Comments on: Belgium brings case against Senegal in the ICJ over Failure to Prosecute Hissene Habre http://www.ejiltalk.org/belgium-brings-case-against-senegal-in-the-icj-over-failure-to-prosecute-hissene-habre/ Blog of the European Journal of International Law Tue, 27 Jul 2010 20:07:35 +0000 http://wordpress.org/?v=2.9.2 hourly 1 By: Andreas Paulus http://www.ejiltalk.org/belgium-brings-case-against-senegal-in-the-icj-over-failure-to-prosecute-hissene-habre/comment-page-1/#comment-90 Andreas Paulus Mon, 23 Feb 2009 12:46:09 +0000 http://www.ejiltalk.org/?p=634#comment-90 Dapo, No disagreement between us. A mere clarification on your last paragraph: Belgium's claim is not erga omnes (partes) when it simply demands extradition under an extradition agreement or the Torture Convention or customary law, even if it has assumed universal jurisdiction. However, if Belgium brings its claim in the way the press release suggests, namely that Senegal should fulfil its obligations under the Torture Convention and general international law to prosecute OR extradite (to Belgium or anybody else willing to prosecute), this claim could ge said to rely on the erga omnes (partes) doctrine. This is a great opportunity to finally get erga omnes into the ratio decidende of an ICJ case! Best, Andreas Dapo,
No disagreement between us. A mere clarification on your last paragraph: Belgium’s claim is not erga omnes (partes) when it simply demands extradition under an extradition agreement or the Torture Convention or customary law, even if it has assumed universal jurisdiction. However, if Belgium brings its claim in the way the press release suggests, namely that Senegal should fulfil its obligations under the Torture Convention and general international law to prosecute OR extradite (to Belgium or anybody else willing to prosecute), this claim could ge said to rely on the erga omnes (partes) doctrine. This is a great opportunity to finally get erga omnes into the ratio decidende of an ICJ case!
Best, Andreas

]]> By: Dapo Akande http://www.ejiltalk.org/belgium-brings-case-against-senegal-in-the-icj-over-failure-to-prosecute-hissene-habre/comment-page-1/#comment-89 Dapo Akande Sat, 21 Feb 2009 15:26:33 +0000 http://www.ejiltalk.org/?p=634#comment-89 Andreas, One could argue that the Torture Convention does not itself create any obligation to extradite. If there is any such obligation it is to be found in extradition treaties between the State parties and it would be subject to any exceptions in that treaty. There is also the argument that the Torture Convention does not create an obligation to prosecute either but rather only an obligation to submit the case to prosecuting authorities. See the exchange on opinio juris which I refer to in my post on prosecution of US officials for Torture. So the question then becomes, has Senegal fulfilled its obligation here. Has it submitted the case to its prosecution authorities and do those authorities have a good enough reason for their failure to prosecute. Are the financial reasons that Belgium cites in its application, sufficient. Art. 7 (2) provides that the authorities of the detaining State shall take their decision as to whether to prosecute or not "in the same manner as in the case of any ordinary offence of a serious nature under the law of that State." Does this mean that if financial reasons are normally employed by Senegal in its decision making then it is lawful for it to use them here? Or are there grounds which international law would disallow though domestic law might allow? My point about the obligation to prosecute (or to submit for prosecution) being erga omnes parties is that Belgium's position appears to be no different from that of any other State. Sure Senegal's refusal to extradite affects Belgium specially since what we have is a failure to extradite to Belgium. But the failure to submit for prosecution comes after that. Belgium's interest here is to prevent impunity and to uphold the Convention so it appears to be in the same position as every other State as the failure to prosecute is not related to the refusal to extradite. Unless one says that what Belgium seeks to vindicate is the right that crimes within its jurisdiction (passive personality jurisdiction) do not go unpunished. There it would be in a special position. However, even without this latter argument, Art. 48 of the ILC Articles on State Responsibility (dealing with obligations erga omnes) ought to be sufficient legal basis for the admissibility of the Belgian claim. Andreas,

One could argue that the Torture Convention does not itself create any obligation to extradite. If there is any such obligation it is to be found in extradition treaties between the State parties and it would be subject to any exceptions in that treaty.

There is also the argument that the Torture Convention does not create an obligation to prosecute either but rather only an obligation to submit the case to prosecuting authorities. See the exchange on opinio juris which I refer to in my post on prosecution of US officials for Torture. So the question then becomes, has Senegal fulfilled its obligation here. Has it submitted the case to its prosecution authorities and do those authorities have a good enough reason for their failure to prosecute. Are the financial reasons that Belgium cites in its application, sufficient. Art. 7 (2) provides that the authorities of the detaining State shall take their decision as to whether to prosecute or not “in the same manner as in the case of any ordinary offence of a serious nature under the law of that State.” Does this mean that if financial reasons are normally employed by Senegal in its decision making then it is lawful for it to use them here? Or are there grounds which international law would disallow though domestic law might allow?

My point about the obligation to prosecute (or to submit for prosecution) being erga omnes parties is that Belgium’s position appears to be no different from that of any other State. Sure Senegal’s refusal to extradite affects Belgium specially since what we have is a failure to extradite to Belgium. But the failure to submit for prosecution comes after that. Belgium’s interest here is to prevent impunity and to uphold the Convention so it appears to be in the same position as every other State as the failure to prosecute is not related to the refusal to extradite. Unless one says that what Belgium seeks to vindicate is the right that crimes within its jurisdiction (passive personality jurisdiction) do not go unpunished. There it would be in a special position. However, even without this latter argument, Art. 48 of the ILC Articles on State Responsibility (dealing with obligations erga omnes) ought to be sufficient legal basis for the admissibility of the Belgian claim.

]]> By: Andreas Paulus http://www.ejiltalk.org/belgium-brings-case-against-senegal-in-the-icj-over-failure-to-prosecute-hissene-habre/comment-page-1/#comment-85 Andreas Paulus Fri, 20 Feb 2009 15:35:35 +0000 http://www.ejiltalk.org/?p=634#comment-85 Dapo, Thanks a lot for this quick and thorough reaction to a case that is probably going to keep us busy for some time. I believe, however, that things are even more complicated. First, as far the Torture Convention is concerned, this is not simply a case of erga omnes or erga omnes partes (Art. 48 para. 1 of the Articles on State Responsibility). Belgium has already opened an investigation and has sent a request of extradition - thus, it claims its own rights, not that of a third parties, rights it says it enjoys under the Torture Convention. Under the Convention, however, there is an obligaton to prosecute that is conditional on the existence or non of an extradition request, but no obligation to extradite (see also the Nowak/McArthur Commentary on the UN Convention Against Torture, Article 7 paras 85-60). Even if the duties under the Torture Convention are erga omnes partes (which I believe they are), imho they do not create an obligation to extradite in the absence of a respective extradition treaty. However, Belgium could claim erga omnes partes that Chad is under an obligation to prosecute. The claim under crimes against humanity is indeed even more complicated. At this point, it is difficult to see whether or not a customary duty to prosecute exists. A final note of caution: this is a blog contriubtion of a slightly experimental character. As I said, this case is going to keep the international law community busy for quite some time :-). Kind regards, Andreas Dapo,
Thanks a lot for this quick and thorough reaction to a case that is probably going to keep us busy for some time. I believe, however, that things are even more complicated. First, as far the Torture Convention is concerned, this is not simply a case of erga omnes or erga omnes partes (Art. 48 para. 1 of the Articles on State Responsibility). Belgium has already opened an investigation and has sent a request of extradition – thus, it claims its own rights, not that of a third parties, rights it says it enjoys under the Torture Convention.
Under the Convention, however, there is an obligaton to prosecute that is conditional on the existence or non of an extradition request, but no obligation to extradite (see also the Nowak/McArthur Commentary on the UN Convention Against Torture, Article 7 paras 85-60).
Even if the duties under the Torture Convention are erga omnes partes (which I believe they are), imho they do not create an obligation to extradite in the absence of a respective extradition treaty. However, Belgium could claim erga omnes partes that Chad is under an obligation to prosecute.
The claim under crimes against humanity is indeed even more complicated. At this point, it is difficult to see whether or not a customary duty to prosecute exists.
A final note of caution: this is a blog contriubtion of a slightly experimental character. As I said, this case is going to keep the international law community busy for quite some time :-) .
Kind regards, Andreas

]]> By: Nenda Fadhilah http://www.ejiltalk.org/belgium-brings-case-against-senegal-in-the-icj-over-failure-to-prosecute-hissene-habre/comment-page-1/#comment-84 Nenda Fadhilah Fri, 20 Feb 2009 12:30:13 +0000 http://www.ejiltalk.org/?p=634#comment-84 This is the second case in ICJ where Belgium assert the universal jurisdiction principle. It will be interesting to see whether the court will stick to its decision in Arrest Warrant Case or make a differentiation in this case. Main Belgium problem certainly is in the court's jurisdiction. Sorta reminds me to Jessup problems. This is the second case in ICJ where Belgium assert the universal jurisdiction principle. It will be interesting to see whether the court will stick to its decision in Arrest Warrant Case or make a differentiation in this case. Main Belgium problem certainly is in the court’s jurisdiction.

Sorta reminds me to Jessup problems.

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