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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.

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

I. INTRODUCTION

Four matters may suggest that I do not have a topic.Footnote 1 First, according to article 34 of the Statute of the International Court of Justice, only States may be parties to cases before the Court. Second, States, it is commonly said, cannot commit international crimes. This opinion is based on the widespread negative reactions to the proposal by the International Law Commission for ‘international crimes’ of States and the Commission's withdrawal of that proposal.Footnote 2 Third, criminal justice, it is said, is primarily a matter of national law and national jurisdiction. And, fourth, to the extent that it is not, the newly established array of international and hybrid criminal courts and tribunals may appear to have a major role. Forty or fifty of their members may be in The Hague on any given day. Do they not effectively exclude the jurisdiction of the International Court of Justice?

The record of cases decided by the Court and its predecessor, the Permanent Court of International Justice, demonstrates that that argument cannot be correct. Before I turn to parts of that record, I comment on the four matters just mentioned. On the first, as appears later in this paper, one State may bring a case against another before the Court on criminal justice matters, and authorized United Nations and related bodies may, under article 96 of the Charter of the United Nations, request the Court to give an advisory opinion on such matters.

Second, even if States cannot commit international crimes, they might, as again is discussed later, be held to be subject to the same obligations as individuals, without the obligations being characterized as criminal; that is to say, the obligation may be dual, binding both States and individuals.

On the third matter, the historical record shows an international law origin for some criminal law—piracy, war crimes and slave trading— and more recently matters such as the trafficking of humans, drugs and arms, counterfeiting, obscene publications, terrorism, torture, attacks on aircraft and shipping, money laundering and transnational crimes more generally.Footnote 3 These bodies of international law will often be relevant to national law administered by national courts. In 10 years of judging in New Zealand, I was party to scores of decisions about extradition, criminal jurisdiction, and the rights of criminal suspects and accused and convicted persons in which international law played a significant, sometimes a decisive, part. Those cases arose from the fact that matters of criminal procedure and inter-state cooperation in criminal matters have increasingly become subject to international legal regulation. That international regulation may override the national law which would otherwise be applicable, it may give more precise content to a generally formulated national law, or it may provide a basis for giving a particular reading or application, especially by way of narrowing, of a statutory provision. The following three examples may help illustrate the interaction between the international and domestic.

In Yuen Kwok-Fung v Hong Kong, Footnote 4 the subject of an extradition request claimed the benefit of the exercise of a discretion which was included in the extradition treaty but not in the extradition legislation. That legislation expressly provided that, with certain exceptions, its terms could be overridden by an extradition treaty, with the consequence in this case that, because of the treaty provision, the person had wider protection from surrender. For the New Zealand court the construction direction given in the statute was a very strong one; it was more than mere interpretation.

The process which s 11 of the New Zealand Act requires can perhaps be better thought of as reconstruction of the Act, to the extent it is inconsistent with the treaty, to make it consistent. The strength of the direction recognises the basic principles of international law that treaties must be complied with and that a state cannot invoke its internal law to justify its failure to perform a treaty (articles 26 and 27 of the Vienna Convention on the Law of Treaties). In the specific context of extradition, the Act also recognises those principles in its objective stated in s12: the Act, among other things, is an Act:

  1. (a) To enable New Zealand to carry out its obligations under extradition treaties.Footnote 5

The case of Sellers v Maritime Safety Inspector related to shipping legislation which provided that the Director of Maritime Safety had broad powers to require masters of vessels to carry safety equipment when sailing on the high seas. In accordance with general practice the Director required a solo yachtsman whose cutter was registered in Malta to carry a radio and locator beacon. International law did not permit such a requirement to be imposed by unilateral national action in those particular circumstances. The Court heldFootnote 6 that, in exercising those powers under New Zealand law, the Director had to act consistently with international law and the criminal conviction for breach of the Director's requirements was set aside.

In Mist, a sentencing appeal turned on whether an offender who in all other respects qualified for the very heavy sentence of preventive detention could receive that sentence because he was not 21 at the time he committed the relevant offence but was at the time of conviction and sentencing. The legislation did not specify the time at which the age of the offender counted. The New Zealand Supreme Court heldFootnote 7 that the date of the offending was the determinative date. Central to that holding was the prohibition on retrospective criminal law, a prohibition to be found in legislation and case law, in both cases with qualifications, and in international law, with reference in terms of supporting reasoning to Thomas Hobbes and Bartolus de Saxoferrato, writing in the 14th century. The qualifications in national law related to retrospective sentences, as opposed to retrospective criminality, and the situations, as in the present, where there had been no change in the law since the offence was committed, rather just a change in circumstance. The first qualification was removed by legislation when New Zealand became party to the International Covenant on Civil and Political Rights, article 15 of which applies equally to sentencing and criminality. The legislation implementing that treaty obligation was, the Court said, so far as possible,Footnote 8 to be interpreted consistently with that treaty obligation. The Court did not see the rationale of the prohibition on retrospectivity as being limited to the accessibility of the law and forseeability. Simple fairness and the possible prejudice to the enjoyment of other protections accorded by the criminal justice system also supported the conclusion that the date of the offence and not of conviction or sentencing was determinative. The decision was also seen as supporting the principle of legality of which the prohibition on retrospectivity was part.Footnote 9

On the final matter, relating to the array of international criminal tribunals, criminal justice matters do in fact arise before the International Court as well as before national courts. That array of tribunals plainly does not have exclusive or even primary jurisdiction over international criminal justice matters.

II. CRIMINAL JUSTICE BEFORE THE INTERNATIONAL COURT OF JUSTICE

Criminal justice issues arising before the International Court may be considered under four headings:

  1. 1. national criminal jurisdiction and immunities from that jurisdiction;

  2. 2. principles of individual criminal liability and the related responsibility of states;

  3. 3. matters of evidence and proof; and

  4. 4. the interaction between the Court and national criminal courts and administrations.

A. National Criminal Jurisdiction and Immunities from that Jurisdiction

It is more than 80 years since the Permanent Court of International Justice ruled that France did not have exclusive jurisdiction over a criminal prosecution against the French officer of the watch on the Lotus, a French vessel, which on the high seas collided with a Turkish vessel, with eight of those on board the Turkish vessel dying.Footnote 10 That judgment is now best known for its discussion of, and statement about, ‘the very nature and existing conditions of international law’, particularly for its proposition that restrictions upon the independence of States cannot be presumed.Footnote 11 One relevant feature of the case for present purposes is that its ruling against the exclusive jurisdiction of the flag State was reversed by treaty, in provisions which were carried forward into the 1958 and 1982 Law of the Sea Conventions and which are seen in decisions of national courts as declaring customary international law.Footnote 12 That treaty and national court processes remind us that the ICJ is but one part of the international legal process. To mention a second feature of the case, the role of national courts was also seen in the argument, the judgment and opinions in the Lotus case where decisions from seven different jurisdictions were cited and discussed.

That process of citation and discussion also appears in the Arrest Warrant case in 2002 in which the Court held that Belgium had acted unlawfully in issuing an arrest warrant against the Minister of Foreign Affairs of the Democratic Republic of Congo in respect of alleged war crimes.Footnote 13 It had taken that action under the universal jurisdiction it claimed over such crimes. The Court did not accept that the immunity in that case had been limited by recent developments as seen in the Pinochet litigation in the United Kingdom and in cases in the Netherlands and France.Footnote 14 In reaching its decision the Court faced a question of a structural kind: could it decide the immunity question without deciding the apparently prior question of jurisdiction? Some members of the Court thought that it could not.Footnote 15 Issues of universal jurisdiction over crime and immunity from that process also arise in Republic of the Congo v France due for hearing later in 2010, and the immunity issues were argued, but did not require decision, in a case between Djibouti and France in 2008.

The immunities arguments in Djibouti v France are of interest for their focus on the nature of the allegedly official act in issue rather than on the status of the officials. France had issued summonses calling Djibouti officials as témoins assistés who, Djibouti accepted at the hearing, would not have had personal immunity; rather it argued in terms of functional immunity, or immunity rationae materiae.Footnote 16 The acts carried out in an official capacity, it said, were to be regarded as attributable to the State on behalf of which the organ acted and not to the individual acting as an official organ; such a person cannot be individually criminally liable. Counsel for France did not reject the proposition of law but rather the ‘truly unacceptable consequences’ which Djibouti wished to draw from it.Footnote 17 The Court did not reach the legal issue because the Government of Djibouti had not ever made this particular claim to the French Government or the French courts.

At no stage have the French courts (before which the challenge to jurisdiction would normally be expected to be made), nor indeed this Court, been informed by the Government of Djibouti that the acts complained of by France were its own acts, and that the procureur de la République and the Head of National Security were its organs, agencies or instrumentalities in carrying them out.

The State which seeks to claim immunity for one of its State organs is expected to notify the authorities of the other State concerned. This would allow the court of the forum State to ensure that it does not fail to respect any entitlement to immunity and might thereby engage the responsibility of that State. Further, the State notifying a foreign court that judicial process should not proceed, for reasons of immunity, against its State organs, is assuming responsibility for an internationally wrongful act in issue committed by such organs.Footnote 18

Of the issues arising from counsel's argument in this case I comment on two. The first is the difficulty which a court, and not just the International Court, may face if the Parties or their counsel agree on a proposition of law about which the court or members of it may have doubts. The second is that much law and practice shows that the liability (criminal or civil) of the principal (eg the employer, the State) and of the agent (eg the employee, the official) will often be dual. As discussed under the next heading, the liability of the one does not exclude the liability of the other.

B. Principles of Individual Criminal Liability and the Related Responsibility of States

In 1935 the Council of the League of Nations asked the Permanent Court of International Justice for an advisory opinion on the consistency of certain Danzig legislative decrees with the Constitution of the Free City of Danzig—modern day Gdansk.Footnote 19 The Decree under challenge was headed Creation of Law by the Application of Penal Laws by Analogy. The substantive provision was to this effect:

Article 2.—Any person who commits an act … which is deserving of penalty according to the fundamental conceptions of a penal law and sound popular feeling shall be punished … .Footnote 20

It replaced the following:

Article 2.—An act is only punishable if the penalty applicable to it has been prescribed by a law in force before the commission of the act.Footnote 21

That earlier provision, the Court said,

Gives expression to the well-known twofold maxim: Nullum crimen sine lege, and Nulla poena sine lege. The law alone determines and defines an offence. The law alone decrees the penalty. A penalty cannot be inflicted in a given case if it is not decreed by the law in respect of that case. A penalty decreed by the law for a particular case cannot be inflicted in another case. In other words, criminal laws may not be applied by analogy.Footnote 22

The Court began by rejecting the argument that, as an international court, it should not address a matter of national constitutional law—an argument that reflected the third proposition mentioned at the outset of this paper, that criminal justice is primarily a matter of national law. The Court said that although the interpretation of the Danzig Constitution is primarily an internal matter for the Free City and that to answer the questions put to it the Court would have to examine municipal legislation and the Danzig Constitution, the League guarantee of the Constitution with the associated roles of the Council and the Court established the international element in the problem.Footnote 23 Turning to the merits, the Court indicated that it was not impressed with Danzig's new conception of penal law in which ‘real justice’ would take the place of ‘formal justice’:

Whether an act does or does not fall within the fundamental idea of a penal law, and also whether or not that act is condemned by sound popular feeling, is [under the new law] left to the individual judge or to the Public Prosecutor to determine. […] Instead of applying a penal law equally clear to both the judge and the party accused, as was the case under the criminal law previously in force at Danzig, there is the possibility under the new decrees that a man may find himself placed on trial and punished for an act which the law did not enable him to know was an offence, because its criminality depends entirely upon the appreciation of the situation by the Public Prosecutor and by the judge. Accordingly, a system in which the criminal character of an act and the penalty attached to it will be known to the judge alone replaces a system in which this knowledge was equally open to both the judge and the accused [. . . .] an individual opinion as to what was the intention which underlay a law, or an individual opinion as to what is condemned by sound popular feeling, will vary from man to man. Sound popular feeling is a very elusive standard.Footnote 24

The Court turned to matters of principle:

Certain principles emerge from the articles of the Constitution of Danzig. In the first place it is to be observed that the Constitution endows the Free City with a form of government under which all organs of the State are bound to keep within the confines of the law (Rechtsstaat, State governed by the rule of law). In the second place, it is to be noted that the Constitution consists of two parts, the first of which, entitled ‘Organization of the State’ … concerns the structure of the State, whilst the second lays down inter alia a series of ‘Fundamental rights and duties’ … The free enjoyment of these rights, within the bounds of the law, constitutes one of the principles of the Constitution of the Free City.Footnote 25

The Court put those fundamental rights in the context of the rights provisions included in ‘most of the constitutions drawn up since the beginning of the XIXth century, … designed to … give [the individual] the safeguards which are considered necessary for his protection against the State’.Footnote 26 State organs were required to guide themselves by the fundamental rights in the Constitution. Those rights are not all absolute and unrestricted: they may be restricted, but only by law, which in turn:

must itself specify the conditions of such restriction, and, in particular, determine the limit beyond which an act can no longer be justified as an exercise of a fundamental liberty and becomes a punishable offence. It must be possible for the individual to know, beforehand, whether his acts are lawful or liable to punishment.Footnote 27

Here the Court anticipates what has later been referred to as the principle of legality,Footnote 28 as in the retrospective sentencing case discussed earlier, and the wording and interpretation of the European Convention on Human Rights—certain rights may be subject to reasonable limits prescribed by law …—wording which is also to be found in Canadian, New Zealand and Australian bills of rights.Footnote 29

The Court's opinion has had an interesting later life. Sir Ivor Jennings in The Law and the Constitution declared in 1959 that ‘English lawyers would repudiate, and would rouse a vast opinion against, such a rule as that enshrined in the German Law of 28 June 1935’, the model for the law enacted in Danzig shortly after.Footnote 30 Just two years later, Viscount Simonds provided an occasion for such repudiation and rousing when the House of Lords confirmed, with a splendid dissent by Lord Reid, the continuing existence of the crime of conspiracy to corrupt public morals. The former Lord Chancellor declared that

There remains in the Courts of Law a residual power to … conserve not only the safety and order but also the moral welfare of the State. … It matters little what label is given to the offending act. To one of your Lordships it may appear an affront to public decency, to another … a corruption of public morals. Yet others may deem it aptly described as the creation of a public mischief …. When Lord Mansfield … said that the Court of King's Bench was the custos morum of the people and had the superintendency of offences contra bonos mores, he was asserting, as I now assert, that there is in that Court a residual power, where no statute has yet intervened to supersede the common law, to superintend those offences which are prejudicial to the public welfare.Footnote 31

Lord Morris and Lord Hodson expressly stated that they were in agreement with the speech of Viscount Simonds. Lord Hodson addedFootnote 32 that the cited precedents showed conclusively to his mind that the courts had never abandoned their function as custodies morum by surrendering to the legislature the right and duty to apply established principles to new combinations of circumstances.

This decision drew ferocious academic criticism and a few years later the House of Lords reversed its position and rejected any common law power to extend the criminal law, a ruling which it applied recently when it denied that the crime of aggression was part of English law.Footnote 33 Some decades on, judges in Hong Kong and New Zealand, dealing with limits on freedom of expression, have continued to find the 1935 opinion valuable in emphasizing the fundamental principle that criminal law must be predictable.Footnote 34

The International Court, more recently, has considered the relationship between individual criminal responsibility and State responsibility. Does the one preclude the other? When considering the responsibility of the Federal Republic of Yugoslavia for alleged acts of genocide in Bosnia-Herzegovina in the early 1990s the Court had to decide whether the States Parties to the Genocide Convention, in addition to having an obligation to enact the relevant legislation to prosecute or extradite alleged offenders and to cooperate in repressing genocide, were also themselves under the obligation not to commit the defined acts of genocide. For the reasons given in its 2007 judgment, the Court answered the question in the positive. I recall two features of the reasons for that answer. First, in interpreting the Convention, the Court, as it routinely does, invoked, as customary international law, the provisions of articles 31 and 32 of the Vienna Convention on the Law of Treaties.Footnote 35 That emphasis contrasts with the non-citation of interpretive directions by courts in a number of jurisdictions which have similar directions in their law.Footnote 36 Second, to return to the argument made but not decided in Djibouti v France, the Court observed that ‘duality of responsibility continues to be a constant feature of international law’.Footnote 37 It quoted from the judgment of the Nuremberg Tribunal this passage:

That international law imposes duties and liabilities upon individuals as well as upon States has long been recognised.Footnote 38

In support of this observation, the Court cited article 25(4) of the Rome Statute—‘No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law’—and, for the other side of the coin, article 58 of the ILC Articles on State Responsibility—‘These articles are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State’. The Court accordingly went on to consider whether the Respondent State was in breach of those substantive obligations stated in article 3 of the Genocide Convention the Applicant invoked.

C. Matters of Evidence and Proof

In determining a claim that a party to the proceeding has breached its legal obligations, the Court, like other courts, may have to determine disputed questions of fact. This role has, for more than 80 years, been reflected in article 36(2)(c) of the Court's Statute. In the case of the International Court that function, with its attached responsibility, is the more challenging, given that it is States that are in dispute, that the facts may be complex, extending over years and wide tracts of territory and many events, that it has no coercive powers to require evidence to be given, and that it is a court of first and last instance, without the advantages, for counsel as well, of a judgment below and the processes that led to it. In the last two or three decades, difficult disputes about facts and their evaluation have increasingly arisen in the International Court and in other international courts and tribunals. The growing experience and the sharpening of the issues to be resolved has led to valuable studies, codes, model rules, rules and publications such as that recently published by the British Institute of International and Comparative Law.Footnote 39 National courts, especially in criminal cases, have long dealt with essentially the same range of issues—among them the production and admissibility of evidence, onus of proof, standard of proof and evaluation of evidence. For courts, including the International Court of Justice, legal process issues arise in respect of those issues to the extent that they have been left unregulated by those who set up the Court: should the Court regulate those matters generally, for instance by rule or by practice direction, or deal with them in the particular case and, if so, in advance of the oral hearings, during them or in the decision itself? The choices made will differ according to the jurisdiction, as appears for instance from the rules (partly in treaty form) regulating criminal procedure and protecting the rights of the accused.Footnote 40 The parties and their advisers also have significant responsibilities in respect of those matters.

What are issues of admissibility of evidence in some legal systems are often dealt with internationally as matters of weight or evaluation. Claims of State secrets or confidence in response to a request for the disclosure of evidence obviously cannot be dealt with in that way. These issues have long vexed national law-makers and courts, generally, if not always, in the context of the existence of a court power to order the production of evidence, a power not available to the International Court. What it does have, under article 49 of its Statute, is the power to call upon the agents of the Parties to produce any document or provide any explanation; formal note is to be taken of any refusal. The Court made such a request in the Corfu Channel case—a request rejected by the United Kingdom—but not in the Genocide case—an action, which along with the Court's refusal to draw any inference from the state of the evidence, has been the subject of criticism.Footnote 41

Even with that difference in the powers of courts, there are lessons to be learned from the extensive law and practice in national courts. When the United Kingdom refused the request in the Corfu Channel case in 1949 its law was clear: an executive refusal to produce evidence to a court, particularly on the grounds of defence secrets, was conclusive and not subject to Court review.Footnote 42 By the 1960s the law in the United Kingdom and other common law countries had moved in the direction of greater openness, while recognizing that claims of secrecy based on reasons of national security, defence and international relations considerations were less likely to be questioned and overruled.Footnote 43 In those areas, the executive's word may no longer be final. Courts sometimes call for a new certificate with a more specific definition of the State interests to be protected—‘national security’ may have a very wide application—and for a balancing by the responsible Minister, subject to the Court examination, of the interests of disclosure for the purpose of a fair judicial process. That experience may be drawn on in international practice as well when the issues increasingly arise and not just in response to requests to produce evidence.Footnote 44 I mention below one such case decided by the International Court.

The Court has established a consistent approach to the onus of proof. In general the applicant must establish its case; and a party asserting a fact must establish it.Footnote 45 I have the sense that parties which might expect to benefit from the onus are prudent and in preparing their evidence do not simply depend on the onus. In that practice they may also recognize some responsibility to the Court and the processes of international justice.Footnote 46 Parties are also aware that they may face arguments that the onus should be reversed, on the basis, for instance, that they have information to which the other party does not have access.

The standard of proof required has been disputed in cases in which allegations of exceptional gravity are to be resolved. In the Genocide case the applicant, emphasizing that in its view the matter was not one of criminal law, contended that the standard was the balance of evidence or the balance of probabilities. The Court, recalling the Corfu Channel case, said that it had long recognized that claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive. It had to be fully convinced that the allegation that the crime of genocide and other acts enumerated in article 3 had been clearly established.Footnote 47 Allegations of other breaches required proof at a high level of certainty appropriate to the seriousness of the allegation.Footnote 48 Such variable standards of proof or cogency of proof are to be found in national legal systems, for instance in respect of allegations of fraud or child abuse in civil proceedings.Footnote 49

The International Court is often presented with many hundreds, even thousands, of pages of documentary evidence from many different sources. In the event that the validity, accuracy or value of an item of evidence is challenged how is that challenge to be decided? As mentioned, arguments that in some legal systems might lead to a court ruling that the evidence is inadmissible, for instance, as hearsay, opinion or the rulings of other courts, are generally directed instead at the weight to be given to the item.Footnote 50 The Court has recently given close attention to those matters in Democratic Republic of Congo v Uganda and the Genocide case. In the latter, the Court made this general statement when considering the reports of official or independent bodies giving accounts of relevant events:

Their value depends, among other things, on (1) the source of the item of evidence (for instance partisan, or neutral), (2) the process by which it has been generated (for instance an anonymous press report or the product of a careful court or court-like process), and (3) the quality or character of the item (such as statements against interest, and agreed or uncontested facts).Footnote 51

In that case the Court also gave detailed attention to the information available from the decisions of the International Criminal Tribunal for the former Yugoslavia.Footnote 52 That analysis included a distinction often drawn by common lawyers (if sometimes in different words):

In view of the above, the Court concludes that it should in principle accept as highly persuasive relevant findings of fact made by the Tribunal at trial, unless of course they have been upset on appeal. For the same reasons, any evaluation by the Tribunal based on the facts as so found for instance about the existence of the required intent, is also entitled to due weight.Footnote 53

Later in the judgment, the Court made a further distinction. While it would give careful consideration to the ICTY Appeal Chamber's reasoning on a particular issue of law, it disagreed with it for reasons it spelled out.Footnote 54 On the distinction between fact and law the Court said this:

As stated above, the Court attaches the utmost importance to the factual and legal findings made by the ICTY in ruling on the criminal liability of the accused before it and, in the present case, the Court takes fullest account of the ICTY's trial and appellate judgments dealing with the events underlying the dispute. The situation is not the same for positions adopted by the ICTY on issues of general international law which do not lie within the specific purview of its jurisdiction and, moreover, the resolution of which is not always necessary for deciding the criminal cases before it.Footnote 55

D. Interaction Between the Court and National Criminal Courts and Administrations

This heading is broad enough to cover much of that which has already been discussed, for instance concerning the jurisdiction of national courts and immunities from jurisdiction. My focus is on the extent of review by the Court of the exercise by national authorities of those criminal process powers which are subject to international regulation. Such issues are raised in the pending case between Belgium and Senegal relating to the prosecution or extradition of former President Habré of Chad,Footnote 56 in completed proceedings in three Consular Convention cases brought against the United States,Footnote 57 and in the challenge by Djibouti to France's refusal to meet its request made under their Mutual Assistance Convention to transmit the records of the French investigation of a death in Djibouti of a French magistrate.Footnote 58

In two Consular Convention cases the Court held that the United States was in breach of its obligation to inform particular foreign nationals who had been arrested of their right to seek consular assistance.Footnote 59 The issue which then faced the Court was how far to go in terms of remedy. It made it clear that it was not a court of criminal appeal. For instance, in one case it rejected the Applicant's request that it order that the convictions and sentences be set aside. Rather, it declared that the United States was obliged to provide, by means of its own choosing, review and reconsideration of the convictions and sentences. The processes were to be effective.Footnote 60

A reference to national decision making ‘according to law’ was also in issue in Djibouti v France, since the Mutual Assistance Convention at the centre of that case provided that requests made under it were to be dealt with according to the law of the requested State. One matter in issue in that case was about who within the French system was to decide—a Court or a Minister or both? According to the ruling of the authoritative French court, the answer was the investigating magistrate who was handling the request. The Court thought there was no basis on which it could question that ruling.Footnote 61 But it did not follow that the French rejection of the request could not be examined. On the face of the Convention, France was obliged to agree to the request unless it was able to invoke one of the reasons for refusal. Article 2(c) of the Convention provides that assistance may be refused:

(c) if the requested State considers that execution of the request is likely to prejudice its sovereignty, its security, its ordre public or others of its essential interests.Footnote 62

All members of the Court agreed that France did not have an unfettered discretion under that provision. While, according to the Court, article 2 provides the requested State with a very considerable discretion, the exercise of the discretion is still subject to the obligation of good faith codified in article 26 of the Vienna Convention of the Law of Treaties.Footnote 63 The Court found that the reasons given by the judge ‘do fall within the scope of Article 2(c)’.Footnote 64 One member of the Court would have gone further by invoking the principles of abuse of right and détournement de pouvoir.Footnote 65 Another constraint was procedural. Under the Convention the requested State was to have reasons for any refusal. The Court ruled that this provision required France to provide reasons to Djibouti, reasons which did more than simply set out the terms of article 2(c). It declared that France was in breach of that obligation. In making that finding it recalled some of the reasons for requiring reasons. They include the discipline placed on the decider, the indication to those affected that their contentions have (or have not) been considered by the decision-maker, enabling those affected to decide whether to seek reconsideration or to challenge the decision, if those courses are available, and to provide for a build up of precedent, where appropriate.

III. CONCLUDING COMMENTS

The process of preparing this paper has suggested three comments with which to conclude. First, to return to the doubts mentioned at the outset, I do have a topic, a topic which presents issues of a general character about the way the law gets made and applied within the international community and nationally as well. The emphasis has been on the application of the law, through adjudication particularly in one Court, the International Court of Justice , but the process, the method, is common to many courts—finding the facts, finding the law, applying the one to the other and, when appropriate, determining the remedy. One recurring aspect of finding the law is finding the meaning of texts, something I have previously addressed.Footnote 66 I would stress the central importance of general principle and general methods. We should be careful not to treat different matters as a wilderness of single instances.Footnote 67 The International Court of Justice, as the international court of general jurisdiction and the principal judicial organ of the United Nations, has a unique role in this. The Court, as its case load extends across more and more areas of law and as more and more States from all parts of the world appear before it,Footnote 68 has increasing opportunities to meet those responsibilities which it owes to the whole world community. The Court's composition and method of work, including the way it settles its judgments, are also to be seen as reflecting those responsibilities.Footnote 69

The second comment may be seen as providing a qualification to the first. We must avoid the temptation to think that one size fits all. To quote again the great American constitutional scholar, Paul Freund, we must not interpret a constitution as a last will and testament lest it become one.Footnote 70 Not only do the evidence, the written argument and the presentations of counsel alert the Court to the particular features of the situation, so too do the contributions of the judges ad hoc.Footnote 71 It is interesting to speculate about the reasons for the appointment of—or the decision not to appoint—particular judges ad hoc. What is to be made of the choice of two law of the sea experts, not nationals of the applicant States, in the Black Sea Maritime delimitation case in which for the first time in the Court's history no separate opinions or declarations were attached to the unanimous judgment of the Court?Footnote 72

My final comment is about one significance of what I have stated above for legal education and for the legal profession more broadly. It is about the importance of striving to see the particular law in its broader context, in a bigger legal system which, to draw on the words of Lord Bingham almost 20 years ago, incorporates much law made elsewhere.Footnote 73

Footnotes

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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.