidency of Chad has led to a stream of national and international
litigation. Habre, who has taken refuge in neighboring Senegal since being ousted from office in
December 1990, has been linked to systematic acts of torture, murders and disappearances
during his time as president.

There has been a battle led by alleged victims of the regime to see Habre brought before a court
to answer for acts of torture and other extreme violations of human rights. However, until
recently such efforts had borne no fruit, with a particular problem being that the Senegalese
courts did not have the authority under national law to exercise jurisdiction over crimes that
allegedly had been committed by a foreigner in the territory of another state. Attempts to have
Habre extradited to Belgium to face trial, pursuant to an international arrest warrant, were also
unsuccessful. The Senegalese courts lacked jurisdiction to rule on the extradition request as

1
See, for a survey of the bilateral and multilateral treaties embodying such an obligation, the conventions listed by
states in their answers to the information provided to the International Law Commission (ILC).
2
See the framework decisions adopted by the Council of the European Union, e.g. Framework Decision of 28, May
2001 on Combating Fraud and Counterfeiting of Non-Cash Means of Payment, the Framework Decision of 13 June
2002 on Combating Terrorism; and the Framework Decision of 24 October 2008 on the Fight against Organized
Crime.
3
Belgium made an application against Senegal before the ICJ on 17 February 2009; see Questions relating to the
Obligation to Prosecute or Extradite (Belgium v. Senegal), application of 17 February 2009, In this case, Senegal
refused to grant Belgium's request for extradition of Habre, the former dictator of Chad, for crimes against humanity
and acts of torture. As a result, the Belgian authorities requested Senegal to prosecute Habre in accordance with the
obligation to extradite or prosecute. According to Belgium, this obligation was provided by customary law with
respect to crimes against humanity and by the 1984 Convention Against Torture - to which both states are party -
with regard to acts of torture.

3
Habre attracted Head of State immunity from jurisdiction for the alleged acts. These failed
efforts at prosecution and extradition led Belgium to initiate proceedings against Senegal before
the International Court of Justice (ICJ) for its failure to fulfil its obligation under Article 5(2) of
the Convention Against Torture (CAT) to establish universal jurisdiction for crimes of torture4.
Belgium also asserted that Senegal's failure to instigate proceedings against Habre for these
crimes of torture as well as genocide, war crimes and crimes against humanity, or to extradite
Habre to Belgium where he could be prosecuted was a breach of its obligations under CAT,
particularly Articles 6(2) and 7, as well as customary international law5. Belgium asserted that
Senegal could not rely on 'financial or other difficulties to justify the[se] breaches of its
international obligations'. The ICJ delivered its judgment in the case in July 2012. The majority
of the Court6 held that Senegal had violated its obligations under CAT. The Court unanimously
held that Senegal 'must, without further delay, submit the case of Mr.Hissene Habre to its
competent authorities for the purpose of prosecution, if it does not extradite him'.7

BACKGROUND
During the January of 2000, seven Chadian victims had filed an criminal complaint in Dakar,
Senegal against the former president Habre alleging crimes of torture and crimes against
humanity. in July 2000, the Indictment Division of the Dakar Court of Appeal dismissed the
indictment on the basis that Senegalese courts could not assume jurisdiction over acts of torture
committed by a foreigner outside Senegalese territory. This decision was confirmed by the

4
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, 1465 UNTS
85 (CAT). Senegal signed CAT on 4 February 1985 and deposited its instrument of ratification on 21 August 1986.
Belgium signed CAT on 4 February 1985 and entered its instrument of ratification on 25 June 1999.
5
Belgium asserted that the ICJ had jurisdiction in relation to these issues pursuant to Article 30 CAT, which
provides: Any dispute between two or more States Parties concerning the interpretation or application of this
Convention which cannot be settled through negotiation shall, at the request of one of them, be submitted to
arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the
organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by
request in conformity with the Statute of the Court.
6
Two judges, Judge Xue (China) and Judge ad hoc Sur (Senegal), dissented.
7
Belgium v Senegal, para 122.

4
Senegalese Court of Cassation in March 20018. In April 2001, one of the seven Chadian victims,
Suleymane Guengueng, along with other victims of the Habre regime resident in Senegal,

Submitted a communication to the Committee against Torture (UNCAT). The communication

asserted that the decision of the Senegalese Court of Cassation demonstrated that Senegal had
not fulfilled its obligations to establish jurisdiction over crimes of torture where the alleged
perpetrator was in its territory set out in Article 5(2) of CAT and to prosecute Habre set out in
Article 7 of CAT.9 The UNCAT decided that Senegal had breached both these obligations.10
Meanwhile, in November 2000, three victims of Habre's regime, who had acquired Belgian
nationality, filed a criminal complaint against Habre in the District Court of Brussels in Belgium.
They based their complaint on both CAT and the Belgian Law of 16 June 1993 concerning the
punishment of grave breaches of international humanitarian law, amended in 1999 to include
universal jurisdiction over crimes against humanity and genocide, which provided the Belgian
courts with universal jurisdiction over these crimes. With the cooperation of the authorities in
Chad, which included confirmation that Chad had lifted Habre's Head of State immunity, the
Belgian authorities investigated the complaints and on 19 September 2005 issued an international
arrest warrant in absentia for Habre. A request was made to the Senegalese authorities for Habre
to be arrested and extradited to Belgium. Habre was arrested pending determination of the
extradition request. However, in November 2005, the Dakar Court of Appeal held that 'a court of
ordinary law 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 function. Thus,
it could not adjudicate the lawfulness of the proceedings and the validity of the arrest warrant'
Habre was released from detention. However, he was kept under control and surveillance
measures that were undertaken by the Military Governor and the Senegalese Gendarmerie.
Following this decision from the Dakar Court of Appeal, Senegal decided to refer the Habre
situation to the African Union. In January 2006, the African Union decided 'to set up a
Committee of Eminent African Jurists to consider all aspects and implications of the Hissene

8
Arret no 14, 20 March 2001 (Court of Cassation), available at: http://www.icrc.org/ihl-nat.nsf/
39a82e2ca42b52974125673e00508144/90e26efalbb31189cl256b21005549bO.
9
Guengueng and Others v Senegal (181/01), Merits, CAT/C/36/D/181/2001 (2006); 13 IHRR 975 (2006).
10
See Joseph, 'Committee Against Torture: Recent Jurisprudence' (2006) 6 Human Rights Law Review 571 at 575-7

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Habre case as well as the options available for his trial' By August of the same year, the
Committee had reported back and suggested three options:

 Senegal or Chad should try Habre;

 Establish an ad hoc tribunal in any African country to try Habre; or
 Any African state which has ratified the Convention Against Torture take on the
responsibility and exercise jurisdiction'.11

The Assembly of the African Union mandated Senegal to try Habre 'on behalf of Africa by a
competent court with guarantees for fair trial' and with the cooperation of the Union and other
Member States as required.

In light of its failed attempt to secure Habre's extradition, Belgium continued to press Senegal to
notify the Belgian authorities of the measures that were being taken to prosecute Habre and thus
fulfil the obligations set out in Article 7 of CAT. Through diplomatic communiqués, Senegal
claimed that its referral of the situation to the African Union was in 'accordance with the spirit of
the'aut dedere aut punire'principle'set out in Article 7.20 In 2007, in response to both the
UNCAT's decision in Guengueng and the mandate from the African Union, Senegal
implemented a number of legislative reforms to allow its national courts to assert jurisdiction in
cases of international crimes committed in other States where the alleged perpetrator was in the
territory of the State or if the victim was of Senegalese nationality.12 Following these legislative
reforms, in September 2008, a complaint was filed with the Prosecutor of the Dakar Court of
Appeal accusing Habre of acts of torture and crimes against humanity. It is not clear from the
facts that any investigations followed this complaint, although four investigating judges were
assigned to the case. However, in February 2007, in a communiqué to Belgium, Senegal stated
that any trial of Habre would 'require substantial funds which Senegal cannot mobilize without
the assistance of the international community'. Senegal maintained that lack of funds was its only

11
Report of the Committee of Eminent African Jurists on the Case of Hissene Habre, July 2006, at 5, available at:
http://www.hrw.org/legacy/justice/habre/CEJARepor0506.pdf
12
See Articles 431-1-431-6 Penal Code; and Articles 664-bis and 669 Code of Criminal Procedure. In 2008, Article
9 of the Senegalese Constitution was also amended to provide for an exception to the principle of non-retroactivity
for acts that were considered criminal in international law at the time of their commission.

6
Hindrance to prosecute. With prosecution looking unlikely in Senegal, Belgium initiated
proceedings at the ICJ regarding Senegal's failure to prosecute Habre or extradite him. Given that
there had been a number of diplomatic correspondences that had not resolved the issue regarding
Senegal's Article 7 obligations, Belgium sought a ruling from the ICJ that Senegal submit
'without delay the Hissene Habre case to its competent authorities for prosecution; or failing that,
extradite Mr.Habre to Belgium'. Despite initiating these proceedings, Belgium continued to seek
Habre's extradition submitting three further applications to the Senegalese authorities, the final
one being only six months before the ICJ gave its judgment in July 2012.

Meanwhile, progress in terms of national prosecution in Senegal was stalled by a judgment from
the Court of Justice of the Economic Community of West African States ('ECOWAS Court')
delivered on 18 November 201013. Habre had petitioned the ECOWAS Court in October 2008
claiming that his human rights, and particularly his right not to be prosecuted for acts which were
not criminal at the time of their commission and the principle of equality before the law, would
be violated if he was prosecuted pursuant to the legislative reforms that had been undertaken by
Senegal. The ECOWAS Court concluded that any national prosecution of Habre might result in
violations of his rights and ordered Senegal to respect 'the principle of absolute non-
retroactivity'. The ECOWAS Court held that fulfilment of the African Union mandate to try
Habre should follow international practice and an 'ad hoc international tribunal', 'in accordance
with the international custom which has emerged in similar situations, be established for the
purposes of prosecution. At this point, Senegal's then-president, Mr Wade, indicated that there
was no will to carry on with the prosecution against Habre. Following the ECOWAS Court's
judgment, the African Union Assembly affirmed Senegal's mandate to try Habre'on behalf of
Africa' and decided to initiate consultations with Senegal to 'finalise the modalities for the
expeditious trial of Hissene Habre through a special tribunal with an international character' to
try Habre. The Assembly confirmed that it was Senegal's legal responsibility 'in accordance with
the United Nations Convention against Torture the decision of the United Nations (UN)
Committee against Torture as well as the [AU] mandate to put Hissene Habre on trial

13
Habre v Republic of Senegal 18 November 2010, ECW/CCJ/JUD/06/10. See Hessbruegge, 'ECOWAS Court
Judgment in Habre v Senegal Complicates Prosecution in the Name of Africa' (2010) 15 ASIL Insight No 4; and
Spiga, 'Non-Retroactivity of Criminal Law. A New Chapter in the Hissene Habr6 Saga' (2011) 9 Journal of
International Criminal justice 5.

7
expeditiously or extradite him to any other country willing to put him on trial14. These
negotiations were ongoing at the time the ICJ gave its judgment.

CASE DESCRIPTION
The judges in this case laid down some of the reasoning or the main issues which are entailed
herewith:

Admissibility of Belgium’s Claims (Erga Omnes Partes)

The ICJ also considered objections to admissibility. While jurisdiction deals with the Courts
authority to hear a case, admissibility refers to other legal or prudential bars, such as the
requirement to exhaust domestic remedies. Here, Senegal objected to the admissibility of
Belgium’s claims on the ground that Belgium cannot invoke the international responsibility of
Senegal when none of the alleged victims of Habre were of Belgian nationality at the time when
the acts were committed. Belgium responded that present jurisdiction is based in part on
complainants who are Belgian nationals of Chadian origin. Belgium also claimed that the
victims nationalities are irrelevant because every state party to the CAT is entitled to insist that
other state parties fulfill their obligations under the Convention.

In this regard, the ICJ agreed with Belgium, finding that a 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 immunity. The Court defined these obligations as obligations “Erga Omnes Partes”
in the sense that each State party has an interest in compliance with them in any given case. This
common interest entitles each state party to the Convention to make a claim for the cessation of
any breach by another state party regardless of whether the applicant state has a special interest
in bringing the claim due to the nationality of the victims.

Violations of the CAT

On the merits, the ICJ found that Senegal’s failure to enact implementing legislation for the CAT
until 2007 delayed the submission of the case to Senegalese authorities, thus causing Senegal to
breach its obligation under CAT Article 6 to immediately make a preliminary inquiry into the

14
Decision on the Hissene Habre Case.1 July 2011.

8
facts as soon as a suspect is identified in the territory of the state party. The Court clarified the
obligation to carry out a preliminary investigation, stating that a competent authority should draw
up a case file and collect facts and evidence, including documents and witness statements
relating to the events and to the suspect’s possible involvement. In this case, the first complaint
against Habre was filed in Dakar, Senegal in 2000 and, at that time, it became imperative for
Senegal to conduct the preliminary inquiry. Senegal failed to include any materials
demonstrating that it had carried out such an inquiry with respect to Habre’s involvement.

The ICJ also determined that Senegal breached CAT Article 7, which requires the state party
having jurisdiction over the territory where a person accused of offenses under the CAT is found
to submit the case to its competent authorities for prosecution or to extradite him. The ICJ opined
that extradition is an option whereas prosecution is an international obligation under the
Convention, the violation of which is a wrongful act engaging the responsibility of the State.

A question also arose during the proceedings regarding the temporal scope of CAT Article 7 in
light of the fact that Senegal did not join the Convention until 1987, and Belgium did not join
until 1999. In considering this question, the Court observed that the prohibition on torture is part
of customary international law and has become a peremptory norm (jus cogens15). However, the
obligation to prosecute alleged perpetrators of torture only arises after the Convention has
entered into force for that state party. In this case, Senegal’s obligations under the Convention
date back to June 1987 when Senegal joined the CAT. The Court noted that there were a number
of complaints regarding serious offenses committed by Habre after that date for which Senegal is
obligated to prosecute. The Court also observed that while not required to do so, Senegal is free
to institute proceedings concerning acts committed before that date as well. In addition, the
Court found that Belgium is entitled to invoke Senegal’s compliance with the Convention
beginning in 1999 and has, in fact, requested Senegal’s compliance since 2000 when the first
complaint against Habre was filed in Senegal.

Finally, the Court addressed some of the obstacles Senegal claimed existed in prosecuting of
Habre. In one brief sentence, the ICJ dismissed Senegal’s concerns regarding the ECOWAS
judgment, stating that the judgment cannot affect Senegal’s duty to comply with the Convention.

15
Jus cogens refers to certain fundamental, overriding principles of international law, from which no derogation is
ever permitted.

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Likewise, the Court stated that neither Senegal’s referral of the matter to the AU or its financial
Difficulties could justify Senegal’s delays in complying with the CAT. In addition, the ICJ
reminded Senegal that under Article 27 of the Vienna Convention on the Law of Treaties, which
reflects customary international law, Senegal cannot justify its breach of the CAT by invoking its
domestic law.

With respect to the timing of Senegal’s compliance, the ICJ observed that CAT Article 7 does
not contain any indication as to the time frame for performance. The Court held that a
reasonable time, in a manner compatible with the object and purpose of the Convention is
implicit in the text and added that proceedings should be undertaken without delay. Notably, the
ICJ’s finding of jurisdiction under the Convention was unanimous, as was its holding that
Senegal must submit the case of Habre to its authorities for prosecution or otherwise extradite
him without delay.

The ICJ’s judgment affirms that all 151 states parties to the CAT may insist on performance of
obligations under the Convention, even if the alleged torture occurred before the applicant state
joined the Convention and even if the alleged torturer or victims have no connection with the
applicant state. This holding therefore allows more states to act to ensure accountability
worldwide for acts of torture. The Court also added to the understanding of what a preliminary
investigation of torture allegations should consist of and how quickly it must be carried out.

Future for Habre

Within days of the ICJ's judgment, negotiations between Senegal and the African Union resulted
in a plan to establish a special court, known as 'Extraordinary African Chambers', within the
Senegalese justice system to try Habre and an agreement was signed to this effect on 22 August
2012.16 In November 2012, international donors, including Chad, the European Union, the
Netherlands, the African Union, the United States, Belgium, Germany, France and Luxembourg,
agreed to a budget of 7.4 million euro for the trial of Habre. On 17 December 2012, the relevant
legislation was passed in Senegal to establish the Extraordinary African Chambers, and the
Chambers began operating on 8 February 2013. The Chambers has been lauded as an innovation

16
See 'Hissine Habre: Senegal and AU agree on special tribunal', BBC News, 23 August 2012, available at:
http://www.bbc.co.uk/news/world-africa-19351938.

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in international criminal law, as it is a national court mandated to try individuals, including the
former Head of State of another State, for alleged crimes committed in that other State.17 On
May 30, 2016, the Extraordinary African Chambers in the Senegalese court system convicted
Habre and sentenced him to life in prison for his role in torture, war crimes, and crimes against
humanity. The EAC on April 27, 2017 upheld its own decision on the appeal presented before
the court by Habre’s lawyers. After the verdict the EAC was to be dissolved as per the article 37
of the statute.

ANALYSIS
In this case the court answered two questions first whether the Belgium’s claim is admissible and
second whether there was violation of CAT (convention against torture) by Senegal. This
judgment is the first judgment of international court of justice where the scope and proper
meaning of the principle of “Erga Omnes Partes” was defined. The ICJ stated that every party
which is party to a convention and this time the convention being CAT, they have common
interests to ensure that all the acts of torture and if they occur then the one practicing them
should not enjoy any amount of immunity. These obligations were defined as “Erga Omnes
Partes”. The other question which ICJ answered was that whether there was any violation of
CAT, on which the ICJ stated that Senegal was responsible for the breach of article 6 of CAT
because they were unable to form a legislation to try a person responsible for torture and
inhumane activities as well as Senegal was also charged for the violation of article 7 of CAT ,
which requires the state party having jurisdiction over the territory where a person accused of
offenses under the CAT is found to submit the case to its competent authorities for prosecution
or to extradite him and Senegal failed to do so. This judgment of ICJ resulted into negotiations
between Senegal and African Union which resulted into formation of a special court known as
'Extraordinary African Chambers', within the Senegalese justice system to try Habre and an
agreement was signed to this effect on 22 August 2012. Habre was convicted by EAC and was
sentenced to life in prison for his role in torture, war crimes, and crimes against humanity.

17
See Schabas, 'Senegal's Chambres africaines extraordinaires to judge Habr6, 5 February 2013, PhD studies in
Human Rights, available at: http://humanrightsdoctorate.blogspot.co.uk/2013/ 02/senegals-chambres-
africaines.html.

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CONCLUSION
In this research project, a conscious effort has been made to critically analyses the case comment
on the case Belgium v. Senegal which is considered as one the most important case with respect
to the extradition principles and trial of the persons who are involved in tortures and inhumane
activities which are in violation of CAT. This case was the first case where the ICJ clearly
defined the scope and definition of the principle of “Erga Omnes Partes”. Furthermore this case
also provided that how Senegal has violated the CAT and also stating that by not prosecuting and
or Extraditing a person who is responsible for tortures, Senegal has broken certain peremptory
norms as prohibition of torture is a customary international law and everyone needs to follow it.
All this lead to the formation of a special court in Senegal to try Mr. Habre for his crime against
humanity and later to his conviction.

BIBLIOGRAPHY
ARTICLES

 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) ,

Sangeeta Shah,13 Aug, 2013
 The Obligation to Extradite or Prosecute, Clarifying its Nature , Raphael van Steenberghe

WEBSITES

 https://www.law.cornell.edu/wex/jus_cogens
 http://www.bbc.co.uk/news/world-africa-19351938

 http://humanrightsdoctorate.blogspot.co.uk/2013/ 02/senegals-chambres-africaines.html.

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