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Eric Allen Engle, Extradite or Prosecute?
Belgium v. Senegal Berkeley Journal of International Law Publicist, May 26 (2011). Available at: http://bjil.typepad.com/publicist/2011/05/extradite-or-prosecute-belgium-v-senegal.html

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By Eric Allen Engle[1]

Introduction

In the post-war era, certainly in the post-Soviet era, a global norm erga omnes has arisen: “aut dedere, aut judicare”:[2] a state must either extradite or prosecute persons residing on their territory who have violated peremptory norms of international law (i.e., jus cogens).[3] The norm is potentially powerful in the protection of human rights and could prevent international criminals from residing in safe exile while relying on misappropriated wealth to bribe local officials.

Recently, Belgium has brought a case to the International Court of Justice (“ICJ”), seeking to compel Senegal to either extradite or try the former Chadean Head of State, Hissane Habre. Habre had committed various brutal violations of human rights during his rule[4] in violation of the Convention Against Torture (“CAT”)[5] and customary international law.[6] The case is still in the preliminary stages. Nevertheless, it raises several issues which have been litigated before and which are of burning interest for international law and indeed for international relations.

Procedurally, Belgium had asked the ICJ to order Senegal to keep the former Chadean head of state under house arrest so that he would not flee Senegal. The ICJ denied that motion noting, essentially, that the relevant jurisdictional instrument specifically provides that State Parties must seek arbitration on that point,[7] and that the court only intervenes with preliminary measures in the event one party’s interests may be prejudiced otherwise.[8] Senegal justifies its non-prosecution by the argument that Senegal does not regard international law’s well recognized crimes against humanity as a part of domestic Senegalese law because such a provision is not found in the Senegalese Penal Code.[9]

From this position one can infer that Senegal is dualist[10] as to treaty law. “Dualists” regard the national and international legal systems as hermetically separate with autonomous rules of interpretation. “Monists,” in contrast, view the international and national legal systems as interdependent and united, part of a seamless whole.[11]

While the ICJ did not grant Belgium’s request to keep the former Chadean dictator under house arrest[12] it also did not reject the case out of hand on jurisdictional grounds.[13] Given the issues, all of which are topical, and the particular procedural history it is likely the case will wind its way through the ICJ to a final judgment on at least some of the merits. This note raises the substantive legal issues in the case at bar to show why the case will be heard and likely garner much attention:

Head of State Immunity

The first issue which would arise on the merits will likely be the immunity of Habre as a head of state.[14] The better resolution to that issue is that heads of state, at least after the end of their office, are liable for violations of peremptory norms of international law (jus cogens) committed during their term of office, even where such violations of international law are viewed as acts of state under domestic law.[15] However, from past ICJ cases it is not clear that the court will in fact reach this conclusion, as it is entirely possible that the ICJ will avoid reaching the substance of the case.

In the past the ICJ has relied on head of state/ministerial immunity to avoid reaching the merits.[16] In contrast, the British House of Lords, Britain’s highest appellate court, recognizes that heads of state are not immune for acts of state which violate of jus cogens obligations.[17] The ICJ could also use jurisdictional questions as an excuse to avoid reaching the merits. It has tried to establish, in dictum, a distinction between relative and absolute universal jurisdiction as justifying a finding of “no jurisdiction”.[18] However, Belgium v. Senegal gives the ICJ the chance to reach the logical and just outcome which it should have reached in Belgium v. Congo: that no one, even the (former) head of state is immune for violations of jus cogens, and that procedural formalism will not block substantive justice.

Universal Jurisdiction over Jus Cogens Violators

The universal jurisdiction of all states over criminals who violate jus cogens norms is at issue in Belgium v. Senegal. Again, the court has every opportunity to avoid the issue due to the complexity of jurisdiction. The court could rely on the fine distinctions between jurisdiction to proscribe (the right of a state to legislate the positive law), jurisdiction to adjudicate (the right of state judicial intervention), and jurisdiction to enforce (the right of a state to take executive action),[19] or the distinction it makes between absolute and relative universal jurisdiction.[20] These jurisdictional maneuvers could be undertaken again, if the ICJ so wishes, either to deny its own power to hear the case (in practice) or the power of Belgium (if only theoretically). Should the ICJ repeat the errors it made in Congo v. Belgium[21] it would further erode its own legitimacy. The logic of contemporary international law is that universal jurisdiction is admissible in cases of violations of jus cogens because such violations are crimes against all states.

Obligation to Prosecute or Extradite

Perhaps the trickiest issue is the one squarely before the court: the obligation of a state to either prosecute or extradite those who violate jus cogens.[22] Senegal has the legal right to maintain a strict dualism, to regard customary international law or international treaties as separate from its own domestic law and thus not cognizable before the Senegalese courts. However, that choice does not exonerate Senegal from its international obligations. The extradite-or-punish rule is clearly a part of international law, whether by treaty or by custom, as confirmed in treaties. By failing to either extradite or prosecute Habre, Senegal has breached its legal obligation to other states.

The natural and logical remedy to such a breach would be the extradition of Habre to a state which in fact would prosecute him. Universal jurisdiction is recognized in Belgian law for breaches of jus cogens.[23] In such cases, Belgium asserts its right to prosecute jus cogens violators world-wide, and is perfectly within its rights in doing so, just as Senegal is within its rights to affirm that international law is not part of its domestic law.
Appropriate Remedy
The issue then is what remedy is appropriate for the state which wishes to prosecute a fugitive who takes refuge in a dualist[24] state such as Senegal when the dualist state refuses to honor its obligations under international law? Clearly, Senegal is legally responsible for its breach of the international law: but what is the correct remedy? The logical and natural remedy is not monetary damages, or an apology, but the extradition of the fugitive suspect, here, Habre.

Suppose however that Senegal refuses to extradite, even if ordered to do so by the ICJ? This would justify Belgium to take self help remedies such as retorsion[25] or reprisal.[26] For example, Belgium could then legally impose sanctions on Senegal. Most uses of force would be disproportional, but if Belgium were to abduct Habre such may be justifiable as a proportional use of minimal force to compel Senegal to comply with its international obligations. In contrast, the assassination of M. Habre would clearly be disproportional.

While the ICJ may be reluctant to order Senegal to extradite Habre, as it does not have its own means of enforcing its judgments[27] and must rely on States to do so, extradition would be the just outcome. This would involve relying on Belgium to invoke self-help remedies should Senegal refuse to prosecute or extradite the fugitive suspect. Any self-help remedies would be subject to the general principle of proportionality of crime to punishment in international law.[28] Thus, while the abduction of Habre may be justifiable as a proportional remedy,[29] his assassination would not be (because such action would be disproportionate. [30]

Conclusion

As can be seen there are tense legal and practical issues at stake in Belgium v. Senegal. The ICJ can avoid some of these by using a variety of jurisdictional moves as it did in Belgium v. Congo, such as by asserting head of state immunity,[31] a lack of its own jurisdiction, or the lack of jurisdiction of foreign countries over Habre, at least while he is resident in Senegal.[32] The fact that the ICJ ruled against Belgium on the issue of keeping Habre under house arrest is a harbinger of such moves. At the same time, to the extent that the court has not divested itself of jurisdiction, at least at this preliminary stage, the court has the chance to rectify its confused decision in Belgium v. Congo.[33] The alternative to the rule of law via principled and brave decisions by the ICJ is the rule of force. While it is unlikely that Belgium would go so far as to assassinate or even kidnap Habre, given the current erosion in interstate relations it is to be hoped that the court will have the courage to reverse the dangerous trend of the last ten years where the world has seen assassinations, kidnappings, extradition to countries which torture and secret imprisonment as regular state practices. By imposing the rule of law on Senegal, the court makes it more likely that other states will also respect international law. By failing to do so, the ICJ makes it more likely states will resort to self-help remedies outside the limits international law imposes with regard to proportionality or necessity.[34]



[1] Engle, Dr. Jur., J.D., D.E.A., LL.M., is a freelance legal researcher and legal translator; he has worked for Harvard Law School, and has taught law at the University of Tartu, Estonia and at the Universitaet Bremen, Germany.

[2] Regina v. Bow Street Metropolitan Stipendiary Magistrate And Others, Ex Parte Pinochet Ugarte (No. 3) (24 March, 1999) 1 A.C. 147, 154 (House of Lords, 2000) [hereafter “Pinochet 3”].

[3] See M. Cherif Bassiouni & Edward M. Wise, Aut Dedere, Aut Judicare: The Duty To Extradite Or Prosecute In International Law (1995). For an example of aut dedere in a U.S. treaty, see The Montreal Convention, May 10, 1984 (18 U.S.C. § 32 (2004)).

[4] ICJ, Press Communique 2009/13, February 19, 2009, http://www.icj-cij.org/docket/files/144/15051.pdf.

[5] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46

of 10 December 1984 entry into force 26 June 1987, in accordance with article 27 (1) [hereinafter “CAT”], available at http://www2.ohchr.org/english/law/cat.htm (Hereinafter CAT).

[6] See, CAT Article 5, paragraph 2, Article 7, paragraph 1, Article 8, paragraph 2, and Article 9, paragraph 1.

[7] CAT, Art. 30, Para. 1.

[8] Id. at Para. 56.

[9] Id. at Para. 3.

[10] Peter Malanczuk, Michael Barton Akehurst, Akehurst's Modern Introduction To International Law 63-65 (7th Ed. 1997).

[11] Louis Henkin, International Law: Politics and Values 64-74 (1995).

[12] ICJ, Case Concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) Request for the Indication of Provisional Measures 28 May 2009 Order, available at http://www.icj-cij.org/docket/files/144/15148.pdf?PHPSESSID=ae9425416a8b9f442b8f73a15e6d8a0d.

[13] ICJ, Presse Communique 2009/26, July 17, 2009 concerning Belgium v. Senegal. Determination of deadlines for the presentation of the first written procedural documents, available at http://www.icj-cij.org/docket/files/144/15344.pdf

[14] See, e.g., Ernest Bankas, The State Immunity Controversy in International Law: Private Suits against Sovereign States in Domestic Courts, 252-256 (2005).

[15] See generally, Pinochet 3.

[16] Alain Winants, The Yerodia Ruling of the International Court off Justice and the 1993/1999 Belgian Law on Universal Jurisdiction, 16 Leiden Journal of International Law, 497 (October, 2003). 

[17] See, generally, Pinochet 3.

[18] See, Antonio Cassese, When May Senior State Officials Be Tried for International Crimes? Some Comments on The Congo v. Belgium Case, 13 Eur. J. Int'l L. 853, available at http://www.ejil.org/journal/curdevs/sr31-03.html#31-3.

[19] Tim Hillier, Sourcebook on Public International Law 257 (1998).

[20] See, Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), ICJ 14/II/2002, opinion of President Guillaume and opinion of Judge Higgins, Kooigmans and Buergenthal, available at http://www.icj-cij.org/icjwww/idocket/iCOBE/icobejudgment/icobe_ijudgment_toc.htm.

[21] See, Eric Allen Engle, Alien Torts in Europe? Human Rights and Tort in European Law, (2005), available at http://www.zerp.uni-bremen.de/english/pdf/dp1_2005.pdf

[22] M. Cherif Bassiouni, Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law (1995).

[23] Loi du 5 août 2003 relative à la repression des violations graves du droit international humanitaire. Law of 5th August, 2003 relative to the repression of grave violations of international humanitarian law (Belgium).

[24] On dualism, see Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 Harv. L. Rev. 853, 864 (1987).

[25] Marks v. U.S., 28 Ct. Cl. 147 (1893) (stating that retorsions are retaliatory acts short of war). See also George K. Walker, The Lawfulness of Operation Enduring Freedom's Self-Defense Responses, 37 Val. U. L. Rev. 489, 534 (2003) (stating that "[r]etorsions are unfriendly but lawful acts," such as mobilizing reserves or recalling ambassadors).

[26] The power of reprisal is explicitly recognized in the U.S. Constitution. "[Congress shall have the power] to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water." U.S. Const. art I, § 3, cl. 11. See also Michael J. Kelly, Time Warp To 1945--Resurrection Of The Reprisal And Anticipatory Self- Defense Doctrines In International Law, 13 J. Transnat'l L. & Pol'y 1, 7 (2003) ("While acts that constitute reprisals would normally be illegal, they become legal because of the aggressor's previous illegal act. Moreover, reprisals contain a distinctly punitive purpose and are frequently viewed as justified sanctions.").

[27] See, e.g., Medellin v. Texas, 552 U.S. 491 (2008) (holding U.S. dualist as to ICJ decisions because relevant treaty not self executing), available at http://www.scotusblog.com/wp/wp-content/uploads/2008/03/06-984.pdf .

[28] Elihu Lauterpacht, Christopher J. Greenwood, 129 International Law Reports 212 (2007).

[29] The international principle is “male captus, bene detentus” – so long as the wronged state does not object the individual has no remedy. See Andrea Bianchi, Yasmin Naqvi, Enforcing International Law Norms against Terrorism 352-353 (2004) but see id, 359-361 (state practice not uniform as to wrongful capture being excused in cases of rightful detention).

[30] Id. at 20.

[31] See, e.g., Yitiha Simbeye, Immunity and International Criminal Law, 126-127 (2004).

[32] See Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), ICJ 14/II/2002, available at http://www.icj-cij.org/icjwww/idocket/iCOBE/icobejudgment/icobe_ijudgment_toc.htm.

[33] Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), ICJ 14/II/2002, 2000 I.C.J. 121, 18 (Feb. 14), available at http://www.icj-cij.org/icjwww/idocket/iCOBE/icobejudgment/
icobe_ijudgment_20020214.PDF.

[34] On necessity as justification in international law generally. see Judith Gardam, Necessity, Proportionality and the Use of Force by States (2004); Andreas Laursen, The Use of Force and (the State of) Necessity, 37 Vand. J. Transnat'l. L. 485 (2004).

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Posted on 05/26/2011 at 07:48 AM in Vol. 8, Spring 2011