International Studies Journal (ISJ)

International Studies Journal (ISJ)

Description of “The Obligation to Prosecute” as a “Erga Omnes Partes” Obligation: Belgium and Senegal Legal Dispute in the International Court of Justice

Document Type : Original Article from Result of Thesis

Authors
Yadolah Shabankareh 1
Leila Raisi 2
Mohammad Hossein Ramazani Ghavamabadi 3
1 Ph.D. Student of International Law Dep., Isfahan (Khorasgan) Branch, Islamic Azad University, Isfahan (Khorasgan), Iran.
2 Associate Professor at Law Dep. Isfahan (Khorasgan) Branch, Islamic Azad University, Isfahan (Khorasgan), Iran.
3 Associate Professor, Faculty of Law Shahid Beheshti University.
10.22034/isj.2025.434873.2129
Abstract
Following the failure of the Senegal to fulfill its obligations, according to Article 7(1) of the CAT Based on, the commitment to the Prosecute of Habre, the former president of Chad, who was accused of committing of torture, the Belgium filled a lawsuit against that in the ICJ. In its Judgment on July 20.2012, emphasizing the Prohibition of torture as a Jus cogens, the court described this obligation as a Erga Omnes Partes Obligation and declared that the common interest of the member state of the convention in complying with the Erga Omnes alone for any member state is sufficient and therefore Belgium dos not need to have special flexibility. This decision has legal implications and has left too important questions unanswered, which are the subject of this article. Whether Belgium as a injured state, had the right to the request the extradition or prosecute or not? the description of the commitment to prosecute as Erga Omnes Partes exclusive to the CAT and similar or can it be extended to other international conventions containing this commitment? By using analytical descriptive method, the general assumption is that the development of Erga Omnes Partes by the court brings many opportunities to further implement the values of the international community and redress human rights violations. it will be shown the court that the member state of all conventions containing this obligation can be helps responsible for the responsibility of the responsible state by proving their special status different from other member states.

Highlights

Introduction

One of the most important aspects of the judgment of the International Court of Justice in the case of hobre in which the Belgian state wanted the extradite or prosecute of Mr. Habre, the former president of chad, who was accused of committing acts of torture and crimes against humanity, from the Senegal state (Habre's place of residence). Against acceptance is Belgium's claim against Senegal. Interpreting the preamble of the convention, the court considered its subject and purpose to make the fight against torture effective around the world, that member states have common interests to ensure that torture is prevented and that its perpetrators will not be immune from prosecution and punishment. All other member states have a common interest in the implementation of the obligations of the state in whose territory the accused is present. The International Court of Justice has seen Belgium only as a non-speaking state in the sense of paragraph a (1) of article 48 of the plan of responsibility.

The court found it admissiblity (ICJ , 2012:70,68) .This article states that every member state of the convention is responsible to every other member state of the same convention for failing to fulfill its obligations, which are known as erga omnes partes obligations. The Court considered the commitment to prosecute as a erga omnes partes and therefore declares that Belgium's lawsuit is admissible

(Bickram Rana, 2018 196).

The main question that this article seeks to answer is that the International Court of Justice's description of the obligation to prosecure as a erga omnes partes obligation means that member states of the Convention against Torture have no personal interest in observing and implementing this obligation . by other member states do not have? Two secondary questions are that considering that some of the victims of Mr. Ber's crimes were citizens of the Belgian state, according to Article (c) (1) 5 of the Convention against Torture, this state has the right to exercise its jurisdiction based on the principle of passive personal jurisdiction. did he have it or not? And finally, is the description of the obligation to prosecute as a Erga Omnes exclusive to the Convention against Torture and the like, or can it be extended to other international conventions containing this obligation as well?

The current research is based on the hypothesis that the expansion of Erga Omnes partes obligations by the Court has legal implications in the development of public international law and provides opportunities for further implementation of the values ​​of the international community such as the implementation of justice.

It brings international punishment and compensation for human rights violations and fighting the phenomenon of impunity.  

 

Methodology

This research is based on the analytical descriptive method and using the existing legal scientific data. Therefore, in explaining this debate, the present article will analyze the consequences of the court's decision after presenting the background and conceptual preparation and the theoretical foundations and history of the issue and will deal with the criticisms on it.

 

Results and Discussion

Lack of support for special interests

The court's emphasis on the common interest and not supporting the special interest of Belgium as a state with a injured state is the legal consequence that the Belgian state has the right to ask Senegal to implement and comply with the obligations arising from the convention just like any other member state of the Convention against Torture. Nor did most of the judges Owada and Skotnicov criticize the Court's decision that the Court ignored the issue of responding to one of Belgium's main claims, namely having a special interest in relation to Mr. Habre's extradition request and Senegal's failure to respond to this request (ICJ, Owada, 2012:22 ,23) . the Court to find admissible the claim of Belgium with the aim of preventing horror vacui in situations where impunity may prevail. Because in the absence of the condition of direct language, no non-injured state could invoke the responsibility of the state violating the erga omnes partes obligations of a group within the framework of a specific convention, and this is in conflict with the subject and purpose of such conventions. However, the decision of the court should not be interpreted in such a way that a member state of the convention cannot be directly affected by the violation of the erga omnes partes obligations of a group and therefore its claim cannot be admissibility (Megary, 2023: 298).

According to our idea, the acknowledgment of the existence of a special interest for the Belgian state seems logical. Therefore, it can be concluded that the Belgian state is able to invoke the responsibility of the Senegalese state both under Article 42 as a injured state and under Article 48 as a State’s other than an Injured state (ICJ , 2012:65). it seems that there is no conflict between the special or personal interest of a state and the common interest of that state with other states in implementing the obligation to prosecute.

Impact of the Prohibition of Torture on the Court's Decision:

There is a wide range of multilateral treaties that contain obligations under Article (a) (1) 48 of the draft of State Responsibility (ILC, 2001:48(1) (A) towards a group of the member states and to protect their collective interest and are known as erga omnes partes obligations. The purpose of most of these conventions is to protect common values ​​by achieving certain common goals that the member states in turn share common interests. In observing and implementing them, the holder (Rose, 2022:57-82) .the conventions such as The Convention for the Prohibition of Counterfeiting Money (1929) and the Convention against Illegal Seizure of Aircraft (1970) are among these. The criterion presented by the court can be considered in the case of other international conventions containing the obligation to prosecute. This requires that the member states cooperate with each other in achieving this goal and have a common interest in implementing the commitmentbe mentioned.

 

Conclusion

1) The Court's description of the obligation to prosecute as a erga omnes partes and protection of the common interest of the member states of the Convention does not mean that the member states do not have any special interest in complying with and implementing the obligation to extradite or prosecute.

2) The Court's emphasis on the absoluteness of the prohibition of torture and attention to the subject and purpose of the Convention does not mean that the description of the obligation to

Prosecute as a erga omnes partes obligation is limited only to conventions such as the Convention against Torture and the Convention against Genocide, which have been recognized as a jus cogens. It is in such a situation that compensation for violations of human rights and the values ​​of the international community, such as the implementation of international criminal justice through the punishment of the perpetrators of international crimes, is guaranteed and the development of international law Public will help.

Keywords
Obligation to Orosecute
Extradition
Torture
Erga Omens Partes
Obligation
The International Court of Justice
International Responsibility of the States

Subjects

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