The International Court of Justice (ICJ) heard arguments from March 12 to 21, 2012 in “Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal)” over the fate of the former dictator of Chad, Hissène Habré.
Habré is accused of responsibility for thousands of political killings and systematic torture when he ruled Chad, from 1982 to 1990, before fleeing to Senegal. Seven of Habré’s victims filed a criminal complaint in Senegal in January 2000, accusing him of torture, barbaric acts, and crimes against humanity. A Senegalese judge indicted Habré on those charges but, after political interference by the Senegalese government, which was denounced by two UN human rights rapporteurs, appellate courts dismissed the case on the grounds that Senegalese courtslacked jurisdiction to try crimes committed abroad.
Other victims, including three Belgian citizens, then filed a case in Belgium. In September 2005, after four years of investigation, a Belgian judge indicted Habré and Belgium requested his extradition. A Senegalese court ruled that it lacked jurisdiction to decide on the extradition request, and the Senegalese government referred the Habré case to the African Union (AU) for a decision on how Habré should be tried. The AU created a Committee of Eminent African Jurists and, on its recommendation, asked Senegal in July 2006 to prosecute Habré “on behalf of Africa.” Senegal accepted the AU mandate and amended its legislation to give its courts extraterritorial jurisdiction over international crimes but for years raised obstacle after obstacle to Habré’s trial.
Belgium filed an application against Senegal at the International Court of Justice (ICJ) in February 2009 after Senegal failed to extradite Habré and continued to stall on his trial. Belgium has submitted three subsequent extradition requests. Two were rejected on technical grounds as the Senegalese government apparently did not transmit the Belgian legal papers intact to the court, and the third is still pending. In 2011 Senegal announced and then retracted a decision to expel Habré back to Chad.
For more background on the case, please visit: https://www.hrw.org/news/2012/03/09/chronology-habr-case.
Belgium alleges that Senegal has failed to meet its international obligations under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Convention”) and other binding international law by not prosecuting Habré domestically or extraditing him. According to its main drafters, an “essential purpose” of the convention was “to ensure that a torturer does not escape the consequences of his acts by going to another country,” and a key obligation, contained in article 7, was to “prosecute or extradite.” Belgium also alleges that Senegal’s failure over many years to establish extraterritorial jurisdiction over torture in accordance with article 5 continues to have consequences for the case.
Belgium asks the court to rule that Senegal has violated the Torture Convention and other binding international law by failing to prosecute or extradite Habré. It asks the court to order Senegal to promptly submit the Habré case to its competent authorities for prosecution or, failing that, to extradite Habré to Belgium without further delay.
Senegal acknowledges its obligation to prosecute or extradite under the Torture Convention and says it still intends to try Habré in Senegal and is also considering Belgium’s latest extradition request. Senegal maintains that it has not violated the Torture Convention and argues that such a complex and costly prosecution takes time and has required overcoming logistical and financial challenges. Senegal notes that it amended its laws and constitution to give Senegalese courts jurisdiction over Habré’s alleged crimes and asserts that it took years to secure international funding to cover all the trial costs. Senegal also asserts that a ruling by the Court of Justice of the Economic Community of West African States (ECOWAS) has created additional obstacles.
Senegal took no action against Habré from 1990 until the victims’ complaint in 2000. Following the Senegalese courts’ dismissal of the indictment against Habré in 2001, the Belgian authorities investigated the case for four years before seeking his extradition in 2005. Senegal then referred the case to the AU, which mandated Senegal in July 2006 to carry out the prosecution. It was another two years before Senegal amended its laws to provide the legal framework to prosecute Habré. The government also argued that it needed full up-front funding of €27.4 million (US$36.5 million) from the international community before beginning any prosecution. Several donors had immediately offered funding but it took three years of halting negotiations for Senegal to accept an €8.6 million (US$11.4 million) budget proposal by the AU and the European Union, which was fully funded at a Donors Round-Table in November 2010. Since then, however, the Senegalese government has said that the ECOWAS court judgment prevented it from moving forward, and no investigation has ever begun.
After their complaint in Senegal was dismissed, the Chadian victims/plaintiffs lodged a complaint (called a “communication”) against Senegal with the UN Committee against Torture, alleging a violation of the torture convention. In a decision on May 19, 2006, Guengueng v. Senegal, the committee concluded that Senegal had violated article 5 (2) of the convention by failing to establish its jurisdiction over extraterritorial torture and had twice violated article 7’s extradite-or-prosecute rule – a first time by failing to prosecute Habré in 2000-01 and again by failing to extradite Habré in 2005. The committee called on Senegal to prosecute or extradite Habré and to establish its jurisdiction over his alleged crimes. When Senegal delayed the prosecution of Habré, the committee followed with a mission to Senegal in 2009. In November 2011, the Committee against Torture’s rapporteur once again reminded Senegal of its obligations.
In July 2011, Navi Pillay, the UN High Commissioner for Human Rights, also reminded the Senegalese government that, “It is a violation of international law to shelter a person who has committed torture or other crimes against humanity, without prosecuting or extraditing him.”
On October 1, 2008, Habré filed a complaint with the ECOWAS court contending that applying Senegal’s legislative changes to his case would violate the principle prohibitting retroactive penal legislation. On November 18, 2010, the ECOWAS court ruled that to avoid violating that principle, Habré would have to be tried before a “special ad hoc procedure of an international character.” International law experts have unanimouslyquestioned the decision, as the principle expressly does not apply to acts which, at the time of their commission, were already prohibited by national or international law (such as, in this case, torture and war crimes).
Senegal told the ICJ that the ECOWAS court decision precludes it from trying Habré in its domestic courts and that setting up a special court would be more costly and complicated. Belgium replied that any retroactivity concerns raised by the ECOWAS court resulted from Senegal’s previous failure to have the necessary legislation in place.
The AU responded swiftly to the ECOWAS court ruling, and AU Commissioner Ramtane Lamamrapresented President Abdoulaye Wade in January 2011 with a plan for a streamlined tribunal composed of Senegalese and international judges. President Wade rejected the plan. Senegal and the AU continued discussions, however, and, in March 2011, agreed in principle to a new plan creating a special court within the Senegalese justice system with some judges appointed by the AU. The proposal aimed at being cost-neutral with respect to the donor-approved budget of €8.6 million by providing that the court “may choose to prosecute a representative sampling of the gravest crimes within its jurisdiction.” In May 2011, however, Senegal withdrew from negotiations with the African Union over creation of the court.
Senegal’s written Counter-Memorial states that Senegal only asked for a “reasonable delay” in discussions with the AU, and Senegal asserted before the ICJ that “consultations with the African Union continue with the aim of establishing this ad hoc tribunal of an international character,” and that these talks were “very advanced.” However, according to the AU Commission, Senegal in May 2011 suspended the talks “sine die,” or with no future date set, and has since not responded to a commission request as to why it “necessitated the adjournment sine die and whether Senegal intends to proceed with the trial.” The AU Commission’s January 2012 progress report does not mention any ongoing discussions with Senegal, and no longer cites Senegal as a possible venue for Habré’s trial (discussed below).
Senegal’s statements to the ICJ that that it still intends to prosecute Habré do not match its public statements. In July 2011, Senegal’s foreign minister, Madické Niang, declared: “It is important to emphasize that Hissène Habré cannot be tried in Senegal anymore.” He later confirmed that, “It was impossible for Senegal to prosecute Habré.” In suspending the announced expulsion to Chad, a communiqué from the Foreign Ministry again ruled out holding Habré’s trial in Senegal. President Wade also stated in 2011 that Senegal cannot try Hissène Habréand that after the ECOWAS court decision Senegal no longer has jurisdiction over the case.
Chad has been supportive of efforts to bring Habré to justice. The Chadian government waived Habré’s immunity in 2002 to allow him to be prosecuted in Belgium. On July 22, 2011, after the aborted attempt to expel Habré to Chad, the Chadian government announced that a trial in Belgium was the “most suitable” option to provide justice to the victims. Chad has never sought Habré’s extradition from Senegal and it is unlikely that he could receive a fair trial in Chad.
Both Belgium and Senegal recognize that the AU mandate does not relieve Senegal of its obligation to extradite or prosecute.
Since its mandate to Senegal in 2006 to prosecute Habré “on behalf of Africa,” the AU appointed a special envoy to the case, helped prepare a trial budget and raise the necessary funds, and time and again called on Senegal to bring Habré to justice promptly. In a report to the most recent summit in January 2012, however, the AU Commission noted the “marginal progress made in the organization of the Hissène Habré trial since 2006” and no longer mentioned the possibility of a trial for Habré in Senegal. Instead, the commission mentioned two other possibilities for the trial: Belgium, as requested by Chad and Habré’s victims and where a trial could be organized rapidly, and Rwanda, the only other African country willing to hold such a trial.
During the hearing, the judges asked an unusual number of questions. Several questions appeared aimed at giving them a better understanding of Belgium’s right to bring the case against Senegal.
Judge Ronny Abraham asked what right Belgium had to invoke Senegal’s Torture Convention obligations with regard to victims who were not Belgian citizens when they were tortured. Belgium answered that, under the International Law Commission’s authoritative draft articleson Responsibility of States for Internationally Wrongful Acts, Belgium can invoke Senegal’s responsibility because the Torture Convention creates obligations to the international community (“erga omnes”) enforceable by any state party to the convention. In addition, under these articles, Belgium is an “injured State” because it has exercised jurisdiction and requested Habré’s extradition. In a case brought by a Chilean torture victim who adopted Spanish nationality, the UN Committee against Torture held that, under the convention’s article 5 (1) (c), a state has the discretionary faculty, rather than a mandatory obligation, to exercise its jurisdiction on behalf of victim-nationals.
In fact, Belgium also relied on President Wade’s assurances for more than four years that he was ready to extradite Habré to Belgium. Indeed in 2003, the Belgian authorities certified the case to move forward because “three plaintiffs have Belgian nationality, and Chad and Senegal have decided not to prosecute” Habré. It should be noted that, had it not been for Belgium, Habré would have escaped justice totally when the Senegalese courts dismissed the case in 2001. Belgium has therefore acted – more than any other state involved – to uphold the purpose of the Torture Convention, which is “to make more effective the struggle against torture” by providing mechanisms for its repression.
Judge Joan Donoghue asked whether Senegal’s obligations to “prosecute or extradite” applied to acts of torture committed before June 1987, when the convention entered into force for Senegal. Belgium answered that despite an early Committee against Torture decision against retroactivity, later cases including Guengueng v. Senegal, discussed below, made no distinction between torture alleged to have been committed before the convention entered into force and those committed thereafter. In any event, Belgium pointed out that the 1987-1990 period included many of Habré’s worst alleged crimes. She also asked whether Senegal’s article 7 obligations extended to offenses prior to 1999, when the convention entered into force for Belgium. Belgium answered that “the procedural obligations owed by Senegal are not conditioned ratione temporis by the date of the alleged acts of torture.” That is to say, because Senegal’s violation of the Torture Convention was not the torture itself but the failure to bring the alleged torturer to justice, the time of the violation is situated at the time of the obligation to extradite or prosecute. In Guengueng v. Senegal, the Committee against Torture found that Senegal’s violations of the convention occurred “at least at the time when the complainants submitted their complaint in January 2000,” when it was obliged to but refused to prosecute Habré, and that Senegal “again failed to perform its obligations under article 7” in 2005 “by refusing to comply with the extradition request.” Both these violations occurred after 1999.
Judge Antônio Augusto Cançado Trindade asked what, given the cost of the trial, was the probative value of the Chadian Truth Commission report, which accuses Habré’s regime of up to 40,000 political assassinations and systematic torture. That report is one valuable piece of evidence to show the scale of the crimes of Habré’s government as well as Habré’s control over the repressive apparatus. Other evidence in the case includes the documents of Habré’s political police, the DDS (“Direction de la documentation et de la sécurité”), which detail how Habré placed the DDS under his direct authority and kept tight control over DDS operations. The documents contain the names of 1,208 people who were killed or died in detention. In these files alone, there is evidence that Habré received 1,265 direct communications from the DDS about the status of 898 detainees. Former members of the DDS have also testified that Habré was informed regularly of all DDS activities. In addition, hundreds of victims have also given testimony about the abuse they suffered.
The victims say that a trial in Belgium, is the “most practical and timely option” to ensure that Habré responds to the charges against him in a fair trial. A trial could be organized quickly in Belgium because a Belgian investigating judge and a police team investigated the case for four years. The team visited Chad in 2002, inspecting mass graves and former detention centers, interviewing Habré’s former accomplices and victims and analyzing thousands of documents from the archives of Habré’s political police.
The victims and their supporters have been fighting for more than 21 years to bring Habré to justice. While they filed the first complaint in Senegal in 2000, the victims say they have given up all hope of seeing Habré tried there. Habré is accused by Chad’s truth commission of emptying out his country’s treasury before fleeing, and he has powerful supporters in Senegal who have tried to influence the course of justice. In 2000, the UN rapporteur on the independence of the judiciary denounced executive interference surrounding the dismissal of charges in Senegal. The 2005 ruling rebuffing extradition was made at the request of the state prosecutor. Even with a change power in Senegal after Macky Sall’s victory over Wade for the presidency on March 25, 2012, Habré’s victims say they believe his supporters will make their weight felt. The ECOWAS decision, which seems to mandate creation of a new court, provides an excuse for further foot-dragging and interference, and there will be an inevitable delay caused by the need to have the money pledged in 2010 “re-pledged.”
Belgium is the only country that has received and listened to the victims and that continues to offer them a path toward justice. The victims are concerned that a trial other than in Belgium, such as in Rwanda, would require numerous additional years to organize – years in which many more survivors are likely to die without seeing justice. Such a trial might require legislative amendments to ensure an adequate legal framework for prosecution of Habré’s crimes (which may have no direct link to that country), a new commitment from international donors to finance the trial, and the restarting of a complex, transnational investigation.
There is no specific time frame within which the court must decide the case. However, in recent cases, the court has issued its judgment within approximately four to eight months.
There is no order from the ICJ preventing Habré from leaving Senegal until the court rules in the case. However, in February 2009, Belgium had asked the ICJ to order Senegal to prevent that from happening and in response, Senegal formally pledged in May 2009 to keep Habré in Senegal pending the court’s final judgment.
Despite its pledge, on July 8, 2011, President Wade wrote to the Chadian government and the AU announcing the expulsion of Habré to Chad – where he has already been condemned to death in absentiafor unrelated crimes. Two days later, Senegal officially retracted this decision in the face of an international outcry, including from the UN High Commissioner for Human Rights.
Senegal could also decide to extradite Habré to Belgium before a final ICJ ruling. Belgium would then presumably withdraw its application.
All judgments are final (without appeal) and binding on the parties according to Article 94 of the UN Charter. In cases in which a state believes that the other state has failed to perform its obligations under the judgment, that state may refer the matter to the UN Security Council, which is empowered to recommend or decide upon measures to be taken to give effect to the judgment.