On July 20 the UN International Court of Justice ruled on the case of former President of the Republic of Chad Hissen Habre, who is in exile in Senegal. According to the ruling this country must either extradite him to Belgium or begin trial proceedings immediately (1). The decision has become a final stage of the years long process involving many countries, international organizations and international courts.
Let’s remember Hissen Habre was the leader of Chad in 1982-1990. He was toppled by incumbent President Idris Debi. In his time Habre came to power thanks to massive influx of military aid released by the USA: those days the territory of Chad was used as a beachhead for launching operations against Muammar Gaddafi. Libya was waging war over the Auzu Strip then, so the US supplies were actually destined to boost the Chad’s capability “to fight Gaddafi”. The aid had stopped before Habre was overthrown. The matter is a few weeks before being toppled he had signed a peaceful agreement with Gaddafi to transfer the case of the Auzu strip to the competence of UN International Court of Justice (three years later the Court ruled in favor of Chad)…
After the coup d’etat in December 1990 Hissen Habre escaped to Sudan, then he moved to Cameroon and, finally, he got political asylum in Senegal. Then the twenty years long saga started. His former political opponents and victims of human rights violations tried to make him responsible for what, allegedly, had been done on his orders. The leader of the campaign was…Belgium. Formally the proceedings were initiated by a Chadian refugee who later became a Belgian citizen. Belgium demanded that Senegal would start trial proceedings or extradite Habre. Since then Senegal has adopted a number of new laws to solve the problem, the Constitution was amended making possible to lift the immunity of the former head of state and call off the ban on retroactive application of criminal law. The International Committee against Torture and the ECOWAS Court of Justice ruled on starting trial proceedings versus Habre. The African Union ruled he was to go to court. But it meant a Senegalese court, not the one held in Belgium. That is the UN International Court of Justice demands that Senegal should extradite Habre to the country that has no legal right to consider the lawsuit. The purpose is to make the state act according to the “universal jurisdiction” - a convention that asserts the right of any state to bring to justice any person, including the one who has committed a crime on the territory of another state or is residing on another state’s soil.
At first glance the International Court’s decision is handed down in accordance with the well known Roman maxim Aut dedere aut judicare – “extradite or prosecute”. But it’s not exactly the case if you have a closer look. In reality the Court handed down a decision that could be formulated as “try or extradite” that is the summands interchanged the places significantly affecting the “the sum”. Moreover the result is not so much relevant to the case of the former leader of Chad but rather to the cases related to an unspecified number of individuals of any standing in future.
First, the principle “extradite or prosecute” refers to the legal obligation to prosecute those who commit serious international crimes under legal jurisdiction of another state, normally the one a person is citizen of. That’s why the word “extradite” goes first and it is obligatory to comply. The foremost and fundamental international obligation of a state is nothing else but extradition. The obligation to persecute is alternative – it is exercised in the cases when a decision not to extradite is in force. Meeting the demands put forward by Belgium means the UN International Court has interchanged places of the states’ obligations. What we have now is the situation when the obligation of a state to prosecute is valid only in the case an extradition is refused. But it changes the whole context of the case. Extradition is regulated by international law.If prosecution is exercised according to the law of a given state than the international law takes the place of the national one! Moreover it’s done without the consent of state itself.
The decision was not a unanimous one. Two judges opposed it. Interesting is the fact that Senegal walked into the same trap that African countries normally fall in. There is no Senegalese judge in the Court, so Senegal had the privilege of choosing a lawyer to represent its interests. The choice was made… French Serge Sur, the one who had found Senegal guilty on a number of charges! This “remarkable” choice looks especially awkward (3) due to the fact that Senegal is a country that boasts a leading school of international law (2).
What is the resume?
First, the UN International Court has changed the obligations of states. Before the international legal obligation of a state was the sphere of international relations (extradition), now it’s the competence of state’s internal policy – criminal law and legal system of this or that country. It is a serious violation of state sovereignty.
Second, the next signal is given, the states no longer have a right to grant political asylum as they deem necessary. “The violators” will be found guilty of breaching international law and punished.
Third, Africa is refused the right to consider its cases independently. Before that the African Union had decided that Habre was to face trial only in Africa. Belgium has no whatsoever legal rights to take up the case, but it was given a priority over the joint position of African states.
Finally, the so called “universal jurisdiction” is given green light. The July 20 precedent lays down a foundation for “punishment” of one state by any other even if the last one has no relation to the case. Let’s note that one of the reasons for recognizing Senegal guilty according to the complaint launched by Belgium was that the country had not included some legal norms into its national law.
No matter the UN International Court ruling is done under the guise of defending human rights, it actually constitutes another – and a very important – element of foundation for creating a “new” repressive international law. The cynicism of international “human rights activists” has no limits: the killers of former Prime Minister of Congo Patrice Lumumba are still doing well in Belgium. The UN International Court of Justice didn’t deem necessary to ask Brussels if Belgium had an intention to prosecute the international criminals. If the answer is no, then when will the Belgium authorities extradite them to be brought to justice in Congo?
1) Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) - Judgment of 20 July 2012, the text of the ruling. The official website of UN International Court of Justice: http://www.icj-cij.org/docket/files/144/17064.pdf.
2) Those who represented the Senegal’s international law school have been deservedly given such respectful assignments as Vice-President of UN International Court of Justice, Head of International Law Commission, President of International Sports Court and numerous other top international positions.
3) The Democratic Republic of Congo had stepped on the same rake by selecting Joe Verhoeven, a Belgian, as a judge to represent its interests. He voted for finding Congo guilty on one of the charges while considering the Democratic republic of Congo v. Uganda case (2005).