On June 20, 2012, the UN Court made a final decision in the case related to the obligation to prosecute or extradite (Belgium v. Senegal). The Court ruled that it has jurisdiction to review the dispute between Belgium and Senegal regarding the interpretation and application of Article 6, para. 2, and Article 7, para. 1 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CTOCIDTP) enacted on December 10, 1984.
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The dispute was submitted by Belgium on February 19, 2009. Belgium appealed to Senegal demanding the trial over Hissèn Habré, who was the head of the Republic of Chad from 1982 to 1990 before he was overthrown by the current president of the country. In case Senegal refuses to conduct the trial, Belgium demanded to extradite the suspect. After a coup d’état in December 1990, Habré fled to Sudan, then to Cameroon and finally received political asylum in Senegal. After that, a twenty-year-old saga aimed to bring him to justice based on the testimonies of his former political opponents and victims of human rights violations that were presumably committed on his orders has begun.
The Court decided that Belgium’s claims based on Article 6, para. 2, and Article 7, para. 1, of the UN CTOCIDTP, can be accepted for consideration. According to the Court’s decision, Senegal violated its obligation under the CTOCIDTP’s para. 2 of Article VI and para. 1 of Article VII by not conducting an immediate preliminary investigation of facts related to crimes allegedly committed by Habré and not handing his case over the competent authorities in order to initiate the prosecution. The solution in the case was that Senegal should immediately hand over the case of Hissen Habré to the competent domestic authorities for the criminal prosecution of the suspect. Otherwise, if the fulfillment of this condition is challenged for some reasons, the country should issue the former ruler of the Republic of Chad to Belgium.
Reflection on the Case
Senegal ratified the CTOCIDTP in August 1986 and made a declaration in accordance with Article 22 of the Convention on 16 October 1996. It means that since that year, it recognizes “the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention” (Office of the United Nations High Commissioner for Human Rights).
At the same time, Senegal failed to implement its obligations under the Convention since then. For instance, although in 2000 the investigating judge ruled to accuse Hissèn Habré due to his possible engagement in the acts of torture and ordered to institute criminal proceedings against him, a few months later, the ruling was declined. The decision was explained by the inability of the Senegalese law to consider the incidents committed by a foreigner outside of the country borders (International Court of Justice 8). However, it is possible to say that such claims violate the propositions of the Vienna Convention on the law of treaties concluded on 1969.
Consistent with Article 16 of the Vienna Convention, “unless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession establish the consent of a State to be bound by a treaty” (United Nations 336). It means that being a party to the international treaty, Senegal is bound by obligations arising from it starting at the very moment of ratification. Moreover, Article 27 of the Vienna Convention states that “a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty” (United Nations 339). Thus, Senegal’s claims about the incompatibility of the domestic law provisions to the case of Hissèn Habré were invalid, and they violated both the Vienna Convention and the CTOCIDTP.
In accordance with the Vienna Conventions, the States involved in international treaties should change their internal legal systems if needed in order to be able to fulfill their international obligations efficiently. The Belgium v. Senegal case also demonstrates that the international community regards the compliance with agreements on international humanitarian law as a primary importance and, moreover, the obligation attributed to the State party always goes far beyond its own population because the given law implies the “universal” compliance with the Geneva Conventions and, by the nature of things, the universal compliance is certainly not limited to its application on the national level.
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The commentaries to the Vienna Conventions only support this assumption pointing out at the fact that not only must the State party acquire means and resources needed to ensure a fair use of each of the Geneva Conventions but, besides this, in the event of non-performance by one party, every Contracting Party (neutral, union or enemy) shall endeavor to ensure its respect for the Convention. The given statement justifies Belgium’s appellations to the UN Court. Although the country can be regarded as a neutral party with no direct relation to Habré’s case, its conduct follows the UN’s stance on the international human rights protection in which the states should undertake all possible actions in order to ensure the respect for human rights at the global level.
International Court of Justice. CR 2012/2 (Translation). The International Court of Justice, 2012. Web.
Office of the United Nations High Commissioner for Human Rights. “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” OHCHR, 2017. Web.
United Nations. Vienna Convention on the Law of Treaties (with Annex). United Nations, 1969. Web.