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THE INTERNATIONAL COURT OF JUSTICE AND CRIMINAL JUSTICE

Published online by Cambridge University Press:  11 November 2010

KJ Keith
KJ Keith
Affiliation:
Judge, International Court of Justice (2006–), Judge of the New Zealand Court of Appeal (1996–2003) and the Supreme Court of New Zealand (2004–2005).
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Abstract

Despite appearances to the contrary, the International Court of Justice can and does have much to say on matters of criminal justice. This article considers four areas in which such matters arise before the Court: jurisdiction over criminal offences allegedly committed abroad and immunity from that jurisdiction; principles of individual criminal liability and the potential for concurrent State responsibility; issues of evidence and proof; and the Court's review of the exercise of those domestic criminal powers which are subject to international regulation. In the process of addressing these issues, the ICJ has contributed to the development of fundamental principles of criminal law, while drawing on the experience of domestic courts.

Type
Article
Information
International & Comparative Law Quarterly , Volume 59 , Issue 4 , October 2010 , pp. 895 - 910
Copyright
Copyright © 2010 British Institute of International and Comparative Law

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References

1 The near invisibility of the International Court of Justice in the recently published Oxford Companion to International Criminal Justice, editor-in-chief A Cassese (OUP, Oxford, 2009), might suggest in a general way that I do not have a topic. While there are case notes on four of the 10 cases discussed below, the Court does not figure as an entry among over 300 ‘Issues, Institutes and Personalities’ and it does not appear in the index. The section by Andrea Bianchi on State Responsibility and Criminal Liability of Individuals (pp 15–24) gives some attention to the Court's judgment in the Genocide case and mentions the Arrest Warrants, Corfu Channel, Nicaragua v US and DRC v Rwanda cases.

2 See eg J Crawford in his introduction to The International Law Commission's Articles on State Responsibility (CUP, Cambridge, 2002) 16–20.

3 See eg Clark, RS, ‘Offenses of International Concern: Multilateral State Treaty Practice in the Forty Years Since Nuremberg’ (1988) 57 Nord J Intl L 49CrossRefGoogle Scholar.

4 Yuen Kwok-Fung v Hong Kong SAR [2001] 3 NZLR 463.

5 Yuen Kwok-Fung v Hong Kong SAR [2001] 3 NZLR 463, 468. The Act in question was the New Zealand Extradition Act 1965.

6 Sellers v Maritime Safety Inspector [1999] 2 NZLR 44.

7 Mist v R [2005] NZSC 77.

8 Mist v R [2005] NZSC 77, para 24.

9 ibid paras 27–30, 39.

10 The Case of the SS ‘Lotus’ PCIJ Rep Series A No 10.

11 ibid 18.

12 United Nations Convention on the Law of the Sea (adopted 10 December, 1982, entered into force 14 November 1994) 1833 UNTS 3 art 97, Convention on the High Seas (adopted 29 April 1958, entered into force 30 September 1962) 450 UNTS 82 art 11. See eg Sellers v Maritime Safety Inspector [1999] 2 NZLR 44, discussed above, which in addition cites R v Dodd (1874) 2 NZCA 598 in which the Court of Appeal depended primarily on scholarly writing, a reliance which is also to be seen in the French and Turkish submissions in the Lotus.

13 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) (Merits) [2002] ICJ Rep 3.

14 ibid paras 56–58.

15 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) (Merits) [2002] ICJ Rep 3, 64, Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal.

16 Luigi Condorelli, on behalf of the Government of the Republic of Djibouti, in Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) CR 2008/3, 15–17, paras 24–30 and CR 2008/6 53–54, paras 8–11.

17 Alain Pellet, on behalf of the Government of the French Republic CR 2008/5, 50–52, paras 74–80.

18 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) [2008] ICJ Rep 177, para 196.

19 Consistency of certain Danzig legislative decrees with the constitution of the Free City PCIJ Rep Series A/B No 65.

20 ibid 45.

21 ibid.

22 ibid 51.

23 Judge Anzilotti dissented on this matter and on the basis of the breach of the principle of the equality of the parties; pp 60–66. See similarly his Dissenting Opinion in Interpretation of the Statute of the Memel Territory, PCIJ Rep Series A/B No 49.

24 See (n 19) 52–53.

25 ibid 54.

26 ibid.

27 ibid 57.

28 J Hall, General Principles of Criminal Law (1st edn, 1947, 2nd ed 1960) ch 2 Legality nulla poena sine lege, which cites the Danzig case (n 19); and HLA Hart, Law, Liberty and Morality (OUP, Oxford, 1963) 12.

29 Convention for the Protection of Human Rights and Fundamental Freedoms eg arts 8–11, the Canadian Charter of Rights and Freedoms 1983 (Canada) s 1, New Zealand Bill of Rights Act 1990 (New Zealand) s 5, Human Rights Act 2004 (Australian Capital Territory) s 28(1) and Charter of Human Rights and Responsibilities (Vic) 2006, s 7(2).

30 Sir Ivor Jennings, The Law and the Constitution (5th ed University of London Press, 1959) 52. See also Preuss, L, ‘Punishment by Analogy in National Socialist Penal Law’ (1935–1936) 26 J Crim L and Criminology 847Google Scholar, 847: ‘the principle nullum crimen, nulla poena sine lege, which stood at the very head of the Penal Code of 1871 … has been abolished’. That law had been revisited in the Hart-Fuller debate in 1958–71 Harv L Rev 593 and 630 (see further P Cane (ed), The Hart-Fuller Debate in the Twenty-first Century (Hart Publishing, Oxford, 2010)).

31 Viscount Simonds in Shaw v Director of Public Prosecutions [1962] AC 220, 268.

32 Shaw v Director of Public Prosecutions [1962] AC 220, 292.

33 R v Knuller [1973] AC 435 and R v Jones [2007] 1 AC 136. See JR Spencer, ‘Criminal Law’ in Louis Blom-Cooper and others (eds), The Judicial House of Lords (OUP, 2009) 596–597; for HLA Hart, (n 28) above, 6–12, Shaw was a ‘fine specimen of English judicial rhetoric in the baroque manner’. For a later valuable discussion of ‘Judicial Law Making in the Criminal Law’ see ATH Smith (1984) 100 LQR 46.

34 See eg Bokhary PJ in Leung Kwok Hung and others v Hong Kong Special Administrative Region [2005] HKCFA 40, para 187 and Elias CJ in Brooker v Police [2007] NZSC 30, para 38.

35 Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Reps 43, 109–110, para 160.

36 See KJ Keith Interpreting Treaties, Statutes and Contracts (New Zealand Centre for Public Law May 2009, Occasional Paper No 19) 19–34 and 40–49.

37 See (n 18) para 173.

38 ibid para 172.

39 Eg A Riddell and B Plant, Evidence before the International Court of Justice (British Institute of International and Comparative Law, London, 2009).

40 See, for example, International Covenant on Civil and Political Rights 1966, art 14 (rights of the accused); Statute of the International Criminal Court 1998, art 66 (onus and standard of proof) and art 69 (evidence); ICC Rules of Procedure and Evidence, Rules 63–75 (evidence); in the context of armed conflict, see the Third Geneva Convention Relative to the Treatment of Prisoners of War 1949, arts 99–108 (judicial proceedings relating to prisoners of war).

41 Genocide case, (n 35) 128–129 (paras 205–206); 254–255 (para 35) and 412–421 (paras 50–63); The Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4, 32. See eg Cassese, A, ‘On the Use of Criminal Law Notions in Determining State Responsibility for Genocide’ (2007) 5 JICJ 859Google Scholar, Teitelbaum, R, ‘Recent Fact-Finding Developments at the International Court of Justice’ (2007) 6 LPICT 119Google Scholar and Gattini, A, ‘Evidentiary Issues in the ICJ's Genocide Judgment’ (2007) 5 JICJ 889Google Scholar.

42 Duncan v Cammell, Laird & Co [1942] AC 264. But the position in Scotland was probably different: Glasgow Corporation v Central Land Board 1956 SC 1.

43 See eg P Hogg and P Monahan, Liability of the Crown (3d edn, Carswell, 2000) 88–100.

44 Briese, R and Schill, S, ‘Djibouti v France: Self-judging Clauses before the International Court of Justice’ (2009) 10 Melbourne J Intl L 308Google Scholar and Briese and Schill, ‘“If the State Considers”: self judging clauses in international dispute settlement'(2009) Max Planck UNYB 13.

45 See eg Case concerning Maritime Delimitation in the Black Sea (Romania v Ukraine) (Merits) 2 February 2009, para 68.

46 See eg Pulp Mills case (Judgment of 20 April 2010) para 163.

47 Genocide case (n 35) para 209.

48 ibid para 210.

49 See eg Phipson on Evidence (16th edn, Sweet and Maxwell, London, 2005) 6–54.

50 For a ruling that evidence was not to be adduced because it did not appear to be that of a witness called to establish facts within her personal knowledge which might help the Court settle the dispute before it, see Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) [2008] ICJ Rep 177, para 12.

51 See (n 35) 227.

52 ibid paras 214–224.

53 ibid para 223.

54 ibid paras 403–406.

55 ibid para 403.

56 Case Concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Provisional Measures) 28 May 2009.

57 Avena and Other Mexican Nationals (Mexico v United States of America) (Merits) [2004] ICJ Rep 12; LaGrand (Germany v United States of America) (Merits) [2001] ICJ Rep 466; Vienna Convention on Consular Relations (Paraguay v United States of America) Provisional Measures [1998] ICJ Rep 248.

58 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) [2008] ICJ Rep 177.

59 LaGrand para 128(7), Avena paras 123–125.

60 Avena paras 138–141 and 153 (9). For a later stage, following US court decisions, see Request for Interpretation (Mexico v United States of America) judgment of 19 January 2009.

61 See (n 58) para 145.

62 Convention on Mutual Assistance in Criminal Matters (France–Djibouti) (27 September 1986), art 2(c).

63 See (n 58) paras 145–148.

64 ibid para 148.

65 See (n 58) 278 paras 5–10.

66 See now the publication (n 36) above, based in part on my lecture at the Institute given on 25 October 2004.

67 Lord Tennyson in Aylmer's Field 1793.

68 For example, 43 States provided oral or written statements or both in relation to the request for an advisory opinion, Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo.

69 Statute of the International Court of Justice, arts 2 and 9. I touch on some of these matters in ‘International Court of Justice: Reflections on the Electoral Process’ (2010) 9 Chinese J Intl L 49CrossRefGoogle Scholar, paras 40–75.

70 Freund, P, ‘The Supreme Court of the United States’ (1951) 29 Can Bar Rev 1080Google Scholar, 1087.

71 The presence of judges ad hoc at the ICJ provides a contrast with the International Criminal Tribunal for the former Yugoslavia; see eg AM Smith, After Genocide: Bringing the Devil to Justice (Prometheus Books, Lancaster, 2009).

72 Case Concerning Maritime Delimitation in the Black Sea (Romania v Ukraine) (Merits) 2 February 2009. See the suggestion of Judge Rosalyn Higgins as President of the Court in her address of 30 October 2008 to the General Assembly that States might want to give very careful consideration to what she referred to as the Botswana/Namibia model where the two States agree not to appoint judges ad hoc. For a valuable account of the role of the judge ad hoc see Judge Lauterpacht, Application of the Genocide Convention [1993] ICJ Reps 408–409, paras 4–6.

73 Bingham, TH, ‘“There is a World Elsewhere”: The Changing Perspectives of International Law' (1992) 41 ICLQ 513CrossRefGoogle Scholar.