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The Role of the International Court of Justice in the Enforcement of the Obligation of States to Investigate and Prosecute Serious Crimes at the National Level

Published online by Cambridge University Press:  06 June 2014

Thordis Ingadottir
Thordis Ingadottir*
Affiliation:
Associate Professor, Reykjavik University; Co-Director, Project on International Courts and Tribunals; [email protected]
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Abstract

States have undertaken an international obligation to investigate and prosecute individuals for serious human rights violations and grave breaches of international humanitarian law. However, compliance with that obligation is poor and prosecutions at the national level remain few. The mechanism for enforcement of that obligation is also limited. This article explores the way in which the International Court of Justice (ICJ) can play, and has played, a role in this respect. The jurisprudence of the Court is analysed with regard to three matters: (i) the obligation of states to investigate and prosecute serious crimes at the national level; (ii) national criminal jurisdiction with regard to prosecution of serious crimes, as well as immunities from that jurisdiction; and (iii) the obligation of states to cooperate in criminal matters with other jurisdictions. The Court has adjudicated on some key issues relating to national prosecutions. Some of its findings have, without doubt, enhanced the enforcement of prosecution at the national level, while others have undermined it. Recent cases before the ICJ show an increased willingness by states to use the Court as an avenue for enforcement and, at the same time, the Court has proved more willing to utilise its powers.

Keywords

International Court of Justiceserious crimesprosecutionreparationsindividual criminal responsibilityenforcement
Type
Articles
Information
Israel Law Review , Volume 47 , Issue 2 , July 2014 , pp. 285 - 302
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2014 

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References

1 These include The Corfu Channel Case (United Kingdom v Albania), Judgment [1949] ICJ Rep 4; Case concerning the Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America), Merits, Judgment [1986] ICJ Rep 14; Case concerning Armed Activities on the Territory of Congo (Democratic Republic of the Congo v Uganda), Judgment [2005] ICJ Rep 168; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 226; and the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136. A considerable number of writings exist on the general role of the ICJ with respect to the development and enforcement of human rights law and international humanitarian law: see Bedi, Shiv RS, The Development of Human Rights Law by the Judges of the International Court of Justice (Hart 2007)Google Scholar; Abi-Saab, Rosemary, ‘The “General Principles” of Humanitarian Law According to the International Court of Justice’ (1987) 27 International Review of the Red Cross 367–75CrossRefGoogle Scholar; Gardam, Judith, ‘The Contribution of the International Court of Justice to International Humanitarian Law’ (2001) 14 Leiden Journal of International Law 349CrossRefGoogle Scholar; Chetail, Vincent, ‘The Contribution of the International Court of Justice to International Humanitarian Law’ (2003) 85 International Review of the Red Cross 235Google Scholar; Raimondo, Fabián O, ‘The International Court of Justice as a Guardian of the Unity of Humanitarian Law (2007) 20 Leiden Journal of International Law 593–611CrossRefGoogle Scholar; Mani, VS, ‘The International Court and the Humanitarian Law of Armed Conflict’ (1999) 39 The Indian Journal of International Law 32–46Google Scholar; Schwebel, Stephen M, ‘The Roles of the Security Council and the International Court of Justice in the Application of International Humanitarian Law’ (1994) 27 New York University Journal of International Law & Politics 731Google Scholar; J Keith, Kenneth, ‘The International Court of Justice and Criminal Justice’ (2010) 59 International & Comparative Law Quarterly 895Google Scholar.

2 The Geneva Conventions of 12 August 1949 and Protocols additional to the conventions: Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (entered into force 21 October 1950) 75 UNTS 31 (GC I); Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (entered into force 21 October 1950) 75 UNTS 85 (GC II); Geneva Convention (III) relative to the Treatment of Prisoners of War (entered into force 21 October 1950) 75 UNTS 135 (GC III); Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287 (GC IV); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 3 (Additional Protocol I or AP I); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 609 (Additional Protocol II or AP II); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (entered into force 14 January 2007) (2006) 45 International Legal Materials 558.

3 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries [2001] UN Doc A/56/10.

4 The Geneva Conventions and Additional Protocols (n 2) were among the first international instruments to stipulate the obligation of member states to prosecute crimes mentioned in the treaty. This was a major development in the enforcement of international obligations, as until that time it had been up to states to decide how to implement international treaties at the national level: Pictet, Jean S and others, Commentary on the Geneva Conventions of 12 August 1949, Vol I: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Jean S. Pictet and International Committee of the Red Cross 1952) 353Google Scholar. Furthermore, the new obligation underscored the prosecution of war criminals by the state to which the perpetrators belong. Prior to this, prosecution of war crimes had largely been confined to prosecution through the injured state: see Wolfrum, Rüdiger, ‘Enforcement of International Humanitarian Law’ in Fleck, Dieter (ed), The Handbook of Humanitarian Law in Armed Conflicts (Oxford University Press 1995) 517, 523Google Scholar. The specific articles discussing the obligation to prosecute are GC I, art 49; GC II, art 50; GC III, art 129; GC IV, art 146; and AP I, art 85.

5 GC IV (n 2) art 146.

6 AP I (n 2) art 85.

7 The obligation of states to investigate and prosecute crimes is also reinforced in the United Nations' work on the fight against impunity, the right to truth and the right to reparations. The updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity affirms the need for a comprehensive approach towards impunity, including undertaking investigations and prosecutions of those suspected of criminal responsibility. According to Principle 19, states shall undertake prompt, thorough, independent and impartial investigations of violations of human rights and international humanitarian law and take appropriate measures in respect of the perpetrators, particularly in the area of criminal justice, by ensuring that those responsible for serious crimes under international law are prosecuted, tried and duly punished: Diane Orentlicher, ‘Report of the Independent Expert to Update the Set of Principles to Combat Impunity – Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity’, 8 February 2005, UN Doc E/CN.4/2005/102/Add.1. Similarly, the duty to investigate and prosecute is listed in the ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’, 60/147(2005), 16 December 2005, UN Doc. A/RES/60/147 (2005), paras 3(b), 4 and 22(f).

8 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (entered into force 26 June 1987) 1465 UNTS 85 (Torture Convention).

9 Convention on the Prevention and Punishment of the Crime of Genocide (entered into force 12 January 1951) 78 UNTS 277 (Genocide Convention).

10 International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171 (ICCPR).

11 During the drafting of the Convention, some states wanted to strengthen the positive obligation on the part of governments to prosecute violations: see Roht-Arriaza, Naomi, ‘Sources in International Treaties of an Obligation to Investigate, Prosecute, and Provide Redress’ in Roht-Arriaza, Naomi (ed), Impunity and Human Rights in International Law and Practice (Oxford University Press 1995) 24, 33Google Scholar.

12 UN Human Rights Committee (HRC), CCPR General Comment 7, Article 7, ‘Compilation of General Comments and General Recommendation adopted by Human Rights Treaty Bodies’, 30 May 1982, UN Doc HRI/GEN/1/Rev1 at 7, para 1; UNHRC, General Comment 31, ‘Nature of the General Legal Obligation Imposed on States Parties to the Covenant’, 26 May 2005, CCPR/C/21/Rev.1/Add.13, para 18. For corresponding case law, see Maria del Carmen Almeida de Quinteros and Elena Quinteros Almeida v Uruguay, Communication No 107/1981, 21 July 1983, UN Doc CCPR/C/19/D/107/1981, para 16 (‘bring to justice any persons found to be responsible for her disappearance and ill treatment’); Irene Bleier Lewenhoff and Rosa Valino de Bleier v Uruguay, Communication No 30/1978, 29 March 1982, UN Doc CCPR/C/OP/1, para 15.

13 Case concerning United States Diplomatic and Consular Staff in Tehran (United States v Iran), Judgment [1980] ICJ Rep 3.

14 Wall (n 1).

15 Diplomatic Staff (n 13) [8]; Wall (n 1) [145]–[146].

16 Armed Activities (n 1) [25].

17 ibid, Declaration of Judge Tomka [9].

18 Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) Judgment [2007] ICJ Rep 43, [183]–[184], [439]–[450] (Bosnian Genocide).

19 Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Preliminary Objections, Judgment [2008] ICJ Rep 412, [21], [135] (Croatian Genocide).

20 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment [2012] ICJ Rep 442.

21 The Court concluded that, at the time of the filing of the application, the dispute between the parties did not relate to breaches of obligations under customary international law: ibid [55]. On the contested issue whether there is such an obligation under customary international law, see the work of the International Law Commission (ILC) on the subject of the obligation to extradite or prosecute: eg Zdzislaw Galicki, Bases for Discussion in the Working Group on the Topic ‘The Obligation to Extradite or Prosecute (aut dedere aut judicare)’, 24 June 2010, UN Doc No A/CN.4/L.774.

22 Obligation to Prosecute (n 20) [99].

23 Vienna Convention on the Law of Treaties (entered into force 27 January 1980) 1155 UNTS 331.

24 Obligation to Prosecute (n 20) [100], [101].

25 ibid [102], [119]–[121].

26 ibid [91]. Judge Owada criticised the methodology in the judgment to be ‘too formalistic and somewhat artificial’, and failed to consider the Torture Convention as an organic whole: ibid, Declaration of Judge Owada, [11].

27 ibid [86], referring to the Torture Convention (n 8) art 7(2).

28 ibid [84].

29 ibid [90], [94].

30 ibid [117].

31 ibid [111]–[117].

32 ibid [94]. However, that might not necessarily lead to a prosecution, in light of all the evidence before them.

33 ibid [95].

34 Draft Articles (n 3).

35 ibid [106]. In 2001 the ILC adopted its final Draft Rules on State Responsibility. The final draft article on satisfaction was amended in the final reading, moving prosecution of individuals from the list of examples in the main text of the article into the commentaries. However, the Commission made it clear that the list of different types of satisfaction in Article 37 was not exhaustive. The inclusion of this remedy was backed by a study on long diplomatic practice and punishment of individuals as a consequence of state violations: Gaetano Arangio-Ruiz, ‘Second State Report on State Responsibility’, 41st sess, UN Doc A/CN.4/425 & Corr 1 and Add 1 & Corr 1 (1989) 36–40.

36 Armed Activities (n 1) [24].

37 ibid [25(4)(d) and (e)].

38 Corfu Channel (n 1); Case concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo (Compensation owed by the DRC to the Republic of Guinea), Judgment [2012] ICJ Rep 2.

39 This practice has been illustrated by some as an example of how the Court has been selective in relying on the work of the ILC on state responsibility: see Villalpando, Santiago, ‘Editorial: On the International Court of Justice and the Determination of the Rules of Law’ (2013) 26 Leiden Journal of International Law 243, 250CrossRefGoogle Scholar.

40 Bosnian Genocide (n 18). The Court found that Serbia had failed to comply with its obligations under the Genocide Convention in respect of the prevention and punishment of genocide. The Court found that its findings constituted appropriate satisfaction and denied an award of compensation. For a critique see, eg, McCarthy, Conor, ‘Reparation for Gross Violations of Human Rights Law and International Humanitarian Law at the International Court of Justice’ in Ferstman, Carla, Goetz, Mariana and Stephens, Alan (eds), Reparations for Victims of Genocide, War Crimes and Crimes against Humanity (Martinus Nijhoff 2009) 283Google Scholar.

41 See, eg, the discussion in Brown, Chester, A Common Law of International Adjudication (Oxford University Press 2007) 209–11CrossRefGoogle Scholar; Gray, Christine, Judicial Remedies in International Law (Oxford University Press 1987) 98Google Scholar; and Shaw, Malcolm N, ‘A Practical Look at the International Court of Justice’ in Evans, Malcolm D (ed), Remedies in International Law: The Institutional Dilemma (Hart 1998) 11, 13–16Google Scholar.

42 Diallo (n 38) [10] and [57]. Judge Trindade considered that the Court's judgment ‘shows that its findings and reasoning have rightly gone well beyond the straightjacket of the strict interstate dimension’; ibid, Separate Opinion of Judge Cançado Trindade, [12].

43 Wall (n 1) [152]–[153], [163]. Following the decision, the UN Register of Damage Caused by the Construction of the Wall in the Occupied Palestinian Territory was established, UN Res ES-10/17 (2007), 24 January 2007, UN Doc No A/RES/ES-10/17.

44 LaGrand Case (Germany v United States of America), Provisional Measures [1999] ICJ Rep 9 [29]; Case concerning Avena and Other Mexican Nationals (Mexico v United States of America), Provisional Measures [2003] ICJ Rep 77 [59].

45 Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment [2002] ICJ Rep 3.

46 Bosnian Genocide (n 18) [471(8)].

47 Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), Judgment [2012] ICJ Rep 99, [139(4)].

48 LaGrand (n 44) [517].

49 Avena (n 44) [151].

50 See Tomuschat, Christian, ‘The Duty to Prosecute International Crimes Committed by Individuals’, in Cremer, Hans-Joachim, Giegerich, Thomas, Richter, Dagmar and Zimmermann, Andreas (eds), Tradition und Weltoffenheit des Rechts: Festschrift fur Helmut Steinberger (2002) 315, 319–22Google Scholar. See also the following decisions of the European Court of Human Rights: Assanidze v Georgia, App No 71503/01 (ECtHR, 8 April 2004), paras 202–203; Ilaşcu and Others v Moldova and Russia, App No 48787/99 (ECtHR, 8 July 2004), para 490; Papamichalopoulos and Others v Greece, App No 14556/89 (ECtHR, 24 June 1993), paras 34–39; and Sejdovic v Italy, App No 56581/00 (ECtHR, 1 March 2006), paras 135–138.

51 Geneva Conventions and Protocols (n 2).

52 Torture Convention (n 8).

53 The Case of the SS ‘Lotus’, Judgment (1927) PCIJ Rep (Ser A, No 10) 19. The PCIJ's finding has led to extensive academic writings up to the present day, and recent commentators are convinced that the emphasis lies in the former finding – that of restrictive jurisdiction. See, eg, Shaw, Malcolm N, International Law (6th edn, Cambridge University Press 2008) 656CrossRefGoogle Scholar. See also Clark, Roger S, ‘Some Aspects of the Concept of International Criminal Law: Suppression Conventions, Jurisdiction, Submarine Cables and The Lotus’ (2011) 22 Criminal Law Forum 519–30CrossRefGoogle Scholar.

54 The Court did not address whether Belgium was entitled to exercise jurisdiction. Three judges criticised the Court's ‘reluctance to face the issue’: see Obligation to Prosecute (n 20), Declaration of Judge Owada, Separate Opinion of Judge Skotnikow, and Dissenting Opinion of Judge Xue.

55 Obligation to Prosecute (n 20) [75].

56 The ‘Lotus’ (n 53) [11]–[12].

57 Arrest Warrant (n 45) [43].

58 ibid, Separate Opinion of President Guillaume, Dissenting Opinion of Judge Oda, Declaration of Judge Ranjeva, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, Separate Opinion of Judge Rezek, Separate opinion of Judge Bula-Bula, and Dissenting Opinion of Judge Van Den Wynaert.

59 Case concerning Certain Criminal Proceedings in France (Republic of Congo v France), http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=d2&case=129&code=cof&p3=0; the case was removed from the Court's list on 17 November 2010 at the request of Congo.

60 Bosnian Genocide (n 18) [442].

61 Obligation to Prosecute (n 20) [102].

62 Belgium argued it that it had standing in the case as it was exercising passive personal jurisdiction in its national proceedings. The Court did not consider it necessary to address this issue as it considered Belgium to have standing as a mere state party to the Torture Convention: ibid [65], [70].

63 Arrest Warrant (n 45) [35].

64 ibid [54]–[55]. Two judges dissented strongly from this part of the judgment and considered that the prosecution of serious crimes and personal accountability represented higher norms than the rules on immunity, and they should therefore prevail: see Dissenting Opinion of Awn Al-Khasawneh, [7], and Dissenting Opinion of Judge Van den Wyngaert. Several scholars have also criticised the judgment: see Wouters, J, ‘The Judgment of the International Court of Justice in the Arrest Warrant Case: Some Critical Remarks’ (2003) 16 Leiden Journal of International Law 253, 263CrossRefGoogle Scholar. Cassese, Antonio, ‘When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v Belgium Case’ (2002) 13 European Journal of International Law 853, 855CrossRefGoogle Scholar.

65 Arrest Warrant (n 45) [58]–[59].

66 Arrest Warrant (n 45) [59].

67 ibid [61].

68 ibid, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, [85].

69 Case concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France), Judgment [2008] ICJ Rep 177, [170]–[171].

70 Jurisdictional Immunities (n 47) [81]–[91].

71 ibid [95] [97].

72 ibid [100].

73 ibid.

74 Geneva Conventions and Protocols (n 2).

75 Torture Convention (n 8) art 7. For a detailed study of the duty to cooperate, see the International Law Commission's reports on the topic of obligation to extradite or prosecute: Galicki (n 21). On the obligation in general, see Zdzislaw Galicki, ‘Fourth Report on the Obligation to Extradite or Prosecute (aut dedere aut judicare)’, 31 May 2011, UN Doc A/CN.4/648.

76 Torture Convention (n 8) arts 6 and 7.

77 Reservations to the Convention on Genocide, Advisory Opinion [1951] ICJ Rep 15, [23].

78 Bosnian Genocide (n 18) [443].

79 ibid.

80 ibid [445]–[449].

81 Croatian Genocide (n 19) [134]–[135].

82 Mutual Assistance (n 69).

83 Obligation to Prosecute (n 20) [95].

84 ibid.

85 Mutual Assistance (n 69) [105].

86 ibid [119], [123]–[124], [145], [147].

87 Bosnian Genocide (n 18) [183]–[184].

88 See nn 60 and 61.

89 On the other hand, some commentators hailed it as ‘a victory to traditional conceptions of international law and a setback to an effort to privilege international human rights over other aspects of the international legal system’: see Benjamin Wittes, ‘Paul Stephan on ICJ Decision in Jurisdictional Immunities of the State (Germany v Italy)’, Lawfare, 5 February 2012, http://www.lawfareblog.com/2012/02/paul-stephan-on-icj-decision-in-jurisdictional-immunities-of-the-state-germany-v-italy-2/#.UsxHBfQW30c.

90 Obligation to Prosecute (n 20) [96]–[105]; Arrest Warrant (n 45) [58]–[61].

91 Jurisdictional Immunities (n 47) [95].

92 ibid 11.

93 Bosnian Genocide (n 18) [439]–[450].

94 ibid 35.