The Time of Human Justice & the Time of Human Beings: Belgium V. Senegal & Temporal Restraints on the Duty to Prosecute

Article excerpt

I. Introduction

On a summer morning in 1987, secret police descended upon the tiny village of Bitkine in the middle of Chad.1 They immedi- ately rounded up a massive group of Hadjaraï minorities and spir- ited them away to makeshift prisons across the country.2 Among those arrested was Godi Bani, a young man from the village.3 Godi was bound and beaten and eventually immured with 1,000 other prisoners in a large room that formerly served as a feed store.4 Packed in like cattle, Godi was left to sit for days on end and wait for his certain death.

The guards were perversely creative in their punishments.5 At one point, they served the prisoners poisoned millet.6 Ninety-three people died that day, and their bodies were left in the room to decompose for four more days.7 The guards were more direct with other prisoners, employing techniques such as le pot d'echappement ("the serving of exhaust," in which a victim's mouth was placed around a car's exhaust pipe while an officer revved the engine), electrocution, severe binding treatments, and eventually summary execution.8 When the prison was liberated over a year later in December 1988, Godi was one of five prisoners still alive.9

Godi's gruesome story is common among survivors of Hissène Habré's eight-year rule in Chad. From 1982 to 1990, Habré waged a campaign against his own countrymen to solidify his power and eliminate all political opposition.10 Over the course of eight years, Habré oversaw the systematic arrest, detention, torture, and killing of an estimated 40,000 Chadians.11 After his bloody ouster in 1990, Habré escaped from N'Djamena with over $6.62 million in stolen state funds and sought refuge in a posh neighborhood of Dakar, Senegal.12 For the past thirteen years, survivors of Habré's vicious regime have fruitlessly attempted to hold the former dictator accountable for torture and crimes against humanity.13

After initially denying victims relief in its courts,14 the Senegalese government sought the advice of the African Union (AU)15 and the Economic Community of West African States (ECOWAS).16 Meanwhile, twenty-one survivors filed claims of torture and crimes against humanity against Habré under Belgium's universal jurisdic- tion laws.17 After four years of investigation, Judge Daniel Fransen of the Brussels District Court issued an international arrest warrant in September 2005, and the Belgian government immediately asked for Habré's extradition from Senegal.18 For seven years, Senegal repeatedly refused to either extradite Habré to Belgium or try him in its own courts.19 Although Senegal's national assembly amended its constitution in 2008 to incorporate provisions of the Convention Against Torture (Torture Convention)20 into its penal code and allow for retroactive application of such provisions,21 the government continued to balk at the opportunity to prosecute Habré.

Faced with an increasingly obstinate Senegalese government, in 2009, Belgium applied to the International Court of Justice (ICJ) to have the court clarify Senegal's legal obligations under interna- tional law.22 For the first time in the ICJ's history, the court was asked to directly determine the extent to which countries have a binding duty to prosecute or extradite ( aut dedere aut judicare)23 individuals accused of grave international crimes.24 To answer this question, Belgium asked the court to examine both a specific appli- cation of aut dedere aut judicare under article 7 of the Torture Con- vention, as well as a very broad application of the principle as it relates to the customary international law of crimes against humanity.25

Finally, on July 20, 2012, more than twelve years after victims originally filed complaints in Senegalese courts, the ICJ handed down its decision, finding Senegal in violation of its duty to prose- cute under the Torture Convention.26 In its final judgment, the ICJ made a number of key findings: (1) the court only had jurisdic- tion over the narrower issue involving the Torture Convention and not Belgium's broader argument pertaining to the customary inter- national law status of aut dedere aut judicare27 (2) the Torture Con- vention granted Belgium standing to invoke the responsibility of Senegal on behalf of victims;28 (3) Senegal violated article 6(2) of the Torture Convention by failing to conduct an immediate investi- gation into allegations against Habré; and (4) Senegal violated arti- cle 7(1) of the Torture Convention by failing to institute proceedings against Habré within a reasonable time. …