A. Introduction
This caseFootnote 1 marks the first pronouncement by the International Court of Justice (ICJ) on the obligation to extradite or prosecute (aut dedere aut judicare) in international law. It is the second contentious case in which the ICJ has held the defendant country in breach of its obligations under a human rights convention. The ICJ both added to the corpus of norms it has formally recognized as peremptory norms (jus cogens) and also reinforced the principle that former heads of state are subject to universal jurisdiction for grave violations of international law.
The Judgment contributes to the emerging jurisprudence reasserting the ICJ's place at the centre of the international legal system by developing the law on jurisdiction and procedure and on substantive law, which can be seen as a response to the fragmentation discourse. The ICJ's confirmation of the prohibition of torture as jus cogens and the development of the doctrine of erga omnes are of a fundamental and constitutional nature.
B. Procedural Background
The Kingdom of Belgium (Belgium) instituted proceedings with the ICJ against the Republic of Senegal (Senegal) on 19 February 2009 concerning Senegal's compliance with obligations arising under the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention), as well as other obligations under customary international law, with respect to Hissène Habré, the former President of Chad.
Habré came to power as President following a rebellion on 7 June 1982, a position he held until he was overthrown on 1 December 1990.Footnote 2 It was alleged that, during Habré's eight-year rule, widespread human rights violations occurred in Chad, ‘including arrests of actual or presumed political opponents, detentions without trial or under inhumane conditions, mistreatment, torture, extrajudicial executions and enforced disappearances’.Footnote 3 Habré was granted political asylum by Senegal and has since resided in Dakar.
On 30 November 2000, a Belgian national of Chadian origin filed a civil-party application with a Belgian investigating judge against Habré for, ‘inter alia, serious violations of international humanitarian law, crimes of torture and the crime of genocide’.Footnote 4 Belgium's first extradition request to Senegal was made on 22 September 2005 and, five days later, Interpol issued a ‘red notice’ pursuant to Habré's arrest.Footnote 5 The Chambre d'accusation of the Dakar Court of Appeal rejected Belgium's jurisdiction over Habré in a judgment of 25 November 2005, finding that Habré should be granted ‘jurisdictional immunity’ as a former Head of State, surviving his termination as president, for acts ‘allegedly committed in the exercise of his functions’.Footnote 6 Senegal referred the matter to the African Union (AU) the following day. Before the AU rendered its decision, Belgium submitted a series of Notes Verbales to Senegal regarding its obligation to extradite or prosecute Habré,Footnote 7 noting that Senegal had not relieved itself of the obligation to extradite or prosecute Habré by submitting the case to the AU. Senegal replied in May 2006 that it was acting ‘with the spirit’ of the obligation to extradite or prosecute by submitting the Habré case to the AU.Footnote 8
The United Nations Committee against Torture rendered, also in May 2006, a decision in response to a submission regarding the Habré case.Footnote 9 The Committee determined that Senegal had violated Article 5(2) of the Convention by failing to take necessary measures to establish jurisdiction over crimes under the Torture Convention. Moreover, the Committee found Senegal in breach of its obligation to extradite or prosecute Habré under Article 7(1) of the Convention. The Committee requested Senegal to report on measures taken to give effect to its recommendations within 90 days. The AU mandated Senegal to prosecute Habré ‘on behalf of Africa’ in a decision of July 2006.Footnote 10
In 2007, Senegal amended its Penal Code to include the crimes of genocide, crimes against humanity, war crimes, and other violations of international humanitarian law, to bring its domestic law into conformity with Article 5 of the Torture Convention.Footnote 11 Senegal then indicated that it required the financial assistance of the international community to the projected cost of €8.6 million to prosecute Habré on behalf of Africa pursuant to its AU mandate.Footnote 12
Belgium requested that the matter be submitted to arbitration, as it had not been settled through negotiation, pursuant to Article 30 of the Torture Convention.Footnote 13 Belgium also inquired into Senegal's intention regarding prosecution, and offered its judicial cooperation, an offer reiterated seven times.Footnote 14 Senegal indicated its intention to try Habré and invited Belgium to a meeting of potential donors; Senegal repeatedly responded positively to Belgium's offer and indicated that it would accept Belgium's assistance following a Donors’ Round Table,Footnote 15 though the offer was never formally accepted.Footnote 16
Belgium filed an application to institute proceedings against Senegal on 19 February 2009.Footnote 17 The ICJ declined to order provisional measures in the case, as Senegal indicated that it would not permit Habré to leave the country whilst the case was pending.Footnote 18 Senegal emphasized during the hearing that it could not finance the case unilaterally.Footnote 19
The African Court on Human and People's Rights ruled on 15 December 2009 that it had no jurisdiction to hear an application against Senegal pursuant to terminating its proceedings against Habré.Footnote 20 The Court of Justice of the Economic Community of West African States (ECOWAS Court of Justice), in response to an application filed by Habré, ruled on 18 November 2010 that Senegal must respect the principles of res judicata and non-retroactivity, and interpreted the AU mandate as one directing Senegal to devise and propose all the necessary arrangements for the prosecution and trial of Mr Habré to take place within the framework of special ad hoc international proceedings.Footnote 21 The Assembly of African Union Heads of State and Government requested the Commission of the African Union to work with Senegal to establish a special international tribunal to try Habré pursuant to the ECOWAS Court of Justice Decision in January 2011,Footnote 22 and in July 2011, the Assembly confirmed Senegal's mandate to prosecute Habré on behalf of Africa.
Two subsequent extradition requests by BelgiumFootnote 23 were declared inadmissible by the Chambre d'accusation of the Dakar Court of Appeal: one because it was not accompanied by documents required under Senegalese extradition law,Footnote 24 the other because the copy of the international arrest warrant placed on the file was not authentic.Footnote 25 The Rapporteur of the Committee against Torture then twice reminded Senegal of its obligation to extradite or prosecute Habré.Footnote 26 In January 2012, Belgium transmitted its fourth extradition request to Senegal.Footnote 27 Meanwhile, the African Union reiterated the aim of ensuring an expeditious trial of Habré and noted an offer by Rwanda to organize the trial.Footnote 28
C. Proceedings of the ICJ
The ICJ observed that the Torture Convention ‘brings together 150 States which have committed themselves to prosecuting suspects in particular on the basis of universal jurisdiction’, and it is with respect to this object and purpose that Senegal's conduct was judged.Footnote 29
1. The obligations in question
Belgium's final submissions against Senegal were threefold. First, Senegal had breached its obligations under Article 5(2) of the Torture Convention by failing to take measures necessary to establish jurisdiction over crimes under the instrument. Second, by failing to initiate a preliminary inquiry into the facts of the Habré case, Senegal remained in breach of its obligation under Article 6(2) of the Torture Convention. Finally, Senegal was in continuing breach of its obligation under Article 7(1), as well as under other rules of international law, by failing to prosecute Habré, or failing to acquiesce to Belgium's extradition request. Belgium noted during the proceedings that these elements are interrelated and necessary to give effect to the object and purpose of the Torture Convention.Footnote 30
Because Belgium never made any claim with respect to other crimes under customary international law allegedly perpetrated during Habré's rule—genocide, crimes against humanity, war crimes, murder, and other crimes—and Senegal never disputed any such claim, the ICJ found no dispute beyond the Torture Convention.Footnote 31 Moreover, because Senegal had brought its domestic laws into conformity with the Torture Convention in 2007, the ICJ found that the dispute regarding Article 5(2) of the instrument had ended by the time Belgium filed proceedings with the ICJ.Footnote 32 (Even so, the ICJ noted that Senegal had delayed the prosecution of the Habré case by failing to institute necessary legislation until 2007).Footnote 33 With regard to Senegal's obligations under Article 6(2) and Article 7(1) of the Torture Convention, the ICJ found there was a dispute between Belgium and Senegal regarding the execution of these obligations.Footnote 34 Senegal submitted that determining the measures appropriate to satisfy its obligations arising under the Torture Convention is left to the discretion of the individual State,Footnote 35 and that it was not for Belgium to ‘dictate precisely how it should fulfil its commitments under the Convention’.Footnote 36 The ICJ then turned to the legal basis for its jurisdiction over this dispute.
2. Jurisdiction
Two formal elements establish the jurisdiction of the ICJ in the present case. First, Article 30(1) of the Torture Convention permits any one party to refer the dispute to the ICJ if, within six months from the date of a request for arbitration, the parties are unable to agree on the organization of the arbitration.Footnote 37 Second, both Belgium and Senegal made declarations under Article 36(2) of the ICJ Statute, which permits the jurisdiction of the Court in the immediate case.Footnote 38 Senegal, for its part, disputed the Court's jurisdiction under either instrument. The Court took the lack of progress in the matter at hand to indicate that the dispute could not be settled through negotiation (indeed, the Application was filed more than two years after Belgium's initial request for arbitration), thereby satisfying the condition set forth in Article 30(1) of the Torture Convention.Footnote 39 The ICJ therefore concluded that Article 36(2) of the ICJ Statute provided it with jurisdiction over the dispute.Footnote 40
3. Admissibility
Senegal objected to the admissibility of Belgium's claim on the basis that none of the alleged victims of the acts allegedly attributable to Habré was of Belgian nationality at the time the acts were committed.Footnote 41 Belgium defended admissibility based on its special interest arising under the principle of passive personality, by virtue of a complaint filed by a Belgian of Chadian origin, as well as its entitlement as a party to the Torture Convention to invoke the responsibility of a party failing to perform its obligations under the instrument.Footnote 42 The I seized on Belgium's second basis of admissibility. According to the ICJ, the dispute involved ‘obligations erga omnes partes’ arising under the Torture Convention, which the ICJ likened to those arising under the Convention on the Prevention and Punishment of the Crime of Genocide.Footnote 43 As indicated by the ICJ:
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.Footnote 44
The ‘common interest in compliance with the relevant obligations’ under the Torture Convention, particularly those arising under Article 6(2) and Article 7(1) of the instrument, were sufficient to establish the admissibility of Belgium's claims, apart from whatever special interest Belgium might have with respect to Senegal's compliance.Footnote 45
4. The obligation to extradite or prosecute
The Court found Senegal in breach of its obligation under Article 6(2) of the Torture Convention. Adopting legislative measures pursuant to prosecution was not, according to the Court, sufficient to satisfy Senegal's obligation under Article 6(2) of the Convention, which requires a State to conduct a preliminary inquiry ‘to corroborate or not the suspicions regarding the person in question’.Footnote 46 Although the means of inquiry does remain at the discretion of the States parties, according to the Court, the State must exercise its jurisdiction over an individual within its territory suspected of violating the Torture Convention by first establishing the facts of a case: Senegal failed to do so after the first complaint against Habré, a failure compounded after its legislative amendments of 2007 and 2008.Footnote 47
The ICJ then considered Senegal's violation of its obligation under Article 7(1) of the Torture Convention, to extradite or prosecute individuals alleged to have committed any offence under Article 4 of the instrument. This obligation is, evidently, modelled after the obligation found in the Convention for the Suppression of Unlawful Seizure of Aircraft (1970).Footnote 48 The ICJ observed that this obligation follows in sequence as part of ‘a single conventional mechanism aimed at preventing suspects from escaping the consequences of their criminal responsibility’.Footnote 49 It then interpreted the obligation more broadly than either Senegal or Belgium:
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 … 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 prosecute by acceding to that request.Footnote 50
The ICJ noted that extradition and prosecution are not ‘to be given the same weight’: extradition is an option permitted by the Convention, while prosecution constitutes an international obligation.Footnote 51
Before determining Senegal's breach, the ICJ confronted the temporal scope of the obligation with respect to the entry into force of the Torture Convention for each party.Footnote 52 Both parties agreed that torture was prohibited under customary international law and, consequently, that the obligation laid down in Article 7(1) of the Convention was in force even before its ratification.Footnote 53 Moreover, the ICJ took this opportunity to note that the prohibition of torture has become a peremptory norm (jus cogens).Footnote 54 However, the ICJ confined itself to the obligation to extradite or prosecute under the Torture Convention and noted that, under Article 28 of the Vienna Convention on the Law of Treaties, this obligation only applied to facts occurring after the Convention's entry into force for the relevant States.Footnote 55 Even so, the ICJ determined that some of the allegations in question occurred after the Convention entered into force for Senegal on 26 June 1987, thereby requiring Senegal to submit those allegations for prosecution (with the option of adjudging those that occurred prior to that date).Footnote 56 Further, the ICJ concluded that Belgium was entitled to invoke the responsibility of any State party to the Convention for violating obligations erga omnes partes after the Convention entered into force for Belgium on 25 July 1999.Footnote 57 The ICJ noted, as an aside, that these findings are also valid for the application of Article 6(2) of the Torture Convention.Footnote 58
The ICJ found Senegal in continuing breach of its obligation under Article 7(1) of the Torture Convention to submit the Habré case to competent authorities for prosecution.Footnote 59 The ICJ was clear that Senegal's obligation under Article 7(1) of the Torture Convention was not affected by the decision of the ECOWAS Court of Justice, financial difficulties, referral to the AU, or lack of jurisdiction under domestic law (as per Article 27 of the Vienna Convention).Footnote 60 Moreover, the ICJ found implicit in the obligation that its performance be undertaken ‘within a reasonable time’.Footnote 61
The ICJ concluded that Senegal had engaged its international responsibility by failing to perform its obligations arising under Article 6(2) and Article 7(1) of the Torture Convention. The ICJ ordered Senegal, in accordance with general international law on the responsibility of States for internationally wrongful acts, to cease its wrongful act and to ‘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’.Footnote 62
D. Subsequent Developments
Senegal responded to the Judgment by stating that it would proceed with the creation of Extraordinary African Chambers in the courts of Senegal to prosecute the person or persons most responsible for international crimes committed in Chad between 1982 and 1990.Footnote 63 This would comply with the AU mandate and the ruling of the ECOWAS Court of Justice.Footnote 64
Four Extraordinary African Chambers in the courts of Senegal were inaugurated in February 2013.Footnote 65 A pre-trial phase of the case against Habré, including an investigation by four Senegalese magistrates, is expected to last 15 months, which may then be followed by a trial in 2014.Footnote 66
E. Discussion
1. Jus cogens, obligations erga omnes, and the court
In paragraph 99 of the Judgment, the ICJ declared: ‘In the Court's opinion, the prohibition of torture is part of customary international law and it has become a peremptory norm (jus cogens).’ This declaration marks an important stage in the Court's treatment of jus cogens, which until recently had altogether evaded discussion of jus cogens through reference to obligations erga omnes (a concept of the ICJ's conception). Jus cogens formally entered into international law in Articles 53 and 64 of the Vienna Convention on the Law of TreatiesFootnote 67 (1969), and the doctrine found articulation in numerous separate and dissenting opinions by Judges on the ICJ.Footnote 68 The ICJ only explicitly referred to jus cogens as recently as 2006 in Armed Activities on the Territory of the Congo (New Application: 2002).Footnote 69 In Armed Activities on the Territory of the Congo, the ICJ identified the prohibition against genocide as belonging to jus cogens, a position it reiterated in Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (2007).Footnote 70 Although since Furundžija Footnote 71 the jus cogens status of the prohibition against torture has been fairly uncontroversial,Footnote 72 the ICJ's decision to pronounce on it (the third such declaration making use of the words ‘peremptory’ and ‘jus cogens’, and the second norm thus recognized expressly in this way by the Court in a contentious case) remains a significant stage in its acceptance of the concept. Two separate opinions attached to the Judgment suggest that the ICJ's pronouncement in this area was extraneous dicta.Footnote 73 Judge Abraham expressly affirmed his support to the judgment of all the other permanent judges that the prohibition of torture is jus cogens. The position of Judge ad hoc Sur, who is known as one of the last remaining challengers of jus cogens, was different; he stated that ‘[t]he purpose of this obiter dictum is to acknowledge and give legal weight to a disputed notion, whose substance has yet to be established’.
In paragraph 99, the ICJ sets out that the jus cogens prohibition of torture
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 Declaration of Human Rights of 1948, the 1949 Geneva Conventions for the protection 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.Footnote 74
The ICJ had in its 2010 judgment in Diallo already stated that the prohibition of inhuman and degrading treatment was binding on States ‘in all circumstances’, clearly assuming that the prohibition of torture would be no less binding:
There is no doubt, moreover, that the prohibition of inhuman and degrading treatment is among the rules of general international law which are binding on States in all circumstances, even apart from any treaty commitments.Footnote 75
In Diallo the ICJ was unanimous, and this gives the statement particular authority. It may sometimes be difficult for all judges to agree on the reasons, which were not set out in Diallo. In the present judgment the reasons are set out, and the ICJ is equally unanimous on this point, with the exception of Judge ad hoc Sur. In addressing torture, the ICJ in the present judgment revisited the 2010 judgment in Diallo on inhuman and degrading treatment, and provided full reasons for the classification of the prohibition of torture as jus cogens. The ICJ could readily have listed many further authorities, in the UN system, and in the regional human rights systems. This was simply not called for. Judge ad hoc Sur's statement about ‘a disputed notion, whose substance has yet to be established’ is clearly wrong in law and unfortunate as a matter of policy. None of the permanent judges share his view, which is otherwise reduced from the minority position it has been to become an expression of eccentricity.
The ICJ for some period of time appeared most comfortable in the realm of obligations erga omnes. The concept of erga omnes—obligations owed to the international community as a whole, the performance of which all States have a legal interest—was first articulated by the ICJ in Barcelona Traction (Second Phase) and has since been revisited on numerous occasions.Footnote 76 In the present judgment the ICJ for the first time pronounced on one legal effect of obligations erga omnes for third parties. The ICJ determined that the existence of a common interest in the performance of an erga omnes obligation was, alone, sufficient to grant legal standing to third-States with respect to breaches of the obligation.Footnote 77 In the Draft Articles on State Responsibility (2001), the ILC indicated that the general legal interest in the fulfillment of obligations erga omnes, which is to say obligations owed to the international community as a whole, entitles any State to whom the obligation is owed to invoke the responsibility of the State in breach.Footnote 78 The reasoning of the ILC in this respect is clear:
In case of breaches of obligations under article 48, it may well be that there is no State which is individually injured by the breach, yet it is highly desirable that some State or States be in a position to claim reparation, in particular restitution. In accordance with paragraph 2(b), such a claim must be made in the interest of the injured State, if any, or of the beneficiaries of the obligation breached.Footnote 79
In the present instance, according to the ICJ, the common interest of States parties to obligations arising under the Torture Convention—as obligations erga omnes partes—was sufficient to establish the standing of Belgium before the ICJ:
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.Footnote 80
The ‘common interest in compliance with the relevant obligations’ under the Torture Convention, particularly those arising under Article 6 (para 2) and Article 7 (para 1) of the instrument, was sufficient to establish the admissibility of Belgium's claims, apart from whatever special interest Belgium might have with respect to Senegal's compliance.Footnote 81 In this respect, the ICJ has taken a significant step in recognizing this procedural effect arising from obligations of an erga omnes nature and, in doing so, gives weight to the ILC's codification of the invocation of State responsibility by third-States for obligations erga omnes.
2. The obligations in question
The ICJ's basis of admissibility upon obligations erga omnes partes was heavily criticized by several members of the ICJFootnote 82 and reveals an underlying tension in the ICJ's formalistic approach to obligations under the Torture Convention and the way in which these conventional obligations codify general international law. Certain members of the ICJ felt that the Judgment went too far beyond the scope of the Torture Convention in its erga omnes partes finding, suggesting the absence of such obligations in the realm of customary international law.Footnote 83 From a purely functional standpoint, as expanded below, such a finding was likely necessary to preserve the admissibility of Belgium's claim. However, it is conceivable that there was something more fundamental at play in the decision of the ICJ. The Torture Convention, which entered into force only in 1987, codified a long-standing prohibition against torture that is widely accepted today as a peremptory norm belonging to jus cogens.Footnote 84 This very matter arose in oral proceedings before the ICJ regarding the issue of provisional measures in 2009:
Judge Simma also asks if this is an obligation erga omnes. Belgium thinks it possible to reply in the affirmative. Moreover, Senegal appears to share that view, since … if one reads the statement of grounds for the Senegalese law which brings the main crimes under international humanitarian law within the Senegalese Penal Code, it states that this represents the ‘incorporation of international rules of conventional and customary origin’ … The customary rules to which Senegal is referring are general customary rules, not local or regional ones.
Even better, by stating that these rules have ‘the character of jus cogens’, still in the statement of grounds for its law, Senegal too implicitly acknowledges their erga omnes character … So, even though some may debate the meaning and scope of custom, it is in any event clear that, as regards the customary and erga omnes character of the rule aut dedere aut judicare or judicare vel dedere, Belgium is pleased to note that in fact it shares the same belief as Senegal.Footnote 85
Judge Cançado Trindade notes in his Separate Opinion that Senegal, ‘much to its credit, acknowledged the importance of the obligations, “binding on all States”’, and in particular that the obligation to extradite or prosecute arising from the prohibition against torture was binding on Senegal before the Torture Convention entered into force.Footnote 86
In his Separate Opinion, Judge Cançado Trindade rightly identified the source of the erga omnes status of the obligations under consideration: it arises from the jus cogens nature of the prohibition against torture.Footnote 87 It is certainly not the case that all obligations under multilateral conventions constitute obligations erga omnes (parties) conferring standing to all States parties, and the ICJ makes no such claim. However, the demarcation of conventional obligations that are erga omnes from those that are not, requires a principled distinction. In distinguishing the obligations in question from other multilateral convention obligations, the ICJ invokes its prior rulings in Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951) and Barcelona Traction (1970).Footnote 88 The most pertinent passage in the ICJ's jurisprudence, which accounts for this distinction, is found in Military and Paramilitary Activities in and against Nicaragua (1986), where the ICJ determined that ‘simply because’ principles of general international law,
recognized as such, have been codified or embodied in multilateral conventions does not mean that they cease to exist and to apply as principles of customary law, even as regards countries that are parties to such conventions.Footnote 89
In effect, obligations in the Torture Convention which parallel obligations erga omnes have, at a minimum, a legal effect commensurate to the obligations erga omnes they codify, which for present purposes permit any State to which the obligation is owed to invoke the international responsibility of a State in breach.Footnote 90 To maintain otherwise would be to suggest that obligations to prevent and punish articulated by instruments codifying peremptory norms, such as the Torture Convention, do not go so far as the erga omnes obligations to which they give expression. The perverse effect of such reasoning in this instance would be to deny Belgium standing to invoke Senegal's responsibility for breaching an obligation erga omnes because the specific obligation invoked, to punish violations of the prohibition against torture, is articulated in a convention established to remove barriers to the performance of the obligation in question.
The ICJ was right to reject such a regressive understanding of the conventional expression of obligations arising from a peremptory norm in this instance.Footnote 91 The erga omnes character of obligations to prevent (through necessary legislative means) and punish (through extradition or prosecution) violations of the prohibition against torture codified by the Torture Convention is clearly identified by the ICJ, so too the legal effects arising from a breach of these obligations, namely standing of any party to which the obligation is owed to bring a claim against the offending State. This finding, as indicated below, was integral to the standing of Belgium before the ICJ and arises as a consequence of the jus cogens status of the prohibition against torture. What this further indicates is that, contrary to the position of some of its members, the ICJ's pronouncement on the jus cogens status of the prohibition against torture was not mere dicta; it is, rather, central to both the substance and procedure of the case in question.
3. Jurisdiction
The ICJ's discussion of the requirements of negotiation and arbitration in Article 30 of the Torture Convention relied on a test recently laid down in Georgia v. Russian Federation.Footnote 92 In that case the ICJ had held that parallel provisions in Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination were not complied with, leaving the ICJ without jurisdiction. In Congo v. Rwanda the ICJ had rejected jurisdiction over several alleged human rights violations including breaches of the Convention on Discrimination against Women, the latter rejection based on the requirements of negotiation and arbitration in Article 29 of that convention.
The test in Georgia v Russian Federation was whether there had been, ‘at the very least[,] a genuine attempt by one of the disputing parties to engage in discussions with the other disputing party, with a view to resolving the dispute’.Footnote 93 This test would be met ‘when there has been a failure of negotiations, or when negotiations have become futile or deadlocked’.Footnote 94 In the present judgment, the ICJ concluded that the dispute could not be settled by negotiation, and that Senegal had not responded to Belgium's arbitration request.Footnote 95 After the ICJ rejected jurisdiction based on a strict reading of the requirements of negotiation and arbitration in different human rights treaties in previous judgments, the present judgment establishes that the test in Georgia v. Russian Federation does not require more than certain minimal formal steps, and thus does not represent a high threshold before the ICJ may exercise jurisdiction.
Since its Advisory Opinion in the Wall case (2004),Footnote 96 the ICJ has developed an open method drawing on sources from other courts and human rights bodies, working out the consequences of the break with the closed system of sources of law that did not recognize external sources. The United Nations Committee against Torture had in its 2006 Habré decision not limited the temporal application of the Torture Convention.Footnote 97 The ICJ pointed out in the present judgment that the Committee in its 2006 Habré decision had not raised the temporal issue (nor referred to it being raised before it). However, the ICJ recalled that the Committee expressly had addressed the temporal issue in other decisions, and stated that ‘“torture” for purposes of the Convention can only mean torture that occurs subsequent to the entry into force of the Convention’.Footnote 98 The way was then open for the ICJ to limit the temporal application and conclude that Senegal's obligation to prosecute Mr Habré under the Convention did not apply to acts committed before the Convention entered into force for Senegal in 1987.Footnote 99
4. Admissibility
The ICJ's decision to base admissibility on Belgium's alternative, erga omnes theory of jurisdiction rather than its claim to be an ‘injured State’ is, in all likelihood, borne from necessity rather than a desire by the ICJ to develop international law in this area. Belgium had primarily based the admissibility of its extradition claim upon its status as an ‘injured State’, within the meaning of Article 42 of the ILC Draft Articles on State Responsibility, by virtue of passive personality.Footnote 100 However, the opinions attached to the Judgment of the ICJ indicated scepticism toward Belgium's principal basis of jurisdiction as an ‘injured State’, which would in principle have distinguished Belgium's claim against Senegal from those that might be lodged by other States parties to the Torture Convention. The Belgium nationals who brought the relevant charges against Habré in Belgium only became Belgian citizens years after the events in question, rendering jurisdiction based upon nationality problematic.Footnote 101 Because Senegal only recognizes passive jurisdiction in its domestic law based on the nationality of persons at the time of relevant facts, according to Judge ad hoc Sur, appointed by Senegal, Belgium's request for extradition on this basis must have been inadmissible, and Belgium could not have properly been considered an ‘injured State’.Footnote 102
It is perhaps in tacit recognition of this difficulty that the ICJ altogether avoided any consideration of Belgium as an injured State and bypassed Judge ad hoc Sur's inference. The ICJ, instead, based jurisdiction upon Belgium's status as a State party to the Torture Convention and the erga omnes nature of the obligations in question.Footnote 103 Consequently, by not determining whether Belgium was in fact an ‘injured State’, the ICJ could recognize no special claim by Belgium to extradition over Habré—as a party to which obligations erga omnes are owed, Belgium could only invoke the State responsibility of Senegal for failing to perform its relevant obligations under the instrument.Footnote 104 Therefore, notwithstanding Belgium's request for the ICJ to declare that Senegal must extradite Habré ‘to Belgium without further ado’ should it not prosecute,Footnote 105 the ICJ ultimately found more generally that Senegal must submit the Habré case for prosecution, ‘if it does not extradite him’.Footnote 106 As a result, the validity of Belgium's extradition request was not expressly considered by the ICJ.Footnote 107
5. The obligation to extradite or prosecute
The obligation to extradite or prosecute particularly egregious violators of international norms is not of recent vintage. The sentiment captured by the obligation is found in the writings of Grotius, who envisaged just such an obligation aut dedere aut punire:
the state in which he who has been found guilty dwells ought to do one of two things. When appealed to it should either punish the guilty person as he deserves, or it should entrust him to the discretion of the party making the appeal.Footnote 108
Much more recently, the obligation to extradite or prosecute was adopted as topic for study by the ILC in 2004, which in 2005 appointed a special rapporteur who has since submitted four reports to the UN General Assembly,Footnote 109 in addition to an extensive survey of relevant multilateral conventions conducted by the UN SecretariatFootnote 110 and the establishment of a working group in 2008.Footnote 111 The majority of the ILC's work on the obligation has to date centred on its basis in treaty law which, despite broad variation, shares two common features: the objective to punish particular conduct at the international level and a mechanism that obligates the custodial State to act pursuant to this end.Footnote 112 While the present judgment refers to the Convention for the Suppression of Unlawful Seizure of AircraftFootnote 113 (1970) as the model for the obligation articulated in the Torture Convention, a clearer illustration of the obligation is found in the Draft Code of Crimes against the Peace and Security of MankindFootnote 114 (1996), in which Article 9 articulates this obligation arising from violations of the peremptory norms prohibiting war crimes, crimes against humanity, and genocide.Footnote 115 In its Commentary, the ILC notes that ‘the fundamental purpose’ of including the aut dedere aut judicare principle in the Draft Code is ‘to ensure that individuals who are responsible for particularly serious crimes are brought to justice by providing for the effective prosecution and punishment of such individuals by a competent jurisdiction’,Footnote 116 a view shared by the ICJ with respect to the Torture Convention.Footnote 117
In the present judgment, the ICJ develops the obligation to extradite or prosecute in a number of key ways. First, while the ILC found preference for neither option,Footnote 118 deferring instead to the discretion of States, the ICJ here indicated that a preference for prosecution is implicit in the fulfillment of the obligation to extradite or prosecute. This is to say that the obligation aut dedere aut judicare is one of prosecution.
[I]f 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 prosecute 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 violation of which is a wrongful act engaging the responsibility of the State.Footnote 119
If a State is in custody of an individual engaging that State's obligation aut dedere aut judicare, that State is under a positive duty to see the individual brought to justice irrespective of nationality or the territory in which the crime was committed. In his Separate Opinion, Judge Yusuf suggests that this preference cannot be extended to the obligation to extradite or prosecute more generally and, in his consideration of the more than 60 multilateral instruments that include such an obligation, suggests instead that the principal obligation under international law (whether to extradite or to prosecute) varies.Footnote 120 With respect to conventional mechanisms articulating obligations erga omnes arising from peremptory norms (such as in the present judgment), it follows logically that the obligation emphasized is that of prosecution.Footnote 121 The alternative, an emphasis on extradition, would leave perpetrators of international crimes outside the scope of prosecutorial obligation in the event no State requested extradition—this is precisely the outcome Belgium, by instituting proceedings against Senegal, sought to prevent by engaging Senegal's responsibility to prosecute Habré if it does not extradite him.Footnote 122
The ICJ, almost in passing, took a second important step in clarifying the obligation to extradite or prosecute: it indicated that the obligation is premised upon universal jurisdiction. The Torture Convention, in the words of the ICJ, ‘brings together 150 States which have committed themselves to prosecuting suspects in particular on the basis of universal jurisdiction’.Footnote 123 As a matter of jurisprudence, universal jurisdiction constitutes a juridical principle distinct from other bases of jurisdiction—territory, nationality, protective, and passive personality—that in practice attaches exclusively to violations of peremptory norms as a matter of customary international law.Footnote 124 In effect, the principle of universal jurisdiction permits any State, particularly in the absence of other bases of jurisdiction, to prosecute individuals for violations of peremptory norms.Footnote 125 The ICJ's brief statement supports the notion that, although the obligation to extradite or prosecute is compulsory, the principle of universal jurisdiction is permissive and necessary to fulfil the obligation.Footnote 126 As such, universal jurisdiction is conceived to be a direct effect of the obligation to extradite or prosecute, as noted by the Institute of International Law in 2005:
Universal jurisdiction is primarily based on customary international law. It can also be established under a multilateral treaty in the relations between the contracting parties, in particular by virtue of clauses which provide that a State party in the territory of which an alleged offender is found shall either extradite or try that person.Footnote 127
Consequently, the obligation to extradite or prosecute is enabled through a special procedural regime that arises through universal jurisdiction.Footnote 128 The ICJ, in referring to universal jurisdiction, explicitly drew attention to this connection. Its brevity suggests that the concept has become increasingly accepted in international law.
F. Conclusions
The ICJ has in the present judgment delivered a close and extensive analysis of complicated human rights and other international law issues. It continues to develop an open method drawing on sources from other courts and human rights bodies, working out the consequences of its break with the closed system of sources of law that began with the advisory opinion in the Wall case (2004).Footnote 129
The ICJ has made significant strides in clarifying the doctrine of obligations erga omnes in international law. The erga omnes character of the obligation to extradite or prosecute under the Torture Convention was sufficient to provide Belgium standing before the ICJ on the basis of a general legal interest in the performance of the obligation. The obligations to prevent and punish violations of the Torture Convention are erga omnes by virtue of their origin from a norm belonging to jus cogens, obligations codified, but not created, by the Convention. The obligation to extradite or prosecute is understood by the ICJ, at least in the present context, to be an obligation incumbent upon States to prosecute violators of the Torture Convention within its boundaries, one that may be satisfied through extradition. As the ICJ notes, this obligation is empowered through universal jurisdiction. These conclusions by the ICJ advance the cause of justice for the thousands of people who suffered and died in Chad under the rule of Hissène Habré: he will now face trial before an international criminal tribunal in Senegal. The Court has amplified a legal doctrine designed to prevent and punish the commission of such atrocities in the future.
