CASE ANALYSIS: BELGIUM VS SENEGAL,2012

Submitted By

Aditya Krishna Srivastava

Division: A, Roll No: 18010224007, Batch: 2018-2023

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), Pune

In

August, 2021

Under the guidance of

Mr. Sudhir Verma

Assistant Professor
 CERTIFICATE

The project titled “Case Analysis: Belgium vs Senegal, 2012” submitted

to the Symbiosis Law School, NOIDA for Public International Law as
part of Internal Assessment is based on my original work carried out
under the guidance of Mr Sudhir Verma from July to August. The
Research work has not been submitted elsewhere for award of any
degree. The material borrowed from other sources and incorporated
in the research paper has been duly acknowledged. I understand that I
myself would be held responsible and accountable for plagiarism, if any,
detected later on.

Signature of the Candidate

CONTENT

S
INTRODUCTION....................................................................................... 3
ANALYSIS.................................................................................................. 4
CONCLUSION............................................................................................ 5
 INTRODUCTION

Hissene Habre was the President of the Republic of Chad from 1982-
1990 and had established a dictatorial rule and had caused large scale
human rights violations. He had also arrested multiple political
opponents and detained them without trial. After he was overthrown in
1990 he had been residing in Senegal as a political asylee.

Belgium acting as a representative of the citizens of Chad and Belgian

Citizens of Chad origin instituted proceedings against Senegal in the
International Court of Justice in 2009 for neither prosecuting Habre in
the state, nor complying with the extradition request made by them and
thus violating Article 6(2) and 7(1) of the Convention Against Torture
(CAT). Senegal had argued that it was acting in accordance with the
order by Economic Community of West African (ECOWAS) and that it
lacked finances to try Habre.

ANALYSIS

The primary arguments which we would be discussing in this paper

would revolve around Senegal’s failure to prosecute or extradite Habre
as per Belgium’s request, thus violating Article 7(1) of the Convention
and that Senegal had violated Article 6(2) of the CAT.

The Court stated that Article 6(2) leaves the level of the preliminary
inquiry n the discretion of the State. However, the Court stated that there
is an implicit meaning in Article 6(2) which states that any and every
step which is to be taken by the State has to be in a just, fair and
reasonable manner.

Habre was provided political asylum since 1990 in Senegal and Senegal
had not taken any step in investigating his alleged crimes, a step which it
should have taken as a mandatory obligation. The first complaint
against Habre was filed by a Belgian citizen of Chad origin in 2000,
which was ignored by the government for as late as 2005. Even though
the discretion is provided to the State, the extent of it should be allowed
only if it is exercised in a reasonable period of time and such a delay is
against the spirit of the Convention.

The Court then discussed about the violation of Article 7(1) of the
Convention. Article 7(1) requires the State to prosecute the individual for
his alleged crimes, however, if the State has received a request for the
extradition of the individual then it may relieve itself of the obligation to
prosecute.

The Court emphasized on the wordings of the act, and concluded that
extradition and prosecution under A7(1) are two distinct in the act as
extradition is optional to the States, whereas prosecution of the
individual is an unalienable obligation of the State.

Both the countries in the case are parties to the Convention and have
agreed that torture is prohibited under both customary international law
and the convention. Thus, there was no question of Senegal shying away
from the responsibility to prosecute Habre. The court however, added
that since Senegal became a party to the convention on Juse 1987, it was
its legal obligation to prosecute Habre for any crimes he did after the
date and optional for them to prosecute for crimes before 1987. Further,
Belgium could also only obligate Senegal to try Habre for crimes
committed after 1999, as it was in 1999 that Beligum ratified the
Convention.

However, irrespective of which year the obligation arose, the ICJ very
strongly stated that Senegal was in breach of its obligation under 7(1) for
failing to try Habre and that no defense of financial difficulty, decision of
ECOWAS court of Justice or referral to the AU can free it of such an
inherent obligation.

CONCLUSION

Belgium vs Senegal was the second judgement to have put an obligation

towards all parties in to extradite or prosecute in International Law.
This judgement is a step towards the right direction as it ensures that the
rights of every person is kept at the forefront. It is important to
understand that philosophically, the people are the true sovereign of a
county as the State represents them and their needs. Whenever there is a
need to protect these rights, there should be no stone left unturned and
the perpetrators should not have an option to use their political influence
to escape any liability. I would also commend the judgment on the fact
that it did not let the political pressure affect its judgement and ensured
that the principle of non-retrospective nature of criminal law is not
exempted and States’ are obligated to try Habre only for crimes which
were committed after the States became party to the Convention against
Torture.