The International Court of Justice (ICJ) recently issued a long awaited judgment in a case brought by Belgium against Senegal regarding the latter’s failure to prosecute former Chadian dictator Hissène Habré.[1] Belgium based its claim on Senegal’s treaty obligation to prosecute or extradite Mr. Habré on allegations of torture and on an alleged customary duty to do the same for crimes against humanity.[2] As has been previously noted on this blog, the Court found that Senegal is in violation of its obligations vis-à-vis Belgium. This decision is interesting not just for what the ICJ said, but for what it did not say. In this brief commentary I would like to discuss the Court’s treatment of duties erga omnes and the prohibition against ex post facto criminal laws. While the Court’s decision answered the question of whether Senegal had violated its obligations, it did not provide clear answers for future application.
Duties Erga Omens
The concept of a duty erga omnes inter partes, or a duty owed to all parties to a treaty, was first announced by the ICJ in 1970 as part of some obiter dicta about the nature of international obligations.[3] This is the idea that all States have a “legal interest” in compliance with norm in question. The exact nature of that legal interest remained undefined as the case did not involve an application of the rule. It remained an open question whether or not a State needed to be somehow specifically interested in the alleged breach of the international norm to have standing to bring an action before the ICJ.
This case put the question to rest by finding that an obligation erga omnes grants standing to any State that is a party to the instrument in question. The Court held,
The common interest in compliance with the relevant obligations under the Convention against Torture implies the entitlement of each State party to the Convention to make a claim concerning the cessation of an alleged breach by another State party. If a special interest were required for that purpose, in many cases no State would be in the position to make such a claim. It follows that any State party to the Convention may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes, such as those under Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention, and to bring that failure to an end.
[…]
As a consequence, there is no need for the Court to pronounce on whether Belgium also has a special interest with respect to Senegal’s compliance with the relevant provisions of the Convention in the case of Mr. Habré.[4]
While this may seem like a fairly simple statement it has the possibility to significantly enlarge the number and types of cases that can be brought before the ICJ.
One example could be cases brought for violations of other multilateral treaties such as the United Nations Convention Against Genocide, the International Covenant for the Protection of All Persons from Enforced Disappearance or importantly the International Covenant on Civil and Political Rights.[5] While these kinds of cases would only be brought be one State against another, it would mean that the ICJ would be responsible for interpreting the meaning of internationally protected human rights converting its work, if only partially, into that of a human rights oversight body. Such a development could bring both positive and negative developments to the field of human rights.
In one respect the ICJ could bring some for of uniformity to human rights law by filling the role of a “universal” court. In this sense the ICJ, while not reviewing the specific judgments or treaties of regional human rights systems, would be in the position to authoritatively and publically interpret quasi-universal human rights treaties. This could create a universal minimum floor for the similar rights enshrined in the universal and regional instruments. Such a development would not be undesirable form the point of view of establishing a truly universal system of human rights.
The flip side is that a court that is not human rights orientated would be in a position to authoritatively interpret the meaning of human rights obligations. The ICJ, unlike the regional human rights courts, is not made up of human rights jurists.[6] This could lead to decisions and interpretations of those fundamental rights that are less advantageous or not as broad as they would have been before a more individual rights orientated institution. Other international bodies could then adopt such approaches and interpretations because they refer to more universally applicable documents. This could have an overall negative effect on the state of human rights protections.
The Prohibition on Ex Post Facto Laws
One issue that floats in the background of the decision is the general prohibition against ex post facto laws, known as the nessun poena sine lege principle.[7] This is because one of the reasons put forward by Senegal for not prosecuting Mr. Habré was that their domestic law did not allow for such a prosecution at the time he entered the country or when the crimes were committed.[8] The ICJ ruled that Senegal must prosecute or extradite Mr. Habré, but it did not address if that prosecution would be legal in consideration of the general ex post facto prohibition. There are potentially two reasons for this.
The first reason is that under international human rights law it is permissible for a State to prosecute an individual for an international crime even if national law at the time did not criminalize that act.[9] The problem here is that we have a regional court, the ECOWAS Court of Justice, has already ruled that prosecution in Senegal before a normal court would violate the ex post facto prohibition.[10] That court in fact recommended that some form of internationalized tribunal be instituted to try the case in order to avoid such a problem.[11] The ICJ ruled simply,
The Court considers that Senegal’s duty to comply with its obligations under the Convention cannot be affected by the decision of the ECOWAS Court of Justice.[12]
A remarkably short treatment of what could be a serious issue of regarding a breach of the norm against the non-retroactivity of criminal laws. However, if one keeps in mind the discussion the Court held on the ius cogens nature on the prohibition on torture, this brevity might somehow be excusable. The problem is that by not clearly providing the basis for disregarding completely the ruling of the ECOWAS court, the exact interplay between the torture convention, customary law, the prohibition on ex post facto laws and due process is obscured. The actual legal mechanism by which Senegal would be permitted to prosecute Mr. Habré for torture (absent a valid national law at the time of the crimes) is unclear and left to be clarified by the assumptions of the reader.
The second rational to avoid the ex post facto bar is to read the decision much more narrowly. The ICJ’s judgment states that Senegal has been in violation of its duties under the torture convention, not customary international law, since Belgium’s first request for prosecution/extradition in 2000.[13] The convention’s obligation is framed in the alternative. One could therefore read the ICJ’s judgment not to mean that Senegal may prosecute Mr. Habré, only that the convention was violated because neither of the two obligations was acted upon. True, the Court specifically said,
“Senegal must […] take without further delay the necessary measures to submit the case to its competent authorities for the purpose of prosecution, if it does not extradite Mr. Habré.”[14]
However, the Court never affirmatively states that Senegal may prosecute him, only that taking one or the other action is the only way to end the continuing violation of the convention. A narrow reading such as this would also save the ECOWAS decision from complete irrelevance by giving it concrete application in this situation by baring a Senegalese prosecution.
By choosing not to explicitly outline the nature of the different obligations, the ICJ showed how its focus on inter-State relations could have obfuscating effects when deciding human rights related cases. While it now appears clear that torture is prohibited by a norm of ius cogens, the Court did not explain the relationship between this fact and the possibility of prosecution in Senegal. The Court also did not explain how (or if) the torture convention itself was enough to criminalize torture at the international level so as to avoid the prohibition on ex post facto criminal laws. In the background there is also the issue of conflicting obligations due to the ECOWAS court’s ruling. While the Court’s decision answered the question of whether Senegal had violated its obligations, it did not provide clear answers for future application.
[1] Judgment of 20 July 2012 at ¶ 1 (hereinafter Judgment).
[2] Ibid. at ¶¶ 13-14. 53-54.
[3] Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970 at ¶ 33.
[4] Judgment at ¶¶ 69-70.
[5] Article 44 of the ICCPR specifically allows for the use of other forms of dispute resolution other than the Human Rights Committee.
[6] There is the very notable exception of Justice Cacado-Trindade.
[7] Oddly enough, both the American and international terminologies are Latin, just different Latin phrases.
[8] Judgment at ¶ 76.
[9] See, ICCPR at Art. 15(1).
[10] Judgment at ¶ 110.
[11] Ibid. at ¶ 108.
[12] Ibid. at ¶ 111.
[13] Ibid.a t ¶¶ 88, 117.
[14] Ibid. at ¶ 121.
The {New} International Law 