28 May 2009

 

General List No. 144

 
     

international Court of Justice

     
 

Questions Relating to the Obligation to Prosecute or Extradite

 
     

Belgium

 

v. 

Senegal

     
     
 

Order

 
     
  Return Home
 
 
     
     
 
BEFORE:

President Owada;
Judges: Shi, Koroma, Al-Khasawneh, Simma, Abraham, Sepúlveda-Amor, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood; Judges Ad Hoc Sur, Kirsch.

   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/2009.05.28_prosecute_extradite.htm
   
Citation: Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), 2009 I.C.J. (Order of May 28)
   
Represented By: Belgium: Mr. Paul Rietjens; Mr. Gérard Dive; Mr. Eric David; Sir Michael Wood;
Senegal: H.E. Mr. Cheikh Tidiane Thiam; Mr. Demba Kandji; Mr. Ndiaw Diouf; Mr. Alioune Sall; Mr. Oumar Gaye; Mr. Abdoulaye Dianko.
 
     
 
 
     
 

The International Court of Justice,

Composed as above,

After deliberation,

Having regard to Articles 41 and 48 of the Statute of the Court and Articles 73 and 74 of the Rules of Court,

Makes the following Order:

1. Whereas, by an Application filed in the Registry of the Court on 19 February 2009, the Government of the Kingdom of Belgium (hereinafter “Belgium”) instituted proceedings against the Republic of Senegal (hereinafter “Senegal”) in respect of a dispute concerning “Senegal’s
compliance with its obligation to prosecute Mr. H. Habré [former President of Chad] or to extradite him to Belgium for the purposes of criminal proceedings”; whereas Belgium bases its claims on the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (hereinafter “the Convention against Torture”), as well as on customary international law;

2. Whereas in its Application, as a basis for the jurisdiction of the Court, Belgium refers to 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 to Article 30, paragraph 1, of the Convention against Torture;

3. Whereas, in this Application, Belgium maintains that Senegal, where Mr. Habré has resided since 1990, has taken no action on its repeated requests to see the former President of Chad prosecuted in Senegal, failing his extradition to Belgium, for acts characterized as including crimes of torture and crimes against humanity, allegedly perpetrated during his presidency between 7 June 1982 and 1 December 1990; and whereas it explains that, following the complaints filed in Senegal in 2000 against Mr. Habré by seven natural persons and one legal person, he was indicted for complicity in “crimes against humanity, acts of torture and barbarity” by the senior investigating judge of the Dakar Tribunal régional hors classe and placed under house arrest, but that those complaints were dismissed by the Chambre d’accusation of the Dakar Court of Appeal on 4 July 2000 on the grounds that “crimes against humanity” did not form part of Senegalese criminal law and, with regard to the crime of torture, that Senegalese law did not allow a Senegalese court to exercise jurisdiction in respect of acts committed abroad by an alien;

4. Whereas in the said Application Belgium also states that, between 30 November 2000 and 11 December 2001, a Belgian national of Chadian origin and certain Chadian nationals filed criminal complaints with civil-party applications with the Belgian judicial authorities against Mr. Habré for crimes under international humanitarian law; and whereas it adds that, following the filing of those complaints, acting on the basis of passive personal jurisdiction as recognized by the Belgian courts, the investigating judge responsible for the case issued an international arrest warrant against Mr. Habré on 19 September 2005;

5. Whereas Belgium states that the said arrest warrant, in which specific reference is made to the lifting by Chad on 7 October 2002 of any immunities which Mr. Habré might have claimed, was transmitted to Senegal on 19 September 2005 with a view to obtaining his extradition; and whereas it further states that the Chambre d’accusation of the Dakar Court of Appeal found, on 25 November 2005, that it could not act on this warrant because it concerned acts committed by a Head of State “in the exercise of his functions”;

6. Whereas Belgium states moreover that the case was passed on to the African Union by Senegal on 7 December 2005; and whereas it adds that, following a decision taken at Banjul (Gambia) on 2 July 2006 by the Summit of African Union Heads of State and Government, Senegal amended its Penal Code to include the offences of genocide, war crimes and crimes against humanity and also its Code of Criminal Procedure to enable Senegalese courts to exercise universal jurisdiction;

7. Whereas Belgium complains that Senegal, referring to financial difficulties which prevent it from organizing the trial, has not brought any criminal proceedings against Mr. Habré;

8. Whereas Belgium, in its Application, contends that Senegal’s failure to prosecute Mr. Habré, if he is not extradited to Belgium to answer for the acts of torture that are alleged against him, violates the Convention against Torture, in particular Article 5, paragraph 2, Article 7, paragraph 1, Article 8, paragraph 2, and Article 9, paragraph 1, of that instrument; and whereas it adds that this failure also violates the obligation under customary international law to punish crimes under international humanitarian law which is to be found in numerous acts emanating from international organizations and is established in treaty law;

9. Whereas Belgium maintains that a dispute thus exists between itself and Senegal over the interpretation and application of the Convention against Torture and of the customary law relating to the punishment of crimes against humanity;

10. Whereas, at the end of its Application, Belgium presents the following submissions:

“Belgium respectfully requests the Court to adjudge and declare that:
-- the Court has jurisdiction to entertain the dispute between the Kingdom of Belgium and the Republic of Senegal regarding Senegal’s compliance with its obligation to prosecute Mr. H. Habré or to extradite him to Belgium for the purposes of criminal proceedings;
-- Belgium’s claim is admissible;
-- the Republic of Senegal is obliged to bring criminal proceedings against Mr. H. Habré for acts including crimes of torture and crimes against humanity which are alleged against him as perpetrator, co-perpetrator or accomplice;
-- failing the prosecution of Mr. H. Habré, the Republic of Senegal is obliged to extradite him to the Kingdom of Belgium so that he can answer for these crimes before the Belgian courts”;

and whereas it reserves the right to revise or supplement the terms of the Application;

11. Whereas on 19 February 2009, having filed its Application, Belgium submitted a Request for the indication of provisional measures, invoking Article 41 of the Statute of the Court and Articles 73 to 75 of the Rules of Court;

12. Whereas, in its Request for the indication of provisional measures, Belgium refers to the same bases of jurisdiction of the Court relied on in its Application (see paragraph 2 above);

13. Whereas, in this Request for the indication of provisional measures, Belgium states that

“[a]t present, Mr. H. Habré is under house arrest in Dakar, but it transpires from an interview which the President of Senegal, A. Wade, gave to Radio France Internationale that Senegal could lift his house arrest if it fails to find the budget which it regards as necessary in order to hold the trial of Mr. H. Habré”;

and whereas, according to Belgium, in such an event, it would be easy for Mr. Habré to leave Senegal and avoid any prosecution;

14. Whereas, in the said Request for the indication of provisional measures, Belgium argues that if Mr. Habré were to leave the territory of Senegal, that would cause irreparable prejudice to the right conferred on Belgium by international law to bring criminal proceedings against him; whereas it further maintains that this would violate Senegal’s obligation to prosecute Mr. Habré for the crimes under international law which are alleged against him, failing his extradition;

15. Whereas, at the end of its Request for provisional measures, Belgium asks the Court

“to indicate, pending a final judgment on the merits, provisional measures requiring Senegal to take all the steps within its power to keep Mr. H. Habré under the control and surveillance of the judicial authorities of Senegal so that the rules of international law with which Belgium requests compliance may be correctly applied”;

16. Whereas on 19 February 2009, the date on which the Application and the Request for the indication of provisional measures were filed in the Registry, the Registrar informed the Senegalese Government of the filing of these documents and transmitted certified copies of them to it forthwith, in accordance with Article 40, paragraph 2, of the Statute and Article 38, paragraph 4, and Article 73, paragraph 2, of the Rules of Court; and whereas the Registrar also notified the Secretary-General of the United Nations of this filing;

17. Whereas on 23 February 2009, the Registrar informed the Parties that the President of the Court, in accordance with Article 74, paragraph 3, of the Rules of Court, had fixed 6, 7 and 8 April 2009 as the dates for the oral proceedings on the Request for the indication of provisional measures;

18. Whereas, pending the notification provided for by Article 40, paragraph 3, of the Statute and Article 42 of the Rules of Court by transmission of the printed bilingual text of the Application to the Members of the United Nations, the Registrar informed those States on 24 February 2009 of the filing of the Application and its subject, and of the filing of the Request for the indication of provisional measures;

19. Whereas, on 2 April 2009, Senegal transmitted to the Court the documents on which it wished to rely during the hearings; and whereas copies of those documents were immediately communicated to Belgium; whereas, on 3 April 2009, Belgium in turn transmitted to the Court the documents on which it wished to rely during the hearings; and whereas copies of those documents were immediately communicated to Senegal;

20. Whereas, since the Court includes upon the Bench no judge of the nationality of the Parties, each of them proceeded, in exercise of the right conferred by Article 31, paragraph 3, of the Statute, to choose a judge ad hoc in the case; for this purpose Belgium chose Mr. Philippe Kirsch, and Senegal chose Mr. Serge Sur;

21. Whereas, at the public hearings held on 6, 7 and 8 April 2009, in accordance with Article 74, paragraph 3, of the Rules of Court, oral observations on the Request for the indication of provisional measures were presented by the following representatives of the Parties:

On behalf of Belgium: Mr. Paul Rietjens, Agent,
Mr. Gérard Dive, Co-Agent,
Mr. Eric David,
Sir Michael Wood;

On behalf of Senegal: H.E. Mr. Cheikh Tidiane Thiam, Agent,
Mr. Demba Kandji, Co-Agent,
Mr. Ndiaw Diouf,
Mr. Alioune Sall,
Mr. Oumar Gaye,
Mr. Abdoulaye Dianko;

and whereas, during the hearings, questions were put by certain Members of the Court, to which replies were given orally and in writing;

***

22. Whereas, in its first round of oral observations, Belgium reiterated the arguments developed in its Application and its Request for the indication of provisional measures, and argued that the conditions necessary for the Court to indicate the requested measures had been fulfilled;

23. Whereas Belgium reaffirmed that, in respect of Mr. Habré, a dispute existed between itself and Senegal over the interpretation and application of the obligation to extradite or prosecute the perpetrators of crimes of torture and crimes against humanity, as set forth in conventional international law, in particular Article 7 of the Convention against Torture, and customary international law; whereas it contended that Senegal could not divest itself of the said obligation by handing Mr. Habré over to an international organization or to a State which had not sought his extradition for the purposes of prosecution;

24. Whereas Belgium also referred to certain recent statements made by Mr. Abdoulaye Wade, President of the Republic of Senegal, which, according to Belgium, indicated that if Senegal did not have available to it the funds required to organize the trial of Mr. Habré, it could at any time abandon its prosecution of the person in question, cease monitoring him or transfer him to another State; and whereas Belgium concluded that there was consequently a real and imminent risk of irreparable prejudice to the rights which formed the subject of its Application;

*

25. Whereas, in its first round of oral observations, Senegal asserted that, since 2005, it had been willing, as declared by President Wade to try Mr. Habré in the Senegalese courts and thus to comply with its obligations under international law; whereas it maintained that, as the conditions required for the indication of provisional measures were not fulfilled in the present case, Belgium’s request for such measures to be indicated was unfounded; and whereas it added that the indication of the measures sought by Belgium would prejudge the merits and deprive Senegal of the rights it held under international rules, in particular the Convention against Torture;

26. Whereas Senegal stated that, following Belgium’s request for the extradition of Mr. Habré, the latter had been arrested and placed in custody on 15 November 2005 pending extradition; whereas it confirmed that, by a judgment dated 25 November 2005, the Chambre d’accusation of the Dakar Court of Appeal had held that it was without jurisdiction over the request for Mr. Habré’s extradition, on the grounds that he enjoyed immunity from jurisdiction by virtue of having been Head of State at the time the acts occurred (see paragraph 5 above); and whereas Senegal stated that on 23 December 2005 it had informed Belgium of this decision, which put an end to the extradition proceedings;

27. Whereas Senegal explained that, in these circumstances, it had sought the support of the African Union, and seised it of the matter; whereas it confirmed that, on 2 July 2006, the Heads of State and Government of the African Union had given Senegal a mandate to prosecute and try Mr. Habré; and whereas it also confirmed that subsequently it had taken a number of measures with a view to the holding of Mr. Habré’s trial in Senegal, in particular the introduction of offences linked to international crimes into its criminal legislation, the broadening of the jurisdiction of the Senegalese courts and the search for the financial resources needed for the organization of such a trial (see paragraph 6 above);

28. Whereas Senegal, in the light of the facts as thus restated, maintained that no legal dispute existed between the Parties on the interpretation or application of an international legal rule and, in particular, of the rules set forth in the Convention against Torture; whereas it contended that the Court’s prima facie jurisdiction had consequently not been established; and whereas Senegal argued, moreover, that Belgium’s Request was inadmissible since the procedural conditions laid down by Article 30 of the Convention against Torture had not been fulfilled;

29. Whereas Senegal also pointed out that the interview given to Radio France Internationale by President Wade on 2 February 2009, to which Belgium had referred, confirmed that Senegal was willing to pursue the process under way, that Mr. Habré was being kept under surveillance, a situation which Senegal did not envisage ending, and that the international negotiations aimed at obtaining the necessary support to organize his trial were following their course; whereas this led Senegal to conclude that no urgency existed which might justify the indication by the Court of the provisional measures requested by Belgium; and whereas Senegal further argued that Belgium had not identified the rights it wished to see protected, nor the irreparable prejudice which might be caused to those rights without the indication of provisional measures;

30. Whereas Senegal concluded from the foregoing that the Request for the indication of provisional measures submitted by Belgium should be rejected;

*

31. Whereas, in its second round of oral observations, Belgium reaffirmed that Mr. Habré should be prosecuted and tried in Senegal, and that only if it failed to prosecute him should Senegal extradite Mr. Habré to Belgium to answer for the acts alleged against him;

32. Whereas Belgium stated that the dispute between itself and Senegal concerned, first, the question of whether the obligation to try Mr. Habré derived from the mandate given to Senegal by the African Union and, secondly, whether Senegal had already fulfilled its obligations under the provisions of the Convention against Torture by passing on the case to the African Union; whereas Belgium also complained that Senegal was systematically bringing up financial reasons to justify its incapacity and failure to fulfil its conventional or customary obligations; and whereas Belgium added that the proceedings instituted in respect of Mr. Habré before the Court of Justice of the Economic Community of West African States (ECOWAS) and the African Court of Human Rights raised concerns that one of these regional courts might render an order liable to prejudice Belgium’s rights in the current proceedings;

33. Whereas, in response to a question put by a Member of the Court at the hearings, Belgium indicated that a solemn declaration made before the Court by the Agent of Senegal, in the name of his Government, could be sufficient for Belgium to consider that its Request for the indication of provisional measures had no further raison d’être, provided that such a declaration would be clear and unconditional, and that it would guarantee that all the necessary measures would be taken by Senegal to ensure that Mr. Habré did not leave Senegalese territory before the Court delivered its final Judgment; and whereas Belgium expressed the wish that, if such a declaration were made, the Court should include it in the operative part of its Order;

34. Whereas, at the end of its second round of oral argument, Belgium presented the following submissions:

“Belgium respectfully asks the Court to indicate the following provisional measures: the Republic of Senegal is requested to take all the steps within its power to keep Mr. Hissène Habré under the control and surveillance of the Senegalese authorities so that the rules of international law with which Belgium requests compliance may be correctly applied”;

*

35. Whereas, in its second round of oral observations, Senegal reaffirmed that the judgment of the Chambre d’accusation of the Dakar Court of Appeal had put a definitive end to the extradition proceedings initiated by Belgium;

36. Whereas Senegal maintained that its obligation to prosecute Mr. Habré derived from the provisions of the Convention against Torture and that it had always referred to that Convention to justify the measures taken with a view to the trial; whereas Senegal stated that it had seised the African Union in order to obtain the financial support and mutual judicial assistance required for the organization of the trial, but that at no point had it based its obligation to prosecute Mr. Habré on a resolution of that organization; and whereas Senegal concluded that the lack of a dispute between the Parties was therefore manifest;

37. Whereas Senegal further pointed out that the statements made to the media by President Wade did not demonstrate the existence of any real or serious risk that Mr. Habré might evade Senegalese justice; and whereas it added that, in any event, any possible prejudice to Belgium’s rights, despite the surveillance measures put in place by Senegal in respect of Mr. Habré, could not be described as irreparable since the obligation to extradite or prosecute was, according to Belgium, a customary norm and therefore enforceable by Belgium against any State where Mr. Habré might happen to be;

38. Whereas, in response to the question put by a Member of the Court at the hearings, referred to in paragraph 33 above, Senegal solemnly declared that it would not allow Mr. Habré to leave its territory while the present case was pending before the Court;

39. Whereas at the end of its second round of oral observations Senegal presented the following submissions: “Senegal respectfully asks the Court to reject the provisional measures requested by Belgium on 7 April 2009”;

***

Prima facie jurisdiction

40. Whereas, when dealing with a request for the indication of provisional measures, there is no need for the Court, before deciding whether or not to indicate such measures, to satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case; but whereas it may only indicate those measures if the provisions relied on by the Applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded;

41. Whereas Belgium is seeking to found the jurisdiction of the Court on Article 30 of the Convention against Torture and on the basis of the declarations made by the two States pursuant to Article 36, paragraph 2, of the Statute; and whereas the Court must now endeavour to establish whether the compromissory clause under the convention, or the declarations relied upon do indeed confer upon it prima facie jurisdiction to rule on the merits, enabling it to indicate provisional measures if it considers that the circumstances so require;

**

42. Whereas Article 30, paragraph 1, of the Convention against Torture reads as follows:

“Any dispute between two or more States Parties concerning the interpretation or application of this 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.”

43. Whereas both Belgium and Senegal are parties to the Convention against Torture; whereas Senegal ratified that Convention on 21 August 1986 without entering any reservation as to Article 30, paragraph 1; and whereas Belgium did likewise on 25 June 1999;

44. Whereas Belgium contends that a dispute exists between the Parties on the interpretation and application of the said Convention, and that by failing to prosecute Mr. Habré, in default of extraditing him to Belgium to answer for the acts of torture that are alleged against him, Senegal has violated the Convention against Torture, in particular Article 5, paragraph 2, Article 7, paragraph 1, Article 8, paragraph 2, and Article 9, paragraph 1; whereas Belgium maintains that negotiations on this subject began between the Parties in 2005 and that those negotiations, in which Belgium expressly referred to the provisions of the Convention against Torture, did not allow the dispute to be settled, as it observed formally in its Note Verbale to Senegal of 20 June 2006; whereas Belgium further maintains that it suggested recourse to arbitration to Senegal the same day, a proposal to which the Senegalese authorities did not respond, either within six months or thereafter, while Belgium reiterated its proposal of recourse to arbitration in a Note Verbale dated 8 May 2007, and confirmed the continuation of the dispute by a Note Verbale of 2 December 2008; whereas Belgium concludes from the foregoing that the conditions to which Article 30 of the Convention against Torture subjects the jurisdiction of the Court have been fulfilled;

45. Whereas Senegal takes the view that there is manifestly no dispute over the interpretation or application of the Convention, since it follows from the terms of the Application that Belgium is requesting the Court to adjudge and declare that Senegal is under an obligation to prosecute Mr. Habré; whereas Senegal emphasizes that it has already taken appropriate steps to comply with that obligation; whereas Senegal further maintains that Belgium’s Application is inadmissible because the procedural conditions specified in Article 30 of the Convention against Torture have not been fulfilled; whereas Senegal contends that Belgium merely requested information from the Senegalese authorities on the status of the proceedings, which cannot be regarded as real negotiations; and whereas it claims that the Note Verbale dated 20 June 2006 to which Belgium refers, and which is said to contain its offer of recourse to arbitration, cannot be found in Senegal’s archives; whereas Senegal concludes from the foregoing that Article 30 of the Convention against Torture cannot found the jurisdiction of the Court in the present case;

**

46. Whereas Article 30 of the Convention against Torture makes the Court’s jurisdiction conditional on the existence of a “dispute between two or more States Parties concerning the interpretation or application of this Convention”; whereas, at this stage of the proceedings, the Court must begin by establishing whether, prima facie, such a dispute existed on the date the Application was filed, since, as a general rule, it is on that date, according to the Court’s jurisprudence, that its jurisdiction must be considered (see South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 344; Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 95, para. 66; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 130, para. 43);

47. Whereas, following the judgment of the Dakar Court of Appeal bringing to an end the proceedings on Mr. Habré’s extradition to Belgium, Senegal seised the African Union and informed Belgium of this in a Note Verbale dated 23 December 2005; whereas, in a Note Verbale of 11 January 2006, Belgium disputed whether Senegal could comply with the obligation set forth in Article 7 of the Convention against Torture by referring a matter covered by that Convention to an international organization; whereas Belgium argued that Senegal was not fulfilling its obligations under the Convention against Torture, in particular Article 7 thereof; whereas Senegal considered that it has taken measures in order to fulfill the said obligations and that it reaffirmed its will to continue the ongoing process, in which it intends to assume in full its obligations as a State party to the Convention against Torture; whereas, in view of the foregoing, it appears prima facie that a dispute as to the interpretation and application of the Convention existed between the Parties on the date the Application was filed;

48. Whereas the Court will next consider whether such a dispute continues, prima facie, to exist in the light of the way in which the Parties explained their positions at the hearings; whereas Senegal has affirmed that its obligations do not derive from the mandate given by the African Union in 2006 and that a State party to the Convention against Torture cannot fulfil the obligations under Article 7 thereof by the mere act of referring the matter to an international organization; whereas the Parties nonetheless seem to continue to differ on other questions relating to the interpretation or application of the Convention against Torture, such as that of the time frame within which the obligations provided for in Article 7 must be fulfilled or that of the circumstances (financial, legal or other difficulties) which might be relevant in considering whether or not a failure to fulfil those obligations has occurred; whereas, moreover, the Parties seem to continue to hold differing views as to how Senegal should fulfil its treaty obligations; and whereas in consequence it appears that prima facie a dispute of the kind contemplated by Article 30 of the Convention against Torture continues to exist between the Parties, even if the scope of that dispute may have changed since the Application was filed;

*

49. Whereas the Court will now consider whether the procedural conditions laid down by Article 30 of the said Convention have been fulfilled; whereas that provision requires, first, that any dispute submitted to the Court should be such as “cannot be settled through negotiation”; whereas Belgium maintains that, it had attempted unsuccessfully to resolve the dispute by negotiations with Senegal (see paragraph 44 above); whereas Senegal takes the view, on the contrary, that the diplomatic correspondence relied on by Belgium cannot be regarded as amounting to negotiations (see paragraph 45 above); and, further, that that correspondence does not justify the conclusion that the supposed negotiations had failed;

50. Whereas, at the stage of considering prima facie jurisdiction, it is sufficient for the Court to note that an attempt has been made by Belgium to negotiate; whereas, it considers that the diplomatic correspondence, in particular the Note Verbale of 11 January 2006, whereby Belgium wished to submit certain clarifications to the Government of Senegal “within the framework of the negotiation procedure covered by Article 30 of the Convention against Torture . . .”, shows that Belgium attempted to resolve the said dispute by negotiation and that it cannot be concluded that the negotiations thus proposed had the effect of resolving the dispute; and whereas the Court thus concludes that the requirement that the dispute is one which “cannot be settled through negotiation” must be regarded as having been satisfied prima facie;

51. Whereas Article 30 of the Convention against Torture provides, secondly, that a dispute between States parties which has not been settled through negotiation shall, at the request of one of them, be submitted to arbitration, and that it may be referred to the Court only if the parties are unable to agree on the organization of such arbitration within six months from the date when it was requested; whereas Belgium has indicated that Senegal did not respond to the formal proposal for recourse to arbitration made in its Note Verbale of 20 June 2006, and pointed out that this proposal was reiterated in its Note Verbale of 8 May 2007; and whereas Senegal states that the Belgian Note Verbale of 20 June 2006 cannot be found and that the proposal allegedly reiterated was at the very least ambiguous;

52. Whereas, in the view of the Court, the Note Verbale of 20 June 2006 contains an explicit offer from Belgium to Senegal to have recourse to arbitration, pursuant to Article 30, paragraph 1, of the Convention against Torture, in order to settle the dispute concerning the application of the Convention in the case of Mr. Habré; whereas, at this stage of the proceedings, it is sufficient for the Court to note that, even supposing that the said Note Verbale never reached its addressee, the Note Verbale of 8 May 2007 explicitly refers to it; and whereas it has been confirmed that this second Note was communicated to Senegal and received by it more than six months before the date of referral to the Court, i.e., 19 February 2009;

**

53. Whereas, in the light of the foregoing, the Court considers that it has prima facie jurisdictionunder Article 30 of the Convention against Torture to entertain the case;

54. Whereas, moreover, the prima facie jurisdiction which the Court derives from the Convention against Torture is sufficient to enable it, if the circumstances so require, to indicate the provisional measures requested by Belgium; and whereas consequently there is no need to ascertain, at this stage of the proceedings, whether the declarations made by the Parties pursuant to Article 36, paragraph 2, of the Statute might also, prima facie, afford a basis on which the Court’s jurisdiction could be founded;

**

55. Whereas, in the light of the findings it has reached in paragraph 53 above, the Court may examine the Request for the indication of provisional measures;

***

Link between the right protected and the measures requested

56. Whereas the power of the Court to indicate provisional measures under Article 41 of the Statute has as its object the preservation of the respective rights of the parties pending its decision; whereas it follows that the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by the Court to belong either to the Applicant or to the Respondent (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 19, para. 34; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996 (I), p. 22, para. 35; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, para. 118); whereas a link must therefore be established between the provisional measures requested and the rights which are the subject of the proceedings before the Court as to the merits of the case;

57. Whereas the power of the Court to indicate provisional measures should be exercised only if the Court is satisfied that the rights asserted by a party are at least plausible;

**

58. Whereas Belgium points out that its request is intended to protect its right to see Senegal prosecute Mr. Habré directly or, failing that, the right to obtain his extradition; whereas Belgium maintains that the Convention against Torture confers upon all the States parties the right to obtain compliance by Senegal with the provisions of the Convention; and whereas Belgium states that its request for the extradition of Mr. Habré, resulting from the proceedings brought in Belgium by victims of Belgian nationality, confers a specific right upon it to see Senegal prosecute Mr. Habré or, failing that, to obtain his extradition in accordance with Article 7 of the said Convention;

59. Whereas Senegal argues that the only right which might be attributed to States parties to the Convention against Torture is the right to require another State party to try the perpetrator of an act of torture who is present in its territory or, failing that, to request his extradition; and that, consequently, if it is considered that Article 5, paragraph 2, and Article 7, paragraph 1, of the Convention create a right for a State party, it can only be the right to demand extradition, which cannot however prevail over the right of a State which takes on its obligation to hold a trial;

**

60. Whereas at this stage of the proceedings the Court does not need to establish definitively the existence of the rights claimed by Belgium or to consider Belgium’s capacity to assert such rights before the Court; and whereas the rights asserted by Belgium, being grounded in a possible interpretation of the Convention against Torture, therefore appear to be plausible;

61. Whereas the provisional measures requested in the current proceedings are aimed at ensuring that Senegal takes all necessary measures in its power to keep Mr. Habré under the surveillance and control of the Senegalese authorities until the Court has given its final decision;
whereas the possible departure of Mr. Habré from Senegalese territory would be likely to affect the rights which might be adjudged to belong to Belgium on the merits, even as qualified by Senegal; whereas, therefore, in view of the subject-matter of the proceedings, the provisional measures requested may be indicated if the circumstances so require;

***

Risk of irreparable prejudice and urgency

62. Whereas however the power of the Court to indicate provisional measures will be exercised only if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice may be caused to the rights in dispute before the Court has given its final decision (see, for example, Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991, I.C.J. Reports 1991, p. 17, para. 23; Certain Criminal Proceedings in France (Republic of the Congo v. France), Provisional Measure, Order of 17 June 2003, I.C.J. Reports 2003, p. 107, para. 22; Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, p. 11, para. 32; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, para. 129); and whereas the Court must therefore consider whether such urgency exists in these proceedings;

**

63. Whereas Belgium, in its Request for the indication of provisional measures, makes reference to an interview given on 2 February 2009 to Radio France Internationale by President Wade (see paragraph 13 above); whereas Belgium also referred at the hearings to interviews given by President Wade to the Spanish newspaper Público, the French newspaper La Croix and Agence France Presse on 14 October 2008, 18 December 2008 and 3 February 2009 respectively, in which the organization of the trial of Mr. Habré and its funding were discussed; whereas Belgium points out that at different junctures on these various occasions, the President of Senegal said that he was not going to keep Mr. Habré in Senegal indefinitely, that he would make the latter leave Senegal, even though he did not know where Mr. Habré would go, that he was willing to try him but that he had to be given the resources, and that, if the trial was not held, he would either send Mr. Habré back home or transfer him to the Chairperson of the African Union; whereas, according to Belgium, it follows from this that Senegal could lift the house arrest imposed on Mr. Habré if the funding needed for the organization of his trial were not provided;

64. Whereas Belgium infers from this, in the first instance, that there is a real risk of Senegal causing irreparable prejudice to the rights of Belgium; whereas Belgium asserts that, should Mr. Habré receive permission to leave Senegalese territory, he might evade any prosecution and it would become impossible for Senegal to comply, in particular, with the obligations laid down by the Convention against Torture; and whereas it adds that the violation of the obligation to prosecute or extradite thus caused could not be redressed by other means, in particular by monetary compensation;

65. Whereas Belgium points out, moreover, that the statements concerning Mr. Habré leaving Senegalese territory were made recently by the highest State authority; whereas it infers from this that the risk of prejudice must be regarded as imminent;

66. Whereas Senegal argues that it does not follow from the comments by President Wade that irreparable prejudice might be caused to the rights which Belgium claims to hold under the Convention against Torture; whereas it affirms that it has no intention of lifting the effective control and surveillance measures imposed on Mr. Habré; whereas it states in particular that Mr. Habré does not possess a valid travel document and that his surveillance is carried out by an elite unit of the Senegalese military forces; whereas it further points out that the measures which it has already implemented are consistent with the provisions of the Convention and identical to the provisional measures requested by Belgium;

67. Whereas Senegal maintains, moreover, that the statement made by President Wade to Radio France Internationale, on the basis of which Belgium requests provisional measures, has been taken out of context and “has been attributed a meaning . . . which it manifestly did not have”; whereas it contends that, on the contrary, the said statement demonstrates Senegal’s willingness to hold a trial, with regard to the funding of which President Wade specified the following:

“[After all the promises of support that were made], as it was taking a little too much time, I said ‘[the promised financial support] will actually have to be available . . . It was in order to push a bit to speed things up . . . As soon as we have the funding, the trial will begin. There is absolutely no doubt about it.’” [Translation by the Registry];

whereas it states that the negotiations with the European Union and the African Union aimed at obtaining the funds needed for the prosecution of Mr. Habré are proceeding well; whereas Senegal considers that the measures taken by the Senegalese authorities show that they are performing in good faith their obligations under the Convention against Torture; and whereas, according to Senegal, it follows from this that there is no imminent risk to justify the indication of provisional measures;

68. Whereas, as has been indicated above (see paragraphs 29 and 66), Senegal asserted on several occasions at the hearings that it is not contemplating lifting the surveillance and control imposed on the person of Mr. Habré either before or after the funds pledged by the international community are made available to it for the organization of the judicial proceedings; whereas the Co-Agent of Senegal, at the end of the hearings, solemnly declared, in response to a question put by a Member of the Court, the following:

“Senegal will not allow Mr. Habré to leave Senegal while the present case is pending before the Court. Senegal has not the intention to allow Mr. Habré to leave the territory while the present case is pending before the Court.”

69. Whereas the Co-Agent of Belgium, making clear that he spoke in the name of his Government, asserted at the hearings, in response to a question put by a Member of the Court, that such a solemn declaration given by the Agent of Senegal, in the name of his Government, to the effect that the latter would not allow Mr. Habré to leave Senegalese territory while the present case was pending before the Court, could be sufficient for Belgium to consider that its Request for the indication of provisional measures no longer had any object, provided that certain conditions were fulfilled (see paragraph 33 above);

**

70. Whereas the statements concerning the possibility of Mr. Habré leaving Senegal were made by the Senegalese Head of State and could therefore have given rise to some concern on the part of Belgium as to Mr. Habré’s possible departure; whereas the Court nonetheless observes that those statements, made in interviews given to the press, were clarified subsequently by other statements emanating from the Head of State (see paragraph 67 above);

71. Whereas the Court further notes that Senegal, both proprio motu and in response to a question put by a Member of the Court, gave a formal assurance on several occasions during the hearings that it will not allow Mr. Habré to leave its territory before the Court has given its final decision;

72. Whereas, as the Court has recalled above, the indication of provisional measures is only justified if there is urgency; whereas the Court, taking note of the assurances given by Senegal, finds that, the risk of irreparable prejudice to the rights claimed by Belgium is not apparent on the date of this Order;

73. Whereas the Court concludes from the foregoing that there does not exist, in the circumstances of the present case, any urgency to justify the indication of provisional measures by the Court;

***

74. Whereas the decision given in the present proceedings in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the admissibility of the Application, or relating to the merits themselves; and whereas it leaves unaffected the right of the Governments of Belgium and Senegal to submit arguments in respect of those questions;

75. Whereas the present decision also leaves unaffected Belgium’s right to submit in future a fresh request for the indication of provisional measures, under Article 75, paragraph 3, of the Rules of Court, based on new facts;

***

76. For these reasons,

THE COURT,

By thirteen votes to one,

Finds that the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures.
IN FAVOUR: President Owada; Judges Shi, Koroma, Al-Khasawneh, Simma, Abraham, Sepúlveda-Amor, Bennouna, Skotnikov, Yusuf, Greenwood; Judges ad hoc Sur, Kirsch;
AGAINST: Judge Cançado Trindade.

Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this twenty-eighth day of May, two thousand and nine, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Kingdom of Belgium and the Government of the Republic of Senegal, respectively.

(Signed) Hisashi OWADA,
President.

(Signed) Philippe COUVREUR,
Registrar.

Judges KOROMA and YUSUF append a joint declaration to the Order of the Court; Judges AL-KHASAWNEH and SKOTNIKOV append a joint separate opinion to the Order of the Court; Judge CANÇADO TRINDADE appends a dissenting opinion to the Order of the Court; Judge ad hoc SUR appends a separate opinion to the Order of the Court.

(Initialled) H. O.
(Initialled) Ph. C.



JOINT DECLARATION OF JUDGES KOROMA AND YUSUF

1. We have voted in favour of the Order but nevertheless have decided to append this declaration given the importance of the matters raised in the Application and the legal principle involved at this stage of the proceedings.

2. The present case between Belgium and Senegal concerns Senegal’s obligation, under conventional and customary international law, to extradite or prosecute (aut dedere aut judicare) the former President of Chad, Mr. Hissène Habré, for crimes he is alleged to have committed or ordered while President in 1982, including

“murders, acts of torture, abductions, arbitrary arrests and the execution of a large number of Chadian civilians and military personnel, in particular on the grounds of their ethnicity” (International Arrest Warrant of 19 September 2005 issued by the Belgian investigating judge responsible for the case; Application instituting proceedings of 16 February 2009, Ann. 3, para. 2.1).

3. The Assembly of the African Union, having considered Mr. Habré’s acts,

“[observed] that, according to the terms of Articles 3 (h), 4 (h) and 4 (o) of the Constitutive Act of the African Union, the crimes of which Hissène Habré is accused fall within the competence of the African Union” (Decision on the Hissène Habré Case and the African Union, Doc.Assembly/AU/Dec.127(VII), Assembly of the African Union, Seventh Ordinary Session, 1-2 July 2006, Banjul, The Gambia).

4. Belgium claims that some of its nationals were injured by Habré’s acts:

“Between 30 November 2000 and 11 December 2001, a Belgian national of Chadian origin and Chadian nationals filed a series of criminal complaints with civil-party applications in the Belgian courts against the former President of Chad, Mr. Hissène Habré, for crimes under international humanitarian law.

As the present jurisdiction of the Belgian courts is based on the complaint filed by a Belgian national of Chadian origin, the Belgian courts intend to exercise passive personal jurisdiction.” (Application instituting proceedings, 16 February 2009, para. 3.)

5. Invoking the principle of aut dedere aut judicare, Belgium asks the Court

“to adjudge and declare that Senegal must prosecute Mr. H. Habré for . . . crimes of torture and crimes against humanity which are alleged against him, failing his extradition to Belgium, where the Belgian courts have brought proceedings against him on the same grounds as a result of complaints filed in particular by a Belgian victim of Chadian origin” (Request for indication of provisional measures submitted by the Government of Belgium, 17 February 2009 (summarizing the submissions in the Application instituting proceedings, 16 February 2009)).

6. The primary conventional authority cited by Belgium for this obligation to extradite or prosecute is the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984 (“Torture Convention”). According to its Preamble, the object and purpose of the Torture Convention is to ensure the “inherent dignity of the human person” and “to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world”. With regard to the obligation aut dedere aut judicare, Article 7, paragraph 1, of the Torture Convention provides:

“The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in Article 4 is found shall in the cases contemplated in Article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution”.

7. At this stage of the proceedings, the Court has addressed Belgium’s request, appended to its Application, that the Court indicate provisional measures, pending a final judgment on the merits,

“requiring Senegal to take all the steps within its power to keep Mr. H. Habré under the control and surveillance of the judicial authorities of Senegal so that the rules of international law with which Belgium requests compliance may be correctly applied” (Request for the indication of provisional measures submitted by the Government of Belgium, 17 February 2009).

8. The purpose of provisional measures is the preservation of the respective rights of the parties pending the decision of the Court, in order to ensure that irreparable prejudice shall not be caused to rights which are the subject of dispute in judicial proceedings. Belgium has stated that this corresponds to its motive in requesting the indication of provisional measures, specifically because “Senegal is at risk of causing irreparable prejudice . . . to Belgium’s right for Mr. Hissène Habré to be brought to trial in Senegal or extradited to Belgium” (CR 2009/8, para. 27 (David)).

9. Senegal, however, on several occasions during the oral proceedings declared before the Court that it will not release Mr. Habré pending the resolution of the case. First, the Agent of Senegal stated:

“Senegal does not envisage putting an end to the control and surveillance of Mr. Hissène Habré both before and after the funding pledged by the international community has been made available to it to cover the legal proceedings concerned.” (CR 2009/9, para. 57 (Thiam).)

Second, counsel for Senegal declared:

“In the light of the decision by the African Union, Senegal has never had and does not have now any intention to lift the control and surveillance measures taken with respect to Mr. Hissène Habré, hence, at present, no risk of irreparable prejudice exists, which might justify the request for the indication of provisional measures submitted by Belgium.” (CR 2009/9, para. 12 (Gaye).)

Third, Mr. Demba Kandji, Co-Agent of Senegal, made the following solemn declaration in the course of his presentation of Senegal’s final submissions in the oral pleadings:

“Senegal is of course prepared solemnly to confirm what it has already said:

‘By order of my Government, and as Co-Agent of Senegal, I hereby confirm what Senegal said last Monday, that is -- and I shall say this in English to Judge Greenwood, who put the question -- “Senegal will not allow Mr. Habré to leave Senegal while the present case is pending before the Court. Senegal has not the intention to allow Mr. Habré to leave the territory while the present case is pending before the Court.”.’.” (CR 2009/11, para. 6 (Kandji).)

10. In our view, Senegal’s solemn declaration that it “will not allow Mr. Habré to leave Senegal while the present case is pending before the Court” (ibid.) preserves the rights of the Parties and ensures against the risk of irreparable prejudice in exactly the same way as would an order indicating provisional measures. Accordingly, the purpose of Belgium’s request for the indication of provisional measures having been served, there was no further need for the Court to examine the judicial measure requested by Belgium. In our view, the Court should simply have declared that following the declaration by Senegal the request for the indication of provisional measures had ceased to have any object.

11. Moreover, it is our view that the Court should have more forcefully emphasized that both Parties, Belgium and Senegal, as well as the Assembly of the African Union -- which has recognized that the case against Mr. Hissène Habré falls within its competence and mandated the Republic of Senegal to prosecute and ensure that Mr. Hissène Habré is tried, on behalf of Africa, by a Senegalese court with guarantees for a fair trial -- have acknowledged that impunity is no longer allowed under international law, irrespective of the status of the individual and, in particular, that Senegal is making efforts to ensure that impunity is not allowed in this particular case.

(Signed) Abdul G. KOROMA.

(Signed) Abdulqawi Ahmed YUSUF.



JOINT SEPARATE OPINION OF JUDGES AL-KHASAWNEH AND SKOTNIKOV

1. We have voted in favour of the Court’s decision not to indicate the provisional measures requested by Belgium. Regrettably, however, we cannot concur with the Court’s finding to the effect that the conditions required for the purposes of the indication of provisional measures, in terms of establishing prima facie jurisdiction or assessing whether the Application has become moot, have been met.

2. Belgium stated that the alleged dispute between itself and Senegal concerned two elements. Firstly, in the view of Belgium, “Senegal considers that its decision to transmit the case to the African Union . . . somehow fulfils Article 7 [of the Convention against Torture]” (CR 2009/10, p. 20, para. 13). Secondly, “Senegal’s present commitment to move, albeit slowly, towards a criminal trial derives in its view from the African Union ‘mandate’, not directly from its obligations under the Torture Convention” (ibid.).

3. For its part, Senegal, while stressing that “[t]he backdrop of the trial for which preparations are now being made is indeed one of co-operation across Africa - and even beyond” (CR 2009/11, p. 18, para. 11), sought

“to make clear once and for all, so as to dispel for good all ambiguity and misunderstanding, that as a State it is bound by the 1984 Convention [against Torture]. The fact that an organization like the African Union may be involved in organizing the Habré trial in no way lessens Senegal’s duties and rights as a party to the Convention. Indeed, it is as a party to the Convention, not pursuant to a mandate from the African Union, that the Republic of Senegal is fulfilling its obligations.” (Ibid.)

Furthermore, Senegal reaffirmed “its will to pursue the ongoing process, in which it assumes in full its obligations as a State Party to the 1984 Convention” (ibid., p. 21, para. 27).

4. The Court accepted the fact that the dispute, as framed by Belgium, in the light of the explanations given by the Parties as to their respective positions, does not continue to exist, even on a prima facie basis (Order, para. 48).

5. In the light of those same explanations, the Court’s finding in the preceding paragraph of the Order that “it appears prima facie that a dispute as to the interpretation and application of the Convention existed between the Parties on the date the Application was filed” (Order, para. 47) does not seem to be well founded.

6. These explanations, at the very least, should have lead the Court to make a finding that its prima facie jurisdiction to pronounce on the merits of the case could not be established, since there are very serious doubts as to the existence of a dispute at the time of the filing of the Application. This finding would have allowed the case brought by Belgium to continue.

7. Alternatively, and even more convincingly, the Court could have concluded that, given the explanation by the Parties, no dispute exists and therefore the Application has been rendered moot.

8. Instead, the Court came to what is, in our view, an implausible conclusion that “the Parties nonetheless seem to continue to differ on other questions relating to the interpretation or application of the Convention against Torture” (Order, para. 48) and went on to offer three such “other questions” which have never been identified by Belgium as forming part of a dispute and which consequently have never been addressed as such by Senegal.

9. In the South West Africa cases, the Court commented on the existence of a dispute as follows:

“it is not sufficient for one party to a contentious case to assert that a dispute exists with the other party. A mere assertion is not sufficient to prove the existence of a dispute any more than a mere denial of the existence of the dispute proves its non-existence. Nor is it adequate to show that the interests of the two parties to such a case are in conflict. It must be shown that the claim of one party is positively opposed by the other.” (South West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328.)

At the provisional measures stage of proceedings, it is sufficient to show such “positive opposition” on a prima facie basis. No attempt to do so was made by the Court in the present case.

10. The first two questions on which the Parties, in the view of the Court, continue to be in dispute are “that of the time frame within which the obligations provided for in Article 7 [of the Convention] must be fulfilled or that of the circumstances (financial, legal or other difficulties) which might be relevant in considering whether or not a failure to fulfil those obligations has occurred” (Order, para. 48).

11. First, Belgium has never asked the Court to pronounce on these issues. Second, the Court has had no opportunity to assess whether the views of the Parties are positively opposed on these issues, since they have not been discussed by the Parties as contentious questions to be resolved by the Court.

12. As to “the time-frame”, it may well be that it takes a somewhat long time to bring the case of Mr. Habré to trial. But this issue is not in dispute between the Parties. In fact, Senegal asserts that the pronouncements by its President, which Belgium was alarmed by, were aimed at speeding up the ongoing process of organizing Mr. Habré’s trial in terms of acquiring the assistance which Senegal had been promised by the African Union to hold the trial on behalf of Africa. This explanation by Senegal has been taken into account by the Court in deciding not to indicate the provisional measures requested by Belgium (Order, para. 70). There is no dispute over “legal difficulties” either. Senegal - in a relatively short time - has adopted universal jurisdiction legislation allowing it to prosecute Mr. Habré. Financial issues concerning the organization of the trial are still outstanding. Belgium acknowledges that these issues are real and should be resolved, and asserts that it is working with the European Union to assist Senegal in resolving them, although it maintains that Senegal’s assessment of the costs involved is too high. There is a problem to be solved, but there is no dispute which Belgium is asking the Court to settle. Understandably, we do not address unspecified “other difficulties” mentioned by the Court, since we do not know what these are.

13. As to whether the non-disputed issues of “the time-frame” or “the circumstances” addressed above might be “relevant in concluding whether or not a failure to fulfil those obligations [under Article 2 of the Convention] has occurred”, it suffices to recall that Belgium itself acknowledges “Senegal’s commitment to move, albeit slowly, towards a criminal trial”, and perceives a problem in Senegal’s alleged view that this commitment derives “from the African Union mandate and not directly from its obligations under the Torture Convention” (see para. 2 above). That allegation has been dispelled by Senegal and is not seen by the Court as forming part of a dispute (see paras. 3 and 4 above). Accordingly, the Court, in our view, inappropriately brings up a notion of the hypothetical failure of Senegal to comply with its obligations under the Torture Convention.

14. The third question on which, according to the Court, the Parties seem to continue to hold differing views is “how Senegal should fulfil its treaty obligations” (Order, para. 48). As a matter of principle, a dispute (that is “disagreement on point of law or fact, a conflict of legal views or interests between two Parties” (Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11)) simply cannot be identified in such a non-specific way.

15. Granted, as the Court has had occasion to point out, “[w]hether there exists an international dispute is a matter for objective determination” (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74). Indeed, it is a duty of the Court to make such a determination. It is expected from the Court that in doing so, even on a prima facie basis, it will be diligent and precise. We do not think that the Court’s determination in this case meets such an obvious requirement.

16. Finally, we would like to express our hope that the fact that this case remains before the Court will not deter possible contributors from providing assistance to Senegal in organizing Mr. Habré’s trial.

(Signed) Awn Shawkat AL-KHASAWNEH.

(Signed) Leonid SKOTNIKOV.



DISSENTING OPINION OF JUDGE CANÇADO TRINDADE

1. I regret not to be able to concur with the decision taken by the majority of the Court not to indicate provisional measures in the cas d’espèce, for having considered that the circumstances presented to it were not such as to require the exercise of its power under Article 41 of the Statute to that end. My position is, a contrario sensu, that the circumstances surrounding the present case fully meet the preconditions for the indication of provisional measures, and that the International Court of Justice could and should thereby have indicated them. Given the high importance that I attach to the issues raised in the present Order, I feel obliged to present and leave on the records, in this dissenting opinion, the foundations of my position on the matter.

I. Preliminary observations

2. To this end, I shall concentrate my reasoning on successive and interrelated points, but not without first recalling that the present case is the first case lodged with the Court on the basis of the 1984 United Nations Convention against Torture. And it was on the basis of this highly relevant Convention (Article 30), which bears witness to the significant development of contemporary international law, that the Court found, in the present Order, that it indeed had prima facie jurisdiction (paras. 54-55 of the Order) to examine the request lodged with it for the indication of provisional measures. As the Order of the Court does not, in my view, reflect all the points that I deem relevant to the proper consideration of the issues raised by such request, I feel it is my duty to address those points, in a logical sequence, in support of my dissenting position.

3. I shall thus focus my reasoning on the following points: (a) the transposition of provisional measures onto the international legal procedure; (b) the juridical nature and effects of provisional measures of the ICJ; (c) the overcoming of the strictly inter-State dimension in the acknowledgment of the rights to be preserved; (d) the rationale of the purported aims of provisional measures of the ICJ; (e) the saga of the victims of the Habré régime in their persistent struggle against impunity (encompassing the historical record of the case, and the issue of justiciability in the long search for justice); (f) the time of human beings and the time of human justice (comprising the décalage to be bridged, the determination of urgency, and the determination of the probability of irreparable damage); (g) legal nature, content and effects of the right to be preserved; (h) provisional measures to be indicated (comprehending time and the imperativeness of the realization of justice, and (i) the required indication of provisional measures in the present case.

4. The way will thus be paved for extracting the lesson of the present case at this stage (provisional measures for the realization of justice), and for at last presenting my concluding observations on the matter. With these preliminary observations in mind, I shall thus proceed to dwell upon each of the points identified for the development of my reasoning, as the foundation of my dissenting position in relation to the decision taken by the majority of the Court.

II. Provisional measures: their transposition onto the international legal procedure

5. In approaching provisional measures, one has, first of all, to bear in mind the historical transposition of such measures from the domestic legal systems to the international legal order. In fact, the precautionary measures, of internal procedural law, inspired the provisional measures [FN1] which developed subsequently in the ambit of international procedural law, to the extent of contributing decisively to affirm the autonomy of the precautionary legal action [FN2]. However, this whole doctrinal construction did not succeed to free itself from a certain juridical formalism, leaving at times the impression of taking the process as an end in itself, rather than as a means for the realization of justice.

---------------------------------------------------------------------------------------------------------------------
[FN1] The notable example of the contribution of the Italian procedural law doctrine of the first half of the twentieth century (e.g., the well-known works by G. Chiovenda, Istituzioni di Diritto Processuale Civile, Naples, 1936; P. Calamandrei, Introduzione allo Studio Sistematico dei Provvedimenti Cautelare, Padua, 1936; and F. Carnelutti, Diritto e Processo, Naples, 1958) may here be recalled.
[FN2] As a tertium genus, parallel to the legal actions as to the merits and of execution.
---------------------------------------------------------------------------------------------------------------------

6. May it be recalled that, at the level of the domestic legal order, the precautionary process evolved in order to safeguard the effectiveness of the jurisdictional function itself. The precautionary legal action turned in its origins to aim at guaranteeing, rather than the subjective right per se, the jurisdictional activity itself. Precautionary measures reached the international level (in the international arbitral and judicial practice) [FN3], in spite of the distinct structure of this latter, when compared with the domestic law level.

---------------------------------------------------------------------------------------------------------------------
[FN3] P. Gugggenheim, “Les mesures conservatoires dans la procédure arbitrale et judiciaire”, 40 Recueil des Cours de l’Académie de Droit International de La Haye (1932) pp. 649-761, and cf. pp. 758-759
---------------------------------------------------------------------------------------------------------------------

7. The transposition of the provisional measures from the domestic to the international legal order -- always in face of the probability or imminence of an “irreparable damage”, and the concern or necessity to secure the “future realization of a given juridical situation” -- had the effect of expanding the domain of international jurisdiction, with the consequent reduction of the so-called “reserved domain” of the State [FN4]. This transposition faced difficulties [FN5], but, throughout the years, the erosion of the concept of “reserved domain” (or “exclusive national competence”) of the State became evident, to what the international judicial practice itself, also in the present domain, contributed.

---------------------------------------------------------------------------------------------------------------------
[FN4] P. Guggenheim, Les mesures provisoires de procédure internationale et leur influence sur le développement du droit des gens, Paris, Libr. Rec. Sirey, 1931, pp. 15, 174, 186, 188 and 14-15, and cf. pp. 6-7 and 61-62.
[FN5] As illustrated, e.g., by the Iranian reaction to provisional measures indicated by the ICJ in the case of the Anglo-Iranian Oil Company (United Kingdom/Iran), on 5 July 1951; cf. account in: M. S. Rajan, United Nations and Domestic Jurisdiction, Bombay/Calcutta/Madras, Orient Longmans, 1958, pp. 399 and 442 n. 2.
---------------------------------------------------------------------------------------------------------------------

III. The juridical nature and effects of provisional measures of the ICJ

8. Article 41 of the Statute of the ICJ -- and of its predecessor, the PCIJ -- in fact sets forth the power of the Hague Court to “indicate” provisional measures. The verb utilized generated a wide doctrinal debate as to its binding character, which did not hinder the development of a vast case law (of the PCIJ and the ICJ) on the matter [FN6]. Yet, given the lack of precision which persisted for years as to the legal effects of the indication of provisional measures by the ICJ, uncertainties were generated, in theory and practice, on the matter, which lasted for more than five decades, affecting compliance with them [FN7].

---------------------------------------------------------------------------------------------------------------------
[FN6] Cf. J. Sztucki, Interim Measures in the Hague Court - An Attempt at a Scrutiny, Deventer, Kluwer, 1983, pp. 35-60 and 270-280; J. B. Elkind, Interim Protection - A Functional Approach, The Hague, Nijhoff, 1981, pp. 88-152; and, for jurisdictional aspects, cf. L. Daniele, Le Misure Cautelari nel Processo dinanzi alla Corte Internazionale di Giustizia, Milano, Giuffrè, 1993, pp. 5-183; B. H. Oxman, “Jurisdiction and the Power to Indicate Provisional Measures”, in The International Court of Justice at a Crossroads (ed. L. F. Damrosch), Dobbs Ferry/NY, ASIL/Transnational Publs., 1987, pp. 323-354.
[FN7] Cf., e.g., K. Oellers-Frahm, “Anmerkungen zur einstweiligen Anordnung des Internationalen Gerichtshofs im Fall Bosnien-Herzegowina gegen Jugoslawien (Serbien und Montenegro) vom 8 April 1993”, 53 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1993) pp. 638-656; E. Robert, “La protection consulaire des nationaux en péril? Les ordonnances en indication de mesures conservatoires rendues par la Cour internationale de Justice dans les affaires Breard (Paraguay c. États-Unis) et LaGrand (Allemagne c. États-Unis)”, 31 Revue belge de Droit international (1998) pp. 413-449, esp. pp. 441 and 448; J. G. Merrills, “Interim Measures of Protection in the Recent Jurisprudence of the International Court of Justice”, 44 International and Comparative Law Quarterly (1995) pp. 137-139, and cf. pp. 90-146.
---------------------------------------------------------------------------------------------------------------------

9. Despite the growing case law on provisional measures of the ICJ [FN8], one had to wait for more than half a century until, in the Judgment of 27 June 2001, the ICJ found at last the occasion to clarify that provisional measures indicated by it were binding. In that Judgment, concerning the two LaGrand brothers, opposing Germany to the United States, the ICJ reviewed the preparatory work of Article 41 of its Statute (in its French and English versions -- paras. 104-107), and, bearing in mind Article 33 (4) of the 1969 Vienna Convention on the Law of Treaties (para. 101), found that the object and purpose of Article 41 of its Statute were to preserve its own ability to fulfil its function of peaceful settlement of international disputes, which implied that provisional measures should be binding (paras. 102 and 109).

---------------------------------------------------------------------------------------------------------------------
[FN8] Cf. S. Rosenne, Provisional Measures in International Law, Oxford, University Press, 2005, pp. 22-44, 122-123, 138-141, 174-180 and 189-213; A. G. Koroma, “Provisional Measures in Disputes between African States before the International Court of Justice”, in L’ordre juridique international, un système en quête d’équité et d’universalité - Liber Amicorum G. Abi-Saab (eds. L. Boisson de Chazournes and V. Gowlland-Debbas), The Hague, Nijhoff, 2001, pp. 591-602; K. Oellers-Frahm, “Article 41”, in The Statute of the International Court of Justice - A Commentary (eds. A. Zimmermann et alii), Oxford, University Press, 2006, pp. 923-966.
---------------------------------------------------------------------------------------------------------------------

10. Furthermore, orders of provisional measures were “decisions” of the Court, which, in the terms of Article 94 (1) of the United Nations Charter, States were bound to comply with (para. 108). The binding character of provisional measures of the ICJ - brought into line with the position upheld in other contemporary international jurisdictions - ensued from this understanding by the ICJ of Article 41 of its Statute, in combination with Article 94 (1) of the United Nations Charter; this has now become res interpretata, paving the way for developments hopefully to take place in the years to come in this respect. In any case, long-standing uncertainties surrounding the matter are at last now to be put aside.

11. What, in fact, would be the point of deciding on the indication of provisional measures, and of issuing orders on them, after gathering prima facie -- rather than substantial -- evidence (summaria cognitio) in documents as well as public hearings, if they were not to have binding effect? What would be the point of denying them such effect if what was aimed at, without prejudice to the merits of the cas d’espèce, was precisely to preserve the integrity of the rights at stake? Such uncertainties nowadays belong to the past; it is now reckoned that they were not contributing to the evolution of the preventive dimension of the peaceful settlement of international disputes lodged with an international tribunal such as the ICJ.

12. In the past, despite the prevailing uncertainties which then surrounded the matter, international case law nevertheless sought to clarify the juridical nature of provisional measures, of an essentially preventive character, indicated or granted without prejudice to the final decision as to the merits of the respective cases. Such measures came to be indicated or ordered by contemporary international [FN9], as well as national [FN10], tribunals. Their generalized use at both national and international levels has led a contemporary doctrinal trend to consider such measures as equivalent to a true general principle of law, common to virtually all national legal systems, and endorsed by the practice of national, arbitral, and international tribunals [FN11].

---------------------------------------------------------------------------------------------------------------------
[FN9] Cf. R. Bernhardt (ed.), Interim Measures Indicated by International Courts, Berlin/Heidelberg, Springer-Verlag, 1994, pp. 1-152.
[FN10] Cf. E. García de Enterria, La Batalla por las Medidas Cautelares, 2nd [enlarged] ed., Madrid, Civitas, 1995, pp. 25-385.
[FN11] In the sense of Art. 38 (1) (c) of the Statute of the ICJ; cf. L. Collins, “Provisional and Protective Measures in International Litigation”, 234 Recueil des Cours de l’Académie de Droit International de La Haye (1992) pp. 23, 214 and 234.
---------------------------------------------------------------------------------------------------------------------

13. It is not my intention to dwell on this aspect of the matter here, but rather to draw attention onto a specific point, before moving on to other aspects relating to the consideration of the cas d’espèce, in so far as the present request for provisional measures is concerned. In international legal procedures pertaining to the safeguard of human rights, provisional measures go much further in the matter of protection, revealing an unprecedented scope, and determining the effectiveness of the right of individual petition itself at international level; it becomes clear that they here protect individual rights and appear endowed with a character, more than precautionary, truly tutelary [FN12].

---------------------------------------------------------------------------------------------------------------------
[FN12] Cf. R.St.J. MacDonald, “Interim Measures in International Law, with Special Reference to the European System for the Protection of Human Rights”, 52 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1993) pp. 703-740; A. A. Cançado Trindade, “Les mesures provisoires de protection dans la jurisprudence de la Cour Interaméricaine des Droits de l’Homme”, in Mesures conservatoires et droits fondamentaux (eds. G. Cohen-Jonathan and J.-F. Flauss), Bruxelles, Bruylant/Nemesis, 2005, pp. 145-163, and in 4 Revista do Instituto Brasileiro de Direitos Humanos (2003) pp. 13-25; and cf., in general, A. Saccucci, Le Misure Provvisorie nella Protezione Internazionale dei Diritii Umani, Torino, Giappichelli Ed., 2006, pp. 103-241 and 447-507.
---------------------------------------------------------------------------------------------------------------------

14. In the inter-State contentieux, the power of a tribunal like the ICJ to indicate provisional measures of protection in a case pending of decision aims at preserving the equilibrium between the respective rights of the contending parties, [FN13] avoiding an irreparable damage to the rights in litigation in a judicial process. [FN14] Overcoming the formalism of the international procedural law of the past, it can nowadays be safely acknowledged that compliance with provisional measures of protection has a direct bearing upon the rights invoked by the contending parties, which, in circumstances such as that of the present case of Belgium v. Senegal, have a direct relationship with the legitimate expectations of thousands of human beings.

---------------------------------------------------------------------------------------------------------------------
[FN13] Cf. E. Hambro, “The Binding Character of the Provisional Measures of Protection Indicated by the International Court of Justice”, in Rechtsfragen der Internationalen Organisation -- Festschrift für Hans Wehberg (eds. W. Schätzel and H.-J. Schlochauer), Frankfurt a/M, 1956, pp. 152-171.
[FN14] This has been pointed out by the ICJ, for example, in the case of Fisheries Jurisdiction (United Kingdom v. Iceland), Interim Protection, Order of 17 August 1972, I.C.J. Reports 1972, p. 16, para. 21, and p. 34, para. 22; in the case of United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Provisional Measures, Order of 15 December 1979, I.C.J. Reports 1979, p. 19, para. 36; and, subsequently, e.g., in the case of Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Provisional Measures, Order of 10 May 1984, I.C.J. Reports 1984, pp. 179 and 182, paras. 24 and 32; and in the case of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 19, para. 34, and p. 342, para. 35. And cf., e.g., the cases of the Frontier Dispute (Burkina Faso/Republic of Mali), Provisional Measures, Order of 10 January 1986, I.C.J. Reports 1986, p. 3; of the Aegean Sea Continental Shelf (Greece v. Turkey), Interim Protection, Order of 11 September 1976, I.C.J. Reports 1976, p. 3; of the Nuclear Tests (Australia v. France) and Nuclear Tests (New Zealand v. France), I.C.J. Reports 1973, of the Trial of Pakistani Prisoners of War (Pakistan v. India), I.C.J. Reports 1973, among others.
---------------------------------------------------------------------------------------------------------------------

IV. The overcoming of the strictly inter-State dimension in the acknowledgment of the rights to be preserved

15. In the international litigation before this Court, only States, as contending parties, can request provisional measures. Yet, in recent years, such requests have invoked rights which go beyond the strictly inter-State dimension. In the triad Breard/LaGrand/Avena cases, provisional measures were requested to prevent an irreparable damage also to the right to life of the convicted persons (stay of execution), in the circumstances of their cases. In its Order of 9 April 1998 in the Breard case (Vienna Convention on Consular Relations (Paraguay v. United States of America)), the Court took note of the requesting State’s invocation of the right to life and, in particular, of Article 6 of the United Nations Covenant on Civil and Political Rights (para. 8), and indicated that A. F. Breard, a Paraguayan national, was not to be executed pending the final decision in the proceedings of the case (resolutory point I).

16. In the following year, in its Order of 3 March 1999 in the LaGrand (Germany v. United States of America) case, the ICJ again took cognizance of the requesting State’s argument likewise invoking the right to life and Article 6 of the same United Nations Covenant (para. 8), and indicated that W. LaGrand, a German national, was not to be executed pending the final decision in the proceedings of the case (resolutory point I). Likewise, in its Order of 5 February 2003 in the case of Avena and Other Mexican Nationals (Mexico v. United States of America), the ICJ took note of the requesting State’s argument on the basis of the recognition by international law of “the sanctity of human life”, and its invocation of Article 6 of the same United Nations Covenant, and again indicated that C. R. Fierro Reyna, R. Moreno Ramos, and O. Torres Aguilera, three Mexican nationals, were not to be executed pending final judgment in the proceedings of the case (resolutory point I (a)).

17. The ultimate beneficiaries were meant to be the individuals concerned, and to that end the requesting States advanced their arguments to obtain the Court’s orders of provisional measures. On earlier occasions, the ICJ was likewise concerned with the protection of human life, in distinct contexts. Thus, two decades earlier, in its Order of 15 December 1979, in the United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) case, the Court took into account the State’s arguments to protect the life, freedom and personal security of its nationals (diplomatic and consular staff in Tehran -- para. 37), and indicated provisional measures of protection of those rights (resolutory point I (A)), after referring to the “obligations impératives” under the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations (para. 41), and pondering that “la persistance de la situation qui fait l’objet de la requête expose les êtres humains concernés à des privations, à un sort pénible et angoissant et même à des dangers pour leur vie et leur santé et par conséquent à une possibilité sérieuse de préjudice irréparable” (para. 42).

18. Half a decade later, in its Order of 10 May 1984, in the Nicaragua v. United States case, the ICJ indicated provisional measures (resolutory point B (2)) after taking note of the requesting State’s argument calling for protection of the rights to life, to freedom and to personal security of Nicaraguan citizens (para. 32). Shortly afterwards, in its celebrated Order of 10 January 1986 in the Frontier Dispute (Burkina Faso/Republic of Mali) case, duly complied with by the contending parties, the Court’s Chamber took note of the concern expressed by the parties with the personal integrity and safety of those persons who were in the zone under dispute (paras. 6 and 21). One decade later, in its Order of 15 March 1996 in the case of the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), the Court took note of the requesting State’s warning that continuing armed clashes in the region were notably causing “irremediable loss of life as well as human suffering and substantial material damage” (para. 19); in deciding to order provisional measures, the ICJ pondered that

“it is clear from the submissions of both Parties to the Court that there were military incidents and that they caused suffering, occasioned fatalities -- of both military and civilian personnel -- while causing others to be wounded or unaccounted for, as well as causing major material damage . . . the rights at issue in these proceedings are sovereign rights which the Parties claim over territory, and . . . these rights also concern persons . . . the events that have given rise to the request, and more especially the killing of persons, have caused irreparable damage to the rights that the Parties may have over the Peninsula . . . persons in the disputed area and, as a consequence, the rights of the Parties within that area are exposed to serious risk of further irreparable damage” (paras. 38-39 and 42).

19. Another order illustrative of the overcoming of the strictly inter-State dimension in the acknowledgement of the rights to be preserved by means of provisional measures pertains to the case of Armed Activities on the Territory of the Congo, opposing this latter to Uganda. In its Order of 1 July 2000 in this case, the ICJ took into account the requesting State’s denunciation of alleged “human rights violations” -- invoking international instruments for their protection (paras. 4-5 and 18-19) -- and of its plea for protection for its inhabitants (para. 31) as well as for its own “rights to respect for the rules of international humanitarian law and for the instruments relating to the protection of human rights” (para. 40). The Court, recognizing the pressing need to indicate provisional measures of protection (paras. 43-44), found that it was “not disputed that grave and repeated violations of human rights and international humanitarian law, including massacres and other atrocities, have been committed on the territory of the Democratic Republic of the Congo” (para. 42). The Court, accordingly, ordered both parties inter alia to “take all measures necessary to ensure full respect within the zone of conflict for fundamental human rights and for the applicable provisions of humanitarian law” (resolutory point 3).

20. In its Order of 8 April 1993 in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), the Court, after finding “a grave risk” to human life, indicated provisional measures, and recalled General Assembly resolution 96 (I) of 11 December 1946 (referred to in its own Advisory Opinion of 1951 on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide) to the effect that the crime of genocide “shocks the conscience of mankind, results in great losses to humanity . . . and is contrary to moral law and to the spirit and aims of the United Nations” (cit. in para. 49). In the subsequent Order of 13 September 1993 in the same case, the Court again its concern for the protection of human rights and the rights of peoples (para. 38). And in its recent Order of 15 October 2008 in the case concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), the ICJ once again disclosed its concern for the preservation of human life and personal integrity (paras. 122 and 142-143).

21. From the survey above it can be seen that, along the last three decades, the ICJ has gradually overcome the strictly inter-State outlook in the acknowledgment of the rights to be preserved by means of its orders of provisional measures of protection. Nostalgics of the past, clung to their own dogmatism, can hardly deny that, nowadays, States litigating before this Court, despite its inter-State contentious procedure, have conceded that they have no longer the monopoly of the rights to be preserved, and, much to their credit, they recognize so, in pleading before this Court on behalf also of individuals, their nationals, or even in a larger framework, its inhabitants.

22. They are not thereby exercising diplomatic protection, as they argue in a much wider conceptual framework. The ICJ, in its turn - whether nostalgics of the past like it or not - has, on certain occasions, issued orders of provisional measures in which it has expressly placed the rights of the human person beside the rights of States (cf. supra). This calls for a reassessment of the contemporary international legal order itself, with greater attention focused on one of the constituent elements of States, their population, and its needs of protection, even by means of the operation of an inter-State mechanism.

23. Facts tend to come before the norms, requiring of these latter the aptitude to cover new situations they are meant to regulate, with due attention to superior values. [FN15] Before this Court, States keep on holding the monopoly of jus standi, as well as locus standi in judicio, in so far as requests for provisional measures are concerned, but this has not proved incompatible with the preservation of the rights of the human person, together with those of States. The ultimate beneficiaries of the rights to be thereby preserved have been, not seldom and ultimately, human beings, alongside the States wherein they live. Reversely, requesting States themselves have, in their arguments before this Court, gone beyond the strictly inter-State outlook of the past, in invoking principles and norms of the international law of human rights and of international humanitarian law, to safeguard the fundamental rights of the human person.

---------------------------------------------------------------------------------------------------------------------
[FN15] Cf., inter alia, G. Morin, La Révolte du Droit contre le Code -- La révision nécessaire des concepts juridiques, Paris, Libr. Rec. Sirey, 1945, pp. 2, 6-7 and 109-115.
---------------------------------------------------------------------------------------------------------------------

24. In so far as material or substantive law is concerned, the inter-State structure of litigation before this Court has not been an unsurmountable obstacle to such vindication of observance of principles and norms of international human rights law and international humanitarian law, as requests for provisional measures of protection before this Court have not purported to limit themselves to the preservation of the rights of States.

25. As one of the constitutive elements of these latter -- and a most prominent one -- is their population, it comes as no surprise that provisional measures indicated in successive orders of the ICJ have transcended the artificial inter-State dimension of the past, and have come to preserve also rights whose ultimate subjects (titulaires) are the human beings. This reassuring development admits no steps backwards, as it has taken place to fulfil a basic need and aspiration not only of States, but of the contemporary international community as a whole.

V. The rationale of the purported aims of provisional measures of the ICJ

26. Along the last decades, in its orders of provisional measures pursuant to Article 41 of its Statute, the ICJ has to a large extent based its reasoning either on the need to avoid or prevent an imminent and irreparable harm to the rights of the contending parties (including the rights of the human person), or, more comprehensively, on the need to avoid or prevent the aggravation of the situation which would be bound to affect or harm irreparably the rights of the parties. Yet, the rationale of such orders of the Court does not need to limit or exhaust itself in a reasoning of the kind.

27. Once again, facts tend to come before the norms, and much will depend on the nature and content of the rights to be preserved. In the present case concerning questions relating to the obligation to prosecute or extradite, such right pertains, in my view, to the realization of justice. The Court’s reasoning is bound, accordingly, to reflect the purported end of preservation of this right. In the distinct contexts of other cases, the ICJ has already disclosed its attention to the imperative of the realization of justice.

28. Thus, in its Order of 10 January 1986 in the case of the Frontier Dispute (Burkina Faso/Republic of Mali), the Court’s Chamber indicated provisional measures in order not to aggravate the situation, aware that such measures were to contribute to “assurer la bonne administration de la justice” and to prevent “la destruction d’éléments de preuve pertinents” to its own decision (paras. 19-20). The preservation of evidence relevant for the decision on the case was also the concern of the Court, as expressly stated in its Order of 15 March 1996 (para. 42), in the case of the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria).

29. Thus, in the case law itself of the ICJ there are already elements disclosing the concern of the Court, when issuing orders of provisional measures, to strive towards achieving a good administration of justice. In the present Order of the Court in the case concerning Questions relating to the Obligation to Prosecute or Extradite, the right to the realization of justice assumes a central place, and a paramount importance, and becomes thus deserving of particular attention. I shall retake this point later on, in this dissenting opinion, after reviewing the historical record of the present case, and the situation of impunity which has prevailed for almost two decades, which, in my view, do have a direct bearing on the requirements of urgency and risk of irreparable harm to the right to be preserved, for the purpose of consideration of the present request for provisional measures lodged with this Court.

VI. The saga of the victims of the Habré régime in their persistent struggle against impunity

30. In the oral hearings before this Court, both Belgium and Senegal saw it fit to recall the atrocities of the Habré régime (1982-1990), wherefrom the cas d’espèce emerges. In its pleading of 6 April 2009, Belgium referred to the findings of the Chadian Truth Commission, as to the loss of human life as well as to the 54,000 political detainees between 1982 and 1990 [FN16]. Significantly, Senegal dwelt even further upon those findings, in its pleadings of 8 April 2009: it added that, besides those 54,000 political detainees, there were approximately 40,000 fatal victims in the period of the Habré régime, bringing the total to “au moins 94 000 victimes directes ou leurs ayant-droits” who are “susceptibles d’être concernés par le procès de M. Hissène Habré” [FN17].

---------------------------------------------------------------------------------------------------------------------
[FN16] CR 2009/8, pp. 18-19.
[FN17] CR 2009/11, p. 10.
---------------------------------------------------------------------------------------------------------------------

31. It should not pass unnoticed that both Parties, Belgium and Senegal, referred to those sombre figures in the course of the proceedings concerning provisional measures. In the circumstances of the present case, it is, in fact, ineluctable to dwell upon the atrocities of the Habré régime, for addressing the issue of the right to be preserved by provisional measures of the ICJ. It is commendable that both Parties, Senegal and Belgium, reckoned that gravity of the case and the human tragedy it amounts to, in a strictly inter-State procedure before this Court. The States concerned themselves made a point of acknowledging the human dimension of the present contentieux between them.

1. The historical record of the case

32. The facts wherefrom the present case originates are, in fact, of public and notorious knowledge, being documented, e.g., in the Report of the Chadian Truth Commission (of 7 May 1992) [FN18], which covered the period of the régime of former President Hissein Habré (from 7 June 1982 to 1 December 1990). Both Belgium and Senegal referred to them. The Truth Commission, after the investigation it undertook, reported the crimes systematically committed against the physical and mental integrity of persons and their possessions (Part I) during the period at issue, and determined a grim record of more than 40,000 persons murdered, over 80,000 orphans, over 54,000 persons arbitrarily detained, and 200,000 persons made destitute and deprived of moral and material support. The Commission made it clear that this was the result of a systematic pattern of State-perpetrated arbitrary detentions, torture, infra-human conditions of detention, summary or arbitrary or extra-judicial executions, successive massacres or mass executions, occultation of mortal remains, destruction of villages, persecutions, forced eviction and plundering. [FN19]

---------------------------------------------------------------------------------------------------------------------
[FN18] The “Commission of Inquiry into the Crimes and Misappropriations Committed by Ex-President Habré, His Accomplices and/or Accessories” was created by the Government of Chad’s decree n. 014/P.CE/CJ/90, of 29.12.1990.
[FN19] Cf. “Chad: Report of the Commission of Inquiry into the Crimes and Misappropriations Committed by Ex-President Habré, His Accomplices and/or Accessories” [Done in Ndjamena, 07 May 1992], in: Transitional Justice (ed. N. J. Kritz), Vol. III, Washington DC, US Institute of Peace Press, 1995, pp. 51-93.
---------------------------------------------------------------------------------------------------------------------

33. The Report further investigated the misappropriation of public funds (Part II), and elucidated that the Habré régime deliberately terrorized the population. The pillars of the State-conducted repression, according to the Truth Commission, were the political police (the Directorate of Documentation and Security -- DDS) and the Presidential Investigation Service (SIP), added to the State party. The Commission added that the communication between the terrifying DDS and the President was direct, with no intermediaries. The “State-policies” devised, at the highest level of the Executive, according to the Truth Commission, were carried out with “predisposition”, cruelty and “contempt for human life” [FN20]. The executions were “ordered directly” by the President [FN21]. The objects collected by plundering were taken directly to the office of the President [FN22].

---------------------------------------------------------------------------------------------------------------------
[FN20] Ibid., pp. 58 and 61. The DDS received assistance from foreign States (p. 64), and promptly attained the objective pursued, to terrorize the population (pp. 66 and 88), with a “proliferation of detention centres throughout the country” (p. 72).
[FN21] Ibid., p. 77.
[FN22] Ibid., p. 81.
---------------------------------------------------------------------------------------------------------------------

34. In sum, Habré’s régime, according to the Chadian Truth Commission, amounted to an 8-year reign of State terror, with people mourning their dead in complete defencelessness, in an abominable distortion of the ends of the State, and with impunity for such crimes prevailing to this day. The Report of the Chadian Truth Commission was but the beginning of the saga of the victims of the atrocities perpetrated during the Habré régime (1982-1990) in Chad. Their search for justice has followed a long path, at both national and international levels.

2. The issue of justiciability in the long search for justice

35. The issue of justiciability for the grave violations perpetrated during the Habré régime, starting with the right to be preserved in the cas d’espèce, has a distinct dimension. In the oral arguments before this Court, Belgium argued, on 6 April 2009, that its implication in the present case “trouve son origine dans une plainte déposée à Bruxelles, avec constitution de partie civile devant un juge d’instruction, le 30 novembre 2000, par un ressortissant belge d’origine tchadienne” [FN23]. Furthermore -- Belgium added -- it was not in Belgium but in Senegal that the first complaints against Mr. H. Habré were presented, in January 2000, without success, as “la Chambre d’accusation de la Cour d’appel de Dakar avait annulé le procès-verbal d’inculpation délivré par le juge d’instruction sénégalais qui inculpait M. Hissène Habré pour complicité de crimes contre l’humanité, d’actes de torture et de barbarie” [FN24].

---------------------------------------------------------------------------------------------------------------------
[FN23] CR 2009/8, p. 17.
[FN24] CR 2009/8, p. 19.
---------------------------------------------------------------------------------------------------------------------

36. Senegal, on its turn, contended before this Court, also on 6 April 2009, that the origin of the present case is found in the lodging, on 25 January 2000, with the juge d’instruction of a complaint (by Mr. S. Guengueng and seven other petitioners) against Mr. H. Habré, of crimes against humanity, torture, barbaric acts, discrimination, killings and forced disappearances; the eight petitioners claimed to have been victims of crimes against humanity and acts of torture in Chad, between June 1982 and December 1990 [FN25]. Three years earlier, in 1987, Senegal had ratified the 1984 United Nations Convention against Torture [FN26].

---------------------------------------------------------------------------------------------------------------------
[FN25] CR 2009/9, pp. 10 and 23. The petitioners were members of the “Association des victimes des crimes et répressions politiques au Tchad” (AVCRP), established in 1991; ibid., p. 10.
[FN26] As recalled by Senegal itself before this Court; CR 2009/9, p. 23.
---------------------------------------------------------------------------------------------------------------------

37. In its oral arguments before this Court, Senegal recalled the endeavours by the two groups of victims of the atrocities of the Habré régime in their search for justice:

“Alors que la Cour de cassation sénégalaise examinait encore l’affaire, une autre plainte a été déposée, en Belgique, par un autre groupe de victimes tchadiennes ou d’origine tchadienne, dont M. Aganaye a porté plainte le 20 novembre 2000.

Ce groupe de victimes était différent de celui qui avait porté plainte à Dakar mais les deux groupes bénéficiaient des mêmes soutiens . . .

Au Sénégal, le 20 mars 2001, la Cour de cassation . . . a rejeté le pourvoi formé par les victimes tchadiennes du groupe Guengueng. Elle a jugé qu’aucun texte de procédure ne donnait une compétence universelle aux juridictions sénégalaises pour connaître des faits dénoncés sur le fondement de la Convention de 1984 contre la torture.” [FN27]

------------------------------------------------------------------------------------------------------------
[FN27] CR 2009/09, p. 24.
------------------------------------------------------------------------------------------------------------

Belgium conceded that Senegal has lately modified its legislation (Penal Code and Code of Criminal Procedure), in February 2007, introducing therein the principle of universal jurisdiction for the repression of genocide, war crimes and crimes against humanity [FN28]. In the meantime, however, on 18 April 2001, -- as Senegal itself saw it fit to recall before this Court -- the group of victims headed by Mr. Guengueng seized the United Nations Committee against Torture, established by Article 17 of the United Nations Convention against Torture [FN29].

---------------------------------------------------------------------------------------------------------------------
[FN28] CR 2009/8, p. 20.
[FN29] CR 2009/9, p. 24.
---------------------------------------------------------------------------------------------------------------------

39. It should not pass unnoticed that years have lapsed till the rights of the victims of the reported repression of the Habré régime became justiciable at domestic law level, and even more time has lapsed -- almost two decades -- till they were vindicated under the United Nations Convention against Torture, and now in the inter-State procedure before this Court. This discloses that the time of human justice is surely not the time of human beings (cf. infra). Moreover, if there are today rights invoked by States in connection with the atrocities of the Habré régime, this is due to the initiative of the victims themselves, before national tribunals (in Senegal and Belgium), and subsequently before the United Nations Committee against Torture, with the course of facts leading to the lodging of the present case now with this Court.

40. Grave violations of human rights are thus at the origin of the present inter-State contentieux before the ICJ, and it is significant -- and much to the credit of Senegal and Belgium -- that the contending Parties have not attempted to controvert this in their oral arguments before this Court. Senegal, in addition, in its pleadings of 6 April 2009, expressly referred to the victims of the Habré régime who are seeking justice (cf. supra). The right of States invoked before the ICJ in the present case under the 1984 Convention against Torture emerges as from the rights of human beings victimized by repression and cruelty of an oppressive régime. This case reveals that the human dimension of the rights of States themselves can under certain circumstances become undeniable.

41. Once the United Nations Committee against Torture was seized, in 2001, of the S. Guengueng et alii case, concerning Senegal, it issued an interim or provisional measure requesting the State party not to expel Mr. H. Habré and “to take all necessary measures to prevent him from leaving the territory, other than under an extradition procedure”, and the Committee found that the State party concerned acceded to such request [FN30]. Half a decade later, in its decision of 17 May 2006 in the case of Suleymane Guengueng et al v. Senegal, the United Nations Committee against Torture found inter alia (already at that time, eight years ago) that “the reasonable time within which the State Party should have complied” with the obligation under Article 5 (2) of the United Nations Convention against Torture “has been considerably exceeded” [FN31]. It added that the objective of Article 7 of the Convention was “to prevent any act of torture from going unpunished” [FN32], and concluded that there had been breaches of both provisions, Articles 7 and 5 (2) of the Convention against Torture [FN33].

---------------------------------------------------------------------------------------------------------------------
[FN30] United Nations, doc. CAT/C/36/D/181/2001, 19 May 2006, p. 2, para. 1 (3).
[FN31] Ibid., p. 15, para. 9 (5).
[FN32] Ibid., p. 15, para. 9 (7).
[FN33] Ibid., p. 16, paras. 9 (9), 9 (11) and 9 (12).
---------------------------------------------------------------------------------------------------------------------

42. Not only the United Nations Committee against Torture, as supervisory organ of the corresponding Convention, but also a regional international organization, the African Union, were engaged in the struggle against impunity in the present case concerning questions relating to the obligation to prosecute or extradite now before the ICJ. In fact, both Belgium [FN34] and Senegal [FN35] expressly acknowledged, in their oral arguments before this Court, the contribution of the African Union to the principle of universal jurisdiction in the context of the cas d’espèce.

---------------------------------------------------------------------------------------------------------------------
[FN34] CR 2009/8, pp.41-42.
[FN35] CR 2009/9, p. 27.
---------------------------------------------------------------------------------------------------------------------

43. As Senegal transmitted the “Hissène Habré case” to the African Union in January 2006, this latter established a Committee of Eminent African Jurists to examine it (Decision 103 (VI)). In its Report to the Assembly of Heads of State and Government of the African Union (2006), the Committee inter alia recommended, in July 2006, that

“Tous les États africains devraient s’assurer que chacun adhère complètement à la Convention contre la torture et au Protocole additionnel afin de permettre l’application de la Convention sur l’ensemble du Continent. Les déclarations pertinentes prévues à l’article 22 doivent aussi être faites pour offrir une protection réelle des droits des citoyens. Cette adhésion est aussi importante pour la prévention de la torture . . .
Tous les États doivent prendre des mesures nécessaires pour adopter des lois sur ces crimes et intégrer la Convention contre la torture dans leur législation interne.” [FN36]

-----------------------------------------------------------------------------------------------------------
[FN36] Union Africaine, Rapport du Comité d’Éminent Juristes Africains sur l’affaire Hissène Habré, 2006, p. 5, paras. 36-37.
------------------------------------------------------------------------------------------------------------

44. On the basis of that Report, the Assembly of the African Union, by its Decision 127 (VII), mandated Senegal “to prosecute and ensure that Hissène Habré is tried, on behalf of Africa, by a competent Senegalese court with guarantees for fair trial” [FN37]. The controversy between Belgium and Senegal, in their oral arguments before the ICJ on 7 and 8 April 2009, then focused on a very specific issue, namely: while Belgium argued that “Senegal only regards itself as under an obligation not to release Mr. Habré because of the mandate given to it by the African Union, not because of its obligations owed to Belgium under the Torture Convention” [FN38], Senegal, in turn, recalled, in reply, that “il n’a jamais considéré que l’obligation de juger Hissène Habré trouve sa source dans la décision de l’Union Africaine et . . . il s’est toujours référé à la Convention de 1984 au moment d’apporter les modifications nécessaires à sa législation afin de rendre possible le procès envisagé” [FN39].

---------------------------------------------------------------------------------------------------------------------
[FN37] African Union, Decisions and Declarations, Banjul, July 2006, Decision 127 (VII), p. 1, para. 5 (ii).
[FN38] CR 2009/10, p. 23.
[FN39] CR 2009/11, p. 14.
---------------------------------------------------------------------------------------------------------------------

45. It should not pass unnoticed that the “Hissène Habré case” has been brought to the attention of yet another instance of the United Nations, namely, the Working Group on the Universal Periodic Review (UPR) of the United Nations Human Rights Council. A compilation prepared for that Working Group by the Office of the United Nations High Commissioner for Human Rights [FN40], as well as a draft Report (of February 2009) of the Working Group itself [FN41], contain express references to the case, in the framework of the struggle against impunity. Yet, despite all this, the surviving victims of the atrocities of the Habré régime keep on waiting for justice. Hope is the last one to vanish.

---------------------------------------------------------------------------------------------------------------------
[FN40] United Nations Human Rights Council, doc. A/HRC/WG.6/4/SEN/2, 18 December 2008, p. 7, para. 27.
[FN41] United Nations Human Rights Council, doc. A/HRC/WG.6/4/L.10, 11 February 2009, p. 7, 12, 15, 16 and 21, paras. 31, 63, 79, 92 and 98 (5), respectively.
---------------------------------------------------------------------------------------------------------------------

VII. The time of human beings and the time of human justice

1. The décalage to be bridged

46. The time of human beings surely does not appear to be the time of human justice. The time of human beings is not long (vita brevis), at least not long enough for the full realization of their project of life. The brevity of human life has been commented upon time and time again, along the centuries; in his De Brevitate Vitae [FN42], Seneca pondered that, except for but a few, most people in his times departed from life while they were still preparing to live [FN43]. Yet, the time of human justice is prolonged, not seldom much further than that of human life, seeming to make abstraction of the vulnerability and briefness of this latter, even in face of adversities and injustices. The time of human justice seems, in sum, to make abstraction of the time human beings count on for the fulfilment of their needs and aspirations.

---------------------------------------------------------------------------------------------------------------------
[FN42] Written sometime between the years 49 and 62.
[FN43] Seneca, La Brevità della Vita (De Brevitate Vitae), 23rd. ed., Milano, RCS, 2008, pp. 40-41, Chap. I-1: “i giorni a noi concessi scorrono così veloci e travolgenti che, eccetto pochissimi, gli altri sono abbandonati dalla vita proprio mentre si preparano a vivere” - “tam rapide dati nobis temporis spatia decurrant, adeo ut exceptis admodum paucis ceteros in ipso vitae apparatu vita destituat”.
---------------------------------------------------------------------------------------------------------------------

47. Chronological time is surely not the same as biological time. The time of the succession of events does not equate with the time of the briefness of human life. Tempus fugit. On its turn, biological time is not the same as psychological time either. Surviving victims of cruelty lose, in moments of deep pain and humiliation, all they could expect of life; the younger lose in a few moments their innocence for ever, the elderly suddenly lose their confidence on fellow human beings, not to speak of institutions. Their lives become deprived of meaning, and all that is left is their hope in human justice. Yet, the time of human justice does not appear to be the time of human beings.

48. For those victimized, the passing of time without justice is painful, as it is time leading to despair. Victims of torture are only left with that hope in human justice. The devastating effects of torture have been denounced likewise time and time again, and international tribunals should not appear indifferent to that. In an eloquent personal account, for example, it was warned that

“Whoever was tortured, stays tortured. Torture is ineradicably burned into him, even when no clinically objective traces can be detected . . . The person who has survived torture and whose pains are starting to subside (before they flare up again) experiences an ephemeral peace that is conducive to thinking . . . If from the experience of torture any knowledge at all remains that goes beyond the plain nightmarish, it is that of a great amazement and a foreignness in the world that cannot be compensated by any sort of subsequent human communication . . . Whoever has succumbed to torture can no longer feel at home in the world . . . Trust in the world . . . collapsed in part at the first blow . . . will not be regained.” [FN44]

------------------------------------------------------------------------------------------------------------
[FN44] J. Améry, At the Mind’s Limits, Bloomington, Indiana Univ. Press, 1980 [reed.], pp. 34 and 38-40. And J. Améry, Par-delà le crime et le châtiment, Arles, Actes Sud/Babel, 2005 [reed.], pp. 83-84, 92 and 94-96:
“Celui qui a été torturé reste un torturé. La torture est marquée dans sa chair au fer rouge, même lorsque aucune trace cliniquement objective n’y est plus repérable . . . Celui qui vient de réchapper de la torture et dont la douleur se calme (avant de reprendre de plus belle) se sent gagné par une sorte de paix éphémère, propice à la réflexion . . . Si ce qui reste de l’expérience de la torture peut jamais être autre chose qu’une impression de cauchemar, alors c’est un immense étonnement, et c’est aussi le sentiment d’être devenu étranger au monde, état profond qu’aucune forme de communication ultérieure avec les hommes ne pourra compenser . . .
Celui qui a été soumis à la torture est désormais incapable de se sentir chez soi dans le monde . . . La confiance dans le monde qu’ébranle déjà le premier coup reçu . . . est irrécupérable”.
------------------------------------------------------------------------------------------------------------

49. It is here imperative to reduce or bridge the décalage between the time of victimized human beings and the time of human justice. This is indeed imperative, also bearing in mind that torture and other atrocities should not at all have taken place, and are not at all to take place again, and further keeping in mind their absolute and peremptory prohibition in any circumstances whatsoever -- a prohibition of jus cogens -- in contemporary international law (cf. infra). This has, in my view, a direct bearing on the issue of the indication of provisional measures.

2. The determination of urgency

50. It is pressing and imperative to reduce or bridge the gap between the time of human justice and the time of human beings. In my understanding, for the purposes of deciding whether to indicate provisional measures, the urgency of a situation cannot be measured mechanically in all cases, nor leniently in any case. May it be recalled that the term “urgent” derives from Latin “urgens/urgentis” (part. of urgere), meaning what is necessary to be done promptly, and, a fortiori, what is indispensable and cannot be prescinded from. The term “urgency” has its roots in late Latin (XVI and XVII centuries) urgentia, meaning “the state, condition, or fact of being urgent”, or “pressing importance”, or else “imperativeness” [FN45]. As to the law, urgency means the pressing need and relevance of compliance with legal precepts and obligations [FN46]. In this same sense, related to imperativeness, urgency means the “caractère d’un état de fait susceptible d’entraîner, s’il n’y est porté remède à bref délai, un préjudice irréparable, sans cependant qu’il y ait nécessairement péril imminent” [FN47].

---------------------------------------------------------------------------------------------------------------------
[FN45] Apud Oxford English Dictionary (online), www/oed/com, entry from 2nd ed. (1989), Oxford, University Press, with latest additions of March 2009, item I (1) (a); emphasis added.
[FN46] Apud Real Academia Española (R.A.E.), Diccionario de la Lengua Española, 21st ed., Madrid, R.A.E., 1992, p. 2050.
[FN47] G. Cornu/Association Henri Capitant, Vocabulaire juridique, 8th ed., Paris, Quadrige/PUF, 2008 [reprint], p. 946; emphasis added.
---------------------------------------------------------------------------------------------------------------------

51. Urgency thus relates to measures that ought to be promptly taken, in the context of a given situation, so as to avoid further delays which may bring about additional prejudice, or, indeed, irreparable harm (cf. infra). The determination of urgency, in my understanding, is thus not amenable to reliance on an abstract definition of the term, applicable uniformly to all cases; on the contrary, it ought to be determined in relation to the legal nature and content of the right to be preserved, and in the light of the particular circumstances of each case, as, for the purposes of the indication of provisional measures of protection, it is further linked to other elements, such as the probability of irreparable harm.

52. Furthermore, for the purposes of deciding whether to indicate provisional measures, the urgency of a situation cannot be measured in a way which appears disconnected from the human drama underlying the situation at issue; it is to be measured and determined in the light of the circumstances of each case and of the nature of the right to be preserved. Urgency is determined not in relation to time spans of legal procedures in force at domestic and international levels, but rather in relation to the legitimate expectations of the subjects of originally violated rights, those who are justiciable, and taking into account the time of human beings, which is not the same as the time of human justice.

53. In ascertaining urgency, if may further reasonably be asked: urgent to whom? To the “administrators” or “operators” of justice, anywhere? Most likely not, as, in all latitudes, they are used to the time of human justice, which is not the time of human beings. To the victims? Certainly yes, as their time (vita brevis) is not the time of human justice. If abstraction is made of the time of human beings, and of the human drama underlying a situation such as that of the present case, justice is bound to fail.

54. The urgency of a situation becomes evident not only, e.g., when convicted individuals are about to be executed, as in the triad Breard/LaGrand/Avena cases, or when a growing number of people are about to be murdered, as in cases concerning armed conflicts [FN48]. The urgency of a situation can be determined by reference to action as well as omission. The urgency of a situation becomes manifest also when people endure a lifetime of impunity, seeking in vain for the realization of justice at domestic and international levels.

---------------------------------------------------------------------------------------------------------------------
[FN48] Such as the cases, before this Court, of the Frontier Dispute (Burkina Faso/Republic of Mali), the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), the Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation).
---------------------------------------------------------------------------------------------------------------------

55. In the present documented case concerning the search for justice for the reported atrocities of the Habré régime, it is of public and notorious knowledge that people -- in a considerable number -- have already been murdered, and a long time ago, as a result of a State-planified and executed policy of repression in Chad. But the right to be now preserved is, however, of a distinct nature: it is the right to the realization of justice, which finds expression in the corresponding obligations set forth in Articles 5 (2) and 7 (1) of the 1984 United Nations Convention against Torture.

56. Irrespective of the arguments advanced by the contending Parties, this Court holds the faculty of an entirely free appreciation of the character of urgency of the situation brought to its knowledge and decision. In the present case concerning questions relating to the obligation to prosecute or extradite, the present-day home surveillance of Mr. H. Habré in Senegal is only one of the aspects of the situation before the Court (cf. paras. 82-83, infra), and not the determining one, as the Court seemed to believe, for the decision whether to indicate provisional measures. The crucial factor here is, in my view, the endurance by the victims of the ungrateful passing of time throughout their long search, in vain, for human justice to date.

57. The full text of the Report of the Chadian Truth Commission, adopted in N’Djamena on 7 May 1992, and published in book form shortly afterwards [FN49], was accompanied by the documental and testimonial evidence obtained by the Commission, including declarations from surviving victims. It related the forms of torture and arbitrary detentions perpetrated [FN50], and included section on the “volonté délibérée d’exterminer les prétendus opposants au régime”51, and assessed the systematic violence of the Habré régime in the following terms:

“Le régime de Hissein Habré a été une véritable hécatombe pour le peuple tchadien; des milliers de personnes ont trouvé la mort, des milliers d’autres ont souffert dans leur âme et dans leur corps et continuent d’en souffrir...
Jamais dans l’histoire du Tchad il n’y a eu autant de morts. Jamais il n’y a eu autant de victimes innocentes. Au début de ses travaux, la Commission d’enquête pensait avoir affaire, au pire des cas, à des massacres, mais plus elle avançait dans ses investigations, plus l’étendue du désastre s’agrandissait pour aboutir finalement au constat qu’il s’agissait plutôt d’une extermination . . . La machine à tuer ne faisait aucune différence entre hommes, femmes et enfants.” [FN52]
 
------------------------------------------------------------------------------------------------------------
[FN49] Cf. Ministère Tchadien de la Justice, Rapport de la Commission d’Enquête Nationale - Les crimes et détournements de l’Ex-Président Habré et de Ses Complices, Paris, L’Harmattan, 1993, pp. 5-269.
[FN50] Cf. ibid., pp. 38-43.
[FN51] Ibid., pp. 51-54.
[FN52] Ibid., p. 68, and cf. p. 239.
------------------------------------------------------------------------------------------------------------

58. Impunity has ever since prevailed, almost two decades later, despite the aforementioned endeavours in search of justice on the part of the Chadian Truth Commission, the United Nations Committee against Torture, the African Union, the United Nations Human Rights Council, the United Nations High Commissioner for Human Rights, and the step taken by Senegal itself to modify its Penal Code and Code of Criminal Procedure. The surviving victims, notwithstanding, are still in search of justice. Many of them have passed away in the course of their search. One of the surviving victims has declared last year that they “have been fighting for 18 years to bring Hissène Habré to justice, and time is running out. Unless Senegal takes action soon, there will not be any victims left at the trial.” [FN53] This is yet another illustration of the fact that the time of human justice is not the time of human beings.

---------------------------------------------------------------------------------------------------------------------
[FN53] United Nations High Commissioner for Refugees (UNHCR) - Refworld, “United Nations Decision on Hissène Habré Flouted”, www.unhcr.org/cgi, 16 May 2008, p. 1.
---------------------------------------------------------------------------------------------------------------------

59. Time is inherent to law, to its interpretation and application in relation to all situations and relations it regulates. The lapse of time, since the occurrence of the documented facts, does not, in my understanding, render the matter at issue less urgent or less relevant; quite on the contrary, it renders the situation to be settled more urgent, and the prolonged delays amount to an aggravating circumstance. The prevalence of impunity in the passage of time renders the realization of justice more and more urgent. In the context of impunity, urgency increases, rather than decreases, with the passing of time.

3. The determination of the probability of irreparable damage

60. The right to be preserved by provisional measures in the present case is the right to the realization of justice. It finds expression in the corresponding obligations erga omnes partes set forth in the 1984 United Nations Convention against Torture, such as the taking of measures to establish jurisdiction (Article 5) over crimes referred to in Article 4 of the Convention, and the one enshrined into the principle aut dedere aut judicare (Article 7). The several years of impunity following the pattern of systematic State-planified crimes, perpetrated - according to the Chadian Truth Commission - by State agents in Chad in 1982-1990, render the situation, in my view, endowed with the elements of gravity and urgency, as prerequisites for the indication of provisional measures. The passing of time with impunity renders the gravity of the situation even greater, and stresses more forcefully the urgency to make justice prevail.

61. The other prerequisite for the indication of provisional measures is likewise present in the situation at issue. The right to the realization of justice is a right erga omnes partes under the United Nations Convention against Torture, which corresponds to the aforementioned obligations. The subjects (titulaires) of this right are all the States parties to that Convention, amongst which are Belgium and Senegal. But the ultimate beneficiaries of that right are not the States, are not abstract entities, but rather human beings, of flesh and bones, of body and soul, who, like everyone, grow old and die. To overlook this fact amounts to wander in a Vattelian dream world of a strictly inter-State society which is long past.

62. Each time a surviving victim of torture, waiting for justice, dies without having had it, there is an (additional) irreparable harm. The prevailing impunity to date amounts in fact to a continuing situation of irreparable harm. Further delays in the cas d’espèce bring about the probability of further or growing irreparable harm. The original violations of rights of the human person which led to the invocation, at inter-State level, of the present right to be preserved - the right to the realization of justice - cannot be neglected or ignored.

63. Furthermore, the nature of the right to be preserved, and the circumstances surrounding it, do have a bearing on a decision of indication of provisional measures. As to the obligations corresponding to that right to be preserved, the segment aut judicare of the enunciation of the principle of universal jurisdiction, aut dedere aut judicare, forbids undue delays in the realization of justice. Such undue delays bring about an irreparable damage to those who seek justice in vain; furthermore, they frustrate and obstruct the fulfilment of the object and purpose of the United Nations Convention against Torture, to the point of conforming a breach of this latter [FN54].

---------------------------------------------------------------------------------------------------------------------
[FN54] Cf., to this effect, A. Boulesbaa, The United Nations Convention on Torture and the Prospects for Enforcement, The Hague, Nijhoff, 1999, p. 227.
---------------------------------------------------------------------------------------------------------------------

64. In the present case concerning questions relating to the obligation to prosecute or extradite, there is, in my view, no room for doubt that the elements of urgency and of the probability of irreparable harm are present, and clearly so. These latter do not allow reasoning in the abstract. The assumption of the absence of urgency of the present decision of the Court’s majority requires demonstration. The ICJ should, thereby, in my view, have indicated provisional measures, in the faithful exercise of its functions, so as to seek to ensure the prompt realization of justice in the cas d’espèce.

VIII. Legal nature, content and effects of the right to be preserved

65. In the course of the summary proceedings in the present case, the contending Parties, Belgium and Senegal, had the opportunity to dwell upon the nature and legal effects of the right to be preserved, in the course of the public hearings of 6 to 8 April 2009 before the Court and thereafter [FN55]. They repeatedly referred to their own obligations as States parties to the 1984 United Nations Convention against Torture. The Court itself, in the present Order, based its prima facie jurisdiction on Article 30 of that Convention (paras. 53-54 of the Order).

---------------------------------------------------------------------------------------------------------------------
[FN55] Thereafter, in virtue of the following question I saw it fit to put to both parties at the [end] of the public sitting of 8 April 2009, namely -- “For the purposes of a proper understanding of the rights to be preserved (under Art. 41 of the Statute of the Court), are there rights corresponding to the obligations set forth in Art. 7 (1), in combination with Art. 5 (2), of the 1984 United Nations Convention against Torture and, if so, what are their legal nature, content and effects? Who are the subjects of those rights, States having nationals affected, or all States Parties to the aforementioned Convention? Whom are such rights opposable to, only the States concerned in a concrete case, or any State Party to the aforementioned Convention?” Belgium and Senegal forwarded two letters each to the ICJ, in which they presented their views in response to that question (ICJ, letter from Belgium of 15 April 2009, pp. 1-6; ICJ, letter from Senegal of 15 April 2009, pp. 3; ICJ, letter from Belgium of 20 April 2009, p. 1; ICJ, letter from Senegal of 20 April 2009, pp. 1-3).
---------------------------------------------------------------------------------------------------------------------

66. In the present case, the right to the realization of justice has come to the fore as a result of the original violation of the absolute prohibition of torture, a prohibition of jus cogens, in the years of the Habré régime in Chad (1982-1990). In fact, an international régime against torture, forced disappearances, and summary or extra-judicial, executions has been conformed along more than two decades, on the basis of the absolute prohibition (one of jus cogens) also of those crimes. Consideration of this issue as a whole goes beyond the purposes of the present dissenting opinion, but, in so far as the absolute prohibition of torture, in particular, is concerned, I shall not omit to recall that the 1984 United Nations Convention against Torture is accompanied by the 1985 Inter-American Convention against Torture and the 1987 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. Moreover, to the work undertaken by the international supervisory organs of those three Conventions, one may add the work of the extra-conventional mechanisms of the United Nations in this same domain.

67. Furthermore, there is a remarkable jurisprudential construction of two contemporary international tribunals on the jus cogens prohibition of torture, namely, that of the ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY) and that of the Inter-American Court of Human Rights (IACtHR). The former, in the case of the Prosecutor v. Furundzija (Judgment of 10 December 1998), sustained that the absolute prohibition of torture has the character of a norm of jus cogens, and added that the application of the principle of universal jurisdiction in respect of torture ensues from the jus cogens prohibition of this latter (paras. 137-139, 144, 156 and 160). The IACtHR, on its turn, in its judgments in the cases Cantoral Benavides v. Peru (18 August 2000, paras. 95 and 102-103) and Maritza Urrutia v. Guatemala (27 November 2003, paras. 89 and 92), asserted the absolute prohibition of torture -- belonging to the domain of jus cogens -- even under the most difficult circumstances [FN56]. This position has become its jurisprudence constante to date.

---------------------------------------------------------------------------------------------------------------------
[FN56] Such as -- it exemplified -- under war, threat of war, “struggle against terrorism”, state of emergency, domestic conflicts or other public calamities. Also in this sense, its Judgment in the case of the Brothers Gómez Paquiyauri v. Peru (of 8 July 2004, paras. 111-112).
---------------------------------------------------------------------------------------------------------------------

68. Accountability for breaches of norms of jus cogens is ineluctable. The facts wherefrom the right to be preserved in the cas d’espèce emerged were violations of jus cogens. The realization of justice grows in importance. The 1984 United Nations Convention against Torture sets forth the obligations for States parties to establish jurisdiction over the offence of torture (Article 5) and to prosecute or to extradite the offenders (Article 7). These are obligations erga omnes partes, binding not only the contending Parties, but all States parties to the Convention, which are further committed to its collective guarantee. Likewise, all States parties have the corresponding right, on the basis of the Convention, to see to it that these obligations are duly complied with.

69. They are entitled by the Convention to exercise such right erga omnes partes. Such right is thus opposable to each of the States parties to the Convention. The relevance of this Convention, and the nature and effects of the right to be preserved and the obligations it stipulates, giving expression to the principle of universal jurisdiction (aut dedere aut judicare), are not reflected in the considerations that motivate the decision of the majority of the Court in the present Order. They deserved, in my perception, much greater weight in the consideration of the prerequisites for the indication of provisional measures.

70. Had this occurred, the decision reached in the present Order of the Court would have been different. If customary international law were to be brought into the picture, one would be before a right corresponding to obligations erga omnes, disclosing a wider horizon, not circumscribed to the States parties to the United Nations Convention against Torture. It is not my intention to embark on this aspect of the matter in the present dissenting opinion, but only to draw attention to one specific point, deserving of attention here, as the issue did not pass unnoticed in the public sitting of the Court of 7 April 2009 [FN57] in the present case.

---------------------------------------------------------------------------------------------------------------------
[FN57] Cf. CR 2009/10, pp. 14-15.
---------------------------------------------------------------------------------------------------------------------

71. The consolidation of erga omnes obligations of protection, ensuing from the imperative norms of international law, in my understanding overcomes the pattern erected in the past upon the autonomy of the will of the State, which can no longer be invoked or pursued in view of the existence of norms of jus cogens. These latter transcend the law of treaties, and encompass nowadays the domain of State responsibility. Those obligations, in their turn, clearly transcend the individual consent of States, heralding the advent of the international legal order of our times, committed to the prevalence of superior common values, in the ongoing construction of the international law for humankind.

72. Obligations erga omnes cannot properly be approached from a strictly inter-State perspective, which would no longer reflect the essence of the contemporary international legal order. Those obligations disclose not only a horizontal dimension, as they are owed to the international community as a whole (a point overworked in expert writing), but also, in my perception, a vertical dimension, as compliance with them is required not only from organs and agents of the public power, but also from natural persons (simples particuliers), in their inter-individual relations (a point insufficiently examined in expert writing to date). A proper understanding of the scope of those obligations, and due compliance with them, can help to rid the world of violence and repression, such as those which, in the present case, victimized thousands of persons in the years of the Habré régime in Chad (1982-1990).

73. There could hardly be better examples of a mechanism for the application of the obligations erga omnes of protection (at least in the relations of the States parties inter se) than the methods of supervision provided for the human rights treaties themselves, such as the 1984 United Nations Convention against Torture, for the exercise of the collective guarantee of the protected rights. In the present case, the right to be preserved is the right to the realization of justice, which corresponds to those obligations erga omnes partes. Had the ICJ issued the requested provisional measures, it would have taken upon itself the task or role of guarantor of the collective guarantee of the United Nations Convention against Torture.

IX. Provisional measures to be indicated

1. Time and the imperativeness of the realization of justice

74. The passing of time, and its effects, constitute possibly the greatest enigma or mystery surrounding human existence, which has defied human thinking, in distinct domains of human knowledge, along centuries. The domain of law is no exception to that: the passing of time has, not surprisingly, raised issues which continue to defy legal thinking as to the proper interpretation and application of law. In my understanding, time is to be made to operate to secure the realization of justice, and surely not to suggest its impossibility (for alleged lack of material or financial resources), or to impose legal inaction or even oblivion (e.g., prescription, in other contexts). The universal juridical conscience has evolved so as no longer to admit obstacles, in space or in time, to the investigation and sanction of grave violations of human rights and of international humanitarian law.

75. The exercise of universal jurisdiction purports to overcome past obstacles in space. One is, furthermore, to bridge the gap between the time of human beings and the time of human justice, so as to overcome obstacles in time. It is the gravity of human rights violations, of the crimes perpetrated, that admits no prolonged extension in time of the impunity of the perpetrators, so as to honour the memory of the fatal victims and to bring relief to the surviving ones and their relatives. In my understanding, even more significant that retribution is the judicial recognition of human suffering [FN58], and only the realization of justice can alleviate the suffering of the victims caused by the irreparable damage of torture.

---------------------------------------------------------------------------------------------------------------------
[FN58] The right to be herein preserved, the right to justice, is inextricably linked to [non-pecuniary] reparation.
---------------------------------------------------------------------------------------------------------------------

76. To that end, time is necessarily short, such as human life, and the indefinite prolongation of time in the realization of justice is an aggravating circumstance. It goes without saying that oblivion cannot be imposed, as, in the domain of Law, it would amount to an obstruction of justice. The investigation and sanction of grave violations of human rights brings the past into the present, to render the latter bearable, once the responsibility for the atrocities occurred in the past are properly determined. Surviving victims and their relatives can thus earn their future. Impunity is unacceptable in our times; imposed oblivion is overwhelmed by memory, rendering the future possible.

77. The décalage between the time of human beings and the time of human justice is to be reduced. Without the realization of justice, without the right to the Law (le droit au Droit), there is no legal system at all, neither at domestic, nor at international, level. In the meantime, with the persistence of impunity in the present case concerning Questions relating to the Obligation to Prosecute or Extradite, the passing of time will continue hurting people, much more than it normally does, in particular those victimized by the absence of human justice. The time of this latter is not the time of human beings.

2. The required indication of provisional measures in the present case

78. In the light of the aforementioned, the decision taken by the Court’s majority, not to indicate provisional measures in the present case, can be severely questioned. The Court based its prima facie jurisdiction, in the present Order, on the United Nations Convention against Torture (Article 30); in my view, the prerequisites were present for the indication of provisional measures, and, even if the Court were not fully satisfied with the arguments of the parties, it is not limited or constrained by such arguments.

79. In its own case law, the Court, invoking the principle jura novit curia, has clarified that it is not bound to confine its consideration of the case at issue to the pleas or the materials formally submitted to it by the parties. It has so warned, e.g., in its Judgments in the cases of Fisheries Jurisdiction ((Federal Republic of Germany v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 181, paras. 17-18), and of Military and Paramilitary Activities in and against Nicaragua ((Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, pp. 24-25, paras. 29-30). In sum, the Court is the master of its own jurisdiction, and it is empowered to indicate any provisional measures it deems necessary in a case, irrespective of the arguments of the parties, or even in the absence of such arguments.

80. That the Court is not restricted by the arguments of the parties, is further confirmed by Article 75 (1) and (2) of the Rules of Court [FN59], which expressly entitles it to indicate, motu proprio, provisional measures that it regards as necessary, even if they are wholly or in part distinct from those that are requested. A decision of the ICJ indicating provisional measures in the present case, as I herein sustain, would have set up a remarkable precedent in the long search for justice in the theory and practice of international law. After all, this is the first case lodged with the ICJ on the basis of the 1984 United Nations Convention against Torture, which, on its turn, is “the first human rights treaty incorporating the principle of universal jurisdiction as an international obligation of all States Parties without any precondition other than the presence of the alleged torturer” [FN60].

---------------------------------------------------------------------------------------------------------------------
[FN59] Art. 75 (1) of the Rules of Court sets forth that “the Court may at any time decide to examine proprio motu whether the circumstances of the case require the indication of provisional measures which ought to be taken or complied with by any or all of the parties”. And Art. 75 (2) determines that “when a request for provisional measures has been made, the Court may indicate measures that are in whole or in part other than those requested, or that ought to be taken or complied with by the party which has itself made the request”.
[FN60] M. Nowak, E. McArthur et al., The United Nations Convention against Torture - A Commentary, Oxford, University Press, 2008, p. 316.
---------------------------------------------------------------------------------------------------------------------

81. The Court has made use of its prerogatives under Article 75 on some previous occasions. Examples are provided by its Orders of Provisional Measures, invoking Article 75 (2), in the cases concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide ((Bosnia and Herzegovina v. Yugoslavia), Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 22, para. 46), the Land and Maritime Boundary between Cameroon and Nigeria ((Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996 (I), p. 24, para. 48), the Armed Activities on the Territory of the Congo ((Democratic Republic of the Congo v. Uganda), Provisional Measures, Order of 1 July 2000, I.C.J. Reports 2000, p. 128, para. 43), and, more lately, the Application of the International Convention on the Elimination of All Forms of Racial Discrimination ((Georgia v. Russian Federation), Provisional Measures, Order of 15 October 2008, para. 145).

82. That it has found it unnecessary to do so in the present case, pertaining to the right to the realization of justice, is a cause of concern to me. After all, there was nothing precluding it from doing so; on the contrary, the prerequisites of urgency and the probability of irreparable harm were and remain in my view present in this case (cf. supra), requiring from it the indication of provisional measures. Moreover, there subsist, at this stage - and without prejudice to the merits of the case - uncertainties which surround the matter at issue before the Court, despite the amendment in February 2007 of the Senegalese Penal Code and Code of Criminal Procedure.

83. Examples are provided by the prolonged delays apparently due to the alleged high costs of holding the trial of Mr. H. Habré, added to pre-trial measures still to be taken, and the lack of definition of the time still to be consumed before that trial takes place (if it does at all). Despite all that, as the Court’s majority did not find it necessary to indicate provisional measures, the Court can now only hope for the best.

84. This is all the more serious in the light of the nature of the aforementioned obligations of the States parties to the United Nations Convention against Torture. Eight years ago, the United Nations Committee against Torture, in the exercise of its functions, decided to issue an interim or provisional measure in the case of S. Guengueng et alii case, concerning Senegal, to secure the full application of the pertinent provisions of the United Nations Convention against Torture. Yet, despite all that, this Court found that the circumstances, as they now presented themselves to the Court, were not such as to require provisional measures of protection.

85. Much to my regret, as a result of this decision, a precious occasion has been lost by the Court to contribute to the development of contemporary international law in a domain of crucial importance such as that concerning the principle of universal jurisdiction, on the basis of a high relevant United Nations Convention enshrining a series of obligations ensuing from the domain of jus cogens, the 1984 Convention against Torture.

86. Had the Court taken a different view, it could, and should, have indicated provisional measures to the effect of requiring from the contending parties, ex abundante cautela, periodical reports to it, on the basis of Article 78 of the Rules of Court [FN61], on any measures taken and advances eventually achieved by them towards the realization of justice in the present case (i.e., the holding of the trial of Mr. H. Habré in Senegal). This would also have enhanced the mandate issued by the African Union itself in 2006 (supra). Provisional measures of this kind, with the requirement of reporting, have precedents in the case law of the ICJ itself.

---------------------------------------------------------------------------------------------------------------------
[FN61] Art. 78 of the Rules of Court provides that “the Court may request information from the parties on any matter connected with the implementation of any provisional measures it has indicated”.
---------------------------------------------------------------------------------------------------------------------

87. May it be recalled that this Court has issued Orders of Provisional Measures, containing such requirement of reporting, and remaining seised of the matter till the delivery of its final judgment, in the cases of Fisheries Jurisdiction ((Federal Republic of Germany v. Iceland), Interim Protection, Order of 17 August 1972, I.C.J. Reports 1972, resolutory point 1 (f)), of the United States Diplomatic and Consular Staff in Tehran ((United States of America v. Iran), Provisional Measures, Order of 15 December 1979, I.C.J. Reports 1979, resolutory point 2), of the Frontier Dispute ((Burkina Faso/Republic of Mali), Provisional Measures, Order of 10 January 1986, I.C.J. Reports 1986, resolutory point 2), of Vienna Convention on Consular Relations ((Paraguay v. United States of America), Provisional Measures, Order of 9 April 1998, I.C.J. Reports 1998, resolutory point I), of LaGrand ((Germany v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999 (I), resolutory point I (a)), of Avena and Other Mexican Nationals ((Mexico v. United States of America), Provisional Measures, Order of 5 February 2003, I.C.J. Reports 2003, resolutory point I (b)), of the Application of the International Convention on the Elimination of All Forms of Racial Discrimination ((Georgia v. Russian Federation), Order of 15 October 2008, resolutory point D) [FN62].

---------------------------------------------------------------------------------------------------------------------
[FN62] Cf. also the Court’s Order in the case of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) (Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, pp. 7-8, para. 3).
---------------------------------------------------------------------------------------------------------------------

88. This Court should in my view have remained seised of the matter at stake. It should not have relinquished its jurisdiction in the matter of provisional measures, on the ground of its reliance on what may have appeared the professed intentions of the parties, placing itself in a position more akin to that of a conciliator, if not an expectator. Had the Court done so, it would have assumed the role of the guarantor of the compliance, in the cas d’espèce, of the conventional obligations by the States parties to the United Nations Convention against Torture in pursuance of the principle aut dedere aut judicare.

89. We are here before the invocation of the principle of universal jurisdiction, grounded on a United Nations Convention which reckons the absolute prohibition of torture, bringing us to the domain of jus cogens, a conceptual construction proper of the new jus gentium of our times. In my understanding, the obligations set forth by the United Nations Convention against Torture are not simply obligations of conduct or behaviour, but rather indeed obligations of result.

90. In so far as provisional measures are concerned, had the ICJ decided to remain seised of the matter at issue, by requesting further periodical information and reports from the contending Parties as to the measures taken to have justice at last done in the concrete case, it would thereby have given its own contribution not only to the settlement of the issue raised before it at this stage, but also, in the fruitful exercise of its functions in the domain of provisional measures of protection, to the realization of justice.

91. This would have appeared to me the right course to be taken, in a decision which could have set up a relevant, if not historical, precedent, in the domain of provisional measures. However, by having proceeded otherwise, not indicating these latter, it has now become somewhat difficult to avoid the impression that universal jurisdiction keeps on having a long past, a refrained present, and an uncertain future.

X. The lesson of the present case at this stage: provisional measures for the realization of justice

92. By means of its provisional measures, the ICJ can indeed contribute not only to the preservation of the right to the realization of justice in a given case, but also to the development of the law of nations itself, the new jus gentium of our times. All will depend on how provisional measures are approached. My own conception is that, by preserving rights whose subjects are not only States but also human beings, they can also contribute to the development of the law of nations (droit des gens).

93. There is nothing new under the sun; this outlook of the matter, somewhat uncultivated in our days [FN63], was present in a trend of international legal thinking of the matter which cannot now be forgotten, and which ought to be retaken and further developed in our days. As soon as 1931, for example, Paul Guggenheim pondered with insight that provisional measures are bound to contribute to the development of international law; after all, they do contribute to “rendre justice”, to the “réalisation future d’une situation juridique déterminée” [FN64].

---------------------------------------------------------------------------------------------------------------------
[FN63] It is to be kept in mind, whenever anything is claimed to be novel, that, from time immemorial, it has been warned that whatever appears novel, most likely it is not, it has been reflected upon or expressed before; Ecclesiastes, cf. Chap. 1-10.
[FN64] P. Guggenheim, Les mesures provisoires de procédure internationale et leur influence sur le développement du droit des gens, op. cit. supra No. (4), pp. 14-15 and 62.
---------------------------------------------------------------------------------------------------------------------

94. One decade earlier, throughout the work of the Advisory Committee of Jurists of drafting (June-July 1920) the Statute of the Hague Court (PCIJ and ICJ), Raul Fernandes sought to enhance provisional measures by proposing enforcement measures (penalties) by the PCIJ [FN65]. Shortly afterwards, he asserted his commitment to the realization of justice at international level bearing particularly in mind the principle of the juridical equality of States [FN66]. Provisional measures, with their preventive dimension, can indeed contribute to the development of international law.

---------------------------------------------------------------------------------------------------------------------
[FN65] Cf. Cour Permanente de Justice Internationale, Procès-verbaux des séances du Comité Consultatif de Juristes (16 juin-24 juillet 1920) avec annexes, La Haye, Van Langenhuysen Frs., 1920, p. 588 (intervention by R. Fernandes, 20 July 1920).
[FN66] R. Fernandes, Le principe de l’égalité juridique des États dans l’activité internationale de l’après-guerre, Genève, Impr. A. Kundig, 1921, pp. 18-22 and 33.
---------------------------------------------------------------------------------------------------------------------

95. For the purposes of provisional measures in the present case, the right to be preserved is ultimately the right to the realization of justice, the right to see to it that justice is done (a right of States -- before this Court -- emerged from the violation of fundamental rights of the human beings concerned, originally victimized by torture). There is in the cas d’espèce, in my perception, a risk of (ongoing) irreparable damage, in the form of insufficient action, of further delays [FN67]. As an old maxim warns, justice delayed is justice denied.

---------------------------------------------------------------------------------------------------------------------
[FN67] May it be recalled that, at domestic law level, in legal procedure, the periculum in mora, associated with prolonged and undue delays in the realization of justice, has been a key concept for the determination of precautionary or interim measures.
---------------------------------------------------------------------------------------------------------------------

96. It can, in my understanding, be forcefully argued that the denial of access to justice is peremptorily prohibited: without such right, there is simply no legal system at all, at international and national levels. Furthermore, grave violations of human rights, and of international humanitarian law, such as torture, are detrimental not only to the direct and indirect victims, as they directly affect their social milieu as a whole. In this framework, the right to the realization of justice appears ineluctably of the utmost relevance. The perpetuation of impunity is corrosive of the whole social milieu. There is urgency, in the sense of imperativeness, in the preservation of the right to the realization of justice, by means of provisional measures of protection.

XI. Concluding observations

97. I come thus to my concluding observations of this dissenting opinion. The fact that the binding character of provisional measures of protection is nowadays beyond question, on the basis of the res interpretata of the ICJ itself (cf. paras. 9-11, supra), does not mean that we have reached a culminating point in the evolution of the ICJ case law on this matter. Quite on the contrary, I can hardly escape the impression that we are living the infancy of this jurisprudential development. The Court has not yet pronounced on the autonomy of an order of indication of provisional measures; nor has it yet pronounced on the legal consequences of non-compliance with them; nor has it yet pronounced on issues of State responsibility in this very specific context, -- apart from the decision on the merits on the corresponding cases. There is thus still a long way to move forward.

98. It has already been argued [FN68] that, in the present case, the violation of the peremptory prohibition of torture has taken us to the invocation, in the inter-State contentieux, of the right to the realization of justice, on the basis of the relevant provisions of the 1984 United Nations Convention against Torture (Articles 7 (1) and 5 (2)). The nature of the right to be preserved, a right erga omnes partes, does have a bearing on a decision to indicate provisional measures. Provisional measures do have a place in the cas d’espèce, as the preconditions for them are herein met. Urgency (imperativeness) requires such measures, so as to avoid the probability of further irreparable damage as a result of the prolongation of undue delays in the realization of justice.

---------------------------------------------------------------------------------------------------------------------
[FN68] Para. 40, and cf. paras. 17 and 21-25, supra.
---------------------------------------------------------------------------------------------------------------------

99. In the present Order (paras. 47-48) the ICJ found that there appeared to be a prima facie continuing dispute between the Parties as to the interpretation and application of the relevant provisions of the United Nations Convention against Torture. In my view, States parties to this Convention have undertaken the obligation to exercise universal jurisdiction (Article 7), in respect of torture, and thus to contribute to the gradual construction of a truly universal international law.

There is thus need to go beyond the traditional types of territorial jurisdiction, active and passive personality (nationality) jurisdictions, and protective jurisdiction, in cases of grave violations of human rights and international humanitarian law. One would thus be giving expression to superior legal values shared and upheld by the international community as a whole, as well as responding in particular to its legitimate concern to overcome impunity at national level.

100. This Court has, so far, succinctly and rightly held, in a distinct context, that the prohibition of genocide belongs to the domain of jus cogens [FN69]. We are here in the domain of material or substantive law, as distinguished from, though related to, the conception of obligations erga omnes, proper of procedural law (cf. paras. 68-73, supra). Although the Court has dwelt mainly upon these latter [FN70] -- still having to extract the consequences of their existence and breach -- it has a long way to go in relation to the former -- the imperatives of jus cogens -- if it decides, as I hope, to embark on the acknowledgment of the gradual expansion of its material content.

---------------------------------------------------------------------------------------------------------------------
[FN69] Case concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, pp. 31-32 and 35, paras. 64 and 78; and case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, pp. 110-111, para. 161).
[FN70] Since its celebrated obiter dictum in the case of the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970, p. 32, paras. 33-34; and cf., subsequently, case concerning East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29; case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), pp. 615-616, para. 31; case concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, pp. 29 and 51-52, paras. 54 and 125; case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, pp 104, 110-111 and 120, paras. 147, 161 and 185. And cf. also the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 199, paras. 155-157.
---------------------------------------------------------------------------------------------------------------------

101. The present case, even at this stage, appears to me as one of great relevance, as the right to be preserved - the right to the realization of justice - is ineluctably linked to the rule of law at both national and international levels. Significantly, due to the awakening of the universal juridical conscience, the matter is nowadays being considered at both levels, and attracting increasing attention, in the agenda of the General Assembly of the United Nations, over the last three years. The United Nations General Assembly has in fact reaffirmed “the need for universal adherence to and implementation of the rule of law at both the national and international levels”, as well as its “commitment to an international order based on the rule of law and international law” [FN71].

---------------------------------------------------------------------------------------------------------------------
[FN71] General Assembly resolution 63/128 (11 December 2008), on “The Rule of Law at the National and International Levels”, fourth preambular paragraph.
---------------------------------------------------------------------------------------------------------------------

102. On its part, earlier on, the old United Nations Commission on Human Rights, in its resolution 2000/43, stressed that “all allegations of torture or other cruel, inhuman or degrading treatment or punishment be promptly and impartially examined by the competent national authority”, and that “those who encourage, order, tolerate or perpetrate acts of torture must be held responsible and severely punished” (para. 6). The Commission next called for rehabilitation of the victims (para. 6), and further urged that “States should abrogate legislation leading to impunity for those responsible for grave violations of human rights such as torture and prosecute such violations, thereby providing a firm basis for the rule of law” (para. 2).

103. The central dilemma, on the matter at issue, facing nowadays not only States, but the legal profession as well, is quite clear to me: either they keep on relying on the traditional types of criminal jurisdiction (cf. para. 99, supra), irrespective of the gravity of the offences committed, or else they admit that there are crimes that do indeed shock the conscience of humankind and that render thereby ineluctable the recourse to universal jurisdiction. Either they continue to reason as from the outlook of an international legal order atomized in sovereign units, or else they decide to move closer to the ideal of the civitas maxima gentium.

104. According to this latter, above consent (the will), is the right use of reason; it is the recta ratio which guides the will of States, and is conducive to the necessary, rather than voluntary, law of nations [FN72], holding all of them together, bound in conscience, in the civitas maxima, the legal community of the whole of humankind. This ideal, pursued notably by Christian Wolff in the eighteenth century, has its historical roots in the Stoics in ancient Greece, has survived to date and has been recalled from time to time [FN73]. It repeals all that shocks the universal juridical conscience. In the conceptual construction of the civitas maxima gentium, nations need each other’s assistance to repress grave crimes (wherever they may occur) and to promote the common good (commune bonum promovere) [FN74], pursuant to the dictates of the right reason [FN75].

---------------------------------------------------------------------------------------------------------------------
[FN72] Christian Wolff, Jus Gentium Methodo Scientifica Pertractatum (1764 -- Series The Classics of International Law, ed. J. Brown Scott), Prolegomena, p. 2, para. 4.
[FN73] Cf., e.g., over half a century ago, W. Schiffer, The Legal Community of Mankind, NY, Columbia University Press, 1954, pp. 63-78.
[FN74] C. Wolff, Jus Gentium . . ., op. cit. supra No. (73), p. 5, paras. 12-13.
[FN75] Ibid., p. 7, para. 21.
---------------------------------------------------------------------------------------------------------------------

105. If States and the legal profession opt for this outlook, as I sincerely hope, the principle of universal jurisdiction has to be pursued and applied universally, in all corners of the world, without selectivity [FN76]. In the present case, Senegal has now a rare opportunity, by bringing promptly Mr. H. Habré to trial, to give an example to the world, in compliance with the mandate issued by the African Union in 2006, which is well in keeping with the legal nature, content and effects of the right to be preserved in the cas d’espèce, and the corresponding obligations erga omnes partes of the United Nations Convention against Torture (Articles 7 (1) and 5 (20)). I dare to nourish the hope that States and the legal profession embark on the right path, for the sake of the development of contemporary international law, as a true law of nations (droit des gens), the new jus gentium of our times, emanated ultimately from human conscience.

---------------------------------------------------------------------------------------------------------------------
[FN76] As Christian Wolff furthermore upheld in 1764, since all persons are by nature equal, so all nations too are by nature equal one to the other (gentes etiam omnes natura inter se aequales sunt); cf. ibid., p. 6, para. 16.
---------------------------------------------------------------------------------------------------------------------

(Signed) Antônio Augusto CANÇADO TRINDADE.

 

Separate opinion of Judge ad hoc Sur

 
     

 

home | terms & conditions | copyright | about

 

Copyright © 1999-2011 WorldCourts. All rights reserved.