Senegal wins case against Belgium at International Court of

UNCLAS SECTION 01 OF 02 DAKAR 000724

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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

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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