Friday, July 20, 2012

ICJ news flash: in Habré, Senegal breached CAT

Here's the bottom line in Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), the judgment that International Court of Justice President Peter Tomka (right) just delivered in a public, webcast session at the Peace Palace in The Hague:
► By a vote of 14-2, the court has no jurisdiction over Belgium's claims that at the relevant time period, Senegal breached customary international law. Despite this conclusion, the court made clear that today the prohibition against torture  constitutes a legal norm from which no state may derogate:
'99. In the Court’s opinion, the prohibition of torture is part of customary international law and it has become a peremptory norm (jus cogens).'
► By a vote of 14-2, Belgium’s claims under Articles 6(2) and 7(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment are admissible. (The judges agree unanimously on the court's jurisdiction to hear this dispute respecting the Convention.)
► By a vote of 14-2, the Republic of Senegal, by failing to make immediate inquiry into allegations that Hissène Habré was responsible for torture while the dictator of Chad, has breached its duty under Article 6(2) of the Convention.
► By a vote of 14-2, the Republic of Senegal, by failing to submit the case to its competent authorities for prosecution, has breached Article 7(1) of the Convention.
► By a unanimous vote, the Court ruled that the Republic of Senegal must, without further delay, submit the case to its competent authorities for the purpose of prosecution if it does not extradite Habré to Belgium, as the latter state has requested.
This comes in long-running litigation respecting Habré, who has been in exile in Senegal notwithstanding demands that he be held accountable on international criminal charges. It shapes up as a landmark ruling on the aut dedere principle -- that is, the principle that on proper request respecting international crimes, a state must either investigate and prosecute or, in the alternative, extradite -- at least as it is articulated in the anti-torture convention.
A shifting complement of ICJ judges joined the ad hoc judge named by Senegal in the various "no" votes above. (photos courtesy of webcast which appeared here)
In addition to the judgment now online here, there were several separate opinions, as well as a dissent by Judge Xue Hanqin of China. Notably, all 3 women judges filed separate writings.

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