Joanna Harrington is a Professor with the Faculty of Law and an Associate Dean with the Faculty of Graduate Studies and Research at the University of Alberta in Canada.

As I write this post, college instructor and former politico Léon Mugesera has, at last, been placed on a plane to Rwanda by Canadian government officials to face charges of inciting genocide stemming from an inflammatory anti-Tutsi speech delivered almost twenty years ago, and which was replayed during the height of the genocide. (Twitter has been used by Rwanda’s Foreign Minister to confirm that Mugesera is en route to Kigali.) For many Canadians – and many Rwandans – the departure of this accused genocidaire will not be mourned, with many saying that he should never have been admitted into Canada in the first place. But the latest round in the Mugesera saga does raise concerns for the domestic significance, and thus impact, of the individual complaints procedure found replicated in each of the UN human rights treaties, as well as the need for greater transparency and detailed guidance from the UN human rights treaty bodies themselves with respect to the issuance of requests for interim measures.

 The Mugesera saga

After Mugesera’s speech in November 1992, Rwandan authorities did seek the equivalent of an arrest warrant, but Mugesera had fled the country, and by mid-1993, he had secured permanent residence for himself and his family in Canada. Two years later, Canada’s Minister of Immigration and Citizenship commenced proceedings to send Mugesera back to Rwanda, having learnt of the allegations against him. Under Canadian law, a permanent resident (but not a citizen) may be deported if it is determined that before or after being granted permanent residency, the individual committed a criminal act or offence. In this case, the speech was the alleged criminal act that was committed (and not disclosed), with the speech said to constitute an act of incitement to murder, hatred and genocide, and a crime against humanity. Several years of legal proceedings then ensued, culminating with a unanimous Supreme Court of Canada decision in 2005, which also reproduces Mugesera’s speech as an appendix for all to read.

The speech, however, is not what is at issue in the latest installment in the Mugesera saga. What is at issue appears to be the issuance of a request for interim measures by the Committee Against Torture, asking Canada to hold off deporting Mugesera while a claim is pending before the Committee that Mugesera will face torture in Rwanda. (I say “appears to be” as many reports simply state that an amorphous “UN” has asked Canada to hold off deporting Mugesera, which does no favours for the UN’s reputation among its critics, while those reports that specify the Committee Against Torture, do not use the interim measures terminology.) 

Obligations under the Torture Convention

Canada has been a “party” (and not simply a “signatory” despite journalistic reports) to the 1984 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment since 1987, and it is this treaty which brought into being the 10-person body known as the Committee Against Torture. Canada is also one of 64 states that has voluntarily declared its acceptance of the Committee’s competence to “receive and consider” complaints from persons alleging to be victims of Convention violations, as set out in article 22. It is the choice of these 64 states to opt-in to an international process for individual complaints, and it is this voluntary opt-in that provides the international legal basis for the consideration of claims made by individuals within the jurisdiction of Canada, including non-nationals, alleging violations of the Torture Convention. Many of the cases lodged against Canada (and against other states) typically arise within an extradition or deportation context and involve the absolute prohibition found in article 3 on sending a person to another state “where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

For many years, Canadian officials took heed of this prohibition, and Canada’s treaty obligations, by waiting for the situation in Rwanda to improve so as to ensure that there would be no real or probable risk of torture were Mugesera to be returned. After six years of evaluation, Canada had decided that there was no risk, with one of the recent flurry of decisions relating to this case indicating that on 6 December 2011, Mugesera received an 80-page decision outlining why the Canadian government believed that he would not face significant risks if returned to Rwanda (see para 4). There is also mention in the judgment of Rwanda having provided assurances, but no copies of these assurances appear to be publicly available. The most recent twist in the saga was a communication lodged with the Committee Against Torture, with media reports suggesting that the Committee has issued a request to halt the deportation, although again no copy is made publicly available and no notice is posted on the Committee’s website.

Interim measures requests

States, in their wisdom and at their choice when drafting the Torture Convention, gave the Committee Against Torture the power to establish its own Rules of Procedure (see article 18(2)), and the Committee has indeed adopted extensive Rules of Procedure to govern its proceedings (UN Doc. CAT/C/3/Rev.5). Buried within these rules is Rule 114(1), which provides that the Committee “may transmit to the State party concerned, for its urgent consideration, a request that it take such interim measures as the Committee considers necessary to avoid irreparable damage to the victim or victims of alleged violations.”

While wrapped in the niceties of diplomatic language, a request for interim measures is essentially a request for a stay of proceedings while a matter is pending for consideration before the Committee. As I have argued in the past: “Similar provisions can be found in the procedural rules for many international courts, commissions, and committees, and so it is hardly surprising that the [Committee Against Torture] would recognize the need for such a rule to protect the interests of the parties and to facilitate the proper conduct of the proceedings pendente lite. (J. Harrington, “Punting Terrorists, Assassins and Other Undesirables: Canada, the Human Rights Committee and Requests for Interim Measures of Protection” (2003) 48 McGill LJ 55 at 66.) It’s clearly not good practice to change the situation as between the parties to a dispute, once that dispute has been lodged with the forum that both parties have agreed to use.

Interim measures requests have a protective purpose, to preserve an individual’s life or physical integrity. They are not issued automatically, as a matter of course, (although this was a criticism made against the Committee Against Torture in the past), and many states do abide by interim measures requests in light of their protective purpose and rationale. A quick review of the Committee’s most recent annual suggests that a case has to be made to secure an interim measures request, with only 24 out of 37 requests for interim measures being granted during the most recent reporting period (para. 89). Moreover, as is made plain in Rule 114(3), a state can provide information to rebut the Committee’s request for interim measures, making a convincing case for no request to be issued, or for an interim measures request to be revoked as a result of further information provided to the Committee by the state.

Canada’s response

In the Mugesera case, rather than publicly rebutting whatever grounds underpin the issuance of the yet-to-be-released interim measures request, by using, for example, the material contained in the 80-page decision mentioned in one recent judgment, or by disclosing a copy of Rwanda’s assurances, Canada’s lawyers have opted instead for a form over substance approach. They argue that interim measures requests carry no legal weight and that a treaty ratified by Canada does not have domestic effect unless transformed into domestic law. I call this “form over substance” since it emphasizes the non-binding nature of what takes place within the UN human rights bodies, rather than focusing on whether there is a substantive risk of torture for Mugesera.

It is also a disappointing response, because in the Canadian case touted for the proposition that interim measures requests are not binding for Canada, known as Ahani v. Canada (Attorney General), counsel for the applicant, the Crown and Amnesty International, failed to draw the court’s attention to the turning-point decision of the Human Rights Committee in Piandiong v. Philippines, holding that an indication of interim measures is effectively binding on a state party. For further discussion of Piandiong’s importance, see Gino J. Naldi, “Interim Measures in the UN Human Rights Committee” (2004) 53:2 ICLQ 445-454. The court also failed to consider the view of the Judicial Committee of the Privy Council in Lewis v. Attorney General of Jamaica, (2000), [2001] 2 AC 50, that individuals must be entitled to a stay of proceedings while a petition is pending for consideration before an international human rights body, even when that body is not a court and does not issue judgments, on the grounds of due process. The non-binding nature of the individual complaints procedure before an international human rights body does not ipso facto make the rules governing that procedure to be non-binding. Otherwise, we could ignore all the procedural rules concerning time limits and replies.

Canada’s response also suggests a lack of nuance in reconciling the domestic with the international, with nuance being necessary to give any of the individual complaints procedures before the various UN human rights treaty bodies any real significance within a state. Canada has also previously stated that it “fully supports the important role mandated to the treaty bodies, such as the Committee Against Torture, and gives careful consideration to the interim measures requests issued by them.” Some indication of that careful consideration would be welcome, rather than resorting to form over substance, particularly since Canada has been warned by the Committee when it previously failed to abide by a previous interim measures request that in voluntarily accepting the Committee’s competence to hear individual complaints, Canada is viewed as having undertaken an obligation to cooperate with the Committee in good faith in applying the procedure (see TPS v. Canada).

Whatever one’s views on the merits of the Mugesera claim, a formalistic disregard for an interim measures request sets a poor example for other states who may wish to follow Canada’s path, notwithstanding a strong substantive case showing a real risk to life or limb for an individual.

Criticism for the treaty bodies

But perhaps this lack of state support for interim measures requests also reveals a need for efforts at the international level, including efforts to tighten the grounds for issuing such requests. At the very least, greater transparency is needed from the human rights treaty bodies in order to judge the information being marshaled in support of an interim measures request. There is, however, the concern that some have used an interim measures application as a last-ditch effort to stall for extra time or as an act of grandstanding to obtain publicity for the cause. Last year, the European Court of Human Rights acknowledged what it called “an alarming rise in the number of requests for interim measures” (having experienced a 4000% increase in interim measures requests for 2006-2010), and expressed concern about the “risk that the small minority of applicants who do face a genuine threat to life and limb in the country of destination will not have their cases examined in time to prevent removal.” The Court has also issued a practice direction indicating that applications for interim measures must be individuated, fully reasoned, accompanied by all relevant documentation, including the domestic court decisions, and sent in good time before the expected date of removal. Similar guidance could be developed and relied upon at the UN level.

The key issue with respect to the aggression amendments was always going to be the conditions for the exercise of jurisdiction, albeit that mid-way through the Review Conference, the jurisdiction issue merged with an entry into force discussion, resulting in some confusion among delegates at several points during the negotiations, and a final result that merges the two.

The definition task with respect to aggression was a done deal before the Review Conference began, and the United States soon recognized that there was no appetite to reopen the consensus that had been achieved within the Special Working Group on the Crime of Aggression (SWGCA). It is easy to forget that defining an act of aggression was not an easy task. For a state to be accused of an act of aggression carries obvious political costs and the international efforts to define aggression in the 1970s illustrate the difficulties. It is therefore not surprising that the 1974 UN General Assembly definition of the state act of aggression formed the basis for consensus in Kampala on the definition of the individual crime of aggression. Yes, some will argue that this wording is too vague for criminal law purposes, and that key issues remain outstanding – such as whether armed force used to prevent crimes of humanity and genocide should be excluded from the definition. But the realities of the negotiations meant that there was little interest among states parties in reopening this longstanding debate in Kampala. A concession of sorts to the desire for clarity can be found in the inclusion of “understandings” to assist with the future interpretation.

The real battle at the Review Conference was focused on the conditions governing the Court’s exercise of jurisdiction over aggression, on which state delegations were deeply divided. Up until the last day, there was an alternative 1 and an alternative 2 in the proposed text  with regards to filters and there was a genuine debate among many delegates as to the appropriate role of the Security Council vis-à-vis the International Criminal Court. Those in favour of the Security Council filter argued that one could not ignore the fact that the post-WWII system of international relations recognizes a primary role for the Security Council – and its five veto-wielding great powers – in the maintenance of international peace and security. Others, however, emphasized that the Security Council is an inherently political body, dominated by the permanent five (two of which are parties to the Rome Statute; the “P2” of corridor discussions). But there was also an element within the conference, as there is at other international meetings, that was keen to use the aggression negotiations to “stick it” to the more powerful and dilute the Security Council’s near-monopoly on international peace and security.

These divisions remained throughout the Review Conference until the final day. In the end, the option of a Security Council filter was dropped, with the final result from the final day marathon allowing the ICC to exercise jurisdiction over the crime of aggression without the need for prior Security Council authorization. However, this grant of independent jurisdiction is subject to significant caveats. It does not extend to acts of aggression committed on the territory of or by nationals of non-states-parties (unless the Security Council refers the matter to the ICC); it is subject to declarations of non-acceptance by states parties; and it will not come into effect at all until 2017 at the earliest, and even then only if states parties positively decide to activate this new aspect of the Court’s jurisdiction. Delayed entry into force, rather than jurisdiction, became the final twist which, with a few complicated turns arising from opt-in versus opt-out discussions, would allow delegations to meet the bottom lines of their instructions from capital. This also meant that the Kampala amendments on aggression could be adopted by consensus, which is just as well since several delegations had already left for the airport or were on airplanes travelling home.

The aggression amendments are not elegantly drafted but elegance is not the goal at a multilateral negotiation where sharpening the language can in fact unravel the deal. Text must be crafted in a way that allows key delegations to see their needs reflected so that the reports back to capital can claim responsibility for the insertion of this or that phrase, and this or that option. The perfect text from an academic’s point-of-view is not the one that will achieve consensus on the ground. And arguments of legal principle made way for accommodating policy positions and bottom line instructions.

For some, it will undoubtedly seem self-defeating to define the crime of aggression and agree on the modalities for its prosecution only to defer effective entry into force and allow states to opt out of the regime. But it is important to recall that international law, including international criminal law, is a slowly evolving and maturing phenomenon. Instant gratification is not within the culture of international law.

But we have moved forward along a continuum marked by the abortive attempts to prosecute the German Kaiser after WWI for a “supreme offence against international morality”, to Nüremberg’s successful if limited prosecutions of “crimes against peace”, to the eventual establishment of the ICC in 1998 after the Cold War years stymied earlier efforts to establish a system of international criminal justice. From this perspective, and to use an analogy that comes to mind after taking four flights to return home, the caveats and delays built into the Kampala amendments are the last few twists and turns on the final approaches to the destination.

Those impatient to see the ICC exercise its jurisdiction over the crime of aggression may take comfort that it is now simply a matter of time. Others may, however, welcome the delay, viewing the ICC’s jurisdiction with respect to crimes against humanity, war crimes and genocide as of prime importance and a priority for its efforts.

On a personal note, while these blog posts have been posted under one name, they are the result of a team effort, and recognition must be extended to the contributions, efforts and views of Professor John Currie of the University of Ottawa and Professor Valerie Oosterveld of the University of Western Ontario. No one could ask for a better team.

Introduction of the Non-paper

The President used this morning’s plenary session to introduce his non-paper and then adjourned the meeting to allow for informal consultations to take place, rather than opening the floor for states to make comments. In his introduction, the President explained that the proposal for article 15bis separated out the triggers found in article 13 of the Rome Statute, reflecting a trend in the informal discussions among delegates that favoured this route. Article 15bis will address the state referral and propio motu triggers, while a new article 15ter will address Security Council referrals. The President’s non-paper also contains a declaratory option within article 15bis, whereby a state party may lodge a declaration of non-acceptance of jurisdiction, picking up an idea that had been gathering interest among delegates in the “informal informals”. The President noted for the benefit of those who had just obtained copies of the proposal that the declaratory route was based on a provision already found within article 12 of the Rome Statute. The President’s non-paper also contains a new provision that makes clear that: “The Court may not exercise jurisdiction with respect to an act of aggression committed by a Non-State Party.” (A revised version released in the evening now reads: “In respect of a State that is not a party to this Statute, the Court shall not exercise jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.”)

On article 15ter, the President raised the possibility of deleting several paragraphs in his text so as to dispense with the need for the Security Council to determine an act of aggression in order to proceed by way of Security Council referral. This may not be the best way to proceed if a Security Council referral of a situation to the Court of crimes against humanity does not bar the possibility of a subsequent finding of aggression.

As for other aspects, the President has not shown his hand with respect to paragraph 4 of article 15bis, which still contains the two alternatives of the Security Council filter and the Pre-trial Chamber filter, presumably reflecting the continued existence of this division among delegates. On the amendment formula issue, however, the President’s non-paper expressly refers to entry into force in accordance with article 121(5) in the proposed covering resolution to accompany the amendments.

After the introduction of the non-paper, the plenary was then adjourned until 5 pm today, to allow the President to conduct bilateral and group discussions with delegates, and for delegates to discuss the non-paper amongst themselves.

UPDATE: The conference resumed in plenary after 5 pm, with the President advising that further bilateral consultations and group discussions were needed, offering both his assistance and that of HRH Prince Zeid of Jordan. The President has decided to adjourn the plenary and reconvene at 10:30 pm. The pressure is on and it’s clearly crunch time for a deal on aggression.

SECOND UPDATE: The plenary reconvened at 10:30 pm, with the amendment concerning article 8 being adopted. France made a declaration for the record with respect to the expanding bullets aspect, with which Canada, the United States and Israel associated. But on aggression, the President circulated another version of his non-paper, available here: http://iccreviewconference.blogspot.com/.

The revised non-paper from the President continues to list the two alternatives with respect to the Security Council filter and the now enhanced internal filter (the Pre-trial Division rather than the Pre-trial Chamber), indicating there remains no clear resolution of this long-standing division. Perhaps it’s best to conclude this review conference with an agreement on the definition of the crime of aggression and a Security Council referral, and then postpone the rest for a second review conference. Corridor talk has included the issue of vote counts, which will need to take into account the possibility that some will choose not to vote as well as possibly absent delegations (with some having flights that need to go this evening to make connections).

As for the article 124 and article 8 amendments

After the release of the President’s non-paper, there was a flurry of excitement and discussion among delegates, with some scurrying from the room to undertake informal consultations within like-minded groupings, and some delegations forgetting to keep at least one person in their designated chair for the meeting of the Working Group on Other Amendments that followed the adjournment of the plenary session.

The co-chair of the Working Group on Other Amendments introduced the resolution text concerning the retention of article 124, (see document RC/WGOA/2 of 9 June 2010). Two wording changes can be found in this text as compared to the earlier non-paper on article 124 that had been in circulation. Preambular paragraph 2 of the resolution text now recognizes the “importance of the universality of the founding instrument of the International Criminal Court” rather than the “possible contribution of article 124 to the universality …”, while operative paragraph 2 indicates that the parties will be undertaking a “further” review of the provisions of article 124 during the fourteenth session of the Assembly of States Parties. The resolution to retain article 124 and further review its provisions at a later date was then promptly adopted by consensus at the working group level. Several NGOs expressed their dissatisfaction, having wanted to see article 124 deleted from the Rome Statute. Ecuador has announced that it will make a strong statement expressing dissatisfaction about article 124’s retention at the final plenary of the conference. A number of other states have also expressed their desire for deletion but did not want to oppose consensus.

The draft report of the Working Group on Other Amendments was then circulated for review and approval by the Working Group. The likely paragraph of interest to readers is paragraph 5 of the report, which encapsulates the concerns that resulted in the wording of preambular paragraphs 8 and 9 of the article 8 resolution. These preambular paragraphs draw a distinction between the strictly forbidden use of poison and gas as weapons, and the absence of an absolute prohibition on the use of bullets which expand or flatten easily in the human body (aka dum dum bullets). With the latter, “the crime is committed only if the perpetrator employed the bullets to uselessly aggravate suffering or the wounding effect upon the target of such bullets”.  Paragraph 5 of the Report of the Working Group on Other Amendments was adopted with a Belgian addition to stress that law enforcement situations are excluded from the court’s jurisdiction, with an example being the use of dum dum bullets by police officers in hostage situations in an effort to avoid harm to the hostage.

The author is part of a research team consisting of Professor John Currie of the University of Ottawa, Professor Joanna Harrington of the University of Alberta, Professor Valerie Oosterveld of the University of Western Ontario, and Professor Darryl Robinson of Queen’s University, with financial support for the team’s coverage of the 2010 Review Conference having been provided by the Social Sciences and Humanities Research Council of Canada.

Which proposal will emerge for plenary discussion?

As indicated in a previous post, there are two proposals currently in circulation, namely the Argentine-Brazilian-Swiss proposal (known as ABS) and the Canadian proposal, plus a third proposal from Slovenia that builds upon the Canadian proposal. The second version of the conference room paper prepared by the Chair of the Working Group on the Crime of Aggression also contains a proposal in terms of text, but it is also viewed as a neutral summary of where the room stands (or stood at the time of the paper’s release).

During the last informal session of the Working Group on the Crime of Aggression, held in the late afternoon of 8 June 2010, there was no clear indication as to which proposal was attracting the most support. Some delegates expressed support for the Canadian proposal, while others expressed support for “ABS”. After noting the “ingenious complexities” of the ABS proposal, the United Kingdom put the boot into the Canadian proposal, and its reciprocity aspect, arguing that a provision modelled on the ICJ for inter-state dispute settlement does not work for matters of criminal law. Mexico, however, then noted that while ABS had received a large measure of support, it did not achieve consensus, with Mexico then suggesting that Canada’s proposal could be the starting point for reaching a consensus.

And so the room went back and forth, expressing support for one proposal or the other, and arguing for a third version of the conference room paper to reflect one proposal or the other, or the best elements of both. Several delegates urged the proposers to get together to combine their proposals to bridge the gaps, and it may be that this will occur in time for tomorrow’s plenary session on aggression. There are many participants in these negotiations who hope that a third version of the conference room paper (a “rev. 3”) will be released tomorrow, which will bring the delegations together.

Aggressor State Consent and the Security Council

There are, however, several states that clearly cannot compromise on the issue of state consent and the role of the Security Council vis-à-vis the International Criminal Court. France, for example, has been quite blunt as to the bottom lines that cannot be crossed. A future research project may find utility in examining the role and position of the “P2″, which is a reference to the two members of the P5 that are parties to the Rome Statute (namely Britain and France).

If there is no deal that will bridge the gaps between the parties in the last two days, perhaps the end result will be the adoption of the definition of the crime of aggression (with certain understandings for interpretive assistance) and an article 15 addition to allow for Security Council referrals to the court for matters of aggression. In one sense, this would go further than proposals that push for language that focus on the other two triggers in the Rome Statute, in that a Security Council referral can clearly apply to a non-state-party to the Rome Statute, as we have seen with Sudan. For some, however, the inclusion of the crime of aggression with application in relation to all three existing trigger mechanisms is a coherence and integrity of the court issue, as well as an effective deterrent to future acts of war (assuming a state leader planning to commit an act of aggression would take notice of the possibility of an ICC prosecution). The application to attempts to commit aggression are ruled out by the proposed Elements of Crime, with element 3 requiring that the act of aggression “was committed”.

Article 121(4) or (5)?

Clearly, one item of business at the top of the agenda for the new Working Group on Other Amendments to be established by the Assembly of States Parties at its next session in December must be the revision and clarification of article 121. Much time has been spent by delegates at this Review Conference arguing for the application of one or the other, leading to awkward proposals that try to combine both (4) and (5). Frankly, I did not find Switzerland’s assertion that “you cannot be entirely pure with either position” to be convincing since a plain reading of the text favours article 121(5). It is also clear that the underlying issue of aggressor state consent as a prerequisite for action is influencing the camp that favours article 121(4). Many in this camp, however, assume that they will secure the required 7/8ths so as to achieve application to the non-accepting states, but such a strategy may actually delay the operationalization of the aggression amendments and create a hold-out position for the 1/8ths plus one. By contrast, article 121(5) respects the fundamental international law principle of state consent with the amendments only binding on accepting states.

Note too that this issue also has a knock-on effect for the amendments to article 8 that were spearheaded by Belgium. It is possible that there will no longer be uniformity in the application of the components of article 8 to states parties after this Review Conference, once the article 8 amendments are adopted.

Understandings

Much of this afternoon’s published agenda was concerned with the topic of understandings, with Professor Claus Kress of the delegation of Germany serving as the focal point to coordinate discussions and engage in bilateral and informal consultations. States appear to be reaching agreement on the use and content of understandings, with the United States having actively promoted the adoption of several understandings as a means to address its concerns about the definition of the crime of aggression and the potential impact of an aggression amendment on the development of customary international law.

As for article 124 of the Rome Statute …

As indicated in a previous post, there had been interest in proposing an amendment at this Review Conference to delete the “Transitional Provision” found in article 124 of the Rome Statute. However, a non-paper has now been circulated containing the text of a draft resolution to “retain article 124 in its current form” and “to review the provisions of article 124 during the fourteenth session of the Assembly of States Parties.” Given Japan’s strong support for the retention of article 124, as well as the support of other states, this proposal is likely to be the one that can secure consensus, although the night may be needed for some delegates to convey the proposal back to capitals to confirm or receive instructions.

Financial support for our coverage of the 2010 Review Conference was provided by the Social Sciences and Humanities Research Council of Canada.

The meaning of consensus

Clearly, the most popular word during the opening round of the aggression discussions on Friday was “consensus” with many delegations using this opportunity to express the view that an amendment on aggression would have to be adopted by consensus, thus telegraphing to the room that they wish to avoid a vote. For those unfamiliar with international negotiations, it is important to remember that consensus does not mean that all delegations are in agreement with a text. Consensus simply means that there is no need for a vote. When a text is adopted by consensus, some states may be in agreement with a text’s content and wording, while others may not like the text, but their areas of dissatisfaction do not cross the bottom lines in their instructions from capital and thus no need to force a vote.

Several non-party states, notwithstanding their non-voting “observer” status at these negotiations, have also spoken in favour of adoption by consensus, albeit with the implication that there should be consensus within the room and not just consensus among the states parties. For some, the practice of permitting non-party states to take part in the aggression discussions over the years supports the inclusion of non-states-parties in determining the final consensus, with Russia expressly stating that it would undermine the Court, given the importance of the crime of aggression, if there was not a consensus among participants and observers at the conclusion of this Review Conference. The United States has similarly argued that proceeding by consensus is an established “decision-making principle” (Statement by Harold Hongju Koh, Legal Adviser, US Department of State, 4 June 2010).

Definition of the crime of aggression

As readers will be aware, article 5(2) of the Rome Statute indicates that the states parties need to both define the crime of aggression and set out the conditions under which the Court shall exercise jurisdiction with respect to this crime. While divergent views remain on the conditions for the exercise of jurisdiction, there appears to be a consensus, at least among states parties, on the definition of the crime of aggression. This consensus was reached in the meetings leading up to the Review Conference and is reflected by the absence of square brackets in the relevant paragraphs in the conference room paper (CRP) on the crime of aggression. The definitional aspect is found in paragraphs 1 and 2 of the proposed Article 8bis, with the wording of paragraph 2 having been borrowed from the 1974 UN General Assembly resolution on the definition of aggression, GA Res. 3314 (XXIX). Several observer states, being non-states-parties to the Rome Statute, have expressed concern with the definition, but states parties are reluctant to re-open this debate, with the current text being the product of extensive work over many years that has found acceptance among all states parties.

The use of understandings

While expressing concern with the threshold requirements and the vagaries of the word “manifest”, the United States has moved towards accepting that the conference is unlikely to re-open the definition debate and instead has pushed for the adoption of certain understandings to address its concerns. The use of understandings to be adopted by the conference is a technique also reflected in the conference room paper on the crime of aggression, versions 1 and 2, drafted by the Chair of the Working Group on the Crime of Aggression, HRH Prince Zeid of Jordan. A connection can be drawn between these understandings and article 31 of the Vienna Convention on the Law of Treaties, and more specifically the use of any subsequent agreement between the parties regarding the interpretation of a treaty or the application of its provisions, with a non-state-party encouraging such agreements.

Conditions for the exercise of jurisdiction

No-one not following the aggression discussion will be surprised to read that the room remains divided between those who favour a role for the Security Council with respect to the Court’s exercise of jurisdiction and those who argue for no role at all. This issue is reflected in the discussion of “filters” or “jurisdictional filters” and can be seen reflected in the alternatives found in brackets in paragraph 4 of proposed article 15bis.  Much has been said by delegates about the primary, but not exclusive, role for the Security Council with respect to aggression under the UN Charter, and the need for an independent court free of politicization. However, the conference room paper does suggest a sharpening of the areas of disagreement, with proposals to use either the General Assembly or the International Court of Justice as a filter being dropped. Suggestions to enhance the filter role of the Pre-trial Chamber remain in play.

The draft Report of the Working Group on the Crime of Aggression will give readers some indication of the key issues and discussions to date, although it should be noted that the Chair has opted not to “discriminate” (his words) between the views of states parties and non-states-parties. Readers may wish to comment on the effect of this absence of differentiation with respect to the source of stated concerns on the utility or impact of the report for future interpretative guidance. A copy of the report is available at: http://www.icc-cpi.int/iccdocs/asp_docs/RC2010/RC-WGCA-3-ENG.pdf

The article 121 issue

In addition to the conditions for jurisdiction, divergent views have also been expressed as to the correct amendment procedure to be used, with some favouring article 121(4) while others favour article 121(5). Clearly, the underlying issue is that of state consent and whether the consent of an alleged aggressor state should be required for the court to exercise jurisdiction over the crime of aggression. Attempts to combine the two amendment procedures have been pitched to bridge the gap between the (4) and (5) camps, as well as proposals to delay or stagger the entry into force of the aggression amendments, or parts of the aggression amendments, after adoption. Readers may wish to comment on whether this works with article 5(2) of the Rome Statute, which states that: “The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted …”. Can the Review Conference adopt an aggression amendment package that provides for a delay in the exercise of jurisdiction in the face of the express words of article 5(2) that “The Court shall exercise jurisdiction”, albeit that adoption by consensus would show that such a delay would be the intention and will of the states parties?

The article 8 amendments

As for article 8, a draft resolution has been adopted at the working group level and awaits confirmation by the plenary, unless a delegation wishes to reopen the debate on these proposed amendments. The areas of key concern can be found by comparing preambular paragraphs 8 and 9, with “PP9” being an attempt to address the use of dum dum bullets in hostage situations and airplane hijackings. As the divergence of views with respect to the correct amendment procedure has a knock-on effect with respect to other proposed amendments to the Rome Statute, the working group has wisely left preambular paragraph 2 of the article 8 resolution to be decided by the aggression discussions.

The removal or retention of article 124?

The third amendment topic at this Review Conference concerns article 124 of the Rome Statute, known as the “Transitional Provision”. Article 124 permits states parties to opt out of the jurisdiction of the court with respect to war crimes for seven years after the Statute’s entry into force for the state concerned. Only two states parties (Colombia and France) have made use of this provision and in the lead-up to the Review Conference, many had thought that a proposal to delete article 124 would receive a warm reception. Removal had been recommended by the preceding Assembly of States Parties (ASP).

A number of states, however, have expressed support for retaining the provision as a means to attract additional ratifications; illustrating once again the influence of the interests of non-states-parties. Article 124 is dangled as a carrot to achieve universality, with those who support retention arguing that there is nothing to lose since the provision is already in the Statute. Japan, in particular, has spoken in favour of keeping article 124 if it attracts more states parties to the Rome Statute, noting that Egypt and other non-states-parties within NAM want article 124 retained. The non-party states of China, Malaysia and the Philippines have also spoken in favour of retention, while Amnesty International is lobbying for deletion, viewing article 124 as an “impunity provision” and having opposed the provision’s inclusion since the Rome negotiations in 1998. Seeing no clear consensus in favour of removal or retention, the co-chairs of the Working Group on Other Amendments have asked for delegations to continue discussing this issue informally.

Meanwhile, in the local news …

Delegates can rest easy, although most are likely unaware given the bubble-like conditions of the Review Conference location, that a local newspaper has reported that the “killer hippo” that has been “terrorising residents” in the Munyonyo area (where the conference is being held) has been killed by the Uganda Wildlife Authority, but sadly not without the loss of two fishermen and a farmer’s cow.

Financial support for our coverage of the 2010 Review Conference was provided by the Social Sciences and Humanities Research Council of Canada.

Stocktaking of International Criminal Justice

Meanwhile, inside the main conference room, the stated focus has been on stocktaking, with the phrasing of this agenda item, as noted above, reflecting the fact that discussions were not focussed solely on a review of the ICC. Invited panellists drew upon the comparative experiences of the Yugoslav and Rwanda tribunals (ICTY and ICTR), the Special Court for Sierra Leone, and the Cambodian tribunal (more accurately, the “Extraordinary Chambers in the Courts of Cambodia” or the “E, triple C”).

For many delegates, the stocktaking exercise has been described in positive terms as akin to an academic conference; an interesting affirmation of Darryl Robinson’s introductory post on the hybrid nature of this Review Conference available here. And yet, for those of us who are academics, this is not equivalent to an academic conference with panel discussions lacking an opposing or dissenting view. Frankly, it was hard to see the point of the stocktaking exercise, with the discussion dominated in each of the four thematic areas by panellists with expertise and/or past experience with a particular international or internationalized criminal tribunal, but no state party allegiance. With a few exceptions, notably Kenya on the panel on cooperation, states parties have only been able to make brief interventions after the panellists, provided that the chair of the particular panel was able to keep either the panellists or the states parties to the (repeatedly stated) time limits. These interventions have been wide-ranging, and lack the focus provided by a discussion of proposed resolution text. Of particular disappointment was the session on victims and affected communities, which failed to debate or question whether the legal representation of 100s of victims had any negative impacts on the Court.

The limited presence of states parties on the panels was notable, reflecting perhaps the intended educational focus of this segment of the Review Conference. But who were the panellists trying to educate? And are not the representatives of the states parties to the Rome Statute, by their very membership, already aware of the matters under discussion, at least at the general level in which they were discussed? Could not the time have been better used by states parties to probe and question the positive and negative aspects of the Rome Statute’s operation and implementation to date?

Moreover, while many delegates will say that the discussions were “interesting” and “worthwhile”, one wonders what were the real gains, given the limited “deliberative” nature of the discussions for both states parties and non-states-parties, with panellists taking up most of the allotted time. There is also the matter of the agreement in advance as to the outcome documents to result from this exercise.

A review of the Journal for next week suggests that only an hour will be needed on Tuesday, June 8, for the “adoption of outcome documents” on stocktaking, with the draft resolutions and other texts having been circulated and discussed in capitals well before the Review Conference began. A review of the official records from the resumed eighth session of the Assembly of States Parties held in March 2010 makes this clear, and copies of the draft texts have been made available on the ICC’s website at: http://www.icc-cpi.int/Menus/ASP/ReviewConference/Stocktaking/

Clearly, these texts on stocktaking serve to provide the fallback position if no agreement is reached on aggression. States can then look to stocktaking as the achievement of Kampala, but this strategic point does not answer the question as to why have two days of invited panels, other than to serve as conference program filler while key members of delegations engage in consultations on aggression.

Back to the Main Event: Aggression

With the “deliberative” component of the stocktaking exercise now concluded, the Review Conference returns to its main event, namely the discussion of the crime of aggression. Most of the agenda for Friday and Monday has been allocated to the Working Group on the Crime of Aggression, except for an hour on Friday being set aside for the Working Group on Other Amendments, with the focus likely to be on the amendment effort initiated by Belgium with respect to the extension of certain provisions within the war crimes article of the Rome Statute to non-international armed conflict (specifically, the provisions in Article 8 on the use of poison, gas, and expanding or “dum dum” bullets).

For those interested in the position of non-states-parties, (a topic of some focus in the corridor discussions), it has been announced that Harold Koh, the Legal Adviser for the US State Department, and the co-head of the rather large US delegation, will be speaking on Friday. (See further: http://www.state.gov/s/wci/us_releases/remarks/142585.htm). The US delegation is the largest delegation here at Kampala, numbering 18 or so, and this despite the country’s non-state-party status, and the largest group of academics in attendance at this Review Conference also hail from the US.

What’s Not on the Agenda

Readers may also be interested in noting what is not on the agenda for this Review Conference (leaving the door open to a second Review Conference sometime in the future?). A number of topics were proposed by states for discussion at Kampala, including international drug-trafficking and terrorism, but these topics did not make the cut and have instead been referred to an Assembly of States Parties (ASP) working group, set to begin its work at the ninth session in December 2010.

One topic of interest that is not up for discussion is Article 16, the deferral provision in the Rome Statute, with the African Union having already expressed its view that Article 16 should be modified to empower the UN General Assembly to act should the UN Security Council fail to decide on a referral request after six months. (This option also reflects a similar option proposed for aggression and, in particular, the conditions for the exercise of jurisdiction.) The Article 16 proposal is intimately tied to the ICC Prosecutor’s desire to prosecute President Bashir of Sudan, with Sudan being the only non-party to the Rome Statute that is subject to the ICC’s jurisdiction. It also reflects concerns about retaining the ICC’s credibility in Africa, with some clearly perceiving a need for greater sensitivity towards the interests and views of African states. A two-page pamphlet has been circulating the conference room advising of a forthcoming African expert study on Article 16 to be finalized in June (with the co-editor of EJIL Talk! being a member of this 16-person expert group). I await the results with interest.

Local Media Coverage of the Review Conference

Meanwhile, one of the local newspapers reports that an opposition party is trying to score political points by calling on the ICC Prosecutor to investigate crimes committed in Northern Uganda going back to the 1980s, and then criticising the Prosecutor for his perceived lack of action, without any recognition of the temporal limits on the ICC’s jurisdiction. This lack of understanding illustrates the difficulties to be faced by outreach programs, with no amount of ICC fact sheets being able to address misconceptions bred, in part, by the high expectations instilled by the Court’s supporters to “end impunity”.

Financial support for our coverage of the 2010 Review Conference was provided by the Social Sciences and Humanities Research Council of Canada.

A Plea of Caution, Care and Regard for the Court

The US statement was delivered by Stephen Rapp, US Ambassador-at-Large for War Crimes, and the former prosecutor at the Special Court for Sierra Leone. Evoking a general theme of “caution, care and regard for the Court”, and attributing support for this theme to prominent groups within civil society, Ambassador Rapp spoke of the challenges facing delegates, using a series of questions about the success of the ICC’s efforts in situation countries to connect with the four themes of the upcoming stocktaking exercise. Mention was also made of US co-sponsorship, along with Norway and the DRC, of a side-event on “positive complementarity”, drawing a link to the “frontlines of justice, national courts”.

But the larger, and more immediate, challenge facing the Conference, as identified by Ambassador Rapp, are the proposed amendments concerning the crime of aggression. Despite years of discussion, key issues remain without a consensus resolution, with Rapp identifying the conditions for the exercise of jurisdiction and how the aggression amendments will enter into force as being “elemental”, and “not of marginal significance”. Rapp also identified problems with the definitional aspect of the aggression amendment project, albeit that many view the definition aspect as easier to resolve than the conditions for the exercise of jurisdiction. (English School IR scholars and R2P watchers may be interested in Rapp’s reference to “the use of force that is undertaken to end the very crimes the ICC is now charged with prosecuting” in discussing the uncertainties of the proposed definition.)

The possible impact of aggression amendments on national jurisdiction was also highlighted as an area of uncertainty, with Rapp drawing a link to a conference non-paper circulated by the chairman of the Special Working Group on the Crime of Aggression, H.R.H. Prince Zeid of Jordan, available at: http://www.icc-cpi.int/iccdocs/asp_docs/RC2010/RC-WGCA-2-ENG.pdf

Rapp then focused on the “plea for caution, care and regard for the Court” promulgated by some civil society organizations, and clearly supported by the US, which has emphasized a need for a genuine consensus with respect to the definitions of crimes for the ICC. The point was made that pushing forward with aggression amendments that lacked a true consensus could do more harm than good to the Court – with Human Rights Watch being specifically mentioned by Rapp as a group favouring caution. (It is also a point made by former ICTY prosecutor Richard Goldstone in a recent op-ed for the New York Times: http://www.nytimes.com/2010/05/27/opinion/27iht-edpoint.html )

It is possible that a copy of the US statement will be posted on the State Department website, but with the spotty internet service at the Review Conference, I cannot verify at present.

Introduction of the Amendments

After the general plenary, the room became the Working Group on the Crime of Aggression, and then the Working Group on Other Amendments, with the purpose today being to introduce the amendments. The amendments concerning the crime of aggression were introduced first, with Prince Zeid providing a useful overview of the crime of aggression discussions. See further:

 http://www.icc-cpi.int/Menus/ASP/ReviewConference/Crime+of+Aggression.htm

A brief overview was then provided by the co-chair of the Working Group on Other Amendments with respect to the proposed amendment concerning article 124, and then Belgium took the floor to introduce its amendments to Article 8, the war crimes provision of the Rome Statute. Gerard Dive of the Belgian Ministry of Justice also reviewed the import of the nine proposed preambular paragraphs of the draft resolution text, noting that it “seemed necessary” to be clear, and thus make express mention, of the position of non-states-parties in the third preambular paragraph of the proposed resolution. Dive concluded his statement by expressing Belgium’s desire for consensus on this amendment and urged delegates to meet with him to discuss concerns. A copy of the draft resolution text can be found here:

http://www.icc-cpi.int/iccdocs/asp_docs/RC2010/RC-WGOA-1-ENG.pdf

The two Working Groups will next meet on Friday, after the stocktaking component of the Review Conference.

Postscript

For a helpful discussion of both aggression and the war crimes amendments, I recommend viewing a pre-conference webinar hosted by the American Society of International Law featuring Harold Koh, Rosa Brooks, and Ambassador Stephen Rapp, as well as John Bellinger and William Taft.

See: http://www.asil.org/activities_calendar.cfm?action=detail&rec=124

Joanna Harrington is an Associate Professor with the Faculty of Law at the University of Alberta in Canada, where she teaches constitutional law, international law, and international criminal law. Her scholarship often examines the interplay between international human rights law and criminal law, and international law and constitutional law in general. She has written previously on matters of interim measures, arguing for the application of the ICJ’s jurisprudence to requests arising within the context of communications before the international human rights treaty monitoring bodies: see “Punting Terrorists, Assassins and Other Undesirables: Canada, the Human Rights Committee and Requests for Interim Measures of Protection” (2003) 48 McGill LJ 55.

 I wish to thank Dapo Akande, the editor of EJIL Talk!, for the invitation to express my initial (and perhaps hasty) thoughts on yesterday’s decision by the International Court of Justice (see here) concerning Belgium’s request for the indication of provisional measures in the proceedings lodged against Senegal concerning the “obligation to prosecute or extradite” Hissène Habré, the former President of Chad (1982-1990), for the commission of serious international crimes, including crimes of torture and crimes against humanity.[1] Habré has been living in Senegal since he was overthrown in 1990; however, in light of recent statements made by the Senegalese head of state intimating that Habré may be allowed to leave the territory,[2] Belgium sought an order from the ICJ requiring Senegal to ensure that such a departure did not occur. Senegal opposed Belgium’s request, challenging Belgium’s interpretation of the statements made by its President as well as the general admissibility of Belgium’s case, while also arguing that such an order was not needed given the existing controls concerning Habré. By 13 votes to one, the Court declined to make the requested order, finding that:

“the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures.”[3]

 A key factor contributing to the Court’s decision were the solemn assurances provided by Senegal, both on its own initiative and in response to a direct question put by a Member of the Court during the hearings, that it will not allow Habré to leave its territory before the Court has given its final decision.[4] Credit goes to Judge Greenwood, a recent appointment to the Court, for asking Senegal at the end of the first round of the oral observations whether it would be prepared to give a solemn assurance to the Court that it will not allow Habré to leave while this case is pending.[5] Although Senegal had said as much in its submissions, the question prompted Senegal to solemnly confirm in its closing statement to the Court that:

“Senegal will not allow Mr. Habré to leave Senegal while the present case is pending before the Court. Senegal has not the intention to allow Mr. Habré to leave the territory while the present case is pending before the Court.”[6]

 With this solemn declaration, the denial of Belgium’s request for the indication of provisional measures was a likely result, notwithstanding Belgium’s efforts to suggest that a “clear and unconditional” assurance “could be sufficient” but the need for certain “clarifications” made an order from the Court preferable.[7] The ICJ’s decision may thus be viewed as a non-result in terms of the actual request that was put before the Court, and the fact that the parties were generally in agreement as to the law governing the indication of provisional measures. Nevertheless, the reasoning behind the Court’s order is worth consideration, as are the issues raised in the relatively lengthy dissent of Judge Cançado Trindade, another new appointment to the Court.

 The Existence of a Dispute and the Involvement of the African Union

In addressing a request for the indication of provisional measures, the Court must first satisfy itself that it has prime facie jurisdiction as regards the merits of the case. As explained in its application instituting proceedings, Belgium made a request for Habré’s extradition in September 2005, but in November 2005, the Chambre d’accusation of the Dakar Court of Appeal in Senegal determined that it was without jurisdiction to render an opinion on the extradition request and declined to act.[8] As noted by the ICJ in yesterday’s decision, Senegal has affirmed that this judgment put “a definitive end to the extradition proceedings initiated by Belgium.”[9] Soon thereafter, Senegal referred the Habré case to the Assembly of the African Union,[10] which subsequently adopted a “Decision” confirming its view that the Habré case fell within the competence of the African Union[11] – a point emphasized in the separate opinion of Judges Koroma and Yusuf[12] – but given the lack of an AU organ available to try Habré,[13] the Assembly advised that Habré’s trial should take place in Senegal.[14] The exact wording of this direction is worth noting since Senegal has placed much emphasis on the fact that the Assembly’s decision

“MANDATES (sic) the Republic of Senegal to prosecute and ensure that Hissène Habré is tried, on behalf of Africa, by a competent Senegalese court with guarantees for fair trial.”[15]

 Belgium, of course, disputes the notion that the African Union can bestow a “mandate” (in a legal sense) on Senegal to prosecute Habré, since it views Senegal as having its own independent obligation under both conventional and customary international law to “prosecute or extradite”.[16] During the oral observations, Senegal agreed with Belgium that it has an obligation to prosecute Habré, but then argued that as a result, there was no legal dispute existing between the parties, and thus no jurisdiction. Thankfully, the Court was able to find that a dispute does exist, albeit with a different scope than first alleged, thus keeping alive the prospect for future arguments concerning, at the very least, the time frame in which to fulfil the obligation to prosecute once a request for extradition has been refused and the circumstances to consider, whether financial, legal or otherwise, when determining a possible breach.[17] This is a welcome development, in my view, given the clarification of the issues that it encourages, and one which may not have occurred had Belgium’s application been declared moot, as suggested by some of the Judges.[18]

 The Link between the Rights Protected and the Measures Requested

 The goal of a request for provisional measures is the preservation of the respective rights of the parties while a case is pending before the Court. In essence, a request for the indication of provisional measures is a request for an interim injunction (to use the term used in some, but not all, legal systems). Orders containing indications of provisional measures are binding, following the ICJ’s definitive ruling in the LaGrand Case in 2001,[19] which in turn was based on the general principle (established, as luck would have it, in a Belgian-initiated case before the ICJ’s predecessor) that:

“the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given, and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute.”[20]

 To preserve its rights, which at this stage in the proceedings need only be raised as an arguable case, Belgium asked the ICJ to order Senegal to take all necessary measures to prevent Habré from leaving Senegal’s territory. However, it is often reported that Habré is already “under house arrest” in his two villas in the Ouakam suburb of Dakar, Senegal, and thus the ICJ proceedings, in my view, highlight a need to clarify the exact nature of the controls concerning Habré.

 Belgium’s request has assisted somewhat with this task, in that the wording of Belgium’s initial request was for an order requiring Senegal “to take all the steps within its power to keep Mr. H. Habré under the control and surveillance of the judicial authorities of Senegal.”[21] Senegal objected strongly to such an order on the grounds that it would cause executive interference with the independence of the Senegalese judiciary, noting that a judicial order for custody and surveillance presupposes the judicial confirmation of an indictment, taking into account the role of the investigating judge in the inquisitorial legal system.[22] On this point, Belgium appears to have conceded, apologizing for causing any confusion with its wording, and rephrasing its request as being aimed at requiring Senegal to “take the necessary steps, whatever they may be within its system, to ensure that Mr. Habré is not able to escape justice.”[23] Belgium also suggested that: “One possibility would be that Senegal would continue the present arrangements, which do seem to be effective.”[24] Of course, Belgium’s comments also imply that an assurance to continue the present arrangements could suffice, removing the argument about urgency in the sense of a real and imminent risk that irreparable prejudice may be caused to the rights at issue. It is also worth noting that Belgium’s shift in approach prompted comment from Judge Ad Hoc Serge Sur in his separate opinion to the effect that the Court should have probed further.[25]

 It remains unclear, however, as to what exactly are the “present arrangements” upon which the world now relies to ensure Habré’s availability for trial. Senegal has advised that Habré is subject to certain administrative measures of control, specifically police control measures and surveillance, and has been since 1990.[26] Senegal has also confirmed that Habré does not possess a valid travel document (neither a passport nor a safe-conduct document).[27] However, Senegal has also made it clear that Habré is not subject to judicial measures of control, such as custody, since such measures only flow from the lodging of an indictment; a point illustrated by Habré’s arrest and detention back in 2000, as a result of his indictment on charges of complicity in crimes against humanity and torture, and then his release from custody when the charges were dismissed for want of jurisdiction.[28] Habré was also imprisoned (at the age of 63) upon receipt of Belgium’s extradition request in November 2005, and then later released when the courts declined to rule favourably or unfavourably on the extradition request.[29]

 No-one asked whether the surveillance was arranged to ensure Habré’s own protection and security from his enemies, rather than to ensure his availability to face justice, and no mention was made of the human rights implications of 19 years of control and surveillance, described by counsel for Senegal as taking place “day and night”.[30] Habré remains the beneficiary of the right to be presumed innocent and there are no charges lodged against him, despite renewed efforts by his victims to initiate proceedings in a Senegalese court in September 2008.[31] In addition, the members of Habré’s family are also entitled to enjoy such fundamental human rights as liberty and privacy, with counsel for Senegal confirming that: “Indeed, Mr. Habré and his family are kept under constant and tight surveillance” (emphasis added).[32]

 The Nature, Effect and Consequences of an “Obligation to Prosecute or Extradite”

 Another aspect kept alive by the Court’s decision, at this time, to accept Senegal’s assurances, rather than declaring the application moot, is the opportunity for the parties, and for commentators in general, to deliberate further on the nature, effect and consequences of the alleged rights of the parties, especially those of Belgium. During the oral hearings, both Judge Simma and Judge Cançado Trindade asked questions about the nature, effect and consequences of the right asserted by Belgium to see Habré prosecuted for his crimes, and both queried whether Belgium was asserting a right to see an obligation erga omnes performed (a matter discussed here on this blog). These questions go to the heart of the matter, with Judge Simma suggesting that Belgium’s arguments were somewhat light on the legal parameters for the asserted obligation, while Judge Cançado Trindade has since used his dissenting opinion to highlight this aspect further.[33] The asserted obligation is not limited to torture, since Belgium also invokes the obligation for crimes against humanity, but if such an obligation exists, are states legally obliged to request the extradition of Presidents who make statements inciting genocide? And should other states have requested Habré’s extradition?

 The case initiated by Belgium has been styled “Questions relating to the Obligation to Prosecute or Extradite“; however, an argument can be made that the true obligation at play is one of “extradite or prosecute” since Belgium did make an extradition request that has not been met by Senegal, and Senegal has not initiated a prosecution for at least three years.[34] Moreover, neither party refutes the fact that Belgium made a request to Senegal for Habré’s extradition that has been denied. Restyling the case as one concerning “Questions relating to the Obligation to Extradite or Prosecute” would therefore be a more accurate reflection of the factual basis of the dispute existing between Belgium and Senegal. This order of phrase would also be more in-keeping with the actual text of article 7 of the Torture Convention, which suggests that the obligation to submit a case for the purpose of prosecution is contingent on a state party’s denial of an extradition request. Article 7 provides in substance, with emphasis added, that: “The State Party in [whose] territory a person alleged to have committed [an act of torture] is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.” Note too that the obligation here is not an “obligation to prosecute” but rather an obligation to submit the case to a state’s prosecuting authorities, thus preserving and respecting the value and principle of prosecutorial discretion.

 I realize, however, that flipping the phrase is a more accurate reflection of Belgium’s wider goal in bringing this case, namely the goal of establishing (or from Belgium’s perspective, confirming) the existence of a international law obligation to prosecute those who commit serious violations of human rights and commit serious breaches of international humanitarian law.[35] This goal clearly fits within the larger project of ensuring no impunity for those who commit the most serious crimes and is undoubtedly a worthy aspiration. But, as I have argued briefly elsewhere (here) in relation to the International Law Commission’s current study of “extradite or prosecute”,[36] one cannot simply “flip the phrase” to equate “prosecute or extradite” with “extradite or prosecute”, and nor can one justify the revision of the classic shorthand of “aut dedere aut judicare” solely on the grounds that it would be “better construed as judicare vel deder“, as Professor Eric David suggested in his oral observations before the ICJ.[37] These turns of phrase do not reflect the contingent nature of the “extradite or prosecute” obligation as it is found in many treaties, both bilateral and multilateral, concerning a wide array of offences. Alternatively, if the obligation of extradite or prosecute includes a legal obligation to prosecute for a select list of offences, such as those considered “the most serious crimes of concern to the international community”, to borrow the phrase from the Rome Statute of the International Criminal Court, then further state practice is needed to determine whether the prosecution of these offences, in circumstances that do not qualify for the Rome Statute‘s application, is in fact a legal obligation.

 Is this a money fight?

 My last area for comment relates to the need for financing from the international community, which has been given as the reason for Senegal’s delay in prosecuting Habré. Clearly, from an African perspective, the prospect of sending an ex-African leader to face trial in an ex-colonial power such as Belgium is a delicate matter and from this perspective, one can understand the desire to create an African tribunal to try Africans in Africa for crimes against humanity. But if the capacity and funds were available to support an Habré prosecution before a regular Senegalese court in 2000, why are they unavailable now? Moreover, has Senegal exaggerated the cost of such a prosecution, with rumours of a new state-of-the-art courthouse being required, and a suggestion made during the oral hearings of a need to transport thousands of witnesses from Chad to Senegal? Not every victim need testify.

 On the other hand, Senegal is not a wealthy country, and flights are expensive from Chad to Senegal, with the limited access to telephone and internet services making video-testimony an unlikely alternative. Moreover, both Senegal and Belgium have accepted that there is a need to secure financial assistance from international donors to support the organization of the Habré trial, (although Judge Cançado Trindade would have us consider further the alleged high costs of holding the trial). Funding international criminal justice is expensive and difficult, especially when a state or tribunal is reliant on voluntary contributions from donor states, as evidenced by the near bankruptcy of the Special Court for Sierra Leone and the continuing financial difficulties of the Extraordinary Chambers in the Courts of Cambodia. One can also understand the need to have adequate funds pledged in advance, as was recently done before opening the doors of the Special Tribunal for Lebanon, so as to avoid the interruption of proceedings once a trial is underway. Senegal has rightly acknowledged the link between sufficient funds and respect for the right to a fair trial, including the right to a trial within a reasonable time.

 Nevertheless, the difficulty faced by government officials working in the capitals of interested states is the simple fact that to secure a commitment from a government’s political masters to pledge funds provided by taxpayers, no matter how worthy the cause, there must be some means of showing that concrete results will result from the public expenditure. This leads to talk of benchmarks and disbursements on achieving certain successes at various stages of a trial’s organization. Given the passage of 19 years since Habré first assumed residence in Senegal, and the passage of almost 3 years since Senegal accepted its “mandate” to prosecute Habré from the African Union in July 2006, and the lack of a transparent timeline for bringing this case to trial, it will remain difficult for government officials to run a funding request “up the flag pole” with any hope of success, and even more difficult if that government already contributes to other criminal tribunals that are equally deserving of financial support.

 [1] Case concerning questions relating to the obligation to prosecute or extradite (Belgium v. Senegal), Request for the Indication of Provisional Measures, Order of the International Court of Justice, 28 May 2009. The documents concerning this case, and referred to below, are made available to the public at: http://www.icj-cij.org/, with the exception of the written replies of the parties to a question put by Judge Cançado Trindade on the last day of the oral hearings, with the existence of these replies confirmed in note 55 of Judge Cançado Trindade’s dissenting opinion.

 [2] In its Request for the Indication of Provisional Measures Submitted by the Government of the Kingdom of Belgium (undated), online: http://www.icj-cij.org/docket/files/144/15056.pdf, Belgium refers to an interview given by Senegal’s President Abdoulaye Wade to Radio France Internationale. During the first round of oral observations, Professor Eric David, as Counsel for Belgium, supplemented this with reference to statements made by President Wade in interviews with the Spanish newspaper Publico on 14 October 2008, (reproduced in the Senegalese newspaper Le Quotidien on 15 October 2008), the French newspaper La Croix on 18 December 2008, and the French news agency Agence France-Presse on 3 February 2009: see CR 2009/08 (6 April 2009) (translation) at 25-27. These sources are also referred to by the Court in its Order of 28 May 2009 at para. 63.

 [3] Order of 28 May 2009 at para. 76.

 [4] Order of 28 May 2009 at para. 71.

 [5] See CR 2009/9 (6 April 2009) (original) at 59.

 [6] Oral observations of Demba Kandji, Co-Agent of Senegal, CR 2009/11 (8 April 2009) (translation) at 16, para. 5. It is worth noting that Senegal’s Co-Agent served as the Investigating Judge who first indicted Habré in 2000. He was later removed from the case as it proceeded to the Senegalese courts, with some alleging political interference.

 [7] Oral observations of Gerard Dive, Co-Agent of Belgium, CR 2009/10 (7 April 2009) (translation) at 20-21.

 [8] See Belgium’s Application instituting proceedings, dated 16 February 2009, at para. 6, online: http://www.icj-cij.org/docket/files/144/15054.pdf. See also the oral observations of Prof. Eric David, Counsel for Belgium, CR 2009/08 (6 April 2009) (translation) at 18, and those of Cheikh Tidiane Thiam, Agent of Senegal, CR 2009/09 (6 April 2009) (translation) at 5.

 [9] Order of 28 May 2009 at para. 35.

 [10] The Assembly is the supreme organ of the African Union and consists of the Heads of State and Government: Constitutive Act of the African Union, 11 July 2000, 2158 UNTS 3 (in force 26 May 2001), art. 6.

 [11] Articles 4(h) and (o) of the Constitutive Act of the African Union, 11 July 2000, 2158 UNTS 3 (in force 26 May 2001), require the Union to “function in accordance with the following principles: …”h) The right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity” [and] “o) Respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities” (emphasis added).

 [12] See Joint Declaration of Judges Koroma and Yusuf at para. 11.

 [13] Neither the African Court on Human and Peoples’ Rights, nor the desired Court of Justice of the African Union, would have jurisdiction to hear criminal matters.

 [14] See Decision 127(VII) taken by the Assembly of the African Union at its 7^th Ordinary Session held in Banjul, The Gambia, 1-2 July 2006: Assembly/AU/Dec.127(VII), online: http://www.aumission-ny.org/documents/Assembly-banjul_July06.pdf

 [15] Assembly/AU/Dec.127(VII) at para. 5(ii).

 [16] Oral observations of Sir Michael Wood, Counsel for Belgium, CR 2009/8 (6 April 2009) (original) at 39, 42 & 58.

 [17] Order of 28 May 2009 at paras. 47-48.

 [18] See the Joint Separate Opinion of Judges Al-Khasawneh and Skotnikov. See also the Joint Declaration of Judges Koroma and Yusuf.

 [19] LaGrand Case (Germany v. United States of America), [2001] ICJ Rep. 466, 40 ILM 1069, paras 92-109. For commentary, see William J. Aceves, “Case Report: LaGrand (Germany v. United States)” (2002) 96 AJIL 210; Martin Mennecke & Christian J. Tams, “LaGrand Case (Germany v. United States of America)” (2002) 51 ICLQ 449. See also “Symposium: Reflections on the ICJ’s LaGrand Decision” (2002) 27 Yale J. Int’l L. 423.

 [20] Electricity Company of Sofia and Bulgaria (Belgium v. Bulgaria), Order of 5 December 1939, PCIJ (Series A/B) No. 79 at 199, cited with approval in the LaGrand Case at para. 103.

 [21] See Request for the Indication of Provisional Measures Submitted by the Government of the Kingdom of Belgium (undated), online: http://www.icj-cij.org/docket/files/144/15056.pdf.

 [22] Oral observations of Abdulaye Dianko, Counsel for Senegal, CR 2009/09 (6 April 2009) (translation) at 34-36.

 [23] Oral Observations of Sir Michael Wood, Counsel for Belgium, CR 2009/10 (7 April 2009) (original) at 19.

 [24] Ibid. at 19, para. 7.

 [25] Opinion Individuelle de M. Le Juge Ad Hoc Sur at paras 3-4.

 [26] Oral observations of Abdulaye Dianko, Counsel for Senegal, CR 2009/09 (6 April 2009) (translation) at 34-35 and Prof. Alioune Sall, Counsel for Senegal, CR 2009/09 (6 April 2009) (translation) at 41.

 [27] Oral observations of Prof. Alioune Sall, Counsel for Senegal, CR 2009/09 (6 April 2009) (translation) at 41, para. 14 and CR 2009/11 (8 April 2009) (translation) at 13.

 [28] See the oral observations of Cheikh Tidiane Thiam, Agent of Senegal, CR 2009/09 (6 April 2009) (translation) at 3-5 and Demba Kandji, Co-Agent of Senegal, CR 2009/09 (6 April 2009) (translation) at 15-17. An English translation of the relevant judgments of the Senegalese courts can be found in 125 ILR 569 at 571 & 577.

 [29] See “Chad ex-dictator detained in Senegal” afrol News (15 November 2005), online: http://www.afrol.com/articles/17263 and “Chad ex-dictator to stay in Senegal, for now” afrol News (25 November 2005), online: http://www.afrol.com/articles/17417.

 [30] Oral observations of Prof. Alioune Sall, Counsel for Senegal, CR 2009/11 (8 April 2009) (translation) at 13.

 [31] “Habre victims file a complain(t) in Senegal” afrol News (17 September 2008), online: http://www.afrol.com/articles/30832

 [32] Oral observations of Prof. Alioune Sall, Counsel for Senegal, CR 2009/09 (6 April 2009) (translation) at 41, para. 13.

 [33] Dissenting Opinion of Judge Cançado Trindade at 17-19.

 [34] Note that if one relies on the uncorrected translation of the verbatim record for 6 April 2009, it would appear that the President of the Court has renamed the case from one concerning the obligation to “prosecute or extradite” to one concerning the obligation to “extradite or prosecute”: CR 2009/08 (6 April 2009) (translation) at 2 & 4. However, the original French language transcript for these proceedings retains the “prosecute or extradite” phrasing.

 [35] See oral observations of Paul Rietjens, Agent of Belgium and Prof. Eric David, Counsel for Belgium, CR 2009/08 (6 April 2009) (translation) at 8 & 23 respectively.

 [36] Joanna Harrington, “The Obligation to ‘Extradite or Prosecute’ is not an Obligation to ‘Prosecute or Extradite’” (23 February 2009), online: http://www.ejiltalk.org/author/jharrington/

 [37] Oral observations of Prof. Eric David, Counsel for Belgium, CR 2009/08 (6 April 2009) (translation) at 23.

Joanna Harrington is Associate Professor of Law, University of Alberta, Canada. Her Phd obtained from the University of Cambridge dealt with extradition and human rights. From 2006-2008, she was on secondment to the Legal Affairs Bureau of the Canadian Department of Foreign Affairs and International Trade. In that capacity, she, among other things, was a member of the Canadian delegation to the UN General Assembly for meetings of the Sixth (Legal) Committee dealing with the work of the International Law Commission.

Dapo’s post on the case in the ICJ between Belgium and Senegal highlights the real issue in the case, which is this question of whether international law “obliges” prosecution.

One aspect of the ILC’s recent work on “Extradite or prosecute” that has attracted my own interest is the Special Rapporteur’s description of this obligation as a choice, an “either/or” option for States, thus equating “extradite or prosecute” with “prosecute or extradite” (the latter being the “obligation” now invoked by Belgium).

In the very treaties that the Special Rapporteur has cited in his reports, the actual wording of the treaty provisions imposes an obligation to extradite, and IF that does not occur, THEN an obligation arises to submit the case for prosecution. In other words, there is a condition within the treaty-based provision, which the shorthand reference to “extradite or prosecute” does not convey, and which does not mean that we can look to these treaty obligations on “extradite or prosecute” to substantiate a customary obligation to “prosecute or extradite”. We can’t just flip the phrase. This is especially so where the obligation to extradite or prosecute applies to crimes for which one of the state parties to the extradition treaty would not have jurisdiction to prosecute. This happens in extradition treaties between common law and civil law countries, when the latter may invoke the nationality exception to extradition, and in return, is subject to an obligation to submit the case for consideration for national prosecution. The common law country would not be in the same position if it refused to extradite all nationals for all crimes given the territorial nature of much of common law criminal law.

The Special Rapporteur appears to have glossed over the actual wording of the treaty provisions which contain an “extradite or prosecute” provision, and has opted to add the “either” element in his own drafting of a general encapsulation (see draft Article 3 in the recent report). If this is an intended progressive development of the law, rather than mere codification, I would prefer to see an express discussion of this “either/or” aspect.

As for paragraph 124 of the Special Rapporteur’s recent report, to which Dapo refers, I’m still surprised to see an ILC Special Rapporteur continue to cite the work of two student authors, without further citation to secondary sources. (The Special Rapporteur quoted at length from this journal article in his preliminary report at para 41.) I mean no disrespect to the authors, who are now lawyers in private practice, but I would have thought that an ILC member would have marshalled further citations to “the teachings of the most highly qualified publicists” for what appears to be an important aspect of his argument for keeping the customary aspect alive in his work programme. I have similar concerns about the Special Rapporteur’s citations to a report by Amnesty International to support assertions of statements of doctrine. Again, I have great respect for the work of Amnesty International, but it is an advocacy organization, and not the work of a respected author in a peer-reviewed academic press. It is not as if jurisdiction has not been discussed in such works.

Speaking frankly, without the diplomatic niceties of thanking the ILC for its efforts etc during the Sixth Committee debates, I think the ILC’s work on “extradite or prosecute” needs more rigour, including a more careful analysis of what exactly the various treaties containing an “extradite or prosecute” obligation require, whether bilateral (and thus also applicable to ordinary crimes) or multilateral, before a conclusion is made that there is a customary law basis for the proposed obligation.

Given that many extradition treaties identify their first article as the “Obligation to extradite”, the phrase under discussion could be read as “Obligation to extradite” OR “prosecute”, thus indicating that the obligation aspect refers to the extradition obligation for the treaty parties, while “prosecute” is the alternative commitment made by the treaty parties for the policy reason of avoiding impunity when extradition cannot take place (for example, when the nationality exception to extradition is invoked), but the prosecute aspect is not an obligation, taking into account respect for prosecutorial independence. This, of course, does not help Belgium which is asserting the alternative concept of “prosecute or extradite”.