Tag Archives: ICJ

Argentina v. USA?

The Seal of the ICJArgentina has requested that the United States of America accept the jurisdiction of the International Court of Justice (ICJ) regarding recent decisions by US courts against Argentina. The ICJ only has jurisdiction over those cases where all necessary State parties consent to jurisdiction of the Court. The press release can be found here.

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Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) A Brief Commentary

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.

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Review of International Tribunal Decisions for the week of June 16, 2012

This week has decisions and judgments from the International Court of Justice (ICJ), International Criminal Tribunal for the Former Yugoslavia (ICTY), Extraordinary Chambers in the Courts of Cambodia (ECCC), International Criminal Court (ICC) and The European Court of Human Rights (ECtHR). The subjects range from the principle of extradite or prosecute, to protective measures, appointment of independent counsel, replacing of judges, disclosure and child care.

Public International Law

ICJ

Questions Relating to the Obligation to Prosecute or Extradite

(Belgium v. Senegal)

Background

Former President of Chad Hissène Habré, who has been in exile in Senegal after leaving power, is accused of torture and crimes against humanity by former victims of his 8-year rule.[1] Belgium complained that Senegal was in violation of its legal duties under customary law and the UN torture convention for failing either to extradite or prosecute Mr. Habré, especially after their request that they do so.[2] The Court partially agreed.

Reasoning

The Court, among the many issues it addressed, noted that Belgium alleged violations both of the UN torture convention and customary international law, the first regarding only allegations of torture and the other allegations of crimes against humanity as well as other crimes.[3] These issues being distinct, their propriety before the Court had to be determined individually. The Court found that Belgium’s claim of violations of customary international law would have been premature at the time the application was filed and so were excluded from the present proceedings and so only the issue of the UN torture convention would be addressed.[4]

The Court found that while the obligation to extradite or prosecute in the UN torture convention does not contain a timeframe for implementation, that obligation must be complied with in a reasonable time.[5] The Court found Senegal in violation of its obligation to do so since after Belgium asked for his extradition, neither a prosecution nor extradition took place.[6]

International Criminal Law

ICTY

Prosecutor v. Dragomir Milošević[7]

Decision on Motion Seeking Variation of Protective Measures Pursuant to Rule 75(G)

Background

The Applicant is an attorney assigned to Mr. Milošević for the purposes of investigating the possibility of filing an applicant for review of his client’s conviction based on the potential existence of a “new fact”.[8] The Registry informed the Chamber that while it did not appose the motion, that there should be no misunderstanding of the limited scope of counsel’s appointment and that he should not have access to the information as of right.[9] The Prosecution did not oppose the motion.[10] The Chamber granted the motion.

Reasoning

The Chamber considered that the Applicant had standing to file the motion as his activity and capacity are akin to that of counsel appointed to an accused.[11] The Chamber held that the Applicant demonstrated a legitimate forensic purpose for his request and so should be granted access to confidential inter partes filings and evidence.[12]

Prosecutor v. Popović et. al.[13]

Decision on Prosecution Motion for the Appointment of Independent Counsel to Review Material Potentially Subject to Lawyer-Client Privilege

The Prosecution received material form the Serbian government, some of which appeared to have originated with the defense teams of the Popović et. al. case.[14] The Prosecution filed a request to have an independent counsel appointed to review the material so as to protect any potential lawyer client privilege and to allow the Prosecution to respect its disclosure obligations.[15] The Chamber granted the motion to the extent that it sent a request to the Presidency of the Tribunal to have a Judge appointed to review the material in camera and take appropriate actions in this matter.[16]

Prosecutor v. Stanišić & Simatović[17]

Decision Concerning the Testimony of Witness CW-1

The Chamber reconsidered its decision to call witness CW-1 due to his anticipated intention to invoke his right against self-incrimination and the significant difficulties in arranging for his testimony. As his testimony was not indispensible for the trial, the Chamber decided that calling him would result in unnecessary delay and therefore not be in the interests of justice.

Prosecutor v. Karadžić[18]

Decision on Accused’s Application for Certification to Appeal Denial of Motion for Judgement of Acquittal Under Rule 98 Bis (Count 11)

The Accused file a motion to appeal the denial of his motion for a judgment of acquittal for taking UN peacekeepers hostage on raising the legal issue of whether their participation in the conflict would deprive them of the status of protected persons for the purposes of international humanitarian law. The Chamber agreed that the issue would affect the expeditiousness of the trial and the Appeals Chamber’s resolution would be in the interests of judicial economy.

Prosecutor v. Hadžić[19]

Preliminary Order on Prosecution Motion for Judicial Notice of Adjudicated Facts and Documents

The Pre-Trial Judge ordered the Prosecution to re-file its motion for judicial notice because it did not comply with a previous guidance on the required format for such a motion.

ECCC

Case No. 002[20]

President’s Order on Replacement of Judge

The President of the Supreme Court Chamber appointed the Reserve Judge Florence N. Mumba to sit in the place of Judge Motoo Noguchi, who resigned, pending the appointment of a permanent judge to the Supreme Court Chamber bench in order to assure that cases are heard in a timely manner.

ICC

Prosecutor v. Gaddafi & Al-Senussi[21]

Decision on the OPCD “Request Pursuant to Regulation 23bis of the Regulations”

Background

The OPCD, which is currently representing Mr. Gaddafi, filed its response to Libya’s admissibility challenge wherein it included information that it requested be subject to delayed disclosure and some information that it requested never be disclosed to the public or the other parties to the challenge.[22] The Chamber partially granted the request.

Reasoning

The Chamber found that “the extent of permanent redactions sought by the OPCD defeats the purpose of a response to an admissibility challenge. Indeed, it is the understanding of the Chamber that it may base its decision on the admissibility of the case exclusively on information which is accessible to the other parties to the admissibility proceedings. Accordingly, the OPCD may not rely on submissions and material which are not duly communicated to the other parties.”[23] Accordingly the Chamber ordered the OPCD to re-file its response to the admissibility challenge in a form that can be disclosed to the other parties to the challenge and noted, “for the purposes of its decision on the admissibility of the case it will disregard the Response as filed, and will only take into account the response as re-submitted by the OPCD pursuant to the present decision.”[24]

International Human Rights Law

ECtHR

M.D. and Others v. Malta[25]

Chamber Judgment

Background

The case concerned the inability of a mother and her children to challenge a care order and the subsequent automatic and permanent removal of the mother’s parental rights following her criminal conviction for neglect of her children, and the impossibility for her to challenge that measure before a tribunal. The Court found a violation of Article 6 § 1 (right to a fair trial – access to a court) and Article 8 (protection of family life) of the European Convention on Human Rights.

Reasoning

The Court found that the Article 6 rights of the mother and children were breached because they could not challenge the care order, even if the circumstances changed, and that the mother’s Article 8 rights were breached because she had been automatically and permanently deprived of parental rights after her conviction. It also held under Article 46 (binding force and implementation of judgments), without prejudice to any general measures required to prevent any similar violations in future, that the Maltese authorities had to provide for a procedure allowing the mother the possibility to request an independent and impartial tribunal to assess whether the removal of her parental rights had been justified. It further recommended that Malta take general measures to ensure an effective access to court for persons who have been affected by a care order.


[1]Judgment of 20 July 2012 at ¶¶ 1, 13-14, 16-17.

[2] Ibid. at ¶ 1.

[3] Ibid. at ¶¶ 13-14, 53-54.

[4] Ibid. at ¶ 55.

[5] Ibid. at ¶ 114.

[6] Ibid. at ¶ 117.

[7] IT-98-29/1-A, 16 July 2012.

[8] Ibid. at ¶¶ 2-3.

[9] Ibid. at ¶¶ 5-7.

[10] Ibid. at ¶ 8.

[11] Ibid. at ¶¶ 11-13.

[12] Ibid. at ¶¶ 14-15.

[13] IT-05-88-A, 16 July 2012.

[14] Ibid. at ¶ 2.

[15] Ibid. at ¶ 4.

[16] Ibid. at ¶ 10.

[17] IT-03-69-T, 18 July 2012.

[18] IT-95-5/18-T, 18 July 2012.

[19] IT-04-75-PT, 19 July 2012.

[20] Case File 002/19-09-2007-ECCC-TC/SC(15), 2 July 2012 (posted 17 July 2012)

[21] ICC-01/11-01/11, 18 July 2012.

[22] Ibid. at ¶¶ 1-2, 4-5, 7-9.

[23] Ibid. at ¶ 10.

[24] Ibid. at ¶ 12.

[25] Application no.64791/10, 17 July 2012. All text is taken from the press release.

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Everything to Everyone: the ICC and Our Hopes for a Better World

Modern International Law is in many ways characterized by the proliferation of specialized international judicial institutions with the competence to hear cases involving allegations of violations of human rights, international crimes and issues of general public international law. All the courts have exercised a limited jurisdiction. The courts either have heard cases from or involving States that had accepted the competence of the court or the compulsory nature of the court’s authority was limited to a specific State or incident.[1] Using another rubric, the courts have been limited to deciding single types of cases, interstate disputes (general public international law),[2] human rights violations[3] or criminal cases.[4] Whether intentionally or not, the international community partially departed from this format when it created the International Criminal Court (ICC or Court). This departure has led to calls for the ICC to exert its influence and enter debates that fall outside its central mandate, the prosecution of international crimes. Specifically, there have been calls for the ICC to enter the debate about Palestinian Statehood and for the Court to act as a form of human rights review of criminal proceedings in Libya. By making these requests of the Court, international actors are asking the Court to fill perceived gaps in the international system.

The Issue of Palestinian Statehood

The ICC was created in order to “end impunity” for “the most serious crimes of concern to the international community as a whole.”[5] However, this jurisdiction was not based on concepts of universal jurisdiction,[6] the idea that international crimes can be prosecuted by any criminal court in the world regardless of who committed them, the identity of the victim or the location of the crime.[7] Jurisdiction before the Court is limited to those cases where the crime took place on the territory of a State party or the accused is a national of a State party.[8] A non-State party may also accept the jurisdiction of the Court.[9] The Rome Statute, setting up the Court, does not define the term “State” nor does it provide guidance on who determines what entities are States for the purposes of granting jurisdiction to the Court. This is a problem that the other international criminal courts never faced.[10]

The issue of Palestinian Statehood arose at the ICC due to a filing made by the Palestinian Authority in 2009 purportedly accepting the jurisdiction of the Court pursuant to Article 13 of the Rome Statute.[11] The Prosecutor of the ICC eventually decided that it did not rest with his office to decide what entities are States and which are not for the purposes of accepting the jurisdiction of the Court.[12] This decision led to some rather harsh responses challenging this interpretation and supporting the idea that the ICC is a proper forum to settle the issue.[13] The argument goes, essentially, that whether an entity is a State or not is a fact that can be judicially reviewed by the professional judges at the Court therefore there is no reason to defer the issue outside the Court.

Needless to say, if the Court were to decide that Palestine is a State there would be significant repercussions both legally and diplomatically around the world. The most obvious, from the perspective of the Court, would be that Palestine could create/delegate jurisdiction to the Court for prosecuting Israeli soldiers accused of committing crimes on Palestinian territory. There would also be political ramifications at the United Nations vis-à-vis Palestinian membership in that organization. Palestine has already been granted full-membership at UNESCO by the plenary body of that organization.[14] The membership of UNESCO and the UN are essentially the same.[15] It stands to reason then that a vote at the UN General Assembly on Palestinian membership would be a positive one. The reason this has not occurred is that UN membership is premised on a UNSC recommendation, which has not occurred.[16]

One way to look at the Palestinian request is as part of a larger quest to obtain recognition of its Statehood in face of the failure of the UN to take up the issue. There have been attempts to bring the issue to a vote at the UN, there was the UNESCO bid and then the ICC application. Of the three, the only judicial determination would be the ICC as the ICJ is not available to Palestine.[17] This is a better way to understand the Palestinian application. Considering the problems that would likely arise for the still new ICC regarding enforcement of any arrest warrants against Israeli officials, [18] the only real purpose of the application was the attempt to obtain recognition.[19]

Human Rights Review

Another distinction with other international criminal courts is that the ICC is “complimentary” to States and cannot pursue a case if it is under investigation, has been investigated and/or prosecuted at the domestic level.[20] The exception to this rule, making the case inadmissible, is when the State’s prosecution or investigation was undertaken where the State was unwilling or unable to prosecute the case.[21] These terms are defined in the Rome Statute as meaning those cases where the prosecution was undertaken to shield the accused, are subject to undue delay or the proceedings were “inconsistent with an intent to bring the person concerned to justice” and those cases where the judicial system is unable to act, respectively.[22] The long and the short of this principle is the ICC has the authority to take over a prosecution, notwithstanding a State’s ongoing investigation/prosecution where the Court determines the proceedings are inconsistent with bringing the accused to justice.[23] This provision was designed to prevent States from shielding accused from the jurisdiction of the Court, it was not envisaged as a review mechanism to ensure that States provide accused with a fair trial as such.[24] Likely in part for this reason, the Rome Statute does not supply standards or instructions for evaluating whether a State proceeding is fair, only references to situations where proceedings are designed to shield the accused.

Mr. Gaddafi after being taken into custody in Libya

Whether or not the ICC should have a human rights supervisory function has become a live issue in the admissibility challenge by Libya in the case against Saif Al-Islam Gaddafi. Members of Mr. Gaddafi’s appointed defense team in the Office of Public Counsel for the Defence have publically stated that he will not receive a fair trial in Libya.[25] Amicus in the case have filed a brief that dedicates pages, not to whether or not a trial will shield Mr. Gaddafi from the ICC, but to whether or not the judiciary is fair and free from executive interference and the balance of prosecutions of pro and anti-Gaddafi forces.[26] The arguments goes that if Libya will not afford Mr. Gaddafi a fair trial then it falls to the Court to assume jurisdiction and try him for his alleged crimes.

Any review of the human rights sufficiency of the Libyan courts at the moment would likely result in a fantastic description of dysfunction. And as has already been noted, there is no reason to believe that Mr. Gaddafi will receive a fair trial in Libya. The attractiveness of a human rights review function for the ICC is that it provides a mechanism to prevent human rights abuses. It is all the more appealing in the case of Libya because there is no other judicial institution (internal or international) that could hear such a claim.[27] However, any decision upholding the admissibility of the case would create practical problems especially in obtaining custody of the accused so that he may stand trial in The Hague.[28]

Everything to Everyone

The ICC’s deciding human rights issues is similar to the calls for the Court to decide the issue of Palestinian Statehood. Both instances involve situations where there is no other international body/court that is exercising independent review over the political decisions of the State or organization in question. Add to this the frustrated and failed attempts to reform the United Nations[29] and to force States to submit to outside human rights review.[30] The result is a sort of perfect storm encouraging those dissatisfied with the current state of the international order to view the ICC as a new opportunity to change the way the world works. Because the ICC is a new actor, and its role has not yet been defined, there is an opportunity to introduce a different way of doing things thereby modifying the status quo. Such efforts are consistent with the view, held in some parts, that the ICC was created in part to fill these gaps in enforcement due to failed attempts UN reform.[31]

Because of the current state of international relations the ICC finds itself at the intersection of many different and competing interests. Actors lacking another outlet to raise their issues turn to the ICC because it is available. However, convenient this may be, it does not address the underlying dilemma: should an international criminal court (and one that does not represent the entire international community at that) hear and resolve issues of general international law and conduct human rights reviews?

Judges at the ICC

As a matter of competence, there is no reason why the judges at the ICC could not hear cases involving and decide on issues of public international law or human rights. The bench is comprised of experts in international law and criminal law. The problem is rather another, that in deciding on such issues the Court could potentially exert its jurisdiction over cases involving non-States party thereby significantly expanding the Court’s mandate. Such an extension would be a robust assertion of authority in the face of resistance from the States involved who are against such decisions. It would also be a grand reframing of the purpose of the ICC. The Court was created to prevent impunity, not to oversee the admission of new States to the international community or to supervise State criminal justice systems to make sure they are in conformity with human rights law. These last two competencies more or less fall to the United Nations and human rights courts respectively.

None of this is to say that the Court should not weigh in on these issues. The issue of the validity of an acceptance of the ICC’s jurisdiction under Article 13 is something that it would seem natural for the Court to decide. While it is not directly asserted in the Rome Statute that a State must comply with an accused’s procedural rights, it is not 100% excluded either. The point is that should the Court decide to weigh in on these issues, which to date it has not, it should do so knowing that at this early stage of the Court’s development, going against the interests of States whose assistance is needed may not be the best move. This is doubly true considering that the text of the Rome Statute does not directly support such a supervisory role.


[1] One need think only in the first instance of the International Court of Justice (ICJ) which can only hear cases where all the parties effected have agreed to the court’s jurisdiction and are parties to the case. See on the second point, Monetary Gold Removed from Rome in 1943 Case (Italy v. France, United Kingdom and United States), judgment of 15 June 1953, available at http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=cd&case=19&code=gold&p3=4. When it comes to courts with limited compulsory jurisdiction one need only think of the International Criminal Tribunal for the Former Yugoslavia (ICTY).

[2] This would be the ICJ again, it is not a human rights court although it does from time to time take IHRL into account in the inter-State context.

[3] One example of this is the Inter-American Court of Human Rights.

[4] Again, one can think of the ICTY here.

[5] Preamble, Rome Statute of the International Criminal Court, 2187 UNTS 38544 (1998) (Rome Statute).

[6] See, Article 12, Rome Statute.

[7] Malcolm N. Shaw, International Law, 687 (6th ed. 2008).

[8] See, Article 12, Rome Statute. There is also the possibility of a United Nations Security Council (UNSC) referral, however, this is not a relevant factor for our purposes here.

[9] Ibid.

[10] The ICTY, International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL) were all created with the involvement of the UNSC. Also, both the SCSL and the Extraordinary Chambers in the Courts of Cambodia (ECCC) were created with the permission and involvement of the relevant States.

[13] One such response can be found on Prof. Schabas’ blog here, http://humanrightsdoctorate.blogspot.it/2012/04/prosecutor-and-palestine-deference-to.html.

[16] The UNSC created a committee to study the idea of Palestinian Statehood in a political move that shelved the issue for the moment.

[17] Conceivably, the General Assembly could request an advisory opinion.

[18] I discussed this previously on this blog, here, https://thenewinternationallaw.wordpress.com/2012/04/05/the-prosecutor-and-palestine/. It is also worth noting the difficulties related to enforcing arrest warrants against Sudanese officials and those related to the situation in Libya.

[19] Those who disagreed with the Prosecutor’s decision also seemed to feel that Palestine satisfies the criteria of Statehood. See, Schabas’s blog, supra.

[20] Article 17(1), Rome Statute.

[21] Ibid.

[22] Article 17(2), (3), Rome Statute.

[23] I fold all the subsection of Article 17(2) into this formulation for reasons that will become clear later on.

[24] Prosecutor v. Gaddafi & Al-Senussi, ICC-01/11-01/11, Prosecution responpose to Application on behalf of the Government of Libya pursuant to Article 19 of the ICC Statute, ¶¶ 27 – 32, 42 (5 June 2012).

[26] Prosecutor v. Gaddaffi & Al-Senusi, ICC-01/11-01/11, Lawyers for Justice in Libya and Redress Trust’s Observations Pursuant to Rule 103 of the Rules and Procedure and Evidence, ¶¶ 11 – 21 (8 June 2012).

[27] Libya is a member of the African Union and the African Charter on Human and People’s Rights, but has not accepted the jurisdiction of that Court to hear individual petitions.

[28] It is well known that the Libyan Authorities do not want to hand Mr. Gaddafi over to the Court.

[29] Attempts and proposals have been around for years to reform the United Nations, especially the Security Council to make it more representative amongst other things.

[30] One can think specifically of ACtHPR, Femi Falana v. The African Union, Application No. 01/2011. It has been discussed on this blog here, https://thenewinternationallaw.wordpress.com/2012/06/30/review-of-international-tribunal-decisions-for-the-week-of-june-24-2012/.

[31] Matthias Neuner, The Security Council and the ICC: Assessing the First Ten Years of Coexistence, 18 New England Journal of International and Comparative Law 283 (2012).

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India v. Italy: Part Deux

Massimiliano Latorre and Salvatore Girone, the two Italian guards arrested by the Indian authorities (ansa)

Massimiliano Latorre and Salvatore Girone, the two Italian guards arrested by the Indian authorities (ansa)

In an earlier blog post I discussed the developing international controversy between India and Italy regarding Italian military guards on an oil tanker that allegedly shot and killed two Indian fishermen after confusing them for pirates. India and Italy dispute which of the two countries can properly exercise jurisdiction over the incident. Much of this dispute is based on disagreement over the location of the oil tanker and the fishing boat when the incident took place. India claims that the vessels were in her territorial waters at the time of the incident while Italy maintains that the incident occurred on the high seas. In the last post I set out how the merits of the case might be resolved concluding that India can properly exercise jurisdiction over the incident. This post will discuss what international fora are available to the parties to settle their dispute.

Both Italy and India are parties to the United Nations Convention on the Law of the Sea (UNCLOS) that codifies much of modern international law dealing with events on the seas and covers many issues central to the India/Italy dispute. For example, article 111 addresses the conditions under which it is permissible for a State to stop a vessel from another State on the high seas. Directly implicated in this case is article 92 of the convention which reads, “Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas.”

Alleging the application of article 92 of UNCLOS brings the dispute within the ambit of that treaty triggering its dispute resolution provision. Article 287 provides in pertinent part,

1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention:

(a) the International Tribunal for the Law of the Sea established in accordance with Annex VI;

(b) the International Court of Justice;

(c) an arbitral tribunal constituted in accordance with Annex VII;

(d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein. […]

5. If the parties to a dispute have not accepted the same procedure for the settlement of the dispute, it may be submitted only to arbitration in accordance with Annex VII, unless the parties otherwise agree. (emphasis added)

Accordingly, absent an agreement or declaration, the dispute over the application and interpretation of article 92 will be subject only to arbitration as set out in Annex VII to UNCLOS. Italy filed such a declaration stating,

In implementation of article 287 of the United Nations Convention on the Law of the Sea, the Government of Italy has the honour to declare that, for the settlement of disputes concerning the application or interpretation of the Convention and of the Agreement adopted on 28 July 1994 relating to the Implementation of Part XI, it chooses the International Tribunal for the Law of the Sea and the International Court of Justice, without specifying that one has precedence over the other.

In making this declaration under article 287 of the Convention on the Law of the Sea, the Government of Italy is reaffirming its confidence in the existing international judicial organs. In accordance with article 287, paragraph 4, Italy considers that it has chosen “the same procedure” as any other State Party that has chosen the International Tribunal for the Law of the Sea or the International Court of Justice.[1]

India has not filed a declaration under article 287. However, she has filed a declaration in accordance with article 36(2) of the Statute of the International Court of Justice (ICJ) accepting compulsory jurisdiction at that institution. All things being equal, this declaration would normally be capable of establishing jurisdiction with the ICJ. This would be accomplished by reading the Italian declaration under UNCLOS with the Indian declaration pursuant to the ICJ statute both of which accept the jurisdiction of the ICJ. This is not the case when it comes to this dispute about the interpretation of UNCLOS. The Indian acceptance of ICJ jurisdiction comes with several exceptions. Some relevant ones are,

(1) disputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement; […]
(5) disputes with regard to which any other party to a dispute has accepted the compulsory jurisdiction of the International Court of Justice exclusively for or in relation to the purposes of such dispute; or where the acceptance of the Court’s compulsory jurisdiction on behalf of a party to the dispute was deposited or ratified less than 12 months prior to the filing of the application bringing the dispute before the Court; […]
(7) disputes concerning the interpretation or application of a multilateral treaty unless all the parties to the treaty are also parties to the case before the Court or Government of India specially agree to jurisdiction; […][2]

India, in its ICJ declaration, explicitly excluded compulsory jurisdiction before the ICJ over cases interpreting multilateral treaties unless all parties to the treaty are involved in the case. UNCLOS is a multilateral treaty and not every party to the treaty would be part of the ICJ case over the dispute between India and Italy. If these conditions hold, and the case is to be based on article 92, UNCLOS will govern the dispute and Annex VII will apply requiring arbitration.

There is also the possibility of obtaining jurisdiction before the ICJ by re-framing the issue as one of general public international law. Article 92 of UNCLOS addresses jurisdiction over a ship on the high seas, it does not address the principles for determining the location of an action for the purposes of establishing criminal jurisdiction. This jurisdictional question relates to principles of general public international law and has been decided by the world court in the past (most famously the Lotus case decided by the PCIJ long before UNCLOS).[3] The Indian acceptance of ICJ jurisdiction should be valid if the legal issue is outlined as going to general competence of States to legislate and enforce the law. India would therefore be subject to ICJ jurisdiction if Italy were to file an application with the Court. This formulation of the legal issue avoids the direct application of UNCLOS and renders Annex VII’s arbitration requirement inapplicable. It is worth pointing out that India does not accept compulsory jurisdiction where another State involved in the case only recently accepted ICJ compulsory jurisdiction. However, Italy need not accept compulsory jurisdiction to file a case with the ICJ.[4]

In short, there are likely two different international fora that can hear a dispute between Italy and India regarding the exercise of jurisdiction over the Italian military guards that allegedly shot and killed two Indian fishermen, a UNCLOS arbitration tribunal and the ICJ.

The option of bringing the dispute before a UNCLOS arbitration tribunal pursuant to article 287 and Annex VII UNCLOS seems to be the most straight forward. Both India and Italy are parties to UNCLOS and the incident involves actions that took place on the seas (something that would appear on its face to fall under the ambit of UNCLOS). Any such decision would be strictly limited to the interpretation of UNCLOS (due to the competency of the dispute resolution mechanism) and whatever jurisdictional principles the treaty purports to create between the States Parties on the seas.

The option of bringing the case to the ICJ is more appealing. Such as case, while speaking specifically to the location of “events” on the seas for the purpose of jurisdiction, could potentially be important for the way we understand the extraterritorial jurisdiction of States generally. The Court would have the opportunity to elaborate on the principles of territorial jurisdiction established in Lotus, a case that dates from 1927 and is quickly approaching its centennial mark.[5] The ICJ as an institution has a greater scope and will likely consider the consequences of its decision on other areas of the law, something a tribunal focused only on the law of the sea will not do. The possibility of a meaningful decision that will progressive advance the law is much more probable at the ICJ.

This post has not discussed other non-judicial forms of dispute resolution that that India and Italy could potentially select to put an end to their disagreement. For example, they could request mediation by the UN Secretary General, or they could submit the issue to a single arbitrator. They could also resolve the issue diplomatically. Given the current discourse on the issue, however, it is unlikely that the dispute will be resolved diplomatically. For similar reasons, selecting a single mediator or arbitrator seems unlikely. I have focused on the UNCLOS provisions and the ICJ as I think they are the most likely to be involved if the issue moves from the realm of intergovernmental wrangling to that of litigation.


[3] For a more detailed discussion on this point, and the meaning of article 92 UNCLOS, see my earlier post.

[4] Articles 35-36, ICJ Statute.

[5] Case of the S.S. Lotus”, PCIJ, Series A, No. 10, 1927.

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