                           COUR INTERNATIONALE DE JUSTICE

                               RECUEIL DES ARRÊTS,
                        AVIS CONSULTATIFS ET ORDONNANCES

                    QUESTIONS CONCERNANT L’OBLIGATION
                       DE POURSUIVRE OU D’EXTRADER
                              (BELGIQUE c. SÉNÉGAL)

                             ARRÊT DU 20 JUILLET 2012

                                  2012
                           INTERNATIONAL COURT OF JUSTICE

                             REPORTS OF JUDGMENTS,
                          ADVISORY OPINIONS AND ORDERS

                   QUESTIONS RELATING TO THE OBLIGATION
                        TO PROSECUTE OR EXTRADITE
                              (BELGIUM v. SENEGAL)

                             JUDGMENT OF 20 JULY 2012

6 CIJ1033.indb 1                                            28/11/13 12:50

                                           Mode officiel de citation :
                          Questions concernant l’obligation de poursuivre ou d’extrader
                                         (Belgique c. Sénégal), arrêt,
                                          C.I.J. Recueil 2012, p. 422

                                                Official citation :
                          Questions relating to the Obligation to Prosecute or Extradite
                                        (Belgium v. Senegal), Judgment,
                                           I.C.J. Reports 2012, p. 422

                                                                                1033
                                                                 No de vente:
                   ISSN 0074-4441                                Sales number
                   ISBN 978-92-1-071147-0

6 CIJ1033.indb 2                                                                           28/11/13 12:50

                                                   20 JUILLET 2012

                                                       ARRÊT

                    QUESTIONS CONCERNANT L’OBLIGATION
                       DE POURSUIVRE OU D’EXTRADER
                           (BELGIQUE c. SÉNÉGAL)

                   QUESTIONS RELATING TO THE OBLIGATION
                        TO PROSECUTE OR EXTRADITE
                           (BELGIUM v. SENEGAL)

                                                   20 JULY 2012

                                                   JUDGMENT

6 CIJ1033.indb 3                                                     28/11/13 12:50

                                                                                422

                                            TABLE OF CONTENTS

                                                                                Paragraphs

                   Chronology of the Procedure                                                1-14
                      I. Historical and Factual Background                                   15-41
                     II. Jurisdiction of the Court                                           42-63
                        A. The existence of a dispute                                        44-55
                        B. Other conditions for jurisdiction                                 56-63
                    III. Admissibility of Belgium’s Claims                                   64-70
                    IV. The Alleged Violations of the Convention against
                        Torture                                                            71-117
                        A. The alleged breach of the obligation laid down in Article 6,
                           paragraph 2, of the Convention                                    79-88
                        B. The alleged breach of the obligation laid down in Article 7,
                           paragraph 1, of the Convention                                   89-117
                           1. The nature and meaning of the obligation laid down in
                              Article 7, paragraph 1                                        92-95
                           2. The temporal scope of the obligation laid down in
                               Article 7, paragraph 1                                      96-105
                           3. Implementation of the obligation laid down in Article 7,
                                paragraph 1                                                106-117
                     V. Remedies                                                           118-121
                   Operative Clause                                                            122

                                                                                4

6 CIJ1033.indb 5                                                                                28/11/13 12:50

                                                                                423

                                  INTERNATIONAL COURT OF JUSTICE

                                                     YEAR 2012                                             2012
                                                                                20 July
                                                                                General List
                                                    20 July 2012                                         No. 144

                   QUESTIONS RELATING TO THE OBLIGATION
                        TO PROSECUTE OR EXTRADITE
                                            (BELGIUM v. SENEGAL)

                      Historical and factual background.
                      Complaints filed against Mr. Habré in Senegal and in Belgium — Belgium’s
                   first extradition request — Senegal’s referral of the “Hissène Habré case” to the
                   African Union — Decision of the United Nations Committee against Torture —
                   Senegalese legislative and constitutional reforms — Judgment of the Court of Jus-
                   tice of the Economic Community of West African States — Belgium’s second,
                   third and fourth extradition requests.

                                                           *
                      Bases of jurisdiction of the Court — Article 30, paragraph 1, of the Convention
                   against Torture (CAT) — The Parties’ declarations under Article 36, para-
                   graph 2, of the Statute.
                      The existence of a dispute, condition required for both bases of jurisdiction —
                   No dispute with regard to Article 5, paragraph 2, of CAT — Dispute with regard
                   to Article 6, paragraph 2, and Article 7, paragraph 1, of CAT existed at the time
                   of the Application and continues to exist — No dispute relating to breaches of
                   obligations under customary international law.

                     Other conditions for jurisdiction under Article 30, paragraph 1, of CAT — Dis-
                   pute could not be settled through negotiation — Belgium requested that dispute be
                   submitted to arbitration — At least six months have passed after the request for
                   arbitration.
                     The Court has jurisdiction to entertain the dispute concerning Article 6, para-
                   graph 2, and Article 7, paragraph 1, of CAT — No need to consider whether the
                   Court has jurisdiction on the basis of the declarations under Article 36, para-
                   graph 2, of the Statute.

                                                           *
                                                                                5

6 CIJ1033.indb 7                                                                                28/11/13 12:50

                              obligation to prosecute or extradite (judgment)                       424

                      Admissibility of Belgium’s claims — Claims based on Belgium’s status as a
                   party to CAT — Claims based on the existence of a special interest of Belgium —
                   Object and purpose of CAT — Obligations erga omnes partes — State party’s
                   right to make a claim concerning the cessation of an alleged breach by another
                   State party — Belgium has standing as a State party to CAT to invoke the respon-
                   sibility of Senegal for alleged breaches — Claims of Belgium based on Article 6,
                   paragraph 2, and Article 7, paragraph 1, of CAT are admissible — No need to
                   pronounce on whether Belgium has a special interest.

                                                             *
                       The alleged violations of the Convention against Torture.
                       Article 5, paragraph 2, of CAT as a condition for performance of other
                   CAT obligations — Absence of the necessary legislation until 2007 affected
                   Senegal’s implementation of obligations in Article 6, paragraph 2, and Article 7,
                    paragraph 1.
                       The alleged breach of the obligation under Article 6, paragraph 2, of CAT —
                    Preliminary inquiry required as soon as suspect is identified in territory of State —
                    The Court finds that Senegalese authorities did not immediately initiate prelimi-
                    nary inquiry once they had reason to suspect Mr. Habré of being responsible for
                    acts of torture.
                       The alleged breach of the obligation under Article 7, paragraph 1, of CAT —
                    State must submit case for prosecution irrespective of existence of a prior extradi-
                    tion request — Institution of proceedings in light of evidence against suspect —
                    Prosecution as an obligation under CAT — Extradition as an option under CAT.

                      The temporal scope of the obligation under Article 7, paragraph 1 — Prohibi-
                   tion of torture is part of customary international law and a peremptory norm (jus
                   cogens) — Obligation to prosecute applies to facts having occurred after entry into
                   force of CAT for a State — Article 28 of the Vienna Convention on the Law of
                   Treaties — Decision of the Committee against Torture — Senegal’s obligation to
                   prosecute does not apply to acts before entry into force of CAT for Senegal —
                   Belgium entitled since becoming a Party to CAT to request the Court to rule on
                   Senegal’s compliance with Article 7, paragraph 1.

                      Implementation of the obligation under Article 7, paragraph 1 — Senegal’s duty
                   to comply with its obligations under CAT not affected by decision of Court of
                   Justice of the Economic Community of West African States — Financial difficul-
                   ties raised by Senegal cannot justify failure to initiate proceedings against
                   Mr. Habré — Referral of the matter to the African Union cannot justify Senegal’s
                   delays in complying with its obligations under CAT — Article 27 of the Vienna
                   Convention on the Law of Treaties — Object and purpose of CAT and the need
                   to undertake proceedings without delay — Failure to take all measures necessary
                   for the implementation of Article 7, paragraph 1 — Breach by Senegal of that
                   provision.

                                                             *

                                                                                6

6 CIJ1033.indb 9                                                                                28/11/13 12:50

                                obligation to prosecute or extradite (judgment)                     425

                       Remedies.
                       Purpose of Article 6, paragraph 2, and Article 7, paragraph 1 — Senegal’s
                    international responsibility engaged for failure to comply with its obligations under
                    these provisions — Senegal required to cease this continuing wrongful act — Sen-
                    egal’s obligation to submit the case to its competent authorities for the purpose of
                    prosecution, if it does not extradite Mr. Habré.

                                                      JUDGMENT

                    Present : President Tomka ; Vice‑President Sepúlveda‑Amor ; Judges Owada,
                               Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade,
                               Yusuf, Greenwood, Xue, Donoghue, Gaja, Sebutinde ; Judges ad
                               hoc Sur, Kirsch ; Registrar Couvreur.

                      In the case concerning questions relating to the obligation to prosecute or
                    extradite,
                      between
                    the Kingdom of Belgium,
                    represented by
                      Mr. Paul Rietjens, Director‑General of Legal Affairs, Federal Public Service
                         for Foreign Affairs, Foreign Trade and Development Co‑operation,

                      as Agent ;
                      Mr. Gérard Dive, Adviser, Head of the International Humanitarian Law
                         Division, Federal Public Service for Justice,
                      as Co‑Agent ;
                      Mr. Eric David, Professor of Law at the Université libre de Bruxelles,
                      Sir Michael Wood, K.C.M.G., member of the English Bar, member of the
                         International Law Commission,
                      Mr. Daniel Müller, consultant in Public International Law, Researcher at the
                         Centre de droit international de Nanterre (CEDIN), University of Paris
                         Ouest, Nanterre‑La Défense,
                      as Counsel and Advocates ;
                      H.E. Mr. Willy De Buck, Ambassador, Permanent Representative of the
                         Kingdom of Belgium to the International Organizations in The Hague,
                      Mr. Philippe Meire, Federal Prosecutor, Federal Prosecutor’s Office,
                      Mr. Alexis Goldman, Adviser, Public International Law Directorate, Direc-
                         torate‑General of Legal Affairs, Federal Public Service for Foreign Affairs,
                         Foreign Trade and Development Co‑operation,
                      Mr. Benjamin Goes, Adviser, Federal Public Service Chancellery of the Prime
                         Minister,
                      Ms Valérie Delcroix, Attaché, Public International Law Directorate, Directo-
                         rate‑General of Legal Affairs, Federal Public Service for Foreign Affairs,
                         Foreign Trade and Development Co‑operation,

                                                                                7

6 CIJ1033.indb 11                                                                                28/11/13 12:50

                               obligation to prosecute or extradite (judgment)                  426

                       Ms Pauline Warnotte, Attaché, International Humanitarian Law Division,
                        Federal Public Service for Justice,
                       Ms Liesbet Masschelein, Attaché, Office of the Prime Minister,
                       Mr. Vaios Koutroulis, Senior Lecturer, Faculty of Law, Université libre de
                        Bruxelles,
                       Mr. Geoffrey Eekhout, Attaché, Permanent Representation of the Kingdom
                        of Belgium to the International Organizations in The Hague,
                       Mr. Jonas Perilleux, Attaché, International Humanitarian Law Division,
                        Federal Public Service for Justice,
                    as Advisers,
                      and
                    the Republic of Senegal,
                    represented by
                      H.E. Mr. Cheikh Tidiane Thiam, Professor, Ambassador, Director‑General
                         of Legal and Consular Affairs, Ministry of Foreign Affairs and Senegalese
                         Abroad,
                      as Agent ;
                      H.E. Mr. Amadou Kebe, Ambassador of the Republic of Senegal to the
                         Kingdom of the Netherlands,
                      Mr. François Diouf, Magistrate, Director of Criminal Affairs and Pardons,
                         Ministry of Justice,
                      as Co‑Agents ;
                      Professor Serigne Diop, Mediator of the Republic,
                      Mr. Abdoulaye Dianko, Agent judiciaire de l’Etat,
                      Mr. Ibrahima Bakhoum, Magistrate,
                      Mr. Oumar Gaye, Magistrate,
                      as Counsel ;
                      Mr. Moustapha Ly, First Counsellor, Embassy of Senegal in The Hague,
                      Mr. Moustapha Sow, First Counsellor, Embassy of Senegal in The Hague,

                      The Court,
                      composed as above,
                      after deliberation,
                      delivers the following Judgment :
                        1. On 19 February 2009, the Kingdom of Belgium (hereinafter “Belgium”)
                    filed in the Registry of the Court an Application instituting proceedings against
                    the Republic of Senegal (hereinafter “Senegal”) in respect of a dispute con
                    cerning “Senegal’s compliance with its obligation to prosecute Mr. H[issène]
                    Habré[, former President of the Republic of Chad,] or to extradite him to
                    Belgium for the purposes of criminal proceedings”. Belgium based its claims
                     on the United Nations Convention against Torture and Other Cruel, Inhuman
                     or Degrading Treatment or Punishment of 10 December 1984 (hereinafter “the
                     Convention against Torture” or the “Convention”), as well as on customary
                     international law.

                                                                                8

6 CIJ1033.indb 13                                                                                28/11/13 12:50

                                obligation to prosecute or extradite (judgment)                      427

                       In its Application, Belgium invoked, as the basis for the jurisdiction of the
                    Court, Article 30, paragraph 1, of the Convention against Torture and the dec-
                    larations made under Article 36, paragraph 2, of the Statute of the Court, by
                    Belgium on 17 June 1958 and by Senegal on 2 December 1985.
                       2. In accordance with Article 40, paragraph 2, of the Statute, the Application
                    was communicated to the Government of Senegal by the Registrar ; and, in
                    accordance with paragraph 3 of that Article, all States entitled to appear before
                    the Court were notified of the Application.
                       3. On 19 February 2009, immediately after the filing of its Application, Bel-
                    gium, referring to Article 41 of the Statute and to Articles 73, 74 and 75 of the
                    Rules of Court, filed in the Registry of the Court a request for the indication of
                    provisional measures and asked the Court “to indicate, pending a final judg-
                    ment on the merits”, provisional measures requiring the Respondent to take
                    “all the steps within its power to keep Mr. H. Habré under the control and sur-
                    veillance of the judicial authorities of Senegal so that the rules of international
                    law with which Belgium requests compliance may be correctly applied”.

                         4. Since the Court included upon the Bench no judge of the nationality of
                    either of the Parties, each availed itself of its right under Article 31, paragraph 3,
                    of the Statute to choose a judge ad hoc to sit in the case : Belgium chose
                     Mr. Philippe Kirsch and Senegal Mr. Serge Sur.
                         5. By an Order of 28 May 2009, the Court, having heard the Parties, found
                    that the circumstances, as they then presented themselves to the Court, were not
                    such as to require the exercise of its power under Article 41 of the Statute to
                    indicate provisional measures (Questions relating to the Obligation to Prosecute
                    or Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009,
                    I.C.J. Reports 2009, p. 156, para. 76).
                         6. By an Order of 9 July 2009, the Court fixed 9 July 2010 and 11 July
                    2011 as the time‑limits for the filing of the Memorial of Belgium and the
                    Counter‑Memorial of Senegal, respectively. The Memorial of Belgium was duly
                     filed within the time‑limit so prescribed.
                         7. At the request of Senegal, the President of the Court, by an Order of
                     11 July 2011, extended to 29 August 2011 the time‑limit for the filing of the
                     Counter‑Memorial. That pleading was duly filed within the time‑limit thus
                     extended.
                         8. At a meeting held by the President of the Court with the Agents of the
                     Parties on 10 October 2011, the Parties indicated that they did not consider a
                     second round of written pleadings to be necessary and that they wished the
                     Court to fix the date of the opening of the hearings as soon as possible. The
                     Court considered that it was sufficiently informed of the arguments on the issues
                     of fact and law on which the Parties relied and that the submission of further
                     written pleadings did not appear necessary. The case thus became ready for
                     hearing.
                         9. In conformity with Article 53, paragraph 2, of the Rules of Court, the
                     Court, after ascertaining the views of the Parties, decided that copies of the
                     pleadings and annexed documents would be made accessible to the public at the
                     opening of the oral proceedings. The pleadings without their annexes were also
                     put on the Court’s website.
                         10. Public hearings were held between 12 March and 21 March 2012, during
                     which the Court heard the oral arguments and replies of :

                                                                                9

6 CIJ1033.indb 15                                                                                28/11/13 12:50

                                obligation to prosecute or extradite (judgment)                        428

                    For Belgium : Mr. Paul Rietjens,
                                   Mr. Gérard Dive,
                                   Mr. Eric David,
                                   Sir Michael Wood,
                                   Mr. Daniel Müller.
                    For Senegal :	H.E. Mr. Cheikh Tidiane Thiam,
                                   Mr. Oumar Gaye,
                                   Mr. François Diouf,
                                   Mr. Ibrahima Bakhoum,
                                   Mr. Abdoulaye Dianko.
                       11. At the hearing, questions were put by Members of the Court to the
                     arties, to which replies were given orally and in writing. In accordance with
                    P
                    Article 72 of the Rules of Court, each Party submitted its written comments
                    on the written replies provided by the other Party.

                                                               *
                      12. In its Application, Belgium presented the following submissions :
                             “Belgium respectfully requests the Court to adjudge and declare that :
                        — the Court has jurisdiction to entertain the dispute between the Kingdom
                          of Belgium and the Republic of Senegal regarding Senegal’s compliance
                          with its obligation to prosecute Mr. H. Habré or to extradite him to
                          Belgium for the purposes of criminal proceedings ;
                        — Belgium’s claim is admissible ;
                        — 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 perpetrator, co‑perpetrator
                          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 these crimes before the Belgian courts.
                            Belgium reserves the right to revise or supplement the terms of this
                         Application.”
                      13. In the written proceedings, the following submissions were presented by
                    the Parties :
                    On behalf of the Government of Belgium,
                    in the Memorial :
                           “For the reasons set out in this Memorial, the Kingdom of Belgium
                         requests the International Court of Justice to adjudge and declare that :
                        1.    (a)	Senegal breached its international obligations by failing to incorpo-
                                   rate in its domestic law the provisions necessary to enable the Senega-
                                   lese judicial authorities to exercise the universal jurisdiction provided
                                   for in Article 5, paragraph 2, of the Convention against Torture and
                                   Other Cruel, Inhuman or Degrading Treatment or Punishment ;
                              (b) Senegal has breached and continues to breach its international obli-
                                  gations under Article 6, paragraph 2, and Article 7, paragraph 1, of

                                                                                10

6 CIJ1033.indb 17                                                                                28/11/13 12:50

                               obligation to prosecute or extradite (judgment)                       429

                                 the Convention against Torture and Other Cruel, Inhuman or
                                 Degrading Treatment or Punishment and under customary interna-
                                 tional law by failing to bring criminal proceedings against
                                 Mr. Hissène Habré for acts characterized in particular as crimes of
                                 torture, genocide, war crimes and crimes against humanity alleged
                                 against him as perpetrator, co‑perpetrator or accomplice, or to extra-
                                 dite him to Belgium for the purposes of such criminal proceedings ;
                             (c) Senegal may not invoke financial or other difficulties to justify the
                                 breaches of its international obligations.
                        2.   Senegal is required to cease these internationally wrongful acts
                             (a) by submitting without delay the Hissène Habré case to its compe-
                                 tent authorities for prosecution ; or
                             (b) failing that, by extraditing Mr. Habré to Belgium.
                           Belgium reserves the right to revise or amend these submissions as appro-
                        priate, in accordance with the provisions of the Statute and the Rules of
                        Court.”
                    On behalf of the Government of Senegal,
                    in the Counter‑Memorial :
                           “For the reasons set out in this Counter‑Memorial, the State of Senegal
                        requests the International Court of Justice to adjudge and declare that :
                        1.   Principally, it cannot adjudicate on the merits of the Application filed
                             by the Kingdom of Belgium because it lacks jurisdiction as a result
                             of the absence of a dispute between Belgium and Senegal, and the
                             inadmissibility of that Application ;
                        2.    In the alternative, Senegal has not breached any of the provisions of
                              the 1984 Convention against Torture, in particular those prescribing
                              the obligation to ‘extradite or try’ (Article 6, paragraph 2, and Article 7,
                              paragraph 1, of the Convention), or, more generally, any rule of cus-
                             tomary international law ;
                        3.   In taking the various measures that have been described, Senegal is
                             fulfilling its commitments as a State party to the 1984 Convention
                             against Torture ;
                        4.   In taking the appropriate measures and steps to prepare for the trial of
                             Mr. Habré, Senegal is complying with the declaration by which it made
                             a commitment before the Court.
                           Senegal reserves the right to revise or amend these submissions, as appro-
                        priate, in accordance with the provisions of the Statute and the Rules of
                        Court.”
                      14. At the oral proceedings, the following submissions were presented by the
                    Parties :
                    On behalf of the Government of Belgium,
                    at the hearing of 19 March 2012 :
                          “For the reasons set out in its Memorial and during the oral proceedings,
                        the Kingdom of Belgium requests the International Court of Justice to
                        adjudge and declare that :

                                                                                11

6 CIJ1033.indb 19                                                                                28/11/13 12:50

                               obligation to prosecute or extradite (judgment)                       430

                        1.   (a)	Senegal breached its international obligations by failing to incor-
                                  porate in due time in its domestic law the provisions necessary to
                                  enable the Senegalese judicial authorities to exercise the universal
                                  jurisdiction provided for in Article 5, paragraph 2, of the Conven-
                                  tion against Torture and Other Cruel, Inhuman or Degrading
                                  Treatment or Punishment ;
                             (b) Senegal has breached and continues to breach its international obli-
                                 gations under Article 6, paragraph 2, and Article 7, paragraph 1, of
                                 the Convention against Torture and Other Cruel, Inhuman or Degrad-
                                 ing Treatment or Punishment and under other rules of international
                                 law by failing to bring criminal proceedings against Hissène Habré for
                                 acts characterized in particular as crimes of torture, war crimes, crimes
                                 against humanity and the crime of genocide alleged against him as
                                 perpetrator, co‑perpetrator or accomplice, or, otherwise, to extradite
                                 him to Belgium for the purposes of such criminal proceedings ;
                             (c) Senegal may not invoke financial or other difficulties to justify the
                                 breaches of its international obligations.
                        2.   Senegal is required to cease these internationally wrongful acts
                             (a) by submitting without delay the Hissène Habré case to its compe-
                                 tent authorities for prosecution ; or
                             (b) failing that, by extraditing Hissène Habré to Belgium without
                                 further ado.”
                    On behalf of the Government of Senegal,
                    at the hearing of 21 March 2012 :
                           “In the light of all the arguments and reasons contained in its
                         ounter‑Memorial, in its oral pleadings and in the replies to the questions
                        C
                        put to it by judges, whereby Senegal has declared and sought to demonstrate
                        that, in the present case, it has duly fulfilled its international commitments
                        and has not committed any internationally wrongful act, [Senegal asks] the
                        Court . . . to find in its favour on the following submissions and to adjudge
                        and declare that :
                        1.    Principally, it cannot adjudicate on the merits of the Application filed
                              by the Kingdom of Belgium because it lacks jurisdiction as a result
                              of the absence of a dispute between Belgium and Senegal, and the
                              inadmissibility of that Application ;
                        2.     In the alternative, should it find that it has jurisdiction and that Bel-
                             gium’s Application is admissible, that Senegal has not breached any of
                             the provisions of the 1984 Convention against Torture, in particular
                             those prescribing the obligation to ‘try or extradite’ (Article 6, para-
                             graph 2, and Article 7, paragraph 1, of the Convention), or, more
                             generally, any other rule of conventional law, general international
                              law or customary international law in this area ;
                        3.    In taking the various measures that have been described, Senegal is
                              fulfilling its commitments as a State party to the 1984 Convention
                              against Torture ;
                        4.    In taking the appropriate measures and steps to prepare for the trial of
                              Mr. H. Habré, Senegal is complying with the declaration by which it
                              made a commitment before the Court ;

                                                                                12

6 CIJ1033.indb 21                                                                                28/11/13 12:50

                               obligation to prosecute or extradite (judgment)                   431

                         5.   It consequently rejects all the requests set forth in the Application of
                              the Kingdom of Belgium.”

                                                             *
                                                         *       *

                                     I. Historical and Factual Background

                        15. The Court will begin with a brief description of the historical and
                     factual background to the present case.
                        16. After taking power on 7 June 1982 at the head of a rebellion,
                     Mr. Hissène Habré was President of the Republic of Chad for eight years,
                     during which time large‑scale violations of human rights were allegedly
                     committed, including arrests of actual or presumed political opponents,
                     detentions without trial or under inhumane conditions, mistreatment, tor-
                    ture, extrajudicial executions and enforced disappearances. Mr. Habré
                    was overthrown on 1 December 1990 by his former defence and security
                    adviser, Mr. Idriss Déby, current President of Chad. After a brief stay in
                    Cameroon, he requested political asylum from the Senegalese Govern-
                    ment, a request which was granted. He then settled in Dakar, where he
                    has been living ever since.
                        17. On 25 January 2000, seven Chadian nationals residing in Chad,
                    together with an association of victims, filed with the senior investigating
                    judge at the Dakar Tribunal régional hors classe a complaint with
                    civil‑party application against Mr. Habré on account of crimes alleged to
                    have been committed during his presidency. On 3 February 2000, the
                    senior investigating judge, after having conducted a questioning at first
                    appearance to establish Mr. Habré’s identity and having informed him of
                    the acts said to be attributable to him, indicted Mr. Habré for having
                    “aided or abetted X . . . in the commission of crimes against humanity
                    and acts of torture and barbarity” and placed him under house arrest.
                        18. On 18 February 2000, Mr. Habré filed an application with the
                    Chambre d’accusation of the Dakar Court of Appeal for annulment of the
                     proceedings against him, arguing that the courts of Senegal had no juris
                     diction ; that there was no legal basis for the proceedings ; that they were
                     time‑barred ; and that they violated the Senegalese Constitution, the Sene-
                     galese Penal Code and the Convention against Torture. In a judgment of
                     4 July 2000, that Chamber of the Court of Appeal found that the investi-
                     gating judge lacked jurisdiction and annulled the proceedings against
                     Mr. Habré, on the grounds that they concerned crimes committed outside
                     the territory of Senegal by a foreign national against foreign nationals and
                     that they would involve the exercise of universal jurisdiction, while the Sen-
                     egalese Code of Criminal Procedure then in force did not provide for such
                     jurisdiction. In a judgment of 20 March 2001, the Senegalese Court of Cas-
                     sation dismissed an appeal by the civil complainants against the judgment of
                     4 July 2000, confirming that the investigating judge had no jurisdiction.

                                                                                13

6 CIJ1033.indb 23                                                                                28/11/13 12:50

                               obligation to prosecute or extradite (judgment)                  432

                         19. On 30 November 2000, a Belgian national of Chadian origin filed
                      a complaint with civil‑party application against Mr. Habré with a Belgian
                      investigating judge for, inter alia, serious violations of international
                      humanitarian law, crimes of torture and the crime of genocide. Between
                      30 November 2000 and 11 December 2001, another 20 persons filed simi-
                    lar complaints against Mr. Habré for acts of the same nature, before the
                    same judge. These complaints, relating to the period 1982 to 1990, and
                    filed by two persons with dual Belgian‑Chadian nationality and eighteen
                    Chadians, were based on crimes covered by the Belgian Law of
                    16 June 1993 concerning the punishment of serious violations of interna-
                    tional humanitarian law, as amended by the Law of 10 February 1999
                    (hereinafter the “1993/1999 Law”), and by the Convention against Tor-
                    ture. The Convention was ratified by Senegal on 21 August 1986, without
                    reservation, and became binding on 26 June 1987, the date of its entry
                    into force. Belgium ratified the Convention on 25 June 1999, without
                    reservation, and became bound by it on 25 July 1999.
                         20. After finding that the acts complained of — extermination, torture,
                     persecution and enforced disappearances — could be characterized as
                     “crimes against humanity” under the 1993/1999 Law, the Belgian investi-
                     gating judge issued two international letters rogatory, to Senegal and
                     Chad, on 19 September and 3 October 2001, respectively. In the first of
                     these, he sought to obtain a copy of the record of all proceedings concern-
                     ing Mr. Habré pending before the Senegalese judicial authorities ; on
                     22 November 2001, Senegal provided Belgium with a file on the matter.
                     The second letter rogatory sought to establish judicial co‑operation
                     between Belgium and Chad, in particular requesting that Belgian authori
                     ties be permitted to interview the Chadian complainants and witnesses,
                     to have access to relevant records and to visit relevant sites. This letter
                     rogatory was executed in Chad by the Belgian investigating judge between
                     26 February and 8 March 2002. Furthermore, in response to a question
                     put by the Belgian investigating judge on 27 March 2002, asking whether
                     Mr. Habré enjoyed any immunity from jurisdiction as a former Head of
                     State, the Minister of Justice of Chad stated, in a letter dated 7 Octo-
                     ber 2002, that the Sovereign National Conference, held in N’Djamena
                     from 15 January to 7 April 1993, had officially lifted from the former
                     President all immunity from legal process. Between 2002 and 2005,
                     various investigative steps were taken in Belgium, including examining
                      complainants and witnesses, as well as analysing the documents provided
                      by the Chadian authorities in execution of the letter rogatory.
                         21. On 19 September 2005, the Belgian investigating judge issued an
                      international warrant in absentia for the arrest of Mr. Habré, indicted as
                      the perpetrator or co‑perpetrator, inter alia, of serious violations of inter-
                      national humanitarian law, torture, genocide, crimes against humanity
                      and war crimes. By Note Verbale of 22 September 2005, Belgium trans-
                      mitted the international arrest warrant to Senegal and requested the
                      extradition of Mr. Habré. On 27 September 2005, Interpol — of which
                      Belgium and Senegal have been members since 7 September 1923 and

                                                                                14

6 CIJ1033.indb 25                                                                                28/11/13 12:50

                               obligation to prosecute or extradite (judgment)                 433

                    4 September 1961, respectively — circulated a “red notice” concerning
                    Mr. Habré, which serves as a request for provisional arrest with a view to
                    extradition.
                      22. In a judgment of 25 November 2005, the Chambre d’accusation of
                    the Dakar Court of Appeal ruled on Belgium’s extradition request, hold-
                    ing that, as “a court of ordinary law, [it could] not extend its jurisdiction
                    to matters relating to the investigation or prosecution of a Head of State
                    for acts allegedly committed in the exercise of his functions” ; that
                    Mr. Habré should “be given jurisdictional immunity”, which “is intended
                    to survive the cessation of his duties as President of the Republic” ; and
                    that it could not therefore “adjudicate the lawfulness of [the] proceedings
                    and the validity of the arrest warrant against a Head of State”.

                      23. The day after the delivery of the judgment of 25 November 2005, Sen-
                    egal referred to the African Union the issue of the institution of proceed
                    ings against this former Head of State. In July 2006, the Union’s Assembly
                    of Heads of State and Government, by Decision 127 (VII), inter alia
                          “decid[ed] to consider the ‘Hissène Habré case’ as falling within the
                          competence of the African Union, . . . mandate[d] 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”
                    and
                          “mandate[d] the Chairperson of the [African] Union, in consultation
                          with the Chairperson of the Commission [of the Union], to provide
                          Senegal with the necessary assistance for the effective conduct of the
                          trial”.
                       24. In view of the judgment of 25 November 2005 of the Chambre
                    d’accusation of the Dakar Court of Appeal, Belgium asked Senegal, in a
                    Note Verbale of 30 November 2005, to inform it about the implications of
                    this judicial decision for Belgium’s request for extradition, the current stage
                    of the proceedings, and whether Senegal could reply officially to the request
                    for extradition and provide explanations about its position pursuant to the
                    said decision. In response, in a Note Verbale of 7 December 2005 Senegal
                    stated inter alia that, following the judgment in question, it had referred the
                    Habré case to the African Union, and that this “prefigure[d] a concerted
                    approach on an African scale to issues that fall in principle under the
                    States’ national sovereignty”. By Note Verbale of 23 December 2005, Sen-
                    egal explained that the judgment of the Chambre d’accusation put an end to
                    the judicial stage of the proceedings, that it had taken the decision to refer
                    the “Hissène Habré case” to the African Union (see paragraphs 23 above
                    and 36 below), and that this decision should consequently be considered as
                    reflecting its position following the judgment of the Chambre d’accusation.
                       25. By Note Verbale of 11 January 2006, Belgium, referring to the
                    ongoing negotiation procedure provided for in Article 30 of the Conven-

                                                                                15

6 CIJ1033.indb 27                                                                                28/11/13 12:50

                               obligation to prosecute or extradite (judgment)                 434

                    tion against Torture and taking note of the referral of the “Hissène Habré
                    case” to the African Union, stated that it interpreted the said Convention,
                    and more specifically the obligation aut dedere aut judicare provided for
                    in Article 7 thereof, “as imposing obligations only on a State, in this case,
                    in the context of the extradition request of Mr. Hissène Habré, the
                    Republic of Senegal”. Belgium further asked Senegal to “kindly notify it
                    of its final decision to grant or refuse the . . . extradition application” in
                    respect of Mr. Habré. According to Belgium, Senegal did not reply to this
                    Note. By Note Verbale of 9 March 2006, Belgium again referred to the
                    ongoing negotiation procedure provided for in Article 30 and explained
                    that it interpreted Article 4, Article 5, paragraphs (1) (c) and (2),
                    Article 7, paragraph (1), Article 8, paragraphs (1), (2) and (4), and

                    Article 9, paragraph (1), of the Convention as “establishing the obliga-
                    tion, for a State in whose territory a person alleged to have committed
                    any offence referred to in Article 4 of the Convention is found, to extra-
                    dite him if it does not prosecute him for the offences mentioned in that
                    Article”. Consequently, Belgium asked Senegal to

                         “be so kind as to inform it as to whether its decision to refer the
                         Hissène Habré case to the African Union [was] to be interpreted as
                         meaning that the Senegalese authorities no longer intend[ed] to extra-
                         dite him to Belgium or to have him judged by their own Courts”.

                         26. By Note Verbale dated 4 May 2006, having noted the absence of
                    an official response from the Senegalese authorities to its earlier Notes
                    and communications, Belgium again made it clear that it interpreted
                    Article 7 of the Convention against Torture as requiring the State on
                     whose territory the alleged offender is located to extradite him if it does
                     not prosecute him, and stated that the “decision to refer the Hissène Habré
                     case to the African Union” could not relieve Senegal of its obligation to
                     either judge or extradite the person accused of these offences in accor-
                     dance with the relevant articles of the Convention. It added that an
                     unresolved dispute regarding this interpretation would lead to recourse to
                      the arbitration procedure provided for in Article 30 of the Convention.
                      By Note Verbale of 9 May 2006, Senegal explained that its Notes Ver-
                      bales of 7 and 23 December 2005 constituted a response to Belgium’s
                      request for extradition. It stated that, by referring the case to the African
                      Union, Senegal, in order not to create a legal impasse, was acting in accor-
                      dance with the spirit of the aut dedere aut punire principle. Finally, it
                      took note of “the possibility [of] recourse to the arbitration procedure
                      provided for in Article 30 of the Convention”. In a Note Verbale of
                      20 June 2006, which Senegal claims not to have received, Belgium
                      “not[ed] that the attempted negotiation with Senegal, which started
                      in November 2005, ha[d] not succeeded” and accordingly asked Senegal
                      to submit the dispute to arbitration “under conditions to be agreed mutu-
                      ally”, in accordance with Article 30 of the Convention. Furthermore,

                                                                                16

6 CIJ1033.indb 29                                                                                28/11/13 12:50

                              obligation to prosecute or extradite (judgment)                435

                    according to a report of the Belgian Embassy in Dakar following a meet-
                    ing held on 21 June 2006 between the Secretary‑General of the Senegalese
                    Ministry of Foreign Affairs and the Belgian Ambassador, the latter
                    expressly invited Senegal to adopt a clear position on the request to sub-
                    mit the matter to arbitration. According to the same report, the Senega-
                    lese authorities took note of the Belgian request for arbitration and the
                    Belgian Ambassador drew their attention to the fact that the six-month
                    time‑limit under Article 30 (see paragraph 42 below) began to run from
                    that point.
                       27. The United Nations Committee against Torture considered a com-
                    munication submitted by several persons, including Mr. Souleymane Guen-
                    gueng, one of the Chadian nationals who had filed a complaint against
                    Mr. Habré with the senior investigating judge at the Dakar Tribunal
                    régional hors classe on 25 January 2000 (see paragraph 17 above). In its
                    decision of 17 May 2006, the Committee found that Senegal had not
                    adopted such “measures as may be necessary” to establish its jurisdiction
                    over the crimes listed in the Convention, in violation of Article 5, para-
                    graph 2, of the latter. The Committee also stated that Senegal had failed
                    to perform its obligations under Article 7, paragraph 1, of the Conven-
                    tion, to submit the case concerning Mr. Habré to its competent authori-
                    ties for the purpose of prosecution or, in the alternative, since a request
                    for extradition had been made by Belgium, to comply with that request.
                    Furthermore, the Committee gave Senegal 90 days to provide informa-
                    tion “on the measures it ha[d] taken to give effect to its recommenda-
                    tions”.
                       28. In 2007, Senegal implemented a number of legislative reforms in
                    order to bring its domestic law into conformity with Article 5, para-
                    graph 2, of the Convention against Torture. The new Articles 431‑1 to
                    431‑5 of its Penal Code defined and formally proscribed the crime of
                    genocide, crimes against humanity, war crimes and other violations of
                    international humanitarian law. In addition, under the terms of the new
                    Article 431‑6 of the Penal Code, any individual could
                        “be tried or sentenced for acts or omissions . . ., which at the time
                        and place where they were committed, were regarded as a criminal
                        offence according to the general principles of law recognized by the
                        community of nations, whether or not they constituted a legal trans-
                        gression in force at that time and in that place”.
                    Furthermore, Article 669 of the Senegalese Code of Criminal Procedure
                    was amended to read as follows :
                           “Any foreigner who, outside the territory of the Republic, has been
                        accused of being the perpetrator of or accomplice to one of the crimes
                        referred to in Articles 431‑1 to 431‑5 of the Penal Code . . . may be
                        prosecuted and tried according to the provisions of Senegalese laws
                        or laws applicable in Senegal, if he is under the jurisdiction of Senegal
                        or if a victim is resident in the territory of the Republic of Senegal,
                        or if the Government obtains his extradition.”

                                                                                17

6 CIJ1033.indb 31                                                                                28/11/13 12:50

                              obligation to prosecute or extradite (judgment)                436

                       A new Article 664bis was also incorporated into the Code of Criminal
                    Procedure, according to which “[t]he national courts shall have jurisdic-
                    tion over all criminal offences, punishable under Senegalese law, that
                    are committed outside the territory of the Republic by a national or a
                    foreigner, if the victim is of Senegalese nationality at the time the acts
                    are committed”.
                       Senegal informed Belgium of these legislative reforms by Notes Ver-
                    bales dated 20 and 21 February 2007. In its Note Verbale of 20 February,
                    Senegal also recalled that the Assembly of the African Union, during its
                    eighth ordinary session held on 29 and 30 January 2007, had

                        “[a]ppeal[ed] to Member States [of the Union], . . . international
                        partners and the entire international community to mobilize all the
                         resources, especially financial resources, required for the preparation
                         and smooth conduct of the trial [of Mr. Habré]” (doc. Assembly/AU/
                         DEC.157 (VIII)).
                      29. In its Note Verbale of 21 February, Senegal stated that
                        “the principle of non‑retroactivity, although recognized by Senegalese
                        law[,] does not block the judgment or sentencing of any individual for
                        acts or omissions which, at the time they were committed, were con-
                        sidered criminal under the general principles of law recognized by all
                        States”.
                    After having indicated that it had established “a working group charged
                    with producing the proposals necessary to define the conditions and pro-
                    cedures suitable for prosecuting and judging the former President of
                    Chad, on behalf of Africa, with the guarantees of a just and fair trial”,
                    Senegal stated that the said trial “require[d] substantial funds which
                    Senegal cannot mobilize without the assistance of the [i]nternational

                    community”.
                        30. By Note Verbale dated 8 May 2007, Belgium recalled that it had
                     informed Senegal, in a Note Verbale of 20 June 2006, “of its wish to con-
                     stitute an arbitral tribunal to resolve th[e] difference of opinion in the
                     absence of finding a solution by means of negotiation as stipulated by
                     Article 30 of the Convention [against Torture]”. It noted that “it ha[d]
                     received no response from the Republic of Senegal [to its] proposal of
                     arbitration” and reserved its rights on the basis of the above‑mentioned
                     Article 30. It took note of Senegal’s new legislative provisions and
                     enquired whether those provisions would allow Mr. Habré to be tried in
                     Senegal and, if so, within what time frame. Finally, Belgium made Sen
                     egal an offer of judicial co‑operation, which envisaged that, in response
                     to a letter rogatory from the competent Senegalese authorities, Belgium
                     would transmit to Senegal a copy of the Belgian investigation file against
                     Mr. Habré. By Note Verbale of 5 October 2007, Senegal informed
                     Belgium of its decision to organize the trial of Mr. Habré and invited Bel
                      gium to a meeting of potential donors, with a view to financing that trial.

                                                                                18

6 CIJ1033.indb 33                                                                                28/11/13 12:50

                              obligation to prosecute or extradite (judgment)                 437

                    Belgium reiterated its offer of judicial co‑operation by Notes Verbales of
                    2 December 2008, 23 June 2009, 14 October 2009, 23 February 2010,
                    28 June 2010, 5 September 2011 and 17 January 2012. By Notes Verbales
                    of 29 July 2009, 14 September 2009, 30 April 2010 and 15 June 2010,
                    Senegal welcomed the proposal of judicial co‑operation, stated that it
                     had appointed investigating judges and expressed its willingness to accept
                     the offer as soon as the forthcoming Donors’ Round Table had taken
                     place. The Belgian authorities received no letter rogatory to that end from
                     the Senegalese judicial authorities.

                      31. In 2008, Senegal amended Article 9 of its Constitution in order to
                    provide for an exception to the principle of non‑retroactivity of its criminal
                    laws : although the second subparagraph of that Article provides that “[n]o
                    one may be convicted other than by virtue of a law which became effective
                    before the act was committed”, the third subparagraph stipulates that
                        “[h]owever, the provisions of the preceding subparagraph shall not
                        prejudice the prosecution, trial and punishment of any person for any
                        act or omission which, at the time when it was committed, was defined
                        as criminal under the rules of international law concerning acts of
                        genocide, crimes against humanity and war crimes”.
                       32. Following the above‑mentioned legislative and constitutional
                    reforms (see paragraphs 28 and 31 above), 14 victims (one of Senegalese
                    nationality and 13 of Chadian nationality) filed a complaint with the pub-
                    lic prosecutor of the Dakar Court of Appeal in September 2008, accusing
                    Mr. Habré of acts of torture and crimes against humanity during the
                    years of his presidency.
                       33. On 19 February 2009, Belgium filed in the Registry the Application
                    instituting the present proceedings before the Court (see paragraph 1
                    above). On 8 April 2009, during the hearings relating to the request for
                    the indication of provisional measures submitted by Belgium in the pres-
                    ent case (see paragraphs 3 and 5 above), Senegal solemnly declared before
                    the Court that it would not allow Mr. Habré to leave its territory while
                    the case was pending (see I.C.J. Reports 2009, p. 154, para. 68). During
                    the same hearings, it asserted that “[t]he only impediment . . . to the open-
                    ing of Mr. Hissène Habré’s trial in Senegal [was] a financial one” and that
                    Senegal “agreed to try Mr. Habré but at the very outset told the African
                    Union that it would be unable to bear the costs of the trial by itself”. The
                    budget for the said trial was adopted during a Donors Round Table held
                    in Dakar in November 2010, involving Senegal, Belgium and a number of
                    other States, as well as the African Union, the European Union, the
                    Office of the United Nations High Commissioner for Human Rights and
                    the United Nations Office for Project Services : it totals €8.6 million, a
                    sum to which Belgium agreed to contribute a maximum of €1 million.

                                                                                19

6 CIJ1033.indb 35                                                                                28/11/13 12:50

                              obligation to prosecute or extradite (judgment)                438

                       34. By judgment of 15 December 2009, the African Court on Human
                    and Peoples’ Rights ruled that it had no jurisdiction to hear an application
                    filed on 11 August 2008 against the Republic of Senegal, aimed at the with-
                    drawal of the ongoing proceedings instituted by that State, with a view to
                    charge, try and sentence Mr. Habré. The court based its decision on the
                    fact that Senegal had not made a declaration accepting its jurisdiction to
                    entertain such applications, under Article 34, paragraph 6, of the Protocol
                    to the African Charter on Human and Peoples’ Rights on the establishment
                    of an African Court on Human and Peoples’ Rights (African Court on
                    Human and Peoples’ Rights, Michelot Yogogombaye v. Republic of Sen
                    egal, application No. 001/2008, judgment of 15 December 2009).
                       35. In a judgment of 18 November 2010, the Court of Justice of the
                    Economic Community of West African States (hereinafter the “ECOWAS
                    Court of Justice”) ruled on an application filed on 6 October 2008, in
                    which Mr. Habré requested the court to find that his human rights would
                    be violated by Senegal if proceedings were instituted against him. Having
                    observed inter alia that evidence existed pointing to potential violations
                    of Mr. Habré’s human rights as a result of Senegal’s constitutional and
                    legislative reforms, that Court held that Senegal should respect the rul-
                    ings handed down by its national courts and, in particular, abide by the
                    principle of res judicata, and ordered it accordingly to comply with the
                    absolute principle of non‑retroactivity. It further found that the mandate
                    which Senegal received from the African Union was in fact to devise and
                    propose all the necessary arrangements for the prosecution and trial of
                    Mr. Habré to take place, within the strict framework of special ad hoc
                    international proceedings (ECOWAS Court of Justice, Hissein Habré v.
                    Republic of Senegal, judgment No. ECW/CCJ/JUD/06/10 of 18 Novem-
                    ber 2010).

                     36. Following the delivery of the above‑mentioned judgment by the
                    ECOWAS Court of Justice, in January 2011 the Assembly of African
                    Union Heads of State and Government
                        “request[ed] the Commission to undertake consultations with the
                        Government of Senegal in order to finalize the modalities for the
                        expeditious trial of Hissène Habré through a special tribunal with an
                        international character consistent with the ECOWAS Court of Justice
                        Decision”.
                    At its seventeenth session, held in July 2011, the Assembly “confirm[ed]
                    the mandate given to Senegal to try Hissène Habré on behalf of Africa”
                    and
                        “urge[d] [the latter] to carry out its legal responsibility in accordance
                        with the United Nations Convention against Torture[,] the decision
                        of the United Nations . . . Committee against Torture[,] as well as the
                        said mandate to put Hissène Habré on trial expeditiously or extradite
                        him to any other country willing to put him on trial”.

                                                                                20

6 CIJ1033.indb 37                                                                                28/11/13 12:50

                              obligation to prosecute or extradite (judgment)               439

                       37. By Note Verbale of 15 March 2011, Belgium transmitted to the
                    Senegalese authorities a second request for the extradition of Mr. Habré.
                    On 18 August 2011, the Chambre d’accusation of the Dakar Court of
                    Appeal declared this second request for extradition inadmissible because
                    it was not accompanied by the documents required under Senegalese law
                    No. 71‑77 of 28 December 1971 (hereinafter the “Senegalese Law on
                    Extradition”), in particular documents disclosing the existence of criminal
                    proceedings alleged to have been instituted against Mr. Habré in Belgium
                    and the legal basis of those proceedings, as required by Article 9 of the
                    Law on Extradition, and “any record of the interrogation of the individ-
                    ual whose extradition is requested, as required by . . . Article 13 of the
                    [same] Law”. The Chambre d’accusation further observed that Belgium
                    had instituted proceedings against Senegal before the International Court
                    of Justice ; it therefore concluded that
                        “th[e] dispute [was] still pending before the said Court, which ha[d]
                        sole competence to settle the question of the disputed interpretation
                        by the two States of the extent and scope of the obligation aut dedere
                        aut judicare under Article 4 of the . . . Convention [against Torture]”.
                       38. By Note Verbale of 5 September 2011, Belgium transmitted to
                     enegal a third request for the extradition of Mr. Habré. On 10 January
                    S
                    2012, the Chambre d’accusation of the Dakar Court of Appeal declared
                    this request for extradition inadmissible on the grounds that the copy of
                    the international arrest warrant placed on the file was not authentic, as
                    required by Article 9 of the Senegalese Law on Extradition. Furthermore,
                    it stated that “the report on the arrest, detention and questioning of the
                    individual whose extradition [wa]s requested [wa]s not appended to the
                    case file as required by Article 13 of the above‑mentioned Law”.
                       39. On 12 January and 24 November 2011, the Rapporteur of the
                    Committee against Torture on follow-up to communications reminded
                    Senegal, with respect to the Committee’s decision rendered on
                    17 May 2006 (see paragraph 27 above), of its obligation to submit
                    the case of Mr. Habré to its competent authorities for the purpose of
                    prosecution, if it did not extradite him.
                       40. By Note Verbale of 17 January 2012, Belgium addressed to Senegal,
                    through the Embassy of Senegal in Brussels, a fourth request for the extra-
                    dition of Mr. Habré. On 23 January 2012, the Embassy acknowledged
                    receipt of the said Note and its annexes. It further stated that all those
                    documents had been transmitted to the competent authorities in Senegal.
                    By letter dated 14 May 2012, the Senegalese Ministry of Justice informed
                    the Ministry of Foreign Affairs of Senegal that the extradition request had
                    been transmitted in due course “as is, to the public prosecutor at the
                    Dakar Court of Appeal, with the instruction to bring it before the Cham-
                    bre d’accusation once the necessary legal formalities had been completed”.
                       41. At its eighteenth session, held in January 2012, the Assembly of the
                    Heads of State and Government of the African Union observed that the
                    Dakar Court of Appeal had not yet taken a decision on Belgium’s fourth

                                                                                21

6 CIJ1033.indb 39                                                                                28/11/13 12:50

                              obligation to prosecute or extradite (judgment)                440

                    request for extradition. It noted that Rwanda was prepared to organize
                    Mr. Habré’s trial and
                        “request[ed] the Commission [of the African Union] to continue con-
                        sultations with partner countries and institutions and the Republic of
                        Senegal[,] and subsequently with the Republic of Rwanda[,] with a
                        view to ensuring the expeditious trial of Hissène Habré and to con-
                        sider the practical modalities as well as the legal and financial impli-
                        cations of the trial”.

                                         II. Jurisdiction of the Court

                      42. To found the jurisdiction of the Court, Belgium relies on Article 30,
                    paragraph 1, of the Convention against Torture and on the declarations
                    made by the Parties under Article 36, paragraph 2, of the Court’s Statute.
                    Article 30, paragraph 1, of the Convention reads as follows :
                            “Any dispute between two or more States Parties concerning the
                        interpretation or application of this Convention which cannot be
                        settled through negotiation shall, at the request of one of them, be
                         submitted to arbitration. If within six months from the date of the
                         request for arbitration the Parties are unable to agree on the organi-
                         zation of the arbitration, any one of those Parties may refer the dis-
                         pute to the International Court of Justice by request in conformity
                         with the Statute of the Court.”
                    Belgium’s declaration under Article 36, paragraph 2, of the Court’s
                    Statute was made on 17 June 1958, and reads in the relevant part as fol-
                     lows :
                             “[Belgium] recognize[s] as compulsory ipso facto and without spe-
                          cial agreement, in relation to any other State accepting the same obli-
                          gation, the jurisdiction of the International Court of Justice, in
                          conformity with Article 36, paragraph 2, of the Statute of the Court,
                          in legal disputes arising after 13 July 1948 concerning situations or
                          facts subsequent to that date, except those in regard to which the
                          parties have agreed or may agree to have recourse to another method
                          of pacific settlement.”
                     Senegal’s declaration was made on 2 December 1985, and reads in the
                     relevant part as follows :
                             “[Senegal] accepts on condition of reciprocity as compulsory ipso
                          facto and without special convention, in relation to any other State
                          accepting the same obligation, the jurisdiction of the Court over all
                          legal disputes arising after the present declaration, concerning :

                           — the interpretation of a treaty ;
                           — any question of international law ;

                                                                                22

6 CIJ1033.indb 41                                                                                28/11/13 12:50

                              obligation to prosecute or extradite (judgment)                 441

                           — the existence of any fact which, if established, would constitute
                             a breach of an international obligation ;
                           — the nature or extent of the reparation to be made for the breach
                             of international obligation.
                           This declaration is made on condition of reciprocity on the part of
                        all States. However, Senegal may reject the Court’s competence in
                        respect of :
                           — disputes in regard to which the parties have agreed to have
                             recourse to some other method of settlement ;
                           — disputes with regard to questions which, under international
                             law, fall exclusively within the jurisdiction of Senegal.”
                      43. Senegal contests the existence of the Court’s jurisdiction on either
                    basis, maintaining that the conditions set forth in the relevant instru-
                    ments have not been met and, in the first place, that there is no dispute
                    between the Parties.

                                           A. The Existence of a Dispute
                      44. In the claims included in its Application, Belgium requested the
                    Court to adjudge and declare that
                         “— the Republic of Senegal is obliged to bring criminal proceed-
                            ings against Mr. H. Habré for acts including crimes of torture
                            and crimes against humanity which are alleged against him as
                            perpetrator, co‑perpetrator or accomplice ;
                          — failing the prosecution of Mr. H. Habré, the Republic of Sen-
                            egal is obliged to extradite him to the Kingdom of Belgium so
                            that he can answer for these crimes before the Belgian courts”.
                    According to Belgium’s final submissions, the Court is requested to find
                    that Senegal breached its obligations under Article 5, paragraph 2, of the
                    Convention against Torture, and that, by failing to take action in relation
                    to Mr. Habré’s alleged crimes, Senegal has breached and continues to
                    breach its obligations under Article 6, paragraph 2, and Article 7, para-
                    graph 1, of that instrument and under certain other rules of international
                    law.
                      Senegal submits that there is no dispute between the Parties with regard
                    to the interpretation or application of the Convention against Torture or
                    any other relevant rule of international law and that, as a consequence,
                    the Court lacks jurisdiction.
                      45. The Court observes that the Parties have thus presented radically
                    divergent views about the existence of a dispute between them and, if any
                    dispute exists, its subject‑matter. Given that the existence of a dispute is a
                    condition of its jurisdiction under both bases of jurisdiction invoked by
                    Belgium, the Court will first examine this issue.

                                                                                23

6 CIJ1033.indb 43                                                                                28/11/13 12:50

                               obligation to prosecute or extradite (judgment)                 442

                       46. The Court recalls that, in order to establish whether a dispute exists,
                    “[i]t must be shown that the claim of one party is positively opposed by the
                    other” (South West Africa (Ethiopia v. South Africa ; Liberia v. South
                    Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328).
                    The Court has previously stated that “[w]hether there exists an interna-
                    tional dispute is a matter for objective determination” (Interpretation of
                    Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory
                    Opinion, I.C.J. Reports 1950, p. 74) and that “[t]he Court’s determination
                    must turn on an examination of the facts. The matter is one of substance,
                    not of form.” (Application of the International Convention on the Elimina-
                    tion of All Forms of Racial Discrimination (Georgia v. Russian Federation),
                    Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 84, para. 30.)
                    The Court has also noted that the “dispute must in principle exist at the
                    time the Application is submitted to the Court” (ibid., p. 85, para. 30).
                       47. The first request made in 2010 by Belgium in the submissions con-
                    tained in its Memorial and then in 2012 in its final submissions, is that the
                    Court should declare that Senegal breached Article 5, paragraph 2, of the
                    Convention against Torture, which requires a State party to the Conven-
                    tion to “take such measures as may be necessary to establish its jurisdic-
                    tion” over acts of torture when the alleged offender is “present in any
                    territory under its jurisdiction” and that State does not extradite him to
                    one of the States referred to in paragraph 1 of the same article. Belgium
                    argues that Senegal did not enact “in a timely manner” provisions of
                    national legislation allowing its judicial authorities to exercise jurisdiction
                    over acts of torture allegedly committed abroad by a foreign national
                    who is present on its territory. Senegal does not contest that it complied
                    only in 2007 with its obligation under Article 5, paragraph 2, but main-
                    tains that it has done so adequately by adopting law No. 2007‑05, which
                    amended Article 669 of its Code of Criminal Procedure in order to extend
                    the jurisdiction of Senegalese courts over certain offences, including tor-
                    ture, allegedly committed by a foreign national outside Senegal’s terri-
                    tory, irrespective of the nationality of the victim (see paragraph 28 above).

                       Senegal also points out that Article 9 of its Constitution was amended
                    in 2008 so that the principle of non‑retroactivity in criminal matters
                    would not prevent the prosecution of an individual for genocide, crimes
                    against humanity or war crimes if the acts in question were crimes under
                    international law at the time when they were committed (see paragraph 31
                    above).
                       Belgium acknowledges that Senegal has finally complied with its obli-
                    gation under Article 5, paragraph 2, but contends that the fact that
                    Senegal did not comply with its obligation in a timely manner produced
                     negative consequences concerning the implementation of some other obli-
                     gations under the Convention.
                       48. The Court finds that any dispute that may have existed between the
                     Parties with regard to the interpretation or application of Article 5, para-

                                                                                24

6 CIJ1033.indb 45                                                                                28/11/13 12:50

                              obligation to prosecute or extradite (judgment)               443

                    graph 2, of the Convention had ended by the time the Application was
                    filed. Thus, the Court lacks jurisdiction to decide on Belgium’s claim
                    relating to the obligation under Article 5, paragraph 2. However, this
                    does not prevent the Court from considering the consequences that
                    Senegal’s conduct in relation to the measures required by this provision
                     may have had on its compliance with certain other obligations under the
                     Convention, should the Court have jurisdiction in that regard.
                       49. Belgium further contends that Senegal breached its obligations
                     under Article 6, paragraph 2, and Article 7, paragraph 1, of the Conven-
                    tion against Torture. These provisions respectively require a State party
                    to the Convention, when a person who has allegedly committed an act of
                    torture is found on its territory, to hold “a preliminary inquiry into the
                    facts” and, “if it does not extradite him”, to “submit the case to its com-
                    petent authorities for the purpose of prosecution”. Senegal maintains that
                    there is no dispute with regard to the interpretation or application of
                    these provisions, as there is no dispute between the Parties concerning the
                    existence and scope of the obligations contained therein, and that it has
                    met those obligations.
                       50. Before submitting its Application to the Court, Belgium on several
                    occasions requested Senegal to comply with its obligation under the Con-
                    vention “to extradite or judge” Mr. Habré for the alleged acts of torture
                    (see paragraphs 25-26 and 30 above). For instance, a Note Verbale of
                    9 March 2006 addressed by the Belgian Embassy in Dakar to the Minis-
                    try of Foreign Affairs of Senegal (see paragraph 25 above) referred to a
                    number of provisions of the Convention, including Article 7, and stated
                    that the Convention had to be understood
                        “as requiring the State on whose territory the alleged author of an
                        offence under Article 4 of the aforesaid Convention is located to
                        extradite this offender, unless it has judged him on the basis of the
                        charges covered by said article”.
                    Similarly, a Note Verbale of 4 May 2006 addressed by the Belgian Minis-
                    try of Foreign Affairs to the Ambassador of Senegal in Brussels (see para-
                    graph 26 above) declared that “Belgium interprets Article 7 of the
                    Convention against Torture as requiring the State on whose territory the
                    alleged offender is located to extradite him unless it has judged him”.
                    While the emphasis in Belgium’s Notes Verbales and also in Belgium’s
                    Application is on extradition, in its pleadings Belgium stresses the obliga-
                    tion to submit Mr. Habré’s case to prosecution. This does not change the
                    substance of the claim. Extradition and prosecution are alternative ways
                    to combat impunity in accordance with Article 7, paragraph 1. In the
                    above‑mentioned diplomatic exchanges, the request by Belgium that Sen-
                    egal comply with the obligation to hold a preliminary inquiry into the
                    facts of Mr. Habré’s case may be considered as implicit, since that inquiry
                    should normally take place before prosecution.

                                                                                25

6 CIJ1033.indb 47                                                                                28/11/13 12:50

                              obligation to prosecute or extradite (judgment)                 444

                       51. In its diplomatic exchanges with Belgium, Senegal contended that
                    it was complying with its obligations under the Convention. For instance,
                    in a Note Verbale of 9 May 2006 addressed to the Belgian Ministry of
                    Foreign Affairs, Senegal’s Embassy in Brussels wrote that

                        “[w]ith regard to the interpretation of Article 7 of the Convention . . .,
                        the Embassy considers that by referring the Hissène Habré case to the
                        African Union, Senegal, in order not to create a legal impasse, is
                        acting in accordance with the spirit of the principle aut dedere aut
                        punire the essential aim of which is to ensure that no torturer can
                        escape from justice by going to another country”.
                    Senegal’s denial that there has been a breach appears to be based on its
                    contention that Article 6, paragraph 2, and Article 7, paragraph 1, grant
                    a State party some latitude with regard to the time within which it may
                    take the actions required. As was acknowledged by Senegal, “[a]t issue
                    before the Court is a difference between two States as to how the execu-
                    tion of an obligation arising from an international instrument to which
                    both States are parties should be understood”.

                       52. Given that Belgium’s claims based on the interpretation and appli-
                    cation of Articles 6, paragraph 2, and 7, paragraph 1, of the Convention
                    were positively opposed by Senegal, the Court considers that a dispute in
                    this regard existed by the time of the filing of the Application. The Court
                    notes that this dispute still exists.
                       53. The Application of Belgium also includes a request that the Court
                    declare that Senegal breached an obligation under customary interna-
                    tional law to “bring criminal proceedings against Mr. H. Habré” for
                    crimes against humanity allegedly committed by him. This submission
                    has been later extended to cover war crimes and genocide. On this point,
                    Senegal also contends that no dispute has arisen between the Parties.
                       54. While it is the case that the Belgian international arrest warrant
                    transmitted to Senegal with a request for extradition on 22 Septem-
                    ber 2005 (see paragraph 21 above) referred to violations of international
                    humanitarian law, torture, genocide, crimes against humanity, war
                    crimes, murder and other crimes, neither document stated or implied that
                    Senegal had an obligation under international law to exercise its jurisdic-
                    tion over those crimes if it did not extradite Mr. Habré. In terms of the
                    Court’s jurisdiction, what matters is whether, on the date when the Appli-
                    cation was filed, a dispute existed between the Parties regarding the obli-
                    gation for Senegal, under customary international law, to take measures
                    in respect of the above-mentioned crimes attributed to Mr. Habré. In the
                    light of the diplomatic exchanges between the Parties reviewed above (see
                    paragraphs 21‑30), the Court considers that such a dispute did not exist
                    on that date. The only obligations referred to in the diplomatic corre-
                    spondence between the Parties are those under the Convention against
                    Torture. It is noteworthy that even in a Note Verbale handed over to

                                                                                26

6 CIJ1033.indb 49                                                                                28/11/13 12:50

                              obligation to prosecute or extradite (judgment)               445

                      Senegal on 16 December 2008, barely two months before the date of the
                      Application, Belgium only stated that its proposals concerning judicial
                      co‑operation were without prejudice to “the difference of opinion existing
                      between Belgium and Senegal regarding the application and interpreta-
                    tion of the obligations resulting from the relevant provisions of the [Con-
                    vention against Torture]”, without mentioning the prosecution or
                    extradition in respect of other crimes. In the same Note Verbale, Belgium
                    referred only to the crime of torture when acknowledging the amend-
                    ments to the legislation and Constitution of Senegal, although those
                    amendments were not limited to that crime. Under those circumstances,
                    there was no reason for Senegal to address at all in its relations with Bel-
                    gium the issue of the prosecution of alleged crimes of Mr. Habré under
                    customary international law. The facts which constituted those alleged
                    crimes may have been closely connected to the alleged acts of torture.
                    However, the issue whether there exists an obligation for a State to
                    prosecute crimes under customary international law that were allegedly
                     committed by a foreign national abroad is clearly distinct from any
                     question of compliance with that State’s obligations under the Conven-
                      tion against Torture and raises quite different legal problems.

                       55. The Court concludes that, at the time of the filing of the Applica-
                    tion, the dispute between the Parties did not relate to breaches of obliga-
                    tions under customary international law and that it thus has no jurisdiction
                    to decide on Belgium’s claims related thereto.
                       It is thus only with regard to the dispute concerning the interpretation
                    and application of Article 6, paragraph 2, and Article 7, paragraph 1, of
                    the Convention against Torture that the Court will have to find whether
                    there exists a legal basis of jurisdiction.

                                                         *

                                       B. Other Conditions for Jurisdiction
                       56. The Court will turn to the other conditions which should be met
                    for it to have jurisdiction under Article 30, paragraph 1, of the Conven-
                    tion against Torture (see paragraph 42 above). These conditions are that
                    the dispute cannot be settled through negotiation and that, after a request
                    for arbitration has been made by one of the parties, they have been unable
                    to agree on the organization of the arbitration within six months from the
                    request. The Court will consider these conditions in turn.

                      57. With regard to the first of these conditions, the Court must begin
                    by ascertaining whether there was, “at the very least[,] a genuine attempt

                                                                                27

6 CIJ1033.indb 51                                                                                28/11/13 12:50

                               obligation to prosecute or extradite (judgment)                   446

                      by one of the disputing parties to engage in discussions with the other dis-
                    puting party, with a view to resolving the dispute” (Application of the Inter-
                    national Convention on the Elimination of All Forms of Racial D   iscrimination
                    (Georgia v. Russian Federation), Preliminary Objections, Judg              ment,
                    I.C.J. Reports 2011 (I), p. 132, para. 157). According to the Court’s
                    jurisprudence, “the precondition of negotiation is met only when there has
                     been a failure of negotiations, or when negotiations have become futile or
                     deadlocked” (ibid., p. 133, para. 159). The requirement that the dispute
                     “cannot be settled through negotiation” could not be understood as
                     referring to a theoretical impossibility of reaching a settlement. It rather
                      implies that, as the Court noted with regard to a similarly worded p  rovision,
                      “no reasonable probability exists that further negotiations would lead to a
                      settlement” (South West Africa (Ethiopia v. South Africa ; Liberia v. South
                      Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 345).
                         58. Several exchanges of correspondence and various meetings were
                      held between the Parties concerning the case of Mr. Habré, when Belgium
                      insisted on Senegal’s compliance with the obligation to judge or extradite
                      him. Belgium expressly stated that it was acting within the framework of
                      the negotiating process under Article 30 of the Convention against Tor-
                      ture in Notes Verbales addressed to Senegal on 11 January 2006,
                      9 March 2006, 4 May 2006 and 20 June 2006 (see paragraphs 25‑26
                      above). The same approach results from a report sent by the Belgian
                      Ambassador in Dakar on 21 June 2006 concerning a meeting with the
                      Secretary‑General of the Ministry of Foreign Affairs of Senegal (see para-
                      graph 26 above). Senegal did not object to the characterization by Bel-
                      gium of the diplomatic exchanges as negotiations.

                       59. In view of Senegal’s position that, even though it did not agree on
                    extradition and had difficulties in proceeding towards prosecution, it was
                    nevertheless complying with its obligations under the Convention (for
                    instance, in the Note Verbale of 9 May 2006 ; see paragraph 26 above),
                    negotiations did not make any progress towards resolving the dispute.
                    This was observed by Belgium in a Note Verbale of 20 June 2006 (see
                    paragraph 26 above). There was no change in the respective positions of
                    the Parties concerning the prosecution of Mr. Habré’s alleged acts of tor-
                    ture during the period covered by the above exchanges. The fact that, as
                    results from the pleadings of the Parties, their basic positions have not
                    subsequently evolved confirms that negotiations did not and could not
                    lead to the settlement of the dispute. The Court therefore concludes that
                    the condition set forth in Article 30, paragraph 1, of the Convention that
                    the dispute cannot be settled by negotiation has been met.

                       60. With regard to the submission to arbitration of the dispute on the
                    interpretation of Article 7 of the Convention against Torture, a Note Ver-
                    bale of the Belgian Ministry of Foreign Affairs of 4 May 2006 (see para-

                                                                                28

6 CIJ1033.indb 53                                                                                28/11/13 12:50

                               obligation to prosecute or extradite (judgment)                 447

                     graph 26 above) observed that “[a]n unresolved dispute regarding this
                     interpretation would lead to recourse to the arbitration procedure pro-
                    vided for in Article 30 of the Convention against Torture”. In a Note
                    Verbale of 9 May 2006 (see paragraph 26 above) the Ambassador of
                    Senegal in Brussels responded that
                            “As to the possibility of Belgium having recourse to the arbitration
                         procedure provided for in Article 30 of the Convention against Tor-
                         ture, the Embassy can only take note of this, restating the commit-
                         ment of Senegal to the excellent relationship between the two countries
                         in terms of co-operation and the combating of impunity.”
                    A direct request to resort to arbitration was made by Belgium in a Note
                    Verbale of 20 June 2006 (see paragraph 26 above). In that Note Verbale,
                    Belgium remarked that “the attempted negotiation with Senegal, which
                    started in November 2005, ha[d] not succeeded” ; Belgium, “in accor-
                    dance with Article 30, paragraph 1, of the Torture Convention, conse-
                    quently ask[ed] Senegal to submit the dispute to arbitration under
                    conditions to be agreed mutually”. In its Order of 28 May 2009 on Bel-
                    gium’s request for the indication of provisional measures, the Court has
                    already observed that this Note Verbale :
                         “contains an explicit offer from Belgium to Senegal to have recourse
                         to arbitration, pursuant to Article 30, paragraph 1, of the Convention
                         against Torture, in order to settle the dispute concerning the applica-
                         tion of the Convention in the case of Mr. Habré” (I.C.J. Reports 2009,
                         p. 150, para. 52).
                    In a Note Verbale of 8 May 2007 (see paragraph 30 above) Belgium
                    recalled “its wish to constitute an arbitral tribunal” and remarked that it
                    had “received no response from the Republic of Senegal on the issue of
                    this proposal of arbitration”. Although Senegal maintains that it had not
                    received the Note Verbale dated 20 June 2006, it did not mention that
                    matter after having received the Note Verbale of 8 May 2007. On that
                    occasion, there was again no response on the part of Senegal to the
                    request for arbitration.
                      61. Following its request for arbitration, Belgium did not make any
                    detailed proposal for determining the issues to be submitted to arbitration
                    and the organization of the arbitration proceedings. In the Court’s view,
                    however, this does not mean that the condition that “the Parties are unable
                    to agree on the organization of the arbitration” has not been fulfilled. A
                    State may defer proposals concerning these aspects to the time when a
                    positive response is given in principle to its request to settle the dispute by
                    arbitration. As the Court said with regard to a similar treaty provision :

                         “the lack of agreement between the parties as to the organization
                         of an arbitration cannot be presumed. The existence of such
                         disagreement can follow only from a proposal for arbitration by the

                                                                                29

6 CIJ1033.indb 55                                                                                28/11/13 12:50

                              obligation to prosecute or extradite (judgment)                448

                        applicant, to which the respondent has made no answer or which it
                        has expressed its intention not to accept.” (Armed Activities on the
                        Territory of the Congo (New Application : 2002) (Democratic R
                                                                                epublic
                        of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment,
                        I.C.J. Reports 2006, p. 41, para. 92.)
                    The present case is one in which the inability of the Parties to agree on the
                    organization of the arbitration results from the absence of any response
                    on the part of the State to which the request for arbitration was addressed.
                      62. Article 30, paragraph 1, of the Convention against Torture requires
                    that at least six months should pass after the request for arbitration
                    before the case is submitted to the Court. In the present case, this require-
                    ment has been complied with, since the Application was filed over two
                    years after the request for arbitration had been made.

                                                         *
                        63. Given that the conditions set out in Article 30, paragraph 1, of the
                     Convention against Torture have been met, the Court concludes that
                     it has jurisdiction to entertain the dispute between the Parties concern-
                    ing the interpretation and application of Article 6, paragraph 2, and
                    Article 7, paragraph 1, of the Convention.
                        Having reached this conclusion, the Court does not find it necessary to
                     consider whether its jurisdiction also exists with regard to the same dis-
                    pute on the basis of the declarations made by the Parties under Article 36,
                    paragraph 2, of its Statute.

                                     III. Admissibility of Belgium’s Claims

                       64. Senegal objects to the admissibility of Belgium’s claims. It main-
                    tains that “Belgium is not entitled to invoke the international responsi
                    bility of Senegal for the alleged breach of its obligation to submit
                    the H[issène] Habré case to its competent authorities for the purpose of
                    prosecution, unless it extradites him”. In particular, Senegal contends
                    that none of the alleged victims of the acts said to be attributable to
                    Mr. Habré was of Belgian nationality at the time when the acts were com-
                    mitted.
                       65. Belgium does not dispute the contention that none of the alleged
                    victims was of Belgian nationality at the time of the alleged offences.
                    However, it noted in its Application that “[a]s the present jurisdiction of
                    the Belgian courts is based on the complaint filed by a Belgian national of
                    Chadian origin, the Belgian courts intend to exercise passive personal
                    jurisdiction”. In its Application Belgium requested the Court to adjudge
                    and declare that its claim was admissible. In the oral proceedings, B
                                                                                elgium
                    also claimed to be in a “particular position” since “it has availed itself of

                                                                                30

6 CIJ1033.indb 57                                                                                28/11/13 12:50

                               obligation to prosecute or extradite (judgment)                  449

                    its right under Article 5 to exercise its jurisdiction and to request extradi-
                    tion”. Moreover, Belgium argued that “[u]nder the Convention, every
                    State party, irrespective of the nationality of the victims, is entitled to
                    claim performance of the obligation concerned, and, therefore, can invoke
                    the responsibility resulting from the failure to perform”.
                       66. The divergence of views between the Parties concerning Belgium’s
                    entitlement to bring its claims against Senegal before the Court with regard
                    to the application of the Convention in the case of Mr. Habré raises the
                    issue of Belgium’s standing. For that purpose, Belgium based its claims not
                    only on its status as a party to the Convention but also on the existence of
                    a special interest that would distinguish Belgium from the other parties to
                    the Convention and give it a specific entitlement in the case of Mr. Habré.
                       67. The Court will first consider whether being a party to the Conven-
                    tion is sufficient for a State to be entitled to bring a claim to the Court
                    concerning the cessation of alleged violations by another State party of its
                    obligations under that instrument.
                       68. As stated in its Preamble, the object and purpose of the Convention
                    is “to make more effective the struggle against torture . . . throughout the
                    world”. The States parties to the Convention have a common interest to
                    ensure, in view of their shared values, that acts of torture are prevented and
                    that, if they occur, their authors do not enjoy impunity. The obligations of
                    a State party to conduct a preliminary inquiry into the facts and to submit
                    the case to its competent authorities for prosecution are triggered by the
                    presence of the alleged offender in its territory, regardless of the nationality
                    of the offender or the victims, or of the place where the alleged offences
                    occurred. All the other States parties have a common interest in compliance
                    with these obligations by the State in whose territory the alleged offender is
                    present. That common interest implies that the obligations in question are
                    owed by any State party to all the other States parties to the Convention.
                    All the States parties “have a legal interest” in the protection of the rights
                    involved (Barcelona Traction, Light and Power Company, Limited (Belgium
                    v. Spain), Second Phase, Judgment, I.C.J. Reports 1970, p. 32, para. 33).
                    These obligations may be defined as “obligations erga omnes partes” in
                    the sense that each State party has an interest in compliance with them in
                    any given case. In this respect, the relevant provisions of the Convention
                    against Torture are similar to those of the Convention on the Prevention
                    and Punishment of the Crime of Genocide, with regard to which the Court
                    observed that

                            “In such a convention the contracting States do not have any inter-
                         ests of their own ; they merely have, one and all, a common interest,
                         namely, the accomplishment of those high purposes which are the
                         raison d’être of the Convention.” (Reservations to the Convention on
                         the Prevention and Punishment of the Crime of Genocide, Advisory
                         Opinion, I.C.J. Reports 1951, p. 23.)

                                                                                31

6 CIJ1033.indb 59                                                                                28/11/13 12:50

                              obligation to prosecute or extradite (judgment)               450

                       69. The common interest in compliance with the relevant obligations
                    under the Convention against Torture implies the entitlement of each
                    State party to the Convention to make a claim concerning the cessation
                    of an alleged breach by another State party. If a special interest were
                    required for that purpose, in many cases no State would be in the position
                    to make such a claim. It follows that any State party to the Convention
                    may invoke the responsibility of another State party with a view to ascer-
                    taining the alleged failure to comply with its obligations erga omnes par-
                    tes, such as those under Article 6, paragraph 2, and Article 7, paragraph 1,
                    of the Convention, and to bring that failure to an end.

                       70. For these reasons, the Court concludes that Belgium, as a State
                    party to the Convention against Torture, has standing to invoke the
                    responsibility of Senegal for the alleged breaches of its obligations under
                    Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention in
                    the present proceedings. Therefore, the claims of Belgium based on these
                    provisions are admissible.
                       As a consequence, there is no need for the Court to pronounce on
                    whether Belgium also has a special interest with respect to Senegal’s com-
                    pliance with the relevant provisions of the Convention in the case of
                    Mr. Habré.

                      IV. The Alleged Violations of the Convention against Torture

                        71. In its Application instituting proceedings, Belgium requested the
                    Court to adjudge and declare that Senegal is obliged to bring criminal
                    proceedings against Mr. Habré and, failing that, to extradite him to Bel-
                    gium. In its final submissions, it requested the Court to adjudge and
                    declare that Senegal breached and continues to breach its obligations
                    under Article 6, paragraph 2, and Article 7, paragraph 1, of the Conven-
                    tion by failing to bring criminal proceedings against Mr. Habré, unless it
                    extradites him.
                        72. Belgium has pointed out during the proceedings that the obliga-
                    tions deriving from Article 5, paragraph 2, Article 6, paragraph 2, and
                    Article 7, paragraph 1, are closely linked with each other in the context of
                    achieving the object and purpose of the Convention, which according to
                    its Preamble is “to make more effective the struggle against torture”.
                    Hence, incorporating the appropriate legislation into domestic law
                    (Article 5, paragraph 2) would allow the State in whose territory a sus-
                     pect is present immediately to make a preliminary inquiry into the facts
                     (Article 6, paragraph 2), a necessary step in order to enable that State,
                     with knowledge of the facts, to submit the case to its competent authori-
                     ties for the purpose of prosecution (Article 7, paragraph 1).
                        73. Senegal contests Belgium’s allegations and considers that it has not
                     breached any provision of the Convention against Torture. In its view,
                     the Convention breaks down the aut dedere aut judicare obligation into a

                                                                                32

6 CIJ1033.indb 61                                                                                28/11/13 12:50

                              obligation to prosecute or extradite (judgment)                 451

                     series of actions which a State should take. Senegal maintains that the
                     measures it has taken hitherto show that it has complied with its interna-
                    tional commitments. First, Senegal asserts that it has resolved not to
                    extradite Mr. Habré but to organize his trial and to try him. It maintains
                    that it adopted constitutional and legislative reforms in 2007‑2008, in
                    accordance with Article 5 of the Convention, to enable it to hold a fair
                    and equitable trial of the alleged perpetrator of the crimes in question
                    reasonably quickly. It further states that it has taken measures to restrict
                    the liberty of Mr. Habré, pursuant to Article 6 of the Convention, as well
                    as measures in preparation for Mr. Habré’s trial, contemplated under the
                    aegis of the African Union, which must be regarded as constituting the
                    first steps towards fulfilling the obligation to prosecute laid down in
                    Article 7 of the Convention. Senegal adds that Belgium cannot dictate
                     precisely how it should fulfil its commitments under the Convention,
                     given that how a State fulfils an international obligation, particularly in a
                     case where the State must take internal measures, is to a very large extent
                     left to the discretion of that State.

                       74. Although, for the reasons given above, the Court has no jurisdic-
                    tion in this case over the alleged violation of Article 5, paragraph 2, of the
                    Convention, it notes that the performance by the State of its obligation to
                    establish the universal jurisdiction of its courts over the crime of torture
                    is a necessary condition for enabling a preliminary inquiry (Article 6,
                    paragraph 2), and for submitting the case to its competent authorities for
                    the purpose of prosecution (Article 7, paragraph 1). The purpose of all
                    these obligations is to enable proceedings to be brought against the sus-
                    pect, in the absence of his extradition, and to achieve the object and pur-
                    pose of the Convention, which is to make more effective the struggle
                    against torture by avoiding impunity for the perpetrators of such acts.

                       75. The obligation for the State to criminalize torture and to establish
                    its jurisdiction over it finds its equivalent in the provisions of many inter-
                    national conventions for the combating of international crimes. This obli-
                    gation, which has to be implemented by the State concerned as soon as it
                    is bound by the Convention, has in particular a preventive and deterrent
                    character, since by equipping themselves with the necessary legal tools
                    to prosecute this type of offence, the States parties ensure that their
                    legal systems will operate to that effect and commit themselves to co‑
                    ordinating their efforts to eliminate any risk of impunity. This preventive
                    character is all the more pronounced as the number of States parties
                    increases. The Convention against Torture thus brings together 150 States
                    which have committed themselves to prosecuting suspects in particular
                    on the basis of universal jurisdiction.
                       76. The Court considers that by not adopting the necessary legislation
                    until 2007, Senegal delayed the submission of the case to its competent
                    authorities for the purpose of prosecution. Indeed, the Dakar Court of
                    Appeal was led to conclude that the Senegalese courts lacked jurisdiction

                                                                                33

6 CIJ1033.indb 63                                                                                28/11/13 12:50

                              obligation to prosecute or extradite (judgment)                452

                    to entertain proceedings against Mr. Habré, who had been indicted for
                    crimes against humanity, acts of torture and barbarity, in the absence of
                    appropriate legislation allowing such proceedings within the domestic
                    legal order (see paragraph 18 above). The Dakar Court of Appeal held
                    that
                        “the Senegalese legislature should, in conjunction with the reform
                        undertaken to the Penal Code, make amendments to Article 669 of
                        the Code of Criminal Procedure by including therein the offence of
                        torture, whereby it would bring itself into conformity with the
                        objectives of the Convention” (Court of Appeal (Dakar), Chambre
                         d’accusation, Public Prosecutor’s Office and François Diouf v.
                         Hissène Habré, judgment No. 135, 4 July 2000).
                    This judgment was subsequently upheld by the Senegalese Court of
                    Cassation (Court of Cassation, première chambre statuant en matière

                    pénale, Souleymane Guengueng et al. v. Hissène Habré, judgment No. 14,
                    20 March 2001).
                       77. Thus, the fact that the required legislation had been adopted only
                    in 2007 necessarily affected Senegal’s implementation of the obligations
                    imposed on it by Article 6, paragraph 2, and Article 7, paragraph 1, of
                    the Convention.
                       78. The Court, bearing in mind the link which exists between the dif-
                    ferent provisions of the Convention, will now analyse the alleged breaches
                    of Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention.

                        A. The Alleged Breach of the Obligation Laid Down in Article 6,
                                       Paragraph 2, of the Convention
                       79. Under the terms of Article 6, paragraph 2, of the Convention, the
                    State in whose territory a person alleged to have committed acts of tor-
                    ture is present “shall immediately make a preliminary inquiry into the
                    facts”.
                       80. Belgium considers that this procedural obligation is obviously
                    incumbent on Senegal, since the latter must have the most complete infor-
                    mation available in order to decide whether there are grounds either to
                    submit the matter to its prosecuting authorities or, when possible, to
                    extradite the suspect. The State in whose territory the suspect is present
                    should take effective measures to gather evidence, if necessary through
                    mutual judicial assistance, by addressing letters rogatory to countries
                    likely to be able to assist it. Belgium takes the view that Senegal, by fail-
                    ing to take these measures, breached the obligation imposed on it by
                    Article 6, paragraph 2, of the Convention. It points out that it nonethe-
                    less invited Senegal to issue a letter rogatory, in order to have access to
                    the evidence in the hands of Belgian judges (see paragraph 30 above).
                       81. In answer to the question put by a Member of the Court concern-
                    ing the interpretation of the obligation laid down by Article 6, para-

                                                                                34

6 CIJ1033.indb 65                                                                                28/11/13 12:50

                               obligation to prosecute or extradite (judgment)                  453

                    graph 2, of the Convention, Belgium has pointed out that the nature of
                    the inquiry required by Article 6, paragraph 2, depends to some extent on
                    the legal system concerned, but also on the particular circumstances of
                    the case. This would be the inquiry carried out before the case was trans-
                    mitted to the authorities responsible for prosecution, if the State decided
                    to exercise its jurisdiction. Lastly, Belgium recalls that paragraph 4 of this
                    Article provides that interested States must be informed of the findings of
                    the inquiry, so that they may, if necessary, seek the extradition of the
                    alleged offender. According to Belgium, there is no information before
                    the Court suggesting that a preliminary inquiry has been conducted by
                    Senegal, and it concludes from this that Senegal has violated Article 6,
                    paragraph 2, of the Convention.
                       82. Senegal, in answer to the same question, has maintained that the
                    inquiry is aimed at establishing the facts, but that it does not necessarily
                    lead to prosecution, since the prosecutor may, in the light of the results,
                    consider that there are no grounds for such proceedings. Senegal takes
                    the view that this is simply an obligation of means, which it claims to
                    have fulfilled.
                       83. In the opinion of the Court, the preliminary inquiry provided for in
                    Article 6, paragraph 2, is intended, like any inquiry carried out by the
                    competent authorities, to corroborate or not the suspicions regarding the
                    person in question. That inquiry is conducted by those authorities which
                    have the task of drawing up a case file and collecting facts and evidence ;
                    this may consist of documents or witness statements relating to the events
                    at issue and to the suspect’s possible involvement in the matter concerned.
                    Thus the co‑operation of the Chadian authorities should have been
                    sought in this instance, and that of any other State where complaints have
                    been filed in relation to the case, so as to enable the State to fulfil its obli-
                    gation to make a preliminary inquiry.

                       84. Moreover, the Convention specifies that, when they are operating
                    on the basis of universal jurisdiction, the authorities concerned must be
                    just as demanding in terms of evidence as when they have jurisdiction by
                    virtue of a link with the case in question. Article 7, paragraph 2, of the
                    Convention thus stipulates :
                            “In the cases referred to in Article 5, paragraph 2, the standards of
                         evidence required for prosecution and conviction shall in no way be
                         less stringent than those which apply in the cases referred to in Arti-
                         cle 5, paragraph 1.”
                       85. The Court observes that Senegal has not included in the case file
                    any material demonstrating that the latter has carried out such an inquiry
                    in respect of Mr. Habré, in accordance with Article 6, paragraph 2, of the
                    Convention. It is not sufficient, as Senegal maintains, for a State party to
                    the Convention to have adopted all the legislative measures required for
                    its implementation ; it must also exercise its jurisdiction over any act of
                    torture which is at issue, starting by establishing the facts. The question-

                                                                                35

6 CIJ1033.indb 67                                                                                28/11/13 12:50

                              obligation to prosecute or extradite (judgment)               454

                     ing at first appearance which the investigating judge at the Tribunal
                     régional hors classe in Dakar conducted in order to establish Mr. Habré’s
                     identity and to inform him of the acts of which he was accused cannot be
                     regarded as performance of the obligation laid down in Article 6, para-
                    graph 2, as it did not involve any inquiry into the charges against
                    Mr. Habré.
                       86. While the choice of means for conducting the inquiry remains in
                    the hands of the States parties, taking account of the case in question,
                    Article 6, paragraph 2, of the Convention requires that steps must be
                    taken as soon as the suspect is identified in the territory of the State, in
                    order to conduct an investigation of that case. That provision must be
                    interpreted in the light of the object and purpose of the Convention,
                    which is to make more effective the struggle against torture. The estab-
                    lishment of the facts at issue, which is an essential stage in that process,
                    became imperative in the present case at least since the year 2000, when
                    a complaint was filed in Senegal against Mr. Habré (see paragraph 17
                    above).
                       87. The Court observes that a further complaint against Mr. Habré
                    was filed in Dakar in 2008 (see paragraph 32 above), after the legislative
                    and constitutional amendments made in 2007 and 2008, respectively,
                    which were enacted in order to comply with the requirements of Article 5,
                    paragraph 2, of the Convention (see paragraphs 28 and 31 above). But
                    there is nothing in the materials submitted to the Court to indicate that a
                    preliminary inquiry was opened following this second complaint. Indeed,
                    in 2010 Senegal stated before the ECOWAS Court of Justice that no
                    proceedings were pending or prosecution ongoing against Mr. Habré in
                     Senegalese courts.
                       88. The Court finds that the Senegalese authorities did not immedi-
                     ately initiate a preliminary inquiry as soon as they had reason to suspect
                     Mr. Habré, who was in their territory, of being responsible for acts of
                     torture. That point was reached, at the latest, when the first complaint
                     was filed against Mr. Habré in 2000.
                       The Court therefore concludes that Senegal has breached its obligation
                     under Article 6, paragraph 2, of the Convention.

                        B. The Alleged Breach of the Obligation Laid Down in Article 7,
                                       Paragraph 1, of the Convention
                      89. Article 7, paragraph 1, of the Convention provides :
                           “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.”
                      90. As is apparent from the travaux préparatoires of the Convention,
                    Article 7, paragraph 1, is based on a similar provision contained in the

                                                                                36

6 CIJ1033.indb 69                                                                                28/11/13 12:50

                               obligation to prosecute or extradite (judgment)                  455

                    Convention for the Suppression of Unlawful Seizure of Aircraft, signed
                    at The Hague on 16 December 1970. The obligation to submit the case to
                    the competent authorities for the purpose of prosecution (hereinafter the
                    “obligation to prosecute”) was formulated in such a way as to leave it to
                    those authorities to decide whether or not to initiate proceedings, thus
                    respecting the independence of States parties’ judicial systems. These two
                    conventions emphasize, moreover, that the authorities shall take their
                    decision in the same manner as in the case of any ordinary offence of a
                    serious nature under the law of the State concerned (Article 7, para-
                    graph 2, of the Convention against Torture and Article 7 of the Hague
                    Convention of 1970). It follows that the competent authorities involved
                    remain responsible for deciding on whether to initiate a prosecution, in
                    the light of the evidence before them and the relevant rules of criminal
                    procedure.
                       91. The obligation to prosecute provided for in Article 7, paragraph 1,
                    is normally implemented in the context of the Convention against Tor-
                    ture after the State has performed the other obligations provided for in
                    the preceding articles, which require it to adopt adequate legislation to
                    enable it to criminalize torture, give its courts universal jurisdiction in the
                    matter and make an inquiry into the facts. These obligations, taken as a
                    whole, may be regarded as elements of a single conventional mechanism
                    aimed at preventing suspects from escaping the consequences of their
                    criminal responsibility, if proven. Belgium’s claim relating to the applica-
                    tion of Article 7, paragraph 1, raises a certain number of questions
                    regarding the nature and meaning of the obligation contained therein and
                    its temporal scope, as well as its implementation in the present case.

                    1. The nature and meaning of the obligation laid down in Article 7, paragraph 1
                       92. According to Belgium, the State is required to prosecute the suspect
                    as soon as the latter is present in its territory, whether or not he has been
                    the subject of a request for extradition to one of the countries referred to
                    in Article 5, paragraph 1 — that is, if the offence was committed within the
                    territory of the latter State, or if one of its nationals is either the alleged
                    perpetrator or the victim — or in Article 5, paragraph 3, that is, another
                    State with criminal jurisdiction exercised in accordance with its internal
                    law. In the cases provided for in Article 5, the State can consent to extradi-
                    tion. This is a possibility afforded by the Convention, and, according to
                    Belgium, that is the meaning of the maxim aut dedere aut judicare under
                    the Convention. Thus, if the State does not opt for extradition, its obliga-
                    tion to prosecute remains unaffected. In Belgium’s view, it is only if for
                    one reason or another the State concerned does not prosecute, and a
                    request for extradition is received, that that State has to extradite if it is to
                    avoid being in breach of this central obligation under the Convention.
                       93. For its part, Senegal takes the view that the Convention certainly
                    requires it to prosecute Mr. Habré, which it claims it has endeavoured to

                                                                                37

6 CIJ1033.indb 71                                                                                28/11/13 12:50

                              obligation to prosecute or extradite (judgment)                 456

                    do by following the legal procedure provided for in that instrument, but
                    that it has no obligation to Belgium under the Convention to extradite
                    him.
                      94. The Court considers that Article 7, paragraph 1, requires the State
                    concerned to submit the case to its competent authorities for the purpose
                    of prosecution, irrespective of the existence of a prior request for the
                    extradition of the suspect. That is why Article 6, paragraph 2, obliges the
                    State to make a preliminary inquiry immediately from the time that the
                    suspect is present in its territory. The obligation to submit the case to the
                    competent authorities, under Article 7, paragraph 1, may or may not
                    result in the institution of proceedings, in the light of the evidence before
                    them, relating to the charges against the suspect.

                        95. However, if the State in whose territory the suspect is present has
                    received a request for extradition in any of the cases envisaged in the
                    provisions of the Convention, it can relieve itself of its obligation to pro
                     secute by acceding to that request. It follows that the choice between
                     extradition or submission for prosecution, pursuant to the Convention,
                     does not mean that the two alternatives are to be given the same weight.
                     Extradition is an option offered to the State by the Convention, whereas
                     prosecution is an international obligation under the Convention, the vio-
                     lation of which is a wrongful act engaging the responsibility of the State.

                    2. The temporal scope of the obligation laid down in Article 7, paragraph 1
                       96. A Member of the Court asked the Parties, first, whether the obliga-
                    tions incumbent upon Senegal under Article 7, paragraph 1, of the Con-
                    vention applied to offences alleged to have been committed before
                    26 June 1987, the date when the Convention entered into force for
                    Senegal, and, secondly, if, in the circumstances of the present case, those
                     obligations extended to offences allegedly committed before 25 June 1999,
                     the date when the Convention entered into force for Belgium (see para-
                     graph 19 above). Those questions relate to the temporal application of
                     Article 7, paragraph 1, of the Convention, according to the time when the
                     offences are alleged to have been committed and the dates of entry into
                     force of the Convention for each of the Parties.

                      97. In their replies, the Parties agree that acts of torture are regarded
                    by customary international law as international crimes, independently of
                    the Convention.
                      98. As regards the first aspect of the question put by the Member of
                    the Court, namely whether the Convention applies to offences committed
                    before 26 June 1987, Belgium contends that the alleged breach of the obli-
                    gation aut dedere aut judicare occurred after the entry into force of the
                    Convention for Senegal, even though the alleged acts occurred before
                    that date. Belgium further argues that Article 7, paragraph 1, is intended
                    to strengthen the existing law by laying down specific procedural obliga-

                                                                                38

6 CIJ1033.indb 73                                                                                28/11/13 12:50

                              obligation to prosecute or extradite (judgment)                 457

                    tions, the purpose of which is to ensure that there will be no impunity and
                    that, in these circumstances, those procedural obligations could apply to
                    crimes committed before the entry into force of the Convention for
                    Senegal. For its part, the latter does not deny that the obligation provided
                     for in Article 7, paragraph 1, can apply to offences allegedly committed
                     before 26 June 1987.

                       99. In the Court’s opinion, the prohibition of torture is part of custom-
                    ary international law and it has become a peremptory norm (jus cogens).

                       That prohibition is grounded in a widespread international practice
                    and on the opinio juris of States. It appears in numerous international
                    instruments of universal application (in particular the Universal Declara-
                    tion of Human Rights of 1948, the 1949 Geneva Conventions for the pro-
                    tection of war victims ; the International Covenant on Civil and Political
                    Rights of 1966 ; General Assembly resolution 3452/30 of 9 December 1975
                    on the Protection of All Persons from Being Subjected to Torture and
                    Other Cruel, Inhuman or Degrading Treatment or Punishment), and it
                    has been introduced into the domestic law of almost all States ; finally,
                    acts of torture are regularly denounced within national and international
                    fora.
                       100. However, the obligation to prosecute the alleged perpetrators of
                    acts of torture under the Convention applies only to facts having occurred
                    after its entry into force for the State concerned. Article 28 of the Vienna
                    Convention on the Law of Treaties, which reflects customary law on the
                    matter, provides :
                           “Unless a different intention appears from the treaty or is otherwise
                        established, its provisions do not bind a party in relation to any act
                        or fact which took place or any situation which ceased to exist before
                        the date of the entry into force of that treaty with respect to that
                        party.”
                    The Court notes that nothing in the Convention against Torture reveals
                    an intention to require a State party to criminalize, under Article 4, acts
                    of torture that took place prior to its entry into force for that State, or to
                    establish its jurisdiction over such acts in accordance with Article 5. Con-
                    sequently, in the view of the Court, the obligation to prosecute, under
                    Article 7, paragraph 1, of the Convention does not apply to such acts.

                      101. The Committee against Torture emphasized, in particular, in its
                    decision of 23 November 1989 in the case of O. R., M. M. and M. S. v.
                    Argentina (communications Nos. 1/1988, 2/1988 and 3/1988, decision of
                    23 November 1989, para. 7.5, Official Documents of the General Assem-
                    bly, Forty‑Fifth Session, Supplement No. 44, UN doc. A/45/44, Ann. V,
                    p. 112) that “ ‘torture’ for purposes of the Convention can only mean
                    torture that occurs subsequent to the entry into force of the Convention”.
                    However, when the Committee considered Mr. Habré’s situation, the

                                                                                39

6 CIJ1033.indb 75                                                                                28/11/13 12:50

                               obligation to prosecute or extradite (judgment)                 458

                    question of the temporal scope of the obligations contained in the Con-
                    vention was not raised, nor did the Committee itself address that question
                    (Guengueng et al. v. Senegal (communication No. 181/2001, decision of
                    17 May 2006, UN doc. CAT/C/36/D/181/2001)).

                       102. The Court concludes that Senegal’s obligation to prosecute pursu-
                    ant to Article 7, paragraph 1, of the Convention does not apply to acts
                    alleged to have been committed before the Convention entered into force
                    for Senegal on 26 June 1987. The Court would recall, however, that the
                    complaints against Mr. Habré include a number of serious offences alle
                    gedly committed after that date (see paragraphs 17, 19‑21 and 32 above).
                    Consequently, Senegal is under an obligation to submit the allegations
                    concerning those acts to its competent authorities for the purpose of
                    prosecution. Although Senegal is not required under the Convention to
                     institute proceedings concerning acts that were committed before 26 June
                     1987, nothing in that instrument prevents it from doing so.

                       103. The Court now comes to the second aspect of the question put by
                    a Member of the Court, namely, what was the effect of the date of entry
                    into force of the Convention, for Belgium, on the scope of the obligation
                    to prosecute. Belgium contends that Senegal was still bound by the obli-
                    gation to prosecute Mr. Habré after Belgium had itself become party to
                    the Convention, and that it was therefore entitled to invoke before the
                    Court breaches of the Convention occurring after 25 July 1999. Senegal
                    disputes Belgium’s right to engage its responsibility for acts alleged to
                    have occurred prior to that date. It considers that the obligation provided
                    for in Article 7, paragraph 1, belongs to “the category of divisible
                    erga omnes obligations”, in that only the injured State could call for its
                    breach to be sanctioned. Senegal accordingly concludes that Belgium was
                    not entitled to rely on the status of injured State in respect of acts prior to
                    25 July 1999 and could not seek retroactive application of the Conven-
                    tion.
                       104. The Court considers that Belgium has been entitled, with effect
                    from 25 July 1999, the date when it became party to the Convention, to
                    request the Court to rule on Senegal’s compliance with its obligation
                    under Article 7, paragraph 1. In the present case, the Court notes that
                    Belgium invokes Senegal’s responsibility for the latter’s conduct starting
                    in the year 2000, when a complaint was filed against Mr. Habré in
                    Senegal (see paragraph 17 above).
                       105. The Court notes that the previous findings are also valid for the
                     temporal application of Article 6, paragraph 2, of the Convention.

                    3. Implementation of the obligation laid down in Article 7, paragraph 1
                       106. Belgium, while recognizing that the time frame for implementa-
                    tion of the obligation to prosecute depends on the circumstances of each

                                                                                40

6 CIJ1033.indb 77                                                                                28/11/13 12:50

                              obligation to prosecute or extradite (judgment)                459

                    case, and in particular on the evidence gathered, considers that the State
                    in whose territory the suspect is present cannot indefinitely delay per-
                    forming the obligation incumbent upon it to submit the matter to its
                    competent authorities for the purpose of prosecution. Procrastination on
                    the latter’s part could, according to Belgium, violate both the rights of the
                    victims and those of the accused. Nor can the financial difficulties invoked
                    by Senegal (see paragraphs 28‑29 and 33 above) justify the fact that the
                    latter has done nothing to conduct an inquiry and initiate proceedings.
                       107. The same applies, according to Belgium, to Senegal’s referral of
                    the matter to the African Union in January 2006, which does not exempt
                    it from performing its obligations under the Convention. Moreover, at its
                    seventh session in July 2006 (see paragraph 23 above), the Summit of
                    African Union Heads of State and Government mandated Senegal “to
                    prosecute and ensure that Hissène Habré is tried, on behalf of Africa, by
                    a competent Senegalese court with guarantees for fair trial” (African
                    Union, doc. Assembly/AU/DEC.127 (VII), para. 5).
                       108. With regard to the legal difficulties which Senegal claims to have
                    faced in performing its obligations under the Convention, Belgium con-
                    tends that Senegal cannot rely on its domestic law in order to avoid its
                    international responsibility. Moreover, Belgium recalls the judgment of
                    the ECOWAS Court of Justice of 18 November 2010 (see paragraph 35
                    above), which considered that Senegal’s amendment to its Penal Code in
                    2007 might be contrary to the principle of non‑retroactivity of criminal
                    laws, and deemed that proceedings against Hissène Habré should be con-
                    ducted before an ad hoc court of an international character, arguing that
                    this judgment cannot be invoked against it. Belgium emphasizes that, if
                    Senegal is now confronted with a situation of conflict between two inter-
                    national obligations as a result of that decision, that is the result of its
                    own failings in implementing the Convention against Torture.

                       109. For its part, Senegal has repeatedly affirmed, throughout the pro-
                    ceedings, its intention to comply with its obligation under Article 7, para-
                    graph 1, of the Convention, by taking the necessary measures to institute
                    proceedings against Mr. Habré. Senegal contends that it only sought
                    financial support in order to prepare the trial under favourable condi-
                    tions, given its unique nature, having regard to the number of victims, the
                    distance that witnesses would have to travel and the difficulty of gather-
                    ing evidence. It claims that it has never sought, on these grounds, to
                    justify the non‑performance of its conventional obligations. Likewise,

                    Senegal contends that, in referring the matter to the African Union, it
                    was never its intention to relieve itself of its obligations.
                       110. Moreover, Senegal observes that the judgment of the ECOWAS
                    Court of Justice is not a constraint of a domestic nature. While bearing in
                    mind its duty to comply with its conventional obligation, it contends that
                    it is nonetheless subject to the authority of that court. Thus, Senegal
                    points out that that decision required it to make fundamental changes to
                    the process begun in 2006, designed to result in a trial at the national

                                                                                41

6 CIJ1033.indb 79                                                                                28/11/13 12:50

                              obligation to prosecute or extradite (judgment)                 460

                    level, and to mobilize effort in order to create an ad hoc tribunal of
                    an international character, the establishment of which would be more
                    cumbersome.
                       111. The Court considers that Senegal’s duty to comply with its obliga-
                    tions under the Convention cannot be affected by the decision of the
                    ECOWAS Court of Justice.
                       112. The Court is of the opinion that the financial difficulties raised by
                    Senegal cannot justify the fact that it failed to initiate proceedings against
                    Mr. Habré. For its part, Senegal itself states that it has never sought to
                    use the issue of financial support to justify any failure to comply with an
                    obligation incumbent upon it. Moreover, the referral of the matter to the
                    African Union, as recognized by Senegal itself, cannot justify the latter’s
                    delays in complying with its obligations under the Convention. The dili-
                    gence with which the authorities of the forum State must conduct the
                    proceedings is also intended to guarantee the suspect fair treatment at all
                    stages of the proceedings (Article 7, paragraph 3, of the Convention).
                       113. The Court observes that, under Article 27 of the Vienna Conven-
                    tion on the Law of Treaties, which reflects customary law, Senegal cannot
                    justify its breach of the obligation provided for in Article 7, paragraph 1,
                    of the Convention against Torture by invoking provisions of its internal
                    law, in particular by invoking the decisions as to lack of jurisdiction ren-
                    dered by its courts in 2000 and 2001, or the fact that it did not adopt the
                    necessary legislation pursuant to Article 5, paragraph 2, of that Conven-
                    tion until 2007.
                       114. While Article 7, paragraph 1, of the Convention does not contain
                    any indication as to the time frame for performance of the obligation for
                    which it provides, it is necessarily implicit in the text that it must be
                    implemented within a reasonable time, in a manner compatible with the
                    object and purpose of the Convention.
                       115. The Court considers that the obligation on a State to prosecute,
                    provided for in Article 7, paragraph 1, of the Convention, is intended to
                    allow the fulfilment of the Convention’s object and purpose, which is “to
                    make more effective the struggle against torture” (Preamble to the Con-
                    vention). It is for that reason that proceedings should be undertaken
                    without delay.
                       116. In response to a question put by a Member of the Court concern-
                    ing the date of the violation of Article 7, paragraph 1, alleged by Belgium,
                    it replied that that date could fall in the year 2000, when a complaint
                    against Mr. Habré was filed (see paragraph 17 above), or later, in
                    March 2001, when the Court of Cassation confirmed the decision of the
                    Dakar Court of Appeal, annulling the proceedings in respect of Mr. Habré
                    on the ground that the Senegalese courts lacked jurisdiction (see para-
                    graph 18 above).
                       117. The Court finds that the obligation provided for in Article 7,
                    paragraph 1, required Senegal to take all measures necessary for its imple-
                    mentation as soon as possible, in particular once the first complaint had
                    been filed against Mr. Habré in 2000. Having failed to do so, Senegal has

                                                                                42

6 CIJ1033.indb 81                                                                                28/11/13 12:50

                              obligation to prosecute or extradite (judgment)                 461

                    breached and remains in breach of its obligations under Article 7, para-
                    graph 1, of the Convention.

                                                    V. Remedies

                       118. The Court notes that, in its final submissions, Belgium requests the
                    Court to adjudge and declare, first, that Senegal breached its international
                    obligations by failing to incorporate in due time into its domestic law the
                    provisions necessary to enable the Senegalese judicial authorities to exer-
                    cise the universal jurisdiction provided for in Article 5, paragraph 2, of the
                    Convention against Torture, and that it has breached and continues to
                    breach its international obligations under Article 6, paragraph 2, and
                    Article 7, paragraph 1, of the Convention by failing to bring criminal pro-
                    ceedings against Mr. Habré for the crimes he is alleged to have committed,
                    or, otherwise, to extradite him to Belgium for the purposes of such criminal
                    proceedings. Secondly, Belgium requests the Court to adjudge and declare
                    that Senegal is required to cease these internationally wrongful acts by
                    submitting without delay the “Hissène Habré case” to its competent
                    authorities for the purpose of prosecution, or, failing that, by extraditing
                    Mr. Habré to Belgium without further ado (see paragraph 14 above).
                       119. The Court recalls that Senegal’s failure to adopt until 2007 the
                    legislative measures necessary to institute proceedings on the basis of uni-
                    versal jurisdiction delayed the implementation of its other obligations
                    under the Convention. The Court further recalls that Senegal was in
                    breach of its obligation under Article 6, paragraph 2, of the Convention
                    to make a preliminary inquiry into the crimes of torture alleged to
                    have been committed by Mr. Habré, as well as of the obligation under
                    Article 7, paragraph 1, to submit the case to its competent authorities
                    for the purpose of prosecution.
                       120. The purpose of these treaty provisions is to prevent alleged perpe-
                    trators of acts of torture from going unpunished, by ensuring that they
                    cannot find refuge in any State party. The State in whose territory the
                    suspect is present does indeed have the option of extraditing him to a
                    country which has made such a request, but on the condition that it is to
                    a State which has jurisdiction in some capacity, pursuant to Article 5 of
                    the Convention, to prosecute and try him.
                       121. The Court emphasizes that, in failing to comply with its obliga-
                    tions under Article 6, paragraph 2, and Article 7, paragraph 1, of the Con-
                    vention, Senegal has engaged its international responsibility. Consequently,
                    Senegal is required to cease this continuing wrongful act, in accordance
                    with general international law on the responsibility of States for interna-
                    tionally wrongful acts. Senegal must therefore take without further delay
                    the necessary measures to submit the case to its competent authorities for
                    the purpose of prosecution, if it does not extradite Mr. Habré.

                                                           *
                                                       *       *

                                                                                43

6 CIJ1033.indb 83                                                                                28/11/13 12:50

                              obligation to prosecute or extradite (judgment)                462

                      122. For these reasons,
                      The Court,
                      (1) Unanimously,
                      Finds that it has jurisdiction to entertain the dispute between the
                    Parties concerning the interpretation and application of Article 6,
                    paragraph 2, and Article 7, paragraph 1, of the United Nations Con
                    vention against Torture and Other Cruel, Inhuman or Degrading
                    Treatment or Punishment of 10 December 1984, which the Kingdom of
                    Belgium submitted to the Court in its Application filed in the Registry
                    on 19 February 2009 ;
                      (2) By fourteen votes to two,
                      Finds that it has no jurisdiction to entertain the claims of the Kingdom
                    of Belgium relating to alleged breaches, by the Republic of Senegal, of
                    obligations under customary international law ;
                      in favour : President Tomka ; Vice‑President Sepúlveda‑Amor ; Judges Owada,
                         Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue,
                         Donoghue, Gaja, Sebutinde ; Judge ad hoc Kirsch ;

                      against : Judge Abraham ; Judge ad hoc Sur ;
                      (3) By fourteen votes to two,
                       Finds that the claims of the Kingdom of Belgium based on Article 6,
                    paragraph 2, and Article 7, paragraph 1, of the United Nations Conven-
                    tion against Torture and Other Cruel, Inhuman or Degrading Treatment
                    or Punishment of 10 December 1984 are admissible ;
                      in favour : President Tomka ; Vice‑President Sepúlveda‑Amor ; Judges Owada,
                         Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf,
                         Greenwood, Donoghue, Gaja, Sebutinde ; Judge ad hoc Kirsch ;

                      against : Judge Xue ; Judge ad hoc Sur ;
                      (4) By fourteen votes to two,
                      Finds that the Republic of Senegal, by failing to make immediately a
                    preliminary inquiry into the facts relating to the crimes allegedly commit-
                    ted by Mr. Hissène Habré, has breached its obligation under Article 6,
                    paragraph 2, of the United Nations Convention against Torture
                    and Other Cruel, Inhuman or Degrading Treatment or Punishment of
                    10 December 1984 ;
                      in favour : President Tomka ; Vice‑President Sepúlveda‑Amor ; Judges
                        Owada, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade,
                        Greenwood, Donoghue, Gaja, Sebutinde ; Judges ad hoc Sur, Kirsch ;

                      against : Judges Yusuf, Xue ;

                                                                                44

6 CIJ1033.indb 85                                                                                28/11/13 12:50

                              obligation to prosecute or extradite (judgment)               463

                      (5) By fourteen votes to two,
                        Finds that the Republic of Senegal, by failing to submit the case
                    of Mr. Hissène Habré to its competent authorities for the purpose of
                    prosecution, has breached its obligation under Article 7, paragraph 1,
                     of the United Nations Convention against Torture and Other Cruel,
                     Inhuman or Degrading Treatment or Punishment of 10 December 1984 ;
                      in favour : President Tomka ; Vice‑President Sepúlveda‑Amor ; Judges
                        Owada, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade,
                        Yusuf, Greenwood, Donoghue, Gaja, Sebutinde ; Judge ad hoc Kirsch ;

                      against : Judge Xue ; Judge ad hoc Sur ;
                      (6) Unanimously,
                      Finds that the Republic of Senegal must, without further delay, submit
                    the case of Mr. Hissène Habré to its competent authorities for the pur-
                    pose of prosecution, if it does not extradite him.
                      Done in French and in English, the French text being authoritative, at
                    the Peace Palace, The Hague, this twentieth day of July, two thousand
                    and twelve, in three copies, one of which will be placed in the archives of
                    the Court and the others transmitted to the Government of the Kingdom
                    of Belgium and the Government of the Republic of Senegal, respectively.

                                                                    (Signed) Peter Tomka,
                                                                              President.
                                                                 (Signed) Philippe Couvreur,
                                                                                Registrar.

                      Judge Owada appends a declaration to the Judgment of the Court ;
                    Judges Abraham, Skotnikov, Cançado Trindade and Yusuf append
                    separate opinions to the Judgment of the Court ; Judge Xue appends a
                    dissenting opinion to the Judgment of the Court ; Judge Donoghue
                    appends a declaration to the Judgment of the Court ; Judge Sebutinde
                    appends a separate opinion to the Judgment of the Court ; Judge ad hoc Sur
                    appends a dissenting opinion to the Judgment of the Court.

                                                                             (Initialled) P.T.
                                                                            (Initialled) Ph.C.

                                                                                45

6 CIJ1033.indb 87                                                                                28/11/13 12:50