Senegal wins case against Belgium at International Court of

UNCLAS SECTION 01 OF 02 DAKAR 000724 SIPDIS SENSITIVE DEPT FOR AF/W, AF/RSA, DRL AND INR/AA PARIS FOR AFRICA WATCHER E.O. 12958: N/A TAGS: PGOV PREL PINS KDEM ECON SG SUBJECT: Senegal wins case against Belgium at International Court of Justice ¶1. (SBU) SUMMARY: On May 28, The International Court of Justice at The Hague rejected Belgium's demands that preventive measures be taken to stop Senegal from allowing former Chadian Head of State Hissene Habre to escape justice. Belgium initiated the case following a February 2009 interview where President Abdoulaye Wade threatened to let Habre go if Senegal failed to receive financial support from the international community to hold the trial. Belgium contended that, by failing to prosecute or extradite Habre, Senegal had violated the UN Convention against Torture as well as customary international law. The Court, by thirteen votes to one, rejected Belgium's claim and at the same time had Senegal declare that "it will not allow and had no intention to allow" Habre to leave its territory while his case was pending. End Summary. Belgian claims -------------- ¶2. (SBU) In its petition to the Court, Belgium underlined that Habre has been living in Senegal since 1990 but that, despite repeated requests, Senegal has failed to prosecute or extradite him to Belgium where judges had issued an international arrest warrant against him. Belgium wants to prosecute Habre for crimes of torture and crimes against humanity following a complaint from a Belgian national of Chadian origin. Habre allegedly committed these crimes or was a co-perpetrator or an accomplice during his presidency from June 7, 1982 to December 1, 1990. For Belgium, failure to prosecute or extradite Habre constitutes a violation of the Convention Against Torture and obligations under international customary law to punish crimes under international humanitarian law. In its request, Belgium contended that "at present Mr. H. Habre 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. Habre. For Belgium, lifting this house arrest could lead to irreparable damage through Habre escaping justice." Senegal's Makes Commitments -------------- ¶3. (SBU) Senegal in this case was represented by Professor Cheikh Tidiane Thiam, Director of Legal Affairs at the Ministry of Foreign Affairs, Judge Demba Kandji, Director of Criminal Affairs at the Ministry of Justice (he is the Senegalese judge who first indicted Habre in 2000),Professor Ndiaw Diouf, Dean of the Law School of Dakar's Cheikh Anta Diop University, Alioune Sall, a Law Professor at Dakar University, Judge Omar Gaye and Judge Abdoulaye Dianko, the GOS's Legal Officers. Senegal contended that it has demonstrated its commitment to prosecute Habre by taking a series of legal reforms regarding the retroactive nature of its criminal Law in cases of crime against humanity and genocide. It also reminded the Court that it has established a court for the prosecution of these crimes and modified its Code of Criminal Procedure accordingly. The Senegalese team argued that in his interview President Wade had reiterated his willingness to prosecute Habre. Regarding extradition, they noted that that case was closed since the Dakar Court of Appeals ruled that Habre was a Head of State at the time he allegedly committed the crimes and given his immunity as Head of State he could only be prosecuted by a High Court of Justice and not a regular criminal court and on that ground the Dakar Appeals Court had rejected Belgium's request for extradition. The Court Rules in Favor of Senegal -------------- ¶4. (SBU) The Court rejected Belgium's demand indicating that there was no urgency to justify ordering preventative measures. The ruling further stated "taking into account the assurances given by Senegal, finds that, the risk of irreparable prejudice to the rights claimed by Belgium are not apparent on the date of the Order." Belgium's claim was that "the Convention Against Torture confers upon all the State Parties the right to obtain compliance by Senegal with the provisions of the Convention." Referring specifically to the case that was initiated in Belgium by victims of Belgian nationality, Belgium claimed that it had a specific right to have Senegal either prosecute or extradite Habre. The Court was satisfied by the legal steps already taken by Senegal to reform its laws and its declaration to maintain close surveillance and control of Habre. COMMENT -------------- ¶5. (SBU) The International Court of Justice's decision came as a relief for GOS as the latter was condemned in 2006 by the UN Committee Against Torture for not complying with its international DAKAR 00000724 002 OF 002 obligations to prosecute or extradite Habre to Belgium. While the government has updated its criminal laws and procedures and amended its Constitution to make the prosecution possible, it has also used the "lack of funding" excuse not to take serious steps toward prosecuting Habre. A senior official at the Ministry of Justice told Embassy he doubts that there is any serious political will to prosecute Habre. He noted that Habre used funds he had stolen from the Chadian Central Bank just before seeking asylum in Senegal in 1990 in order to buy off religious and political figures. He added that another problem is that the current Senegalese Minister of Justice used to be Habre's defense attorney and the reality is that many African leaders are not at all enthusiastic about the precedent this case would establish. It remains to be seen if Senegal's declaration to have Habre face justice will materialize under President Wade's current tenure, due to end in 2012. Bernicat