ICJ Denies Belgium’s Request for Provisional Measures in the “Prosecute or Extradite” Case

Joanna Harrington is an Associate Professor with the Faculty of Law at the University of Alberta in Canada, where she teaches constitutional law, international law, and international criminal law. Her scholarship often examines the interplay between international human rights law and criminal law, and international law and constitutional law in general. She has written previously on matters of interim measures, arguing for the application of the ICJ’s jurisprudence to requests arising within the context of communications before the international human rights treaty monitoring bodies: see “Punting Terrorists, Assassins and Other Undesirables: Canada, the Human Rights Committee and Requests for Interim Measures of Protection” (2003) 48 McGill LJ 55.

 I wish to thank Dapo Akande, the editor of EJIL Talk!, for the invitation to express my initial (and perhaps hasty) thoughts on yesterday’s decision by the International Court of Justice (see here) concerning Belgium’s request for the indication of provisional measures in the proceedings lodged against Senegal concerning the “obligation to prosecute or extradite” Hissène Habré, the former President of Chad (1982-1990), for the commission of serious international crimes, including crimes of torture and crimes against humanity.[1] Habré has been living in Senegal since he was overthrown in 1990; however, in light of recent statements made by the Senegalese head of state intimating that Habré may be allowed to leave the territory,[2] Belgium sought an order from the ICJ requiring Senegal to ensure that such a departure did not occur. Senegal opposed Belgium’s request, challenging Belgium’s interpretation of the statements made by its President as well as the general admissibility of Belgium’s case, while also arguing that such an order was not needed given the existing controls concerning Habré. By 13 votes to one, the Court declined to make the requested order, finding that:

“the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures.”[3]

 A key factor contributing to the Court’s decision were the solemn assurances provided by Senegal, both on its own initiative and in response to a direct question put by a Member of the Court during the hearings, that it will not allow Habré to leave its territory before the Court has given its final decision.[4] Credit goes to Judge Greenwood, a recent appointment to the Court, for asking Senegal at the end of the first round of the oral observations whether it would be prepared to give a solemn assurance to the Court that it will not allow Habré to leave while this case is pending.[5] Although Senegal had said as much in its submissions, the question prompted Senegal to solemnly confirm in its closing statement to the Court that:

“Senegal will not allow Mr. Habré to leave Senegal while the present case is pending before the Court. Senegal has not the intention to allow Mr. Habré to leave the territory while the present case is pending before the Court.”[6]

 With this solemn declaration, the denial of Belgium’s request for the indication of provisional measures was a likely result, notwithstanding Belgium’s efforts to suggest that a “clear and unconditional” assurance “could be sufficient” but the need for certain “clarifications” made an order from the Court preferable.[7] The ICJ’s decision may thus be viewed as a non-result in terms of the actual request that was put before the Court, and the fact that the parties were generally in agreement as to the law governing the indication of provisional measures. Nevertheless, the reasoning behind the Court’s order is worth consideration, as are the issues raised in the relatively lengthy dissent of Judge Cançado Trindade, another new appointment to the Court.

 The Existence of a Dispute and the Involvement of the African Union

In addressing a request for the indication of provisional measures, the Court must first satisfy itself that it has prime facie jurisdiction as regards the merits of the case. As explained in its application instituting proceedings, Belgium made a request for Habré’s extradition in September 2005, but in November 2005, the Chambre d’accusation of the Dakar Court of Appeal in Senegal determined that it was without jurisdiction to render an opinion on the extradition request and declined to act.[8] As noted by the ICJ in yesterday’s decision, Senegal has affirmed that this judgment put “a definitive end to the extradition proceedings initiated by Belgium.”[9] Soon thereafter, Senegal referred the Habré case to the Assembly of the African Union,[10] which subsequently adopted a “Decision” confirming its view that the Habré case fell within the competence of the African Union[11] – a point emphasized in the separate opinion of Judges Koroma and Yusuf[12] – but given the lack of an AU organ available to try Habré,[13] the Assembly advised that Habré’s trial should take place in Senegal.[14] The exact wording of this direction is worth noting since Senegal has placed much emphasis on the fact that the Assembly’s decision

“MANDATES (sic) the Republic of Senegal to prosecute and ensure that Hissène Habré is tried, on behalf of Africa, by a competent Senegalese court with guarantees for fair trial.”[15]

 Belgium, of course, disputes the notion that the African Union can bestow a “mandate” (in a legal sense) on Senegal to prosecute Habré, since it views Senegal as having its own independent obligation under both conventional and customary international law to “prosecute or extradite”.[16] During the oral observations, Senegal agreed with Belgium that it has an obligation to prosecute Habré, but then argued that as a result, there was no legal dispute existing between the parties, and thus no jurisdiction. Thankfully, the Court was able to find that a dispute does exist, albeit with a different scope than first alleged, thus keeping alive the prospect for future arguments concerning, at the very least, the time frame in which to fulfil the obligation to prosecute once a request for extradition has been refused and the circumstances to consider, whether financial, legal or otherwise, when determining a possible breach.[17] This is a welcome development, in my view, given the clarification of the issues that it encourages, and one which may not have occurred had Belgium’s application been declared moot, as suggested by some of the Judges.[18]

 The Link between the Rights Protected and the Measures Requested

 The goal of a request for provisional measures is the preservation of the respective rights of the parties while a case is pending before the Court. In essence, a request for the indication of provisional measures is a request for an interim injunction (to use the term used in some, but not all, legal systems). Orders containing indications of provisional measures are binding, following the ICJ’s definitive ruling in the LaGrand Case in 2001,[19] which in turn was based on the general principle (established, as luck would have it, in a Belgian-initiated case before the ICJ’s predecessor) that:

“the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given, and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute.”[20]

 To preserve its rights, which at this stage in the proceedings need only be raised as an arguable case, Belgium asked the ICJ to order Senegal to take all necessary measures to prevent Habré from leaving Senegal’s territory. However, it is often reported that Habré is already “under house arrest” in his two villas in the Ouakam suburb of Dakar, Senegal, and thus the ICJ proceedings, in my view, highlight a need to clarify the exact nature of the controls concerning Habré.

 Belgium’s request has assisted somewhat with this task, in that the wording of Belgium’s initial request was for an order 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.”[21] Senegal objected strongly to such an order on the grounds that it would cause executive interference with the independence of the Senegalese judiciary, noting that a judicial order for custody and surveillance presupposes the judicial confirmation of an indictment, taking into account the role of the investigating judge in the inquisitorial legal system.[22] On this point, Belgium appears to have conceded, apologizing for causing any confusion with its wording, and rephrasing its request as being aimed at requiring Senegal to “take the necessary steps, whatever they may be within its system, to ensure that Mr. Habré is not able to escape justice.”[23] Belgium also suggested that: “One possibility would be that Senegal would continue the present arrangements, which do seem to be effective.”[24] Of course, Belgium’s comments also imply that an assurance to continue the present arrangements could suffice, removing the argument about urgency in the sense of a real and imminent risk that irreparable prejudice may be caused to the rights at issue. It is also worth noting that Belgium’s shift in approach prompted comment from Judge Ad Hoc Serge Sur in his separate opinion to the effect that the Court should have probed further.[25]

 It remains unclear, however, as to what exactly are the “present arrangements” upon which the world now relies to ensure Habré’s availability for trial. Senegal has advised that Habré is subject to certain administrative measures of control, specifically police control measures and surveillance, and has been since 1990.[26] Senegal has also confirmed that Habré does not possess a valid travel document (neither a passport nor a safe-conduct document).[27] However, Senegal has also made it clear that Habré is not subject to judicial measures of control, such as custody, since such measures only flow from the lodging of an indictment; a point illustrated by Habré’s arrest and detention back in 2000, as a result of his indictment on charges of complicity in crimes against humanity and torture, and then his release from custody when the charges were dismissed for want of jurisdiction.[28] Habré was also imprisoned (at the age of 63) upon receipt of Belgium’s extradition request in November 2005, and then later released when the courts declined to rule favourably or unfavourably on the extradition request.[29]

 No-one asked whether the surveillance was arranged to ensure Habré’s own protection and security from his enemies, rather than to ensure his availability to face justice, and no mention was made of the human rights implications of 19 years of control and surveillance, described by counsel for Senegal as taking place “day and night”.[30] Habré remains the beneficiary of the right to be presumed innocent and there are no charges lodged against him, despite renewed efforts by his victims to initiate proceedings in a Senegalese court in September 2008.[31] In addition, the members of Habré’s family are also entitled to enjoy such fundamental human rights as liberty and privacy, with counsel for Senegal confirming that: “Indeed, Mr. Habré and his family are kept under constant and tight surveillance” (emphasis added).[32]

 The Nature, Effect and Consequences of an “Obligation to Prosecute or Extradite”

 Another aspect kept alive by the Court’s decision, at this time, to accept Senegal’s assurances, rather than declaring the application moot, is the opportunity for the parties, and for commentators in general, to deliberate further on the nature, effect and consequences of the alleged rights of the parties, especially those of Belgium. During the oral hearings, both Judge Simma and Judge Cançado Trindade asked questions about the nature, effect and consequences of the right asserted by Belgium to see Habré prosecuted for his crimes, and both queried whether Belgium was asserting a right to see an obligation erga omnes performed (a matter discussed here on this blog). These questions go to the heart of the matter, with Judge Simma suggesting that Belgium’s arguments were somewhat light on the legal parameters for the asserted obligation, while Judge Cançado Trindade has since used his dissenting opinion to highlight this aspect further.[33] The asserted obligation is not limited to torture, since Belgium also invokes the obligation for crimes against humanity, but if such an obligation exists, are states legally obliged to request the extradition of Presidents who make statements inciting genocide? And should other states have requested Habré’s extradition?

 The case initiated by Belgium has been styled “Questions relating to the Obligation to Prosecute or Extradite“; however, an argument can be made that the true obligation at play is one of “extradite or prosecute” since Belgium did make an extradition request that has not been met by Senegal, and Senegal has not initiated a prosecution for at least three years.[34] Moreover, neither party refutes the fact that Belgium made a request to Senegal for Habré’s extradition that has been denied. Restyling the case as one concerning “Questions relating to the Obligation to Extradite or Prosecute” would therefore be a more accurate reflection of the factual basis of the dispute existing between Belgium and Senegal. This order of phrase would also be more in-keeping with the actual text of article 7 of the Torture Convention, which suggests that the obligation to submit a case for the purpose of prosecution is contingent on a state party’s denial of an extradition request. Article 7 provides in substance, with emphasis added, that: “The State Party in [whose] territory a person alleged to have committed [an act of torture] 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.” Note too that the obligation here is not an “obligation to prosecute” but rather an obligation to submit the case to a state’s prosecuting authorities, thus preserving and respecting the value and principle of prosecutorial discretion.

 I realize, however, that flipping the phrase is a more accurate reflection of Belgium’s wider goal in bringing this case, namely the goal of establishing (or from Belgium’s perspective, confirming) the existence of a international law obligation to prosecute those who commit serious violations of human rights and commit serious breaches of international humanitarian law.[35] This goal clearly fits within the larger project of ensuring no impunity for those who commit the most serious crimes and is undoubtedly a worthy aspiration. But, as I have argued briefly elsewhere (here) in relation to the International Law Commission’s current study of “extradite or prosecute”,[36] one cannot simply “flip the phrase” to equate “prosecute or extradite” with “extradite or prosecute”, and nor can one justify the revision of the classic shorthand of “aut dedere aut judicare” solely on the grounds that it would be “better construed as judicare vel deder“, as Professor Eric David suggested in his oral observations before the ICJ.[37] These turns of phrase do not reflect the contingent nature of the “extradite or prosecute” obligation as it is found in many treaties, both bilateral and multilateral, concerning a wide array of offences. Alternatively, if the obligation of extradite or prosecute includes a legal obligation to prosecute for a select list of offences, such as those considered “the most serious crimes of concern to the international community”, to borrow the phrase from the Rome Statute of the International Criminal Court, then further state practice is needed to determine whether the prosecution of these offences, in circumstances that do not qualify for the Rome Statute‘s application, is in fact a legal obligation.

 Is this a money fight?

 My last area for comment relates to the need for financing from the international community, which has been given as the reason for Senegal’s delay in prosecuting Habré. Clearly, from an African perspective, the prospect of sending an ex-African leader to face trial in an ex-colonial power such as Belgium is a delicate matter and from this perspective, one can understand the desire to create an African tribunal to try Africans in Africa for crimes against humanity. But if the capacity and funds were available to support an Habré prosecution before a regular Senegalese court in 2000, why are they unavailable now? Moreover, has Senegal exaggerated the cost of such a prosecution, with rumours of a new state-of-the-art courthouse being required, and a suggestion made during the oral hearings of a need to transport thousands of witnesses from Chad to Senegal? Not every victim need testify.

 On the other hand, Senegal is not a wealthy country, and flights are expensive from Chad to Senegal, with the limited access to telephone and internet services making video-testimony an unlikely alternative. Moreover, both Senegal and Belgium have accepted that there is a need to secure financial assistance from international donors to support the organization of the Habré trial, (although Judge Cançado Trindade would have us consider further the alleged high costs of holding the trial). Funding international criminal justice is expensive and difficult, especially when a state or tribunal is reliant on voluntary contributions from donor states, as evidenced by the near bankruptcy of the Special Court for Sierra Leone and the continuing financial difficulties of the Extraordinary Chambers in the Courts of Cambodia. One can also understand the need to have adequate funds pledged in advance, as was recently done before opening the doors of the Special Tribunal for Lebanon, so as to avoid the interruption of proceedings once a trial is underway. Senegal has rightly acknowledged the link between sufficient funds and respect for the right to a fair trial, including the right to a trial within a reasonable time.

 Nevertheless, the difficulty faced by government officials working in the capitals of interested states is the simple fact that to secure a commitment from a government’s political masters to pledge funds provided by taxpayers, no matter how worthy the cause, there must be some means of showing that concrete results will result from the public expenditure. This leads to talk of benchmarks and disbursements on achieving certain successes at various stages of a trial’s organization. Given the passage of 19 years since Habré first assumed residence in Senegal, and the passage of almost 3 years since Senegal accepted its “mandate” to prosecute Habré from the African Union in July 2006, and the lack of a transparent timeline for bringing this case to trial, it will remain difficult for government officials to run a funding request “up the flag pole” with any hope of success, and even more difficult if that government already contributes to other criminal tribunals that are equally deserving of financial support.

 [1] Case concerning questions relating to the obligation to prosecute or extradite (Belgium v. Senegal), Request for the Indication of Provisional Measures, Order of the International Court of Justice, 28 May 2009. The documents concerning this case, and referred to below, are made available to the public at: http://www.icj-cij.org/, with the exception of the written replies of the parties to a question put by Judge Cançado Trindade on the last day of the oral hearings, with the existence of these replies confirmed in note 55 of Judge Cançado Trindade’s dissenting opinion.

 [2] In its Request for the Indication of Provisional Measures Submitted by the Government of the Kingdom of Belgium (undated), online: http://www.icj-cij.org/docket/files/144/15056.pdf, Belgium refers to an interview given by Senegal’s President Abdoulaye Wade to Radio France Internationale. During the first round of oral observations, Professor Eric David, as Counsel for Belgium, supplemented this with reference to statements made by President Wade in interviews with the Spanish newspaper Publico on 14 October 2008, (reproduced in the Senegalese newspaper Le Quotidien on 15 October 2008), the French newspaper La Croix on 18 December 2008, and the French news agency Agence France-Presse on 3 February 2009: see CR 2009/08 (6 April 2009) (translation) at 25-27. These sources are also referred to by the Court in its Order of 28 May 2009 at para. 63.

 [3] Order of 28 May 2009 at para. 76.

 [4] Order of 28 May 2009 at para. 71.

 [5] See CR 2009/9 (6 April 2009) (original) at 59.

 [6] Oral observations of Demba Kandji, Co-Agent of Senegal, CR 2009/11 (8 April 2009) (translation) at 16, para. 5. It is worth noting that Senegal’s Co-Agent served as the Investigating Judge who first indicted Habré in 2000. He was later removed from the case as it proceeded to the Senegalese courts, with some alleging political interference.

 [7] Oral observations of Gerard Dive, Co-Agent of Belgium, CR 2009/10 (7 April 2009) (translation) at 20-21.

 [8] See Belgium’s Application instituting proceedings, dated 16 February 2009, at para. 6, online: http://www.icj-cij.org/docket/files/144/15054.pdf. See also the oral observations of Prof. Eric David, Counsel for Belgium, CR 2009/08 (6 April 2009) (translation) at 18, and those of Cheikh Tidiane Thiam, Agent of Senegal, CR 2009/09 (6 April 2009) (translation) at 5.

 [9] Order of 28 May 2009 at para. 35.

 [10] The Assembly is the supreme organ of the African Union and consists of the Heads of State and Government: Constitutive Act of the African Union, 11 July 2000, 2158 UNTS 3 (in force 26 May 2001), art. 6.

 [11] Articles 4(h) and (o) of the Constitutive Act of the African Union, 11 July 2000, 2158 UNTS 3 (in force 26 May 2001), require the Union to “function in accordance with the following principles: …”h) The right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity” [and] “o) Respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities” (emphasis added).

 [12] See Joint Declaration of Judges Koroma and Yusuf at para. 11.

 [13] Neither the African Court on Human and Peoples’ Rights, nor the desired Court of Justice of the African Union, would have jurisdiction to hear criminal matters.

 [14] See Decision 127(VII) taken by the Assembly of the African Union at its 7^th Ordinary Session held in Banjul, The Gambia, 1-2 July 2006: Assembly/AU/Dec.127(VII), online: http://www.aumission-ny.org/documents/Assembly-banjul_July06.pdf

 [15] Assembly/AU/Dec.127(VII) at para. 5(ii).

 [16] Oral observations of Sir Michael Wood, Counsel for Belgium, CR 2009/8 (6 April 2009) (original) at 39, 42 & 58.

 [17] Order of 28 May 2009 at paras. 47-48.

 [18] See the Joint Separate Opinion of Judges Al-Khasawneh and Skotnikov. See also the Joint Declaration of Judges Koroma and Yusuf.

 [19] LaGrand Case (Germany v. United States of America), [2001] ICJ Rep. 466, 40 ILM 1069, paras 92-109. For commentary, see William J. Aceves, “Case Report: LaGrand (Germany v. United States)” (2002) 96 AJIL 210; Martin Mennecke & Christian J. Tams, “LaGrand Case (Germany v. United States of America)” (2002) 51 ICLQ 449. See also “Symposium: Reflections on the ICJ’s LaGrand Decision” (2002) 27 Yale J. Int’l L. 423.

 [20] Electricity Company of Sofia and Bulgaria (Belgium v. Bulgaria), Order of 5 December 1939, PCIJ (Series A/B) No. 79 at 199, cited with approval in the LaGrand Case at para. 103.

 [21] See Request for the Indication of Provisional Measures Submitted by the Government of the Kingdom of Belgium (undated), online: http://www.icj-cij.org/docket/files/144/15056.pdf.

 [22] Oral observations of Abdulaye Dianko, Counsel for Senegal, CR 2009/09 (6 April 2009) (translation) at 34-36.

 [23] Oral Observations of Sir Michael Wood, Counsel for Belgium, CR 2009/10 (7 April 2009) (original) at 19.

 [24] Ibid. at 19, para. 7.

 [25] Opinion Individuelle de M. Le Juge Ad Hoc Sur at paras 3-4.

 [26] Oral observations of Abdulaye Dianko, Counsel for Senegal, CR 2009/09 (6 April 2009) (translation) at 34-35 and Prof. Alioune Sall, Counsel for Senegal, CR 2009/09 (6 April 2009) (translation) at 41.

 [27] Oral observations of Prof. Alioune Sall, Counsel for Senegal, CR 2009/09 (6 April 2009) (translation) at 41, para. 14 and CR 2009/11 (8 April 2009) (translation) at 13.

 [28] See the oral observations of Cheikh Tidiane Thiam, Agent of Senegal, CR 2009/09 (6 April 2009) (translation) at 3-5 and Demba Kandji, Co-Agent of Senegal, CR 2009/09 (6 April 2009) (translation) at 15-17. An English translation of the relevant judgments of the Senegalese courts can be found in 125 ILR 569 at 571 & 577.

 [29] See “Chad ex-dictator detained in Senegal” afrol News (15 November 2005), online: http://www.afrol.com/articles/17263 and “Chad ex-dictator to stay in Senegal, for now” afrol News (25 November 2005), online: http://www.afrol.com/articles/17417.

 [30] Oral observations of Prof. Alioune Sall, Counsel for Senegal, CR 2009/11 (8 April 2009) (translation) at 13.

 [31] “Habre victims file a complain(t) in Senegal” afrol News (17 September 2008), online: http://www.afrol.com/articles/30832

 [32] Oral observations of Prof. Alioune Sall, Counsel for Senegal, CR 2009/09 (6 April 2009) (translation) at 41, para. 13.

 [33] Dissenting Opinion of Judge Cançado Trindade at 17-19.

 [34] Note that if one relies on the uncorrected translation of the verbatim record for 6 April 2009, it would appear that the President of the Court has renamed the case from one concerning the obligation to “prosecute or extradite” to one concerning the obligation to “extradite or prosecute”: CR 2009/08 (6 April 2009) (translation) at 2 & 4. However, the original French language transcript for these proceedings retains the “prosecute or extradite” phrasing.

 [35] See oral observations of Paul Rietjens, Agent of Belgium and Prof. Eric David, Counsel for Belgium, CR 2009/08 (6 April 2009) (translation) at 8 & 23 respectively.

 [36] Joanna Harrington, “The Obligation to ‘Extradite or Prosecute’ is not an Obligation to ‘Prosecute or Extradite'” (23 February 2009), online: http://www.ejiltalk.org/author/jharrington/

 [37] Oral observations of Prof. Eric David, Counsel for Belgium, CR 2009/08 (6 April 2009) (translation) at 23.