FOR the last twelve years Belgium and Senegal have been involved in a dispute regarding the prosecution of the former President of Chad, Hissène Habré, for acts of torture, war crimes, genocide and crimes against humanity, following the filing of complaints by victims in both countries. In 2009 Belgium began proceedings before the International Court of Justice (ICJ) concerning Senegal's failure to extradite Habré to Belgium or to prosecute him in Senegal pursuant to its obligations under the 1984 Convention Against Torture (CAT) and rules of customary international law. In its judgment of 20 July 2012 the court determined that Senegal was in breach of its obligation to prosecute Habré under CAT (Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment, 20 July 2012). The Judgment is notable for clarifying the scope and content of the obligation to extradite or prosecute under CAT, and for determining the right of non-injured state parties to bring proceedings for breach of this obligation.

Senegal challenged the court's jurisdiction on several grounds. First, it argued that there was no longer a dispute as to the interpretation and application of its obligations under CAT and customary international law, as it was already acting pursuant to its international obligations because it had referred the matter to the African Union and was in the process of seeking international funding for a trial. The court accepted this jurisdictional argument in relation to the obligation under Article 5(1) of CAT to establish jurisdiction over acts of torture as Senegal had amended its domestic law to comply in 2007. However, having considered the diplomatic exchanges between the two states, the court held that there was still an ongoing dispute relating to the interpretation and application of Articles 6(2) (requiring a preliminary inquiry into the facts) and 7(1) (the extradite or prosecute obligation) of CAT. No dispute existed, however, between the parties at the time of Application as to an obligation under customary international law to prosecute crimes against humanity, war crimes or genocide.

Secondly, Senegal argued that Belgium was not entitled to invoke Senegal's international responsibility for failing to prosecute, as none of the victims were Belgian nationals at the time the alleged acts of torture were committed. The court chose the most controversial basis for accepting that Belgium had standing, namely its status as state party to CAT. In reaching this conclusion the court characterised the obligations in Articles 6(2) and 7(1) as obligations erga omnes partes based on the common interest that state parties share in the suppression and punishment of acts of torture (at [68]). It followed, in the view of the court, that “any State party to the Convention may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes, such as those under Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention, and to bring that failure to an end” (at [69]). This conclusion is in line with the court's judgment in Barcelona Traction (ICJ Reports 1970, p. 3) and with Article 48 of the International Law Commission's Draft Articles on State Responsibility, taking a further step in rejecting the restrictive notion of standing adopted in the South West Africa case (Second Phase, Judgment, ICJ Reports 1966, p. 6). It was, however, the subject of strong dissent by Judge Xue and Judge ad hoc Sur on a number of bases, including a closer reading of the scheme of CAT, and of a Separate Opinion by Judge Skotnikov.

On the merits of the dispute, the Judgment outlines what is required of a state party by Articles 6(2) and 7(1) of CAT. As to the obligation under Article 6(2). for a state to make a preliminary inquiry into the facts as soon as it becomes aware that a person alleged to have committed acts of torture is present on its territory, the Judgment envisages a relatively detailed process conducted by the competent authorities, involving the collection of evidence and the seeking of co-operation of other states in order to corroborate the allegations (at [83]). On the facts, the court took the view that Senegal was in breach of this obligation and ought to have conducted an inquiry when the first complaint was filed in Senegal in 2000, at the latest. As to the core complaint of Senegal's breach of Article 7(1), which requires that where a state party has alleged a person to have committed acts of torture on its territory it must, “if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution”, the court explained that the obligation is not to prosecute but rather to submit for prosecution. The decision whether actually to prosecute should be made by the state's competent authorities in the same manner as for other serious offences of a similar nature under the law of that state (Article 7(2) CAT). In determining the relationship between prosecution and extradition under Article 7, the court was clear that the obligation to prosecute was not conditional on an extradition request and that the two options were not on equal footing, stating at [95] that “[e]xtradition 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”. None of the legal or financial justifications given by Senegal for the delay was accepted by the court, which concluded “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”.

It is disappointing that the court adopted a narrow view in determining that no dispute existed between the parties as to an obligation under customary international law to prosecute crimes against humanity, war crimes or genocide. It is unfortunate not to have the benefit of the court's view on this controversial point which was covered in both written and oral argument, although the Separate Opinion of Judge Abraham takes the view that there is nowhere near sufficient state practice or opinio juris to found a customary rule of this kind (at [21]–[40]). Further, given the controversial and far-reaching nature of the court's decision on the erga omnes partes point, it is unfortunate that the majority did not go into more detailed explanation in reaching it (see Separate Opinion Judge Skotnikov).

The court's statement, however, as to the right of any state party to CAT to enforce the obligations to conduct a preliminary inquiry and to prosecute is to be welcomed. It furthers the suppression and punishment of acts of torture. So too is the court's guidance on the interpretation and application of Articles 6(2) and 7(1) of CAT. The outcome of the court's analysis of these obligations is not, however, as encouraging. In holding that only submission for prosecution, and not extradition, is an obligation under CAT, the court could not require Senegal to extradite Habré to Belgium. Extradition was merely a way for a state party to relieve itself of its obligation to prosecute (see [95]). So while a non-injured state party like Belgium has the right to enforce these important obligations, it is left in the same position as before. It must wait for an unwilling state to take action. This is a very limited reading of the obligation to prosecute by the Court and means that, even after many years of failure to prosecute, no obligation to extradite arises. Given the widespread inclusion of the obligation to extradite or prosecute in international criminal law treaties, this has significant implications for the prosecution of international crimes.