1. Introduction
States have undertaken a number of international obligations to investigate and prosecute individuals for serious human rights violations and grave breaches of international humanitarian law. Even so, compliance with that obligation has always been problematic. States have been very reluctant to prosecute their own forces and officials, and the prosecution of non-nationals found on the territory and alleged to have committed crimes abroad has not been a priority.
While international criminal tribunals have enhanced the prosecution of serious crimes at the international level, they are able to deal with only a handful of cases. Because of the lack of jurisdiction and sources, international criminal tribunals will never replace the need for national prosecutions. Thus, enforcement of such proceedings at the national level remains a fundamental issue in the fight against impunity. The International Court of Justice (ICJ or the Court) can play an important role in enforcing national proceedings. Despite the recent proliferation of international courts and tribunals, it remains the only global court where the obligation of states to investigate and prosecute serious crimes can be adjudicated and enforced.
The ICJ and its predecessor, the Permanent Court of International Justice (PCIJ), have received a number of cases relating to international humanitarian law and gross violations of human rights.Footnote 1 This article considers only the Court's cases which are relevant to the duty of states to investigate and prosecute serious crimes at the national level and the serious crimes in focus are violations of the major international human rights treaties and the Geneva Conventions of 1949 and their Additional Protocols.Footnote 2 Furthermore, the discussion is limited to three issues. First, the Court's jurisprudence on the obligation of states to investigate and prosecute serious crimes will be analysed. The second issue to be considered is national criminal jurisdiction with regard to the prosecution of serious crimes, as well as immunities from that jurisdiction. Lastly, the jurisprudence of the Court with regard to the obligation of states to cooperate in criminal matters with other jurisdictions will be examined.
Without doubt, the Court's findings have had an impact on prosecutions of serious crimes at the national level. At the same time, one may be surprised to discover how few cases before the Court, despite the availability of opportunities, address the issue directly. The reason is twofold: states have not shown any great interest in including the duty to prosecute among their submissions to the Court and, even when it is included, the Court has not always addressed the issue, although in recent cases before the Court the matter has been brought more to the forefront. While some of the findings of the Court can be hailed as a triumph in the fight against impunity, others can be considered a major setback in that quest.
2. The Obligations of States to Investigate and Prosecute Serious Crimes
International law imposes an independent duty on states to investigate and prosecute individuals for certain international crimes. This obligation arises in various treaties. Applying the terminology set out in the Draft Articles on State Responsibility,Footnote 3 the duty is a primary, as opposed to a secondary, obligation. The duty to investigate and prosecute as a secondary obligation has relevance with regard to reparations, in particular satisfaction.
2.1 The Obligation to Prosecute Individuals as a Primary Obligation
The key example of the primary obligation of states to prosecute certain serious crimes is to be found in the Geneva Conventions of 1949 and their First Additional Protocol.Footnote 4 According to Article 146 of the Fourth Geneva ConventionFootnote 5 and Article 85 of Additional Protocol IFootnote 6 each contracting party is under an obligation to search for persons who have committed grave breaches of the Convention and bring such persons, regardless of their nationality, before its own courts. The obligation to prosecute is also found in some international human rights conventions.Footnote 7 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 (Torture Convention) (Articles 5 and 7),Footnote 8 and the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 (Genocide Convention)Footnote 9 (Article 6), both have provisions that stipulate the obligation of states parties to prosecute violations of the Conventions. The International Covenant on Civil and Political Rights (ICCPR)Footnote 10 does not contain an explicit provision on this obligation.Footnote 11 However, the obligation to prosecute arises under that Convention with the right to an effective remedy (see Article 2(3) ICCPR), in conjunction with substantive duties found in other provisions, in particular in its provision on right to life and prohibition of torture.Footnote 12
The obligation of states to prosecute serious crimes as a primary obligation has been included in submissions by states in a few cases before the Court. Some of these submissions have not been successful. In the Case concerning United States Diplomatic and Consular Staff in Tehran Footnote 13 and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Footnote 14 the Court did not address these submissions, despite finding violations of international obligations.Footnote 15 In Armed Activities on the Territory of Congo, the Democratic Republic of the Congo (DRC) submitted that Uganda ‘fail[ed] to punish persons under its jurisdiction or control having engaged in the above-mentioned acts’, supported by a general reference to the Hague Regulations, Geneva Conventions and human rights treaties.Footnote 16 In its judgment the Court found Uganda to be in breach of these Conventions, but did not address the obligation to prosecute. The Court's silence on the issue is addressed in Judge Tomka's separate declaration:Footnote 17
Nevertheless, since grave breaches of international humanitarian law were committed, there is another legal consequence which has not been raised by the DRC and on which the Court remains silent. That consequence is provided for in international humanitarian law. There should be no doubt that Uganda, as party to both the Geneva Conventions of 1949 and the Additional Protocol I of 1977, remains under the obligation to bring those persons who have committed these grave breaches before its own courts (Article 146 of the Fourth Geneva Convention, and Article 85 of the Protocol I Additional to the Geneva Conventions).
Among the submissions of Bosnia and Herzegovina in Application of the Convention on the Prevention and Punishment of the Crime of Genocide was one claiming that Serbia had failed in its obligation under the Genocide Convention to punish acts of genocide. In interpreting the obligation stipulated in the Genocide Convention on the duty of states to punish the crime of genocide, the Court concluded that the obligation related only to states where genocide took place; other states were not obligated by the Convention to punish acts of genocide, not even those states of which the perpetrators were nationals. As the genocide took place outside Serbia, that state was not obligated by the Convention to prosecute. The territorial limit of the obligation to prosecute under the Convention is described by the Court as follows:Footnote 18
The substantive obligations arising from Articles I and III are not on their face limited to territory … The obligation to prosecute imposed by Article VI is by contrast subject to an express territorial limit. The trial of persons charged with genocide is to be in a competent tribunal of the State in the territory of which the act was committed, or by an international penal tribunal with jurisdiction.
The obligation to prosecute under the Genocide Convention is also an issue in an ongoing case before the Court – Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) – and, citing the above decision, Serbia claims that the Genocide Convention obliges contracting parties only to institute and exercise territorial criminal jurisdiction, in this case not over alleged acts of genocide committed in Croatia.Footnote 19
The obligation of states to prosecute was the central issue in Questions Relating to the Obligation to Prosecute or Extradite.Footnote 20 In this case, Belgium instituted proceedings against Senegal regarding Senegal's compliance with its obligation to prosecute the former President of Chad, Hisséne Habré, or to extradite him to Belgium for the purposes of criminal proceedings. Belgium based its claim on the Torture Convention and customary international law. The judgment of the Court confined itself to an analysis of obligations under the Torture Convention, as it did not consider that it had jurisdiction over the latter claim.Footnote 21
In its examination of the temporal scope of the Torture Convention, the Court stated that ‘the prohibition of torture is part of customary international law and it has become a peremptory norm (jus cogens)’.Footnote 22 However, citing Article 28 of the Vienna Convention on the Law of Treaties,Footnote 23 and decisions of the Committee against Torture, the Court found that the obligation to prosecute under the Convention applies only to facts that occurred after its entry into force for the state concerned.Footnote 24 The Court emphasised that prosecution is an international obligation under the Convention, the violation of which is a wrongful act engaging the responsibility of the state.Footnote 25
The Court considered that the obligation to prosecute under the Torture Convention is linked to other obligations within the Convention – the obligations to adopt adequate domestic legislation and to make an inquiry into the facts. The Court considered these obligations to be ‘elements of a single conventional mechanism aimed at preventing suspects from escaping the consequences of their criminal responsibility’.Footnote 26 As to the obligation of states to incorporate appropriate domestic legislation (Article 5(2) of the Convention), the Court held that it did not have jurisdiction over alleged violations of that article. Notwithstanding this, the Court considered the article as it reviewed the state's performance of its obligations to establish the universal jurisdiction of its courts over the crime of torture as a necessary condition for enabling a preliminary inquiry (Article 6(2)), and for submitting the case to its competent authorities for the purpose of prosecution (Article 7(1)). The Court highlighted the importance of timely implementation of legislation to enable the criminalisation of torture and universal jurisdiction, as required by the Convention. It also highlighted the preventive character of such domestic legislation. As to obligations under Article 6(2) of the Torture Convention, regarding the obligation to make a preliminary inquiry into facts, the Court concluded that the Convention requires such steps to be taken as soon as a suspect is identified in the territory of the state.Footnote 27 The Court also underscored that when authorities are operating on the basis of universal jurisdiction, they must be as demanding in terms of evidence as when they have jurisdiction by virtue of a link with the case in question (see Article 7(2)).Footnote 28
Turning to the issue of the obligation to prosecute, the Court considered that Article 7(1) of the Torture Convention requires the state concerned to submit the case to its authorities for prosecution. It is then for the competent authorities to decide whether to initiate proceedings in the same manner as they would for any alleged offence of a serious nature under the law of the state concerned.Footnote 29 The Court found that the proceedings should be undertaken without delay, and ‘as soon as possible’.Footnote 30 The Court considered that Senegal's reasons for delay – compliance with decisions of the Economic Community of West African States (ECOWAS) Court of Justice (which requested the establishment of an international tribunal) and financial difficulties – were not justifiable. Furthermore, citing Article 27 of the Vienna Convention on the Law of Treaties, the Court found that Senegal could not justify its breach of the obligation by invoking provisions of its domestic law and decisions rendered by its courts.Footnote 31 Finally, the obligation to submit the case to its authorities for prosecution is irrespective of the existence of a prior request for the extradition of the suspect.Footnote 32 However, if the state had received a request for extradition it could ‘relieve itself of its obligation to prosecute by acceding to that request’.Footnote 33
2.2 The Obligation to Prosecute Individuals as a Legal Consequence of Violations of International Obligations
The obligation on the part of states to investigate and prosecute crimes can also be regarded as a secondary obligation – that is, as a remedy. Prosecution has considerable relevance with respect to reparations, in particular satisfaction. According to Article 37 of the International Law Commission's (ILC) Draft Articles of Responsibility of States for Internationally Wrongful Acts (2001):Footnote 34
1. The State responsible for an international wrongful act is under an obligation to give satisfaction for the injury caused by that act … as it cannot be made good by restitution or compensation.
2. Satisfaction may consist of an acknowledgement of the breach, and expression of regret, a formal apology or another appropriate modality.
The list of forms of satisfaction listed in paragraph 2 is not exhaustive. Indeed, the Commentary on the Draft Articles lists the duty to prosecute as an example of satisfaction:Footnote 35
The appropriate form of satisfaction will depend on the circumstances and cannot be prescribed in advance. Many possibilities exist, including … disciplinary or penal action against the individuals whose conduct caused the internationally wrongful act.
Surprisingly the Court has never decided on prosecution at the national level as a secondary obligation. The main reason is that such submissions are very rare. In the Armed Activities case, the DRC included in its written submissions that, in light of Uganda's violation of international obligations, Uganda shall ‘render satisfaction for the insults inflicted by it upon the [DRC], in the form of … and the prosecution of all those responsible’.Footnote 36 However, while the DRC included this submission in its memorial and reply, it was not included in its final submissions at the end of the oral proceedings. The final submission was much broader, namely that Uganda was under an obligation to ‘make reparation for all injury caused’, and ‘that the nature, form and amount of the reparation [shall] be determined by the Court, failing agreement thereon between the Parties’.Footnote 37 Nothing in the case documentation explains this change of submission, and later development of the case did not include the issue. The ensuing negotiation between the parties focused on compensation rather than prosecution as a form of satisfaction. Nevertheless, now eight years later, the parties have still not reached an agreement, while at the same time the case has not been referred back to the Court.
The apparent reluctance on the part of states to include submissions on the obligation to prosecute, illustrated by the amended submission on reparations in the Armed Activities case, echoes the earlier practice of the Court. Declaratory judgments are common and the exact scope of reparations has largely been left to the parties to settle. By way of illustration, there are only two occasions on which the Court has awarded compensation.Footnote 38 At times, the Court has considered that its declaration of the breach ‘constitutes appropriate satisfaction’ and has denied claims for other forms of reparation.Footnote 39 Such a finding raised much criticism following the Court's judgment in Application of the Convention for the Prevention and the Punishment of the Crime of Genocide.Footnote 40
The power of the Court to order specific performance of a mandatory term has even been questioned, or at least is not considered to be an appropriate judicial remedy.Footnote 41 However, there seems to be a development at the Court of less restriction in this respect. Several recent decisions have been quite specific with regard to performance, despite its implementation being carried out by ‘means of [the state's] own choosing’. Examples include recent cases regarding remedies. In Ahmadou Sadio Diallo the Court ‘recalls that the sum awarded to Guinea in the exercise of diplomatic protection of Mr Diallo is intended to provide reparation for the latter's injury’.Footnote 42 In Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory the Court stated that reparations must be awarded to all natural and legal persons who had suffered loss by the state of Israel.Footnote 43 In other recent cases there is also de facto limited room for discretion in implementing the ICJ's orders, such as a stay of execution in LaGrand and Avena and Other Mexican Nationals,Footnote 44 the cancellation of an arrest warrant in Arrest Warrant of 11 April 2000,Footnote 45 the transfer of individuals to the International Criminal Tribunal for the former Yugoslavia (ICTY) and cooperation with that tribunal in Application of the Convention on the Prevention and Punishment of the Crime of Genocide,Footnote 46 and the requirement that decisions of national courts that infringe state immunity cease to have effect in Jurisdictional Immunities of the State.Footnote 47
The Court has also become somewhat bolder with regard to the scope of its awarded remedies. In LaGrand, the President indicated the application of its remedy – the ‘review and reconsideration’ of convictions and sentences – in situations other than those at hand in the case.Footnote 48 This wide application was confirmed in Avena and Other Mexican Nationals, in which the Court re-emphasised the binding nature of the decision beyond the present case.Footnote 49
This development by the Court is following the same path taken by other international courts and tribunals; for instance, decisions of regional human rights tribunals on reparations are increasingly departing from the more cautious approach that was previously applied to the issue.Footnote 50
3. The Extraterritorial Jurisdiction of National Courts over Serious Crimes – Immunities
3.1 Extraterritorial Jurisdiction
The prosecution of serious crimes at the national level is often associated with extraterritorial jurisdiction, such as universal jurisdiction. Some of the major treaties that impose obligations on states to prosecute serious crimes also require them to establish and exercise universal jurisdiction – for example, Article 146 of the Fourth Geneva Convention,Footnote 51 and Article 5 of the Torture Convention.Footnote 52
The issue of extraterritorial jurisdiction in relation to criminal acts was soon to enter the docket of the Court. According to one of the most cited cases of the PCIJ, Case of the SS ‘Lotus’, a state was not able to exercise its power outside its frontiers in the absence of a permissive rule of international law. However, this did not mean that ‘international law prohibits a state from exercising jurisdiction in its own territory in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law … it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules’.Footnote 53
The ICJ has firmly underscored the obligation of states parties to implement immediately a treaty obligation on universal jurisdiction and application. As discussed above, in Questions Relating to the Obligation to Prosecute or Extradite the Court strongly emphasised the obligation of states parties under the Torture Convention to bestow its national courts with universal jurisdiction, criminalise the acts, and investigate and prosecute when an alleged offender is found on its territory.Footnote 54 According to the Court:Footnote 55
The obligation for the State to criminalize torture and to establish its jurisdiction over it finds its equivalent in the provisions of many international conventions for the combating of international crimes. This obligation, which has to be implemented by the State concerned as soon as it is bound by the Convention, has in particular a preventive and deterrent character, since by equipping themselves with the necessary legal tools to prosecute this type of offence, the States parties ensure that their legal systems will operate to that effect and commit themselves to coordinating their efforts to eliminate any risk of impunity. This preventive character is all the more pronounced as the number of States parties increases. The Convention against Torture thus brings together 150 States which have committed themselves to prosecuting suspects in particular on the basis of universal jurisdiction.
The Court has not adjudicated directly on the issue of universal jurisdiction in criminal matters outside conventional relations. It came close to it in Arrest Warrant of 11 April 2000. In this case, the DRC argued in its application that the universal jurisdiction exercised by Belgium contravened the international jurisprudence established by the judgment in The ‘Lotus’.Footnote 56 However, the DRC did not include this claim in its final submission; therefore the Court considered that the non ultra petita rule precluded it from addressing that issue in its operative part, while the rule did not preclude it from dealing with certain aspects of that question in its reasoning, should it deem this necessary or desirable.Footnote 57 The reasoning in the judgment did not do so, while several judges commented on the issue of universal jurisdiction in their separate and dissenting opinions.Footnote 58 The issue of universal jurisdiction was pivotal in Certain Criminal Proceedings in France, but the case was later removed from the docket of the Court.Footnote 59
At the same time, the Court has given an indication on the correct application of extraterritorial jurisdiction in some cases, but not to what extent. In Application of the Convention on the Prevention and Punishment of the Crime of Genocide, the Court found that Article VI of the Genocide Convention required states parties only to institute and exercise territorial criminal jurisdiction:Footnote 60
While it certainly does not prohibit States, with respect to genocide, from conferring jurisdiction on their criminal courts based on criteria other than where the crime was committed which are compatible with international law, in particular the nationality of the accused, it does not oblige them to do so.
While the case cites jurisdiction based on nationality as a primary example, the phrase ‘in particular’ still leaves room for other jurisdictions, including universal jurisdiction. As discussed above, in Questions Relating to the Obligation to Prosecute or Extradite the Court concluded that Senegal's obligation to prosecute pursuant to Article 7(1) of the Torture Convention did not apply to acts alleged to have been committed prior to Senegal's ratification of the Convention. Noticeably, the Court adds that ‘[a]lthough Senegal is not required under the Convention to institute proceedings concerning acts that were committed before 26 June 1987 [the date on which the Convention entered into force for Senegal], nothing in that instrument prevents it from doing so’.Footnote 61 This dictum is of great relevance as, in light of the facts of the case, it could only be referring to, and thereby confirming, passive personality jurisdiction or universal jurisdiction.Footnote 62
3.2 Limitation on Jurisdiction – Immunities
Immunity as a limitation on extraterritorial jurisdiction has been a major issue in the prosecution of serious crimes. The ICJ addressed this issue in Arrest Warrant of 11 April 2000.Footnote 63 The DRC brought the case before the Court and claimed, among others, that Belgium violated its sovereignty and the diplomatic immunity of its Minister of Foreign Affairs as Belgium had issued an international arrest warrant for the Minister, charging him with grave breaches of the Geneva Conventions of 1949 and of the Additional Protocols thereto, and with crimes against humanity. The Court held that, while abroad, the Minister enjoyed full immunity from criminal jurisdiction and inviolability before the national courts.Footnote 64 It also rejected Belgium's claim that such immunity did not apply to these serious crimes. The Court considered that it is:Footnote 65
unable to deduce from this practice that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where they are suspected of having committed war crimes or crimes against humanity.
The Court also specifically addressed conflicting obligations: on the one hand, to fulfil a treaty obligation to exercise jurisdiction; on the other hand, to respect immunities of heads of states and others. In this case, the Minister was charged with grave breaches of the Geneva Conventions of 1949 and Additional Protocols I and II – crimes which states parties are obligated to investigate and prosecute when a suspect is found on their territory. While the accused in the case was not found in Belgian territory, and hence there was no treaty obligation under which he could be prosecuted, the Court still decided the issue. It concluded that full immunity also applied when states extend their jurisdiction as a result of obligations under international conventions of prosecution or extradition:Footnote 66
Such extension of jurisdiction in no way affects immunities under customary international law, including those of Ministers for Foreign Affairs. These remain opposable before the courts of a foreign state, even where those courts exercise such a jurisdiction under these conventions.
The Court made its often quoted observation that immunity from jurisdiction does not mean impunity, and that a distinction needs to be made between immunity from criminal jurisdiction and individual criminal responsibility. The Court set out a list of circumstances in which the Minister of Foreign Affairs would not enjoy immunity: (i) prosecution before his or her own courts; (ii) prosecution before other states if when the state which they represent or have represented decides to waive that immunity; (iii) after the person ceases to hold office, he or she will enjoy immunity only for official acts; and (iv) prosecution before international criminal tribunals.Footnote 67 With regard to point (iii), the majority did not qualify what constitute ‘official acts’. In the Joint Separate Opinion of Judges Higgins, Koojimans and Buergenthal it is stated that:Footnote 68
serious international crimes cannot be regarded as official acts because they are neither normal State functions nor functions that a State alone (in contrast to an individual) can perform … that State-related motives are not the proper test for determining what constitutes public State acts.
In Certain Questions of Mutual Assistance in Criminal Matters the Court applied the test set out in the Arrest Warrant case, finding that invitations or service of a summons addressed to a head of state to appear as a witness in a criminal case were not associated with measures of constraint and were therefore not violations of his immunity.Footnote 69
The Court returned to the issue of immunities in Jurisdictional Immunities of the State. As in the Arrest Warrant case, this case dealt with serious international crimes, and the primary issue was whether jus cogens crimes trump state immunity before foreign courts. Unlike the Arrest Warrant case, this was a civil remedy case. However, in the same manner as before, and by citing state practice and decisions of the European Court of Human Rights, the Court considered that it had still not accepted that states no longer enjoy immunity in cases of serious violations of international law.Footnote 70 Citing its decision in the Arrest Warrant case, the Court considered that even though proceedings in national courts involved violations of the jus cogens rule, the applicability of the customary international rule on state immunity was not affected.Footnote 71 The Court cited its earlier decisions regarding the issue that state immunity is a matter of procedural law and must be distinguished from the substantive law which determines whether the conduct is lawful or unlawful.Footnote 72 In that context, the Court pointed out that whether a state is entitled to immunity before the courts of another state is a question that is entirely separate from whether the international responsibility of that state is engaged and whether it has an obligation to make reparation.Footnote 73
4. The Obligation of States to Cooperate with Other Jurisdictions and Courts
Conventions that require state parties to prosecute serious crimes require them also to cooperate with other jurisdictions. These requirements frequently take the form of an obligation to prosecute or extradite (aut dedere aut judicare), as stipulated in the Geneva ConventionsFootnote 74 (for instance Article 146 of the Fourth Geneva Convention), and in Article 7 of the Torture Convention.Footnote 75 States parties to the Convention on the Prevention and Punishment of the Crime of Genocide ‘pledge themselves … to grant extradition in accordance with their laws and treaties in force’, as mentioned in Article 7, and according to Article 6 of the Convention:Footnote 76
Persons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.
In its case law the ICJ has emphasised the need for cooperation in fighting the crime of genocide. In Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide the Court considered genocide to be a crime under customary law which requires cooperation to eradicate it:Footnote 77
The first consequence arising from this conception is that the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation. A second consequence is the universal character both of the condemnation of genocide and of the cooperation required ‘in order to liberate mankind from such an odious scourge’ (Preamble to the Convention).
In Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), the Court analysed Serbia's obligation under Article 6 of the Genocide Convention. The Court decided that Serbia was under an obligation to transfer individuals accused of genocide or any of those other acts for trial by the ICTY, and to cooperate fully with that Tribunal. The Court concluded in its judgment that once an ‘international penal tribunal’ has been established, it is certain that Article VI obliges the contracting parties ‘which have accepted its jurisdiction’ to cooperate with it. The Court continued that the obligation to cooperate with the Tribunal implies that the contracting parties will ‘arrest persons accused of genocide who are in their territory’.Footnote 78 The Court specifically noted that even if the crime of which the person was accused was committed outside the state territory, the contracting parties are under an obligation to arrest that person if they are within the state territory. The Court also concluded that Article VI implies that, failing prosecution of that person in the parties' own courts, the state will hand them over for trial by the competent international tribunal.Footnote 79 The Court found that the ICTY constitutes an ‘international penal tribunal’ and Serbia was obliged to cooperate with it from the time it had accepted its jurisdiction.Footnote 80 In a case pending before the Court, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), it is debated whether Serbia is obliged under the Genocide Convention to hand over to Croatia persons who have allegedly committed acts of genocide.Footnote 81
In Questions Relating to the Obligation to Prosecute or Extradite the Court considered the obligation to cooperate to be less far-reaching than it had in its judgment in the Bosnian Genocide case.Footnote 82 The Court found that the duty to extradite under the Torture Convention was a mere option offered to the state by the Convention, which did not entail any state responsibility if not accepted:Footnote 83
It follows that the choice between extradition or submission for prosecution, pursuant to the Convention, does not mean that the two alternatives are to be given the same weight. Extradition is an option offered to the State by the Convention, whereas prosecution is an international obligation under the Convention, the violation of which is a wrongful act engaging the responsibility of the State.
At the same time the Court found that Senegal could relieve itself of the duty to prosecute by acceding to an extradition request.Footnote 84
In Questions of Mutual Assistance the Court examined the extent of judicial cooperation set out in general bilateral cooperation treaties between the parties. The Court concluded that judicial cooperation in criminal matters could not be the subject of the general obligation of cooperation in the parties' Treaty of Friendship and Cooperation, as it was not mentioned specifically.Footnote 85 The parties' obligation in this respect was the subject of a bilateral Treaty on Mutual Assistance in Criminal Matters, and the Court applied a strict literal interpretation to its provisions.Footnote 86
5. Conclusions
The ICJ has received several cases concerning serious crimes. At the same time, the cases demonstrate a reluctance by states to use the ICJ as a channel to enforce the obligations of states to prosecute at the national level. This is evident in their submissions, which hardly ever include the duty of a state to prosecute, even as a primary obligation, much less than as a secondary obligation as a form of reparation. This was particularly evident in the Armed Activities case, forcing one judge to address this issue in a separate decision. In some case the Court has also been cautious in addressing the matter. This practice is very surprising given the nature of these cases, the clear international obligation undertaken by states to prosecute, and the undisputed obligation of states to give satisfaction for the injury caused, which includes penal action against the individuals whose conduct caused the internationally wrongful act. The missed opportunity in these cases is regrettable, particularly in light of the lack of enforcement of the obligation at the international level. Recent cases such as Questions Relating to the Obligation to Prosecute or Extradite, in which the primary submission is the obligation to prosecute, will hopefully break this pattern. Furthermore, recent submissions by states in some cases (although relating to different areas of international law) that require states to take far-reaching measures at the national level, and the Court's award of such measures, may also overcome the myth that submissions that include the international obligation to prosecute are somewhat improper, or even a violation of state sovereignty. The major interest of other actors in the enforcement of this duty, including individuals, and increased acknowledgement of their rights, including by the ICJ, may also encourage more cases in this area.
The Court's findings in Questions Relating to the Obligation to Prosecute or Extradite on the substance of the obligation to prosecute under the Torture Convention are firm and well-founded. The linked elements of a conventional mechanism were highlighted, all equally necessary to facilitate prosecution. Since ratification of the Torture Convention, states parties are under a duty to implement the treaty properly, including criminalising acts and giving their national courts universal jurisdiction. They are required to investigate alleged crimes as soon as the alleged offender is on their territory, and subsequently hand the case to the prosecution authorities. No excuses for delays will be accepted, either of a substantive or a practical nature. The findings have underscored the clear and extensive obligations undertaken by states parties to the Torture Convention, which are different from those contained in the Genocide Convention, which the Court concluded had a territorial limit to the obligation of states parties to prosecute, as mentioned in Application of the Convention on the Prevention and Punishment of the Crime of Genocide.Footnote 87
The solid conventional base for extraterritorial jurisdiction of the Torture Convention was highlighted in the Court's judgment in Questions Relating to the Obligation to Prosecute or Extradite. The finding is welcome, particularly in light of the Court's reluctance to address the issue of universal jurisdiction in earlier cases. However, the extent of extraterritorial jurisdiction outside conventional relations remains unsettled. Arguments could be made that the Court supports this jurisdiction for certain serious crimes. Interestingly, the judgments in both Case of Application of the Convention on the Prevention and Punishment of the Crime of Genocide and Questions Relating to the Obligation to Prosecute or Extradite include dicta to the effect that states parties are allowed to establish broader jurisdiction than that required by the treaties, leaving ample room for interpretation.Footnote 88 The Court's continual findings on principles of the jus cogens character and erga omnes obligations in international law also support such extraterritorial jurisdiction for serious crimes.
While the Court's judgment in Questions Relating to the Obligation to Prosecute or Extradite may be hailed as a triumph in the fight against impunity, its recent judgment in Jurisdictional Immunities of the State will certainly not achieve that accolade.Footnote 89 An almost unified Court extended its reasoning in Arrest Warrant of 11 April 2000, by building on its finding of full immunity from national criminal proceedings for foreign heads of state, to now provide immunity also to states in civil law cases in foreign national courts. In both cases the Court rejected the argument that jus cogens violations trump state immunity.Footnote 90 The Court offered the consolation that state immunity is a matter of procedural law, and must be distinguished from the substantive law which determines whether the conduct is lawful or unlawful. At the same time, the Court has acknowledged that it has taken this approach ‘notwithstanding that the effect was that a means by which a jus cogens rule might be enforced was rendered unavailable’.Footnote 91
The cooperation of states with other jurisdictions prosecuting serious crimes is crucial in the fight against impunity. Conventions relating to serious crimes commonly include the obligation to prosecute or extradite. In Obligation to Prosecute the Court interpreted the Torture Convention to the effect that states parties are not required to extradite, it being a mere option offered to them, while a state party could relieve itself of the duty to prosecute by acceding to an extradition request.Footnote 92 On the contrary, in Application of the Convention on the Prevention and Punishment of the Crime of Genocide, the Court gave a broad interpretation to Article 6 of the Genocide Convention, requiring a state to cooperate extensively with an international criminal court.Footnote 93 This is the second time the Court has given strong support to prosecutions at the international level; the first occasion was in Arrest Warrant of 11 April 2000 by denying immunity to heads of state before international criminal courts, while upholding it before national courts.Footnote 94
As has been illustrated, the ICJ handles a number of cases concerning serious crimes. Yet its role with regard to enforcing the obligation of states to investigate and prosecute serious crimes at the national level has been marginal. A further step towards enhancing the role of the ICJ in realising the goals of international criminal justice rests both with states parties and the Court itself. The Court is at the mercy of states parties to confer upon it jurisdiction. At the same time, when it is bestowed with jurisdiction the Court needs to accept its responsibility and tackle the matter determinedly. In recent cases the Court has shown its potential to be a vital enforcement mechanism in the fight against impunity. In the near future, it may fill the lacuna in the current state of affairs.
