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The ICJ Begins Its Deliberations in the Obligation to Prosecute or Extradite Case

* Prepared on the basis of ICJ Press Release No. 2012/13, 21 March 2012.

The public hearings in the case concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) currently pending before the International Court of Justice (ICJ or Court) opened on Monday, 12 March, and concluded on Wednesday, 21 March 2012. The Court has started the deliberations and its judgment will be rendered at a public sitting at a date which will be announced in due course. My expectation is that the judgment will be rendered sometime in early fall 2012. In its order on provisional measures of 28 May 2009 the Court did not indicate the provisional measures which were requested by Belgium. Belgium instituted proceedings against Senegal on 19 February 2009, on the grounds that a dispute exists between them regarding Senegal’s compliance with its ‘obligation to prosecute’ the former President of Chad, Hissène Habré, ‘or to extradite him’ to Belgium for the purposes of criminal proceedings instituted against him there. The basis for the jurisdiction of the Court, are the declarations made under Article 36, paragraph 2, of the Statute, by Belgium on 17 June 1958 and by Senegal on 2 December 1985, and Article 30, paragraph 1, of the UN Convention against Torture, which provides that: any dispute between two or more States parties concerning the interpretation or application of the 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 organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.’ More information on the case and the submissions of the parties are available here.

Final submissions of the Parties

At the end of the oral proceedings, the Parties presented the following final submissions to the Court:

 The Kingdom of Belgium requested the Court to adjudge and declare that:

1. (a) Senegal breached its international obligations by failing to incorporate 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 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;

(b) Senegal has breached and continues to breach its international obligations under Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and under other rules of international law by failing to bring criminal proceedings against Mr. Hissène Habré for acts characterized in particular as crimes of torture, war crimes, crimes against humanity and crimes 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 promptly submitting the Hissène Habré case to its competent authorities for prosecution; or

(b) failing that, by extraditing Mr. Habré to Belgium without further ado.

The Republic of Senegal asked the Court 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 Belgium’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, paragraph 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.

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


  1. M. ghorbanpour M. ghorbanpour 4 April 2012

    Thank you for your explanations. I have a question in this regard. Between obligations of Extradition and Prosecution, which of them is prior?

  2. Gentian Zyberi Gentian Zyberi Post author | 5 April 2012

    There is no real priority here between prosecution and extradition; the main concern of this principle is that serious crimes that have been committed do not remain unpunished. The State has a choice to either prosecute a person for having committed the crime of torture (or another internationally recognized crime) or extradite him or her to another country that wants to carry out criminal proceedings against that person. You can also speak here about a forum conveniens, so much would depend on which State has a better case for prosecuting this person, because of the closer jurisdictional link to the crimes and the person.

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