The ICJ’s Senegal v. Belgium Judgment and the Obligation to Prosecute or Extradite Alleged Torturers: The Case of Al Bashir and the ICC

Abstract

The International Court of Justice (‘ICJ’)’s Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) case marked an important step along the road to the prosecution of Hissène Habré for the crimes committed in Chad during his tenure as the Chad’s Head of State (1982-1990). It also marked a high point for the ICJ’s interpretation of human rights treaties and the justiciability of erga omnes obligations. However, while the case might have centered on Senegal’s obligations vis-à-vis Belgium to extradite or prosecute Habré under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘Torture Convention’) (1984), the ICJ’s judgment has the potential – considering that 169 States are currently Parties to that treaty – for a wider impact. This chapter will thus analyze the ICJ’s judgment regarding obligations arising from the Torture Convention (1984) and the obligation to extradite or prosecute generally in relation to torture. It applies the ICJ’s findings in the context of the International Criminal Court (‘ICC’)’s arrest warrants against former Sudanese President Omar Al Bashir, particularly his alleged responsibility for torture as a crime against humanity and as an underlying act of genocide. This chapter submits that, in light of Al Bashir’s current status as a former Head of State (entitling him only to functional immunity ratione materiae), his presence in Sudan, and the torture allegations levelled against him by the ICC, if an aut dedere aut judicare obligation for alleged torturers exists under customary international law, then Sudan, if it does not prosecute, should surrender/extradite him to an external entity that will. In this case, such an entity is the ICC. States that are or are not Parties to the Rome Statute of the ICC (1998) may have the same obligation if Al Bashir were to enter their territory either under the Torture Convention (1984) (if they are Parties to that treaty) or potentially under customary international law.

Keywords: International Court of Justice, Habré, torture, former Head of State, immunity ratione materiae, aut dedere aut judicare, prosecute or extradite, customary international law, International Criminal Court, Al Bashir

JEL Classification: K14, K33, K42