Belgium has filed a case in the ICJ against Senegal (see press release) with regard to Senegal’s failure to prosecute former Chadian Head of State, Hissene Habre. This is the latest episode in the long running saga regarding the possible prosecution of Habre. Habre is accused of torture and crimes against humanity committed in the 1980s against dissidents and political opponents during his period in office in Chad. Habre has been resident in Senegal since he was overthrown in 1990. Following the Pinochet precedent, attempts were first made in 2000 to institute criminal proceedings in Senegal against Habre. These attempts failed when the Senegalese courts held that Senegal lacked extraterritorial jurisdiction over the crimes because it had not passed the necessary legislation. Thereafter, proceedings against Habre were commenced in Belgium and, in 2005, a Beglian magistrate issued an international arrest warrant for Habre. After the African Union recommended prosecution in Senegal, that country amended its domestic law in order to provide jurisdiction for crimes against humanity, war crimes and genocide. However, no proceedings against Habre have been commenced in Senegal though he is said to be under house arrest.
In its Application to the ICJ Belgium, requests the Court to adjudge and declare that:
” – the Republic of Senegal is obliged to bring criminal proceedings against Mr. H. Habré for acts including crimes of torture and crimes against humanity which are alleged against him as author, co-author or accomplice;
– failing the prosecution of Mr. H. Habré, the Republic of Senegal is obliged to extradite him to the Kingdom of Belgium so that he can answer for his crimes before the Belgian courts”.
Belgium has also requested provisional measures as the Senegalese President has suggested that Habre may be released from house arrest. Belgium asks the Court to indicate provisional measures requiring Senegal to take
“all the steps within its power to keep Mr. H. Habré under the control and surveillance of the judicial authorities of Senegal so that the rules of international law with which Belgium requests compliance may be correctly applied”.
Belgium’s arguments regarding Senegal’s obligation to prosecute or extradite with regard to the crime of torture is based on the Convention against Torture. The existence of the obligation is incontestable as the obligation is explicit on the face of the Convention. I don’t know what arguments Senegal intends to deploy but it is possible that it would argue that Habre being a former Head of State is entitled to immunity from prosecution and criminal process. I don’t think it has used this argument in this saga. Its an argument that ought not to succeed and is unlikely to do so. The decision of the English House of Lords in Pinochet, though many of the opinions of the Law Lords are poorly reasoned, is authority for the view that there is no immunity ratione materiae (the immunity which attaches to official acts of state agents) for prosecutions for torture. The best interpretation of that case, is that immunity ratione materiae is logically inconsistent with the conferal of extraterritorial jurisdiction in the Torture Convention. The two cannot sit together and immunity ratione materie must be deemed to have been implicitly removed.
Belgium’s arguments regarding Senegal’s failure to prosecute or extradite Habre with regard to crimes against humanity are more problematic. According to the Belgian application:
“Senegal’s failure to prosecute Mr. H. Habré, or to extradite him to Belgium to answer for the crimes against humanity which are alleged against him, violates the general obligation to punish crimes against international humanitarian law which is to be found in numerous texts of derived law (institutional acts of international organizations) and treaty law”.
The case will test whether customary international law does oblige (as opposed to merely permit) States to prosecute for crimes against humanity. I am not aware of any treaty that provides such an obligation. The closest we get to this in a treaty is a part of the preamble to the Rome Statute of the International Criminal Court which recalls “that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes,”. However, there is no treaty that creates an obligation on States to prosecute persons for crimes against humanity committed outside the territory of that State. It is by no means clear that customary international law provides such an obligation and evidence of practice to support this would be hard to find.
The proceedings instituted by Belgium touch on two topics which the International Law Commission has recently begun to study. The first is the Immunity of State Officials from Foreign Criminal Jurisdiction (see here). The second is the Obligation to Extradite or Prosecute (Aut dedere aut judicare) (see here). One of the issues the ILC will have to tackle in the latter topic is whether such an obligation exists under customary international law. Both the latest report of the Special Rapporteur appointed to deal with the topic (see here) and the 2008 report of the ILC itself recognise that this is an issue that needs to be addressed. The Special Rapporteur at para. 124 of his report suggests that “the growing number of treaties establishing and confirming such an obligation may lead at least to the beginning of the formulation of an appropriate customary norm.” He cites with approval, the following statement:
“If a State accedes to a large number of international treaties, all of which have a variation of the aut dedere aut judicare principle, there is strong evidence that it intends to be bound by this generalizable provision, and that such practice should lead to the entrenchment of this principle in customary law.”
The problem with this argument is how does one generalise the treaty provisions in question. In particular, which crimes does it extend to. Afterall, the aut dedere aut judicare obligation exists in treaties dealing with all sorts of crimes of international concern and not merely, indeed not mainly, in respect of crimes under international law.
Another issue that may arise in these proceedings is whether Belgium’s claims are admissible. In particular, does Belgium have a sufficient legal interest with respect to the claim that Senegal is obliged to prosecute Habre. The issue here is about the enforcement of norms owed to a group of States but where breach does not specially affect any State. The obligation to prosecute under the Torture Convention is an obligation erga omnes partes as it is a collective obligation. Clearly, Belgium is specially affected by a refusal of Senegal to extradite Habre. However, the question is whether its position with respect to the obligation to prosecute is any different from that of any other State. Perhaps this can be regarded as an attempt at actio popularis by Belgium. But is there any reason why it should not be permitted. If it were not, the obligation to prosecute in the Torture Convention would be unenforceable.
This case is the third case on the current docket of the ICJ dealing with the role of domestic courts in addressing foreign human rights violations and international crimes. The other two are the Certain Criminal Proceedings Case in France (Congo v. France) and the Proceedings instituted by the Federal Republic of Germany against the Italian Republic (Germany v. Italy) (on which see my earlier post).