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Current Developments: Decisions of International Courts and Tribunals
A.
Introduction
This case1marks the first pronouncement by the International Court of Justice (ICJ) on the obligation to extradite or prosecute (aut dedere aut judicare) in international law. It is the second contentious case in which the ICJ has held the defendant country in breach of its obligations under a human rights convention. The ICJ both added to the corpus of norms it has formally recognized as peremptory norms (jus cogens) and also reinforced the principle that former heads of state are subject to universal jurisdiction for grave violations of international law.
The Judgment contributes to the emerging jurisprudence reasserting the ICJ's place at the centre of the international legal system by developing the law on jurisdiction and procedure and on substantive law, which can be seen as a response to the fragmentation discourse. The ICJ's confirmation of the prohibition of torture as jus cogens and the development of the doctrine of erga omnes are of a fundamental and constitutional nature.
B.
Procedural Background
The Kingdom of Belgium (Belgium) instituted proceedings with the ICJ against the Republic of Senegal (Senegal) on 19 February 2009 concerning Senegal's compliance with obligations arising under the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention), as well as other obligations under customary international law, with respect to Hissène Habré, the former President of Chad.
Habré came to power as President following a rebellion on 7 June 1982, a position he held until he was overthrown on 1 December 1990.2It was alleged that, during Habré's eight-year rule, widespread human rights violations occurred in Chad, 'including arrests of actual or presumed political opponents, detentions without trial or under inhumane conditions, mistreatment, torture, extrajudicial executions and enforced disappearances'.3Habré was granted political asylum by Senegal and has since resided in Dakar.
On 30 November 2000, a Belgian national of Chadian origin filed a civil-party application with a Belgian investigating judge against Habré for, 'inter alia, serious violations of international humanitarian law, crimes of torture and the crime of genocide'.4Belgium's first extradition request to Senegal was made on...