The ICJ's Senegal v Belgium judgment and the obligation to prosecute or extradite alleged torturers : the case of Al Bashir and the ICC

This chapter addresses the wider jurisprudential frameworks established by the International Court of Justice (ICJ) in its decision regarding the extradition of Hissène Habré. The judgment in the Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) case was the first judgment in which the ICJ's judges authoritatively articulated the material scope and the measures necessary for the implementation of an obligation to prosecute or extradite. In this case, this obligation arose under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention) (1984). The ICJ's judges also decisively held that the prohibition of torture had attained the status of jus cogens and that the existence of a common interest of State Parties to the Torture Convention (1984) in the compliance with erga omnes obligations alone suffices for any State Party to have standing to invoke the responsibility of any other State Party for breaching such obligations. These were broad-reaching, novel, and significant findings with potential reverberations beyond the Habré case. The chapter then analyses the impact of these ICJ pronouncements in the context of the ICC's arrest warrants against Sudan's Omar Al Bashir who, since being deposed in April of 2019, now only enjoys functional immunity ratione materiae.