Background Briefing

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Senegal’s Legal Obligations

Senegal, as the state on whose territory Hissène Habré is present, is under a legal obligation to prosecute or extradite Hissène Habré. This obligation flows from the1984 Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, ratified by Senegal in 1986.27

Article 5(2) of the convention provides:

Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over [acts of torture] in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him….28

Article 5 must be considered in conjunction with article 7(1), which reads:   

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.

Taken together, these provisions create the “obligation either to extradite alleged torturers or to try them on the basis of universality of jurisdiction.” 29

According to the chairman of the U.N. Working Group entrusted with drafting the 1984 convention, and the ambassador who prepared the text of the convention’s first draft, article 5 (and 7) is:

A cornerstone in the Convention, an essential purpose of which is to ensure that a torturer does not escape the consequences of his acts by going to another country. As with previous conventions against terrorism, [...] the present Convention is also based on the principle aut dedere aut punire; in other words, the country where the suspected offender happens to be shall either extradite him for the purpose of prosecution or proceed against him on the basis of its own criminal law.30

Lord Browne-Wilkinson, the senior judge of the Judicial Committee of the House of Lords presiding over the Pinochet case, in fact noted that:

The Torture Convention was agreed not in order to create an international crime which had not previously existed but to provide an international system under which the international criminal—the torturer—could find no safe haven….31

Other judges on the court in London ruled in the same vein.32       

Senegal’s obligation to extradite or prosecute was not contingent on, and preceded, both the victims’ filing of a criminal complaint in 2000 and Belgium’s extradition request of 2005.33 

Senegal has failed to respect this obligation by neither prosecuting nor extraditing Hissène Habré who is credibly accused of systematic acts of torture. The government of Senegal recognized as much in the note which it circulated to the A.U. Assembly in January 2006.34

In his communiqué of November 27, the foreign minister of Senegal, Cheikh Tidiane Gadio, began by stating that “Senegal is in no way directly concerned by the case of Hissène Habré.”35 However, Senegal, as the state on whose territory Hissène Habré is present is indeed concerned by the case, and has contracted a legal obligation under the Convention against Torture, to prosecute or extradite Hissène Habré. It cannot elude this legal obligation by referring the matter to the African Union.

Just after the A.U. Assembly, the Belgian government re-iterated that it was waiting for Senegal’s response to its extradition request and that if the request were refused, Belgium would invoke the provisions of the U.N. Convention against Torture that provide for arbitration and recourse to the International Court of Justice. 36

[27] The Geneva Conventions and customary international law would also seem to contain the same obligation, but will not be examined here.                

[28] Emphasis added.

[29] Rodley, The Treatment of Prisoners in International Law (ed. 2), 1999, p. 129.

[30] J. Herman Burgers and Hans Danelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, p. 131, emphasis added.

[31] Regina v. Bartle and the Commissioner of Police for the Metropolis and Others (Ex Parte Pinochet) [1999] 2 W.L.R. 827.

[32] See Lord Goff: (The Torture Convention of 1984 “is concerned with the jurisdiction of national courts, but its ‘essential purpose’ is to ensure that a torturer does not escape the consequences of his act by going to another country. […] Article 7 […] reflects the principle aut dedere aut punire, designed to ensure that torturers do not escape by going to another country.") Lord Millet: ("The Convention thus affirmed and extended an existing international crime and imposed obligations on the parties to the Convention to take measures to prevent it and to punish those guilty of it. As Burgers and Danielus explained, its main purpose was to introduce an institutional mechanism to enable this to be achieved. Whereas previously states were entitled to take jurisdiction in respect of the offence wherever it was committed, they were now placed under an obligation to do so. Any state party in whose territory a person alleged to have committed the offence was found was bound to offer to extradite him or to initiate proceedings to prosecute him.") Regina v. Bartle and the Commissioner of Police for the Metropolis and Others (Ex Parte Pinochet) [1999] 2 W.L.R. 827.

[33] As Lord Browne-Wilkinson noted in the Pinochet decision, "Throughout the negotiation of the Convention certain countries wished to make the exercise of jurisdiction under Article 5(2) dependent upon the state assuming jurisdiction having refused extradition to an Article 5(1) state. However, at a session in 1984 all objections to the principle of aut dedere aut punire were withdrawn. 'The inclusion of universal jurisdiction in the draft Convention was no longer opposed by any delegation': Working Group on the Draft Convention U.N. Doc. E/CN. 4/1984/72, para. 26" (Regina v. Bartle and the Commissioner of Police for the Metropolis and Others (Ex Parte Pinochet) [1999] 2 W.L.R. 827). This confirms the account of Burgers and Danelius: “There were delegations which considered that jurisdiction should be dependent on an extradition request having been made but refused. However, this was not the predominating opinion, and not the opinion that was reflected in the Convention" (J. Herman Burgers and Hans Danelius, The United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, 1988, p. 78).

[34] “The non-incorporation, in our positive law, of the rules of judicial competence set forth in the Convention thus prevented the national jurisdictions for investigating and treating this case" ("La non adaptation, dans notre droit positif, des règles de compétence posées par cette Convention, empêchait ainsi les juridictions nationales d’instruire et de traiter cette affaire.") NOTE de présentation du point de l’ordre du jour de la Sixième Session de la Conférence des chefs d’Etat et de gouvernement de l’Union africaine proposé par le Sénégal et intitulé "L’affaire Hissène HABRE et l’Union africaine" (Assembly/AU/8(VI) Add.9). As noted above, a state may not invoke the provisions of its internal law as justification for its failure to perform a treaty (Vienna Convention on the Law of Treaties, art. 27).

[35] "Le Sénégal n'est en aucune manière directement concerné par l'affaire Hissène Habré."

[36] In an answer to a parliamentary question on January 26, 2006, the Belgian vice-prime minister and minister of justice, Mme. Laurette Onkelinx, stated that “in the case of a refusal to extradite, Belgium will request application of article 30 of the Convention Against Torture of December 10th, 1984. This provision governs disputes between State Parties to the Convention concerning its application or interpretation. We are in the negotiation phase provided for by this article. Belgium has questioned Senegal using diplomatic means on the decision made regarding the extradition request. The Convention provides in effect that the requested state must extradite the accused or judge him under national jurisdiction. In the case of the failure of the negotiations, arbitration will be requested by Belgium, as provided for by article 30 of the Convention. If the two States do not reach an agreement on the organization of this arbitration during the six months after the request, Belgium will submit the dispute to the International Court of Justice, again in accordance with the procedure envisioned by article 30 of the Convention.” ("En cas de refus d’extradition, la Belgique demandera l’application de l’article 30 de la Convention contre la torture du 10 décembre 1984. Cette disposition régit les différends entre les États parties à la Convention concernant son application ou son interprétation. Nous sommes dans la phase de négociation prévue par cet article. La Belgique a interpellé le Sénégal par voie diplomatique sur une décision prise relative à la demande d’extradition. La Convention prévoit en effet que l’État requis extrade la personne réclamée ou la fasse juger par une juridiction nationale. En cas d’échec de la négociation, un arbitrage sera demandé par la Belgique, comme prévu par l’article 30 de la Convention. Si les deux États n’arrivaient pas à un accord sur l’organisation de cet arbitrage dans les six mois de la demande, la Belgique soumettrait le différend à la Cour internationale de Justice, toujours selon la procédure prévue par l’article 30 de la Convention.")

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