Content, Online Scholarship, Perspectives

The Justice Conundrum: Africa’s Turbulent Relationship with the ICC

February 18, 2019

By Jon Silverman

In Volume 59 of the Harvard International Law Journal, authors Courtney Hillebrecht and Alexandra Huneeus, with Sandra Borda, argue in “The Judicialization of Peace” that the International Criminal Court (“ICC”) and the Inter-American Court of Human Rights, in their positive engagements with Colombia’s long-running internal conflict, have “facilitated and hastened a change in the settled norms around transitional justice.” They posit that this hastening has been achieved through a long series of dialogues between courts—both internal and international—and government, and among non-state actors, such as NGOs, the media and academia. The authors use the term “shadow effect” to describe the engagement of the courts, particularly the ICC, with the peace process in a way which nurtured transition within a framework of legal accountability.

The authors point out that this outcome confounded expectations because, during four years of negotiations, many had predicted that the involvement of the two courts would impede the peace process. The Colombian experiment is certainly instructive, but can it be seen as a blueprint for changing “the settled norms of transitional justice?” As the authors of the article point out, “Colombia has more stable institutions and a stronger domestic judiciary than any other situation before the ICC.” This post will query whether any of the lessons from Colombia are applicable to sub-Saharan Africa, where the ICC has focused all of its prosecutions, and whose states, in the main, suffer from weak institutions and destabilizing ethnic contestation.

I have drawn this post from qualitative research, funded by the British Academy, into the engagement of the ICC with two East African states, Kenya and Uganda, where the court has been seen as anything but a midwife of accountability. My research included some thirty semi-structured interviews with civil society representatives, including judges and advocates, about the ICC and the so-called “impunity gap” in Africa. I supplement this ethnography with more general observations about the performance of the ICC’s Office of the Prosecutor (“OTP”) over a decade and a half.

Sparring with the ICC

A plethora of explanations have been offered for Africa’s growing disaffection with the ICC. Mueller suggests that initial support for the court was strong as long as its investigations centered on non-state actors such as the Lord’s Resistance Army, but when the focus shifted toward ex-heads of state and even serving presidents, self-preservation became the dominant response. This ICC challenge to the principle of immunity from prosecution for leaders and senior officials for genocide, war crimes and crimes against humanity is anathema to the African Union (“AU”) and was condemned by the Assembly of the AU, meeting in Equatorial Guinea in July 2014.

For Evelyne Owiye Osaala, primary responsibility lies with the UN Security Council (“UNSC”) for being “selective in the recognition and waiver of immunities for international crimes in favour of the interests of its permanent members.” This argument is commonly voiced on the African continent by those who believe that U.S. President George W. Bush and U.K. Prime Minister Tony Blair should have been held to account legally for the invasion of Iraq in 2003. For many, the thesis that the UNSC demonstrates partiality was strengthened by the capture of the former Ivory Coast president, Laurent Gbagbo, by French and American troops in 2011 when Paris and Washington demonstrably threw their weight behind Gbagbo’s election opponent, Alessane Outtara.

By contrast, Nel and Sibiya point out that the ICC has opened preliminary investigations in Iraq, Colombia, Afghanistan and Georgia, “thereby dispelling the myth that the ICC only focuses on situations in Africa.”

The Bashir Effect

All of these assessments have merit, but the real issue is whether a subtler approach by the OTP, relying on a “shadow effect” rather than confrontation, might have done more to challenge long-cherished presumptions of the inviolability of presidents on the continent. It is undeniable that the March 2009 issuing of an ICC warrant for the arrest of Sudanese president, Omar al-Bashir, began the process of framing the court as an instrument of Western colonialism, a viewpoint summed up by the Gambia’s then Information Minister, Sheriff Baba Bojang, who reportedly called the ICC “an international Caucasian court for the persecution and humiliation of people of colour, especially Africans.”

The indictment did not deter Bashir from successfully testing the concept of impunity by visiting Nigeria for an African Union summit in 2013 and South Africa in 2015. The visit which provided the impetus for this research study was Bashir’s visit to Uganda in 2016, when he attended the re-inauguration of President Museveni. At the ceremony, the Ugandan leader’s attack on the ICC as “a bunch of useless people”, provoked a walkout by the ambassadors of the US and Canada.

Like South Africa, Uganda had once been a proponent of the ICC and, indeed, was the first country to refer a case—that of the Lord’s Resistance Army leader, Joseph Kony—to the court, after it came into being in 2002. Announcing the referral, Museveni and the ICC Prosecutor, Luis Moreno-Ocampo appeared at a joint press conference in London, which an opposition member of parliament in Uganda criticized as a misstep because it gave the impression that the OTP was doing the bidding of the Ugandan president. As if to assert his independence, Ocampo followed this up with a visit to Kampala at which he declared that he would “interpret the referral as concerning all crimes under the Rome Statute committed in Northern Uganda, leaving open the possibility of investigating alleged atrocities by government forces.”

It is true that Ocampo’s dealings with Colombia also opened up the possibility that the army, as well as the FARC rebels, might come under investigation from the court but crucially, the Colombian government eschewed a strategy of confrontation with the OTP for one of “judicial diplomacy.” This entailed cooperating with all requests for information and for meetings with the OTP during field visits and in 2009, adopting the Rules of Evidence and Procedure of the ICC and ratifying the Agreement on the Privileges and Immunities of the Court.

This deft legal courtship between Colombia’s institutions and the OTP made it unnecessary for one side to be seen as a supplicant and the other as a potential punisher. By contrast, in East Africa, a civil society with far shallower roots used the ICC indictment against Sudan’s Bashir to lock horns with leaderships determined to uphold the immunity of heads of state, with predictable consequences. When Bashir made a return state visit to Uganda in November 2017, the Uganda Victims Foundation could have had little hope of success when filing an application at the International Crimes Division of the High Court for enforcement of the outstanding arrest warrants. The court duly declined to issue a provisional warrant and instead fixed the hearing to a later date, “effectively quashing any attempts to arrest the Sudanese president.”

The Kenyatta/Ruto Prosecution

As the “Judicialization of Peace” makes clear, the OTP could plausibly present the opening of a preliminary investigation in Colombia as a means of facilitating and nurturing the peace process. In Kenya, by contrast, the OTP failed to persuade the then-government to voluntarily refer the post-election violence of 2007 to the ICC and so the prosecutor, for the first time in the court’s history, had to use his proprio motu powers to initiate an investigation. The danger of thus “owning” the intervention—which led to indictments against President Uhuru Kenyatta and his deputy, William Ruto—was that the OTP would be as much on trial as were the defendants.

In 2007, Kenyatta and Ruto were bitter opponents and their tribal communities—Kenyatta’s Kikuyu and Ruto’s Kalenjin—engaged in bloodshed which led to more than one thousand deaths, mainly in the Rift Valley. But, for the 2013 election, while under indictment from the ICC, they formed an alliance which effectively subverted the notion of “victim-centered justice,” so central to the ICC’s mandate. A report by the civil society alliance, Kenyans for Peace with Truth and Justice, put it like this:

In a strange ironical reversal, Mr Kenyatta and Mr Ruto now presented themselves as victims, the hapless targets of an imperialistic plot against Africans. A plot, moreover, that would ultimately undermine democracy in Africa by blocking reconciliation efforts, such as those that the political alliance headed by Uhuru, representing the Kikuyus, and Ruto, representing the Kalenjins was purportedly trying to achieve. In turn, the ICC was cast as the pliant tool of a Western conspiracy against Kenya’s sovereignty.

The Weakness of the Office of the Prosecutor

When the trial began in The Hague, it became apparent early on that the OTP was struggling. The prosecutor, Fatou Bensouda, later complained that over half the witnesses in the case against William Ruto withdrew or retracted their initial testimony, and others were killed or bribed in the Kenyatta case:

The level of interference with those witnesses was such that it started before; it was maintained throughout the cases; and even after. My office was trying to find various ways to protect and preserve the evidence and bring it before the judges This was a huge challenge, including their own protection as well as that of most of their families. We were having to protect witnesses even against their own communities; it became very complicated in the end. Not only were the witnesses pulling away from the case, but there were even attempts at interfering with their family members.

Lawyers interviewed for this research argue that the OTP should have expected this level of non-cooperation, which makes its determination to go ahead with the prosecution all the more surprising (a similar interpretation can be made about the case against Laurent Gbagbo which also collapsed at trial in early 2019). Here again, by exercising its “shadow effect,” the ICC may have a more potent, if less showy, weapon than by prosecuting. After all, faced with an unwillingness to cooperate by a state, the OTP has none of the resources available to a domestic prosecutor, such as subpoenas, surveillance and policing, and cannot visit the scenes where the crimes were perpetrated without the acquiescence of national state authorities.

In the Kenyatta case, requests for information from the Kenyan authorities went unanswered and the Attorney-General refused to hand over phone, land and asset records. But lawyer Gary Summers, who was part of the Kenyatta defense team from August 2011 onwards, believes the OTP can’t escape blame for the failure of the prosecution:

It was amateurish. You can’t just rely on human rights NGOs to find witnesses and interview them. You needed trained investigators on the ground in Kenya to check the sources of some of the allegations. The OTP relied far too heavily on the report of the Waki Commission [the commission set up by the Kenyan government in 2008 to investigate the post-election violence of the previous year] to find witnesses. Indeed, the case against Kenyatta started with a single informant, Witness, no 4. The ICC needs a prosecutor who is ruthlessly focused on the target. This wasn’t the case with either Ocampo or Fatou Bensouda

(Interview with author, October 29, 2016).

Edigah Kavulavu of the International Commission of Jurists, Kenya Section, supported the prosecutions but remains disappointed by the way they turned out:

The general mood here was that we would get justice through the ICC. And that the Kenyan case would be an example to the rest of the world. But the OTP only had a small outreach office in Nairobi, from where witnesses were interviewed. And there was no proper profiling of victims. The OTP based its judgements about witnesses/victims almost entirely on information from civil society NGOs. And when the case finally opened in court, it was obvious that Ocampo was not trial-ready

(Interview with researchers, November 1, 2016).

Searching for any positive legacy of the Kenyatta/Ruto prosecution, it should be noted that it was the catalyst for discussions leading to the setting up of an International Crimes Division in Kenya’s High Court to make good on the promise of complementarity.

Likewise in Uganda, following the 2008 Juba Peace Agreement between the government and the Lord’s Resistance Army, a war crimes division was established in the High Court (later rebranded, when Uganda adopted the International Criminal Court Act, as the International Crimes Division). Nevertheless, the performance of the ICC in Africa has been a poor one, as it continues to grapple with the ongoing geo-political turbulence of internecine and inter-state rivalries.

The Individual or the Community?

This post has sought to examine the fractious relationship between the ICC and Africa through the prism of the “judicialization of peace” achieved in Colombia. It has pointed out the significant differences between a state with relatively stable institutions underpinned by a self-confident civil society and countries where the impunity of leaders may have been challenged but not overturned. But there is another distinction which has to be considered.

The ICC was established to try crimes committed by individuals rather than states, and in prosecuting Uhuru Kenyatta, the ICC addressed his individual criminal liability for crimes committed during the 2007 post-election violence rather than putting the state of Kenya on trial. However, within Kenyan society, Kenyatta’s individuality is intimately bound up with a heritage of Kikuyu patrimonial obligations. Historically in this patron-client arrangement, there is “a shared understanding of the appropriate relationship between leaders and their communities that gave rise to complex moral economies in which rulers were expected to provide for their followers in return for their support.”

In Uganda, Museveni, from the Bahima tribe, is seen as a bulwark against the “troublesome” Acholi of the northern region (from which the Lord’s Resistance Army sprang). In other words, in these East African countries, a criminal prosecution of the patron can be presented as an attack on the clan, raising the possibility of all those dependent on the patron being deprived of material benefits and political influence if he is brought down. In these circumstances, it was all too easy for the embattled Kenyatta to make a case that, as the representative of the largest ethnic group, he embodied the nation, standing resolute against an alien, Western-backed institution, the ICC. With the African Union implacably opposed to the court, the post-Enlightenment notion of individual responsibility and culpability is steadily being reinterpreted on the African continent as a concept of collective condemnation and the ICC made to look like the cuckoo in the nest.

Jon Silverman is Professor of Media and Criminal Justice at the University of Bedfordshire (UK), where his research projects have included media coverage of war crimes trials in Sierra Leone and Liberia and the relationship between the International Criminal Court and Africa. He is about to embark on research into the impact of social media on ethnic relationships in Sierra Leone and Liberia. In 2017, he was an international election observer on behalf of the National Democratic Institute for the second round of the Liberian presidential election.

Content, Perspectives

ECtHR Orders Permanent Ban: Can international courts impose disciplinary measures on legal representatives?

February 13, 2019

By Leyla-Denisa Obreja

On December 12, 2018, the European Court of Human Rights (ECtHR) issued a press release announcing its decision to “permanently” prohibit Ukrainian lawyer, Nataliya Yevgenivna Tselovalnichenko “from representing or otherwise assisting applicants in both pending and future applications.” This unprecedented decision contains questionable legal arguments to justify a permanent ban. The ECtHR has not made public any information regarding the Court’s reasoning, nor the deliberative process, which led to this disciplinary sanction. As such, we do not know the facts of the case that led to the ban. Although the ECtHR may have banned representatives in singular proceedings before, this decision was unexpected. Is the Court acting within its competence when it applies lifelong disciplinary sanctions? This post will analyze the legality of this action in two respects. First, it will examine this action in the specific context of the ECtHR’s legal regime. Second, it will consider the decision of an international court to ban a legal representative in the general context of existing international rules and practices.

What we know about the ban

The ECtHR claims to have reached this decision out of “concern not to prejudice applicants” and in light of the “fraudulent and abusive behaviour” of Ms. Tselovalnichenko. Specifically, the Ukrainian lawyer has allegedly “submitted documents which had obvious signs of forgery, while in several [other cases] she had lodged applications on behalf of deceased applicants without informing the Court of their deaths.” These are the only facts the ECtHR mentions with respect to the alleged misconduct of the Ukrainian lawyer. Press reports indicate that Tselovalnichenko is a human rights activist and, as of 2016, Chairwoman of the NGO “Luhansk Human Rights Initiative.” These reports suggest that she is known by experts in the field for trying to “flood” the European Court with applications related to the Donbas hostilities. In the aftermath of Euromaidan and the 2014 Ukrainian revolution, Donbas has seen escalating conflicts between the Ukrainian government and separatist, pro-Russian forces.

The procedural rule acting in support of this ban is Rule 36(4b) of the Rules of the European Court. It states that “[i]n exceptional circumstances and at any stage of the procedure, the President of the Chamber may, where he or she considers that the circumstances or the conduct of the advocate or other person appointed under the preceding sub-paragraph so warrant, direct that the latter may no longer represent or assist the applicant and that the applicant should seek alternative representation.”

The ban in the context of ECtHR rules

Rule 36(4b) contains three requirements that must be met in order for a ban to be imposed on a legal representative: exceptionality, authority, and procedure. Each of these elements will be examined in turn.

Exceptionality: It is unclear what constitutes “exceptional circumstances” under the Rules of the Court. If the “exceptional” nature of the conduct was based on the allegation of forgery, it then begs the question as to whether the Court is invested with the capacity and authority to declare that the document is forged in the first place. It is also unclear whether the Court conducted an investigation in cooperation with the Ukrainian authorities and how the Court came to conclude that these documents were forged. Despite the fact that European laws vary in how they conceptualize and sanction forgery and other types of fraud, it appears that in most States, this conduct would be subject to an investigation and sanction. The ECtHR is not authorized to investigate, nor to institute, criminal proceedings against individuals. Nevertheless, under Rule 36, it can impose a ban on the applicant’s counsel, with or without prior or subsequent criminal proceedings in Member States.

Authority: Under Rule 36, the President of the Chamber orders the ban. According to Rule 1, “the term Chamber means any Chamber of seven judges […] and the expression President of the Chamber means the judge presiding over such a Chamber.” The press release does not identify the Judge who ordered the ban, nor does it provide any details about the Chamber in question.

Procedure: Once banned, Rule 36 states that the legal representative may not continue to assist or represent the applicant. Further, the ban can be declared at any point in the proceedings. This rule, combined with the fact that it is the President of the Chamber who orders the ban, suggests that the ban can only be imposed within a specific and singular procedure. The use of the word “applicant” further implies that the ban extends to the representation of an applicant in a singular proceeding. Neither Rule 36, nor any other rule of the Court, mentions the possibility of a permanent ban. In exercising such a measure, the Rules of the Court do not indicate how the representative in question can appeal a ban. Since a permanent ban is not provided for in the Rules of the Court, following the principle of legality, the decision of the Court is likely ultra vires, or not sufficiently justified by the existing Rules of the Court.

However, several other Rules of the Court could act in support of this decision. These are Rules 44B and 44D. Rule 44B suggests that the “President of the Chamber may take any [appropriate] steps” if the parties fail to abide by the orders of the Court. Rule 44D underlines that in the case of “abusive, frivolous, vexatious, misleading or prolix submissions,” the President of the Chamber can ban a representative from the proceedings, “refuse to accept all or part of the submissions or make any other order which he or she considers it appropriate to make.” A broad interpretation of Rule 44D could indeed justify the ban, as the President of the Chamber maintains the authority to “make any order he or she consider[ed] appropriate.” Admittedly, these actions are permissible during a singular proceeding. Yet they do not extend further, affecting future acts of representation before the Court.

The ban in the context of human rights law

What makes this ban surprising is the fact that it was declared by a human rights body. It is imperative to briefly examine whether this ban has indeed followed the very spirit of the norms the Court is called to defend and enforce. A similar ban by any international judicial or quasi-judicial body would be worth examining, but the operative area of the ECtHR, specifically the defense of human rights, makes this paradox particularly worthy of our attention. This ban implicates the right to reputation, the freedom to exercise a profession, and the right to an effective remedy.

It is easy to see how the right to reputation, which falls under Article 8 of the European Convention of Human Rights (and Article 12 of the UDHR), might have been jeopardized by the ECtHR’s press release. It is common for the right to reputation to clash with the freedom of expression. The proper balance between these competing rights is often hard to maintain, a problem that the Court has had to address in several cases. Previously, the Court has drawn the line at the commission of a criminal offense: “Article 8 cannot be relied on in order to complain of a loss of reputation that is the foreseeable consequence of one’s own actions such as, for example, the commission of a criminal offence.” By claiming that the Ukrainian lawyer was “fraudulent, abusive” and forged documents without instituting criminal proceedings or otherwise cooperating with the Ukrainian authorities to uncover the authenticity of these documents, the ECtHR might have overstepped its bounds. Moreover, it appears that the involvement of the Ukrainian government came only after the Court reached its decision. Nevertheless, because many of the facts surrounding this ban are still unknown, it may be premature to claim that the ECtHR has violated Mrs. Tselovalnichenko’s rights. Many elements must be met for a violation of the right to reputation to exist, among which are the seriousness of the attack on the person’s reputation and a “prejudice to personal enjoyment of the right to respect for private life.”

It is also necessary to consider the freedom to exercise a profession and to seek a remedy. In 2000, the Council of Europe adopted a series of recommendations for Member States that seek to guarantee the freedom of exercise of the profession of lawyer. Principle VI dictates that disciplinary proceedings must give lawyers the opportunity to participate in the proceedings and apply for judicial review. Further, Principle I stipulates that decisions to practice as a lawyer “should be subject to a review by an independent and impartial judicial authority.” In support of these principles, the Council of Europe recalls various instruments, including the European Convention on Human Rights and UN Basic Principles on the Role of Lawyers. It is unclear whether the Ukrainian lawyer has had the opportunity to participate in these proceedings and justify her actions and the legality of the documents she submitted. From the press release, it is apparent that these safeguards were not respected.

How other international courts impose disciplinary bans

Appearing before an international court requires a certain level of decorum, preparation, and professionalism. The stakes are high and the risk of misconduct can arise. In anticipation of these risks, other international courts have adopted rules and procedures to clarify the disciplinary measures that can be taken against legal representatives.

In the case of the International Court of Justice (ICJ), procedural rules do not regulate exclusions or bans for legal counsel and advocates. Despite this fact, Chen argues that the ICJ has permissive rules of admissibility of evidence. The author suggests that the ICJ might not have excluded evidence obtained illegally in certain cases, including the Corfu Channel Case. Examining the ICJ’s practices with respect to forged, privileged, and confidential evidence, Chen argues the Court should promulgate a set of rules to regulate its exclusionary discretion. The ECtHR exercises a similar amount of discretion in the imposition of bans. In fact, the ECtHR has developed a fair trial doctrine that states “a trial is not necessarily corroded by the use of illegally obtained evidence.” Given the ECtHR’s discretion to exclude evidence, it is necessary to ask whether the exclusion of evidence, rather than the exclusion of a representative, would have been more suitable in the case of the Ukrainian lawyer. Comparative legal practices suggest that illegally obtained evidence might be declared admissible under exceptional circumstances. It remains unclear why the ECtHR opted for a ban instead of declaring the alleged forged evidence inadmissible and allowing the representative to continue the proceedings.

The International Criminal Court (ICC) has a Code of Professional Conduct for Counsel. Chapter IV regulates disciplinary measures and establishes the forms of misconduct, the counsel’s liability, the procedure to file a complaint of misconduct, the limitation period, and the authority of the Disciplinary Board to take action. Counsel has a right to participate in the proceedings and submit a response. There, certain standards of equitability are in place and the disciplinary regime is more coherent and organized.

The Inter-American Court of Human Rights does not have regulations regarding the possibility of applying disciplinary measures, but it does refer to incomplete or illegible evidence in Article 59 of its Rules of Procedure. Article 59 permits the Court to allocate supplementary time to the parties to “correct [the] defects or to submit relevant clarifications” related to the evidence brought before the Court. A failure to comply with this rule could lead to the Court dismissing the evidence in question.

The rules of the Court of Justice of the European Union (CJEU) provide for the possibility of exclusion of a representative. Article 46 of the Rules of Procedure of the Court of Justice state that “the Court may at any time, having heard the person concerned and the Advocate General, decide to exclude an agent, adviser or lawyer from the proceedings by reasoned order. That order shall have immediate effect.” These rules also incorporate the necessity of a hearing before proceeding with a declaration of exclusion. The International Bar Association has drafted a Guide for Establishing and Maintaining Complaints and Discipline Procedures (2007), that underlines the importance of giving a lawyer “reasonable opportunity and time to respond to the complaint” in disciplinary procedures.

Not all international courts and quasi-judicial bodies have rules in place for declaring bans and exclusions. Yet when they exist, they usually incorporate a review system and some type of procedural safeguards.

Discussion

Given the massive caseload of the ECtHR and the enhanced risk of misconduct by the applicant’s counsel, the Court should codify rules on the procedures and safeguards of temporary or permanent bans and other disciplinary measures. There have not been many public cases involving bans at the ECtHR, which has denied experts the opportunity to scrutinize the Court’s lack of safeguards and guarantees for legal representatives in the Court’s procedures. One author notes, however, a pressing need for international courts to adopt common ethical standards for lawyers in light of “issues of dishonesty and documentary evidence” in the practice of the CJEU and the ECtHR.

However, the case of Tselovalnichenko’s ban raises several questions as to the limits of an international court’s authority and the relationship between the court’s actions and the competence and jurisdiction of a State party. First, can an international court permanently prohibit a legal representative from appearing before a court without a prior investigation in cooperation with the relevant Member State? Second, how can and should an international court signal to a State party that it suspects forgery has taken place while maintaining the court’s impartiality? Laws and regulations that guarantee the independence and freedom of counsel in an international context must be put in place to guarantee that State actors do not try to exercise pressure over lawyers when their interests are implicated in a dispute.

Lastly, how can international courts sanction legal representatives if the ability and competence to practice law stems, not from the mandates of international courts themselves, but from the national bar associations and government institutions that regulate the legal profession. It follows, therefore, that future reforms might be needed to clarify the rules and conditions that legal representatives must satisfy to carry out their activities before these courts. In Europe, many have called for the adoption of a European Convention to Protect Lawyers, underlining increased risks in Eastern Europe. Future rules should regulate the disciplinary procedures under which lawyers are suspended or banned at a domestic and national level, and how the consequences of these bans inform each other and limit the representative powers of lawyers.

Leyla-Denisa Obreja is a human rights scholar and lawyer. She recently completed a PhD program at Bond University (Australia) on the topic of States’ due diligence obligations to prevent intimate partner violence.

Content, Online Scholarship, Perspectives

Does the United Nations Convention Against Torture Oblige States Parties to Criminalize Torture in their Domestic Laws?

January 10, 2019

By Ezéchiel Amani Cirimwami

In their recent paper, “Torture by Private Actors and ‘Gold-Plating’ the Offence in National Law: An Exchange of Emails in Honour of William Schabas,” Professors Paola Gaeta and Andrew Clapham discussed whether States Parties to the United Nations Convention Against Torture (UNCAT) are obliged to make torture a separate criminal offense under domestic law. This question has been met with different answers over time. While some scholars believe the UNCAT itself does not specifically say there must be a distinct offense or definition named “torture” in domestic law, the UN Committee Against Torture (CAT) has consistently stated, including in a General Comment, that the introduction of a separate offense of torture in national law is preferred. The main opposing arguments to this interpretation of the UNCAT may be found here, here and here.

The debate concerning the criminalization of torture in domestic law centers on Article 4 of the UNCAT, which imposes on states parties an obligation to “ensure that all acts of torture are offences under [national]…criminal law.” The same obligation also applies “to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.” Moreover, each state party is required to make these offenses punishable by “appropriate penalties” that reflect “their grave nature.”

The CAT has stressed the importance of fulfilling this obligation so as to avoid possible discrepancies between the crime as defined in the Convention and the crime as addressed in national law:

Serious discrepancies between the Convention’s definition and that incorporated into domestic law create actual or potential loopholes for impunity. In some cases, although similar language may be used, its meaning may be qualified by domestic law or by judicial interpretation and thus the Committee calls upon each State party to ensure that all parts of its Government adhere to the definition set forth in the Convention for the purpose of defining the obligations of the State

See Official Records of the General Assembly, Fifty-eighth Session, Supplement No. 44 (A/58/44), chap. III, consideration of reports submitted by States parties under article 19 of the Convention, Slovenia, para. 115 (a), and Belgium, para. 130.

Professor Gaeta, however, appears to disagree in part with the above interpretation, stating: “[S]tates parties, although they are obliged to make acts of torture ‘punishable’, are not also obliged to criminalise in their domestic laws acts amounting to torture as a separate offence under the UN Convention Against Torture.” Phrased differently, Professor Gaeta believes UNCAT does not require state parties to criminalize torture, since states can use other domestic criminal laws to impose punishment for torture. Hence, she concludes that “[i]t is therefore not surprising that some states parties to the UN Convention Against Torture have not (yet) introduced in their legal order a specific crime of torture, arguing that acts amounting to torture are already punishable using charges under other domestic laws.”

Professor Clapham, by contrast, observes that “the special place that torture has in the human rights catalogue (or ‘Decalogue’) suggests that the label of torturer should attach to someone convicted of this offence. Labelling something a human rights crime could have knock-on effects.”

State practice in this regard is inconsistent. Without specifically naming torture, some states, such as Canada, Panama, Ethiopia, and the Netherlands, have introduced legislation on international crimes in which torture is specifically provided for as a war crime and as a crime against humanity. While these states may maintain the obligation in Article 4(1) of UNCAT does not include a specific, separate offense in national criminal law, several other states, most notably Belgium, Colombia, Qatar, Australia, and the Democratic Republic of the Congo (DRC), have provided for a specific offense of torture, distinct from all other offenses, in their domestic laws. The DRC, for example, adopted Law No. 11/008 of 9 July 2011 on the Criminalization of Torture, which introduced an “autonomous offense” of torture in its penal code. Furthermore, in the law’s Preamble, the DRC clearly explains its view of the scope of the Article 4 of the UNCAT, stating that under the UNCAT, it was obliged to criminalize the crime of torture as a specific criminal offense.

I agree with the position of the DRC. There are two reasons why their position reflects the current state of international law. First, by situating Article 4 within the UNCAT’s broader framework, it becomes clear that this provision binds state parties to criminalize in their domestic law the crime of torture. Second, compelling insights have emerged from the Draft Articles on the Prevention and Punishment of Crimes Against Humanity, which the International Law Commission (ILC) adopted on first reading. As it will be demonstrated, from the ILC’s perspective, the obligation set forth by the UNCAT is to criminalize torture as a separate offense in domestic law.

Clarifying the scope of Article 4(1): Views from the ICJ and the ILC

ICJ

Reading Article 4 in isolation from the other provisions of UNCAT cannot properly capture its full meaning. In accordance with Article 31(2) of the 1969 Vienna Convention on the Law of Treaties, to clarify the scope of obligations arising from Article 4 of UNCAT, one must read this provision in its context, which includes, inter alia, the text of the UNCAT as a whole. First, the reader must identify which provisions of the UNCAT should be read together to form a single source of meaning. In this regard, the ICJ has already laid the groundwork for Article 4. When determining the scope of obligations arising from Article 7(1) of UNCAT, the ICJ found:

The obligation to prosecute…is normally implemented in the context of the Convention against Torture after the State has performed the other obligations provided for in the preceding articles, which require it to adopt adequate legislation to enable it to criminalize torture, give its courts universal jurisdiction in the matter and make an inquiry into the facts. These obligations, taken as a whole, may be regarded as elements of a single conventional mechanism aimed at preventing suspects from escaping the consequences of their criminal responsibility, if proven.

Questions relating to the obligation to prosecute or extradite (Belgium v. Senegal) ¶ 91 (emphasis added).

According to the ICJ, to fulfill the Article 7 obligation to extradite or prosecute, states parties must adopt the necessary national measures to criminalize torture (Article 4) and to establish jurisdiction (Article 5). These are the “basic elements” or “logical prior steps” that lead to the implementation of the aut dedere aut judicare principle with respect to torture. This Latin legal maxim imposes a legal obligation on the states to extradite or prosecute a person found in its territory if the person is suspected of certain crimes. Accordingly, the state having the custody of a suspect has to either extradite the person to another state having jurisdiction over the case or to instigate its own judicial proceedings. The object of the principle is to avoid crimes being left unpunished because there is no extradition or prosecution. Thus, if an alleged offender of foreign nationality comes into a state’s territory and is not extradited to another state, the state must be able to exercise criminal jurisdiction to prosecute the acts of torture that he or she allegedly committed, regardless of where the alleged acts took place or against whom they were perpetrated. When it comes to this obligation, states parties that do not criminalize torture are confronted with two issues. First, there is the problem of classification: states parties cannot establish universal jurisdiction unless they can point to a statutory offense in their domestic law that encompasses the crime of torture. Second, it is unclear which statutory authority may be used to initiate the prosecution of persons who have perpetrated torture elsewhere. This is an important issue, since the obligation to prosecute or extradite is not applicable to all serious offenses—only grave breaches of the four 1949 Geneva Conventions and the 1977 Additional Protocol I. It is also inapplicable to charges under national law like simple assault offenses, abusive treatment or breach of military discipline. Thus, Gaeta’s reading of Article 4 of UNCAT, which asserts that states are not legally obliged to criminalize torture because criminalization can be done by using “other charges” under domestic laws, cannot be supported. As the ICJ acknowledges, the obligation to prosecute or extradite provided for in Article 7 of UNCAT is only applicable to torture. Hence, it is not applicable to these “other charges.” One could say that the obligation to prosecute or extradite is applicable to charge of war crimes if a state chooses to criminalize torture under the latter charge. However, this reading is not without its problems. War crimes that oblige prosecution or extradition are grave breaches, and the grave breaches provisions apply only to international armed conflicts. The other major limitation is that on its face, those grave breaches provisions apply only to “protected persons” under each Geneva Convention and, therefore, do not apply all the time, everywhere, nor necessarily to everyone. Finally, the criminalization of torture under war crimes charges tends to reduce the scope of Article 4 to the context of armed conflict, which is a major element of war crimes. This is a problem because torture is a crime under UNCAT regardless of whether it is committed during an armed conflict or not.

ILC

In 2017, the ILC adopted, on first reading, the Draft Articles on the Prevention and Punishment of Crimes Against Humanity as well as the accompanying Commentaries. The ILC had been engaged in the consideration of this topic since 2014, with Mr. Sean D. Murphy as the Special Rapporteur. In addition to Draft Article 6(1) being written in the same manner as Article 4(1) of UNCAT, the ILC’s Commentary on the Draft Articles notes that:

Draft article 6 sets forth various measures that each State must take under its criminal law to ensure that crimes against humanity constitute offences, to preclude certain defences or any statute of limitation, and to provide for appropriate penalties commensurate with the grave nature of such crimes. Measures of this kind are essential for the proper functioning of the subsequent draft articles relating to the establishment and exercise of jurisdiction over alleged offenders.

ILC Commentary on the Draft Articles p. 61, ¶ 1 (emphasis added).

The ILC also observed that if there are discrepancies between the definitions provided for in the future Crimes Against Humanity Convention, and those incorporated in domestic laws, loopholes could be created that could lead to impunity. Therefore, in an effort to avoid such loopholes with respect to crimes against humanity, “draft article 6, paragraph 1, provides that each State shall take the necessary measures to ensure that crimes against humanity, as such, constitute offences under its criminal law.” (Emphasis added.)

Hence, reading Article 4(1) of the UNCAT in light of Draft Article 6(1) on Crimes Against Humanity helps to assert that, from the ILC’s perspective, the obligation set forth by the UNCAT is to criminalize torture as a separate offense in domestic law.

Concluding Remarks

This post analyzed whether the UNCAT obliges states parties to criminalize torture in domestic law. With respect to the scope of the obligation arising from Article 4 of the UNCAT, I disagree with Professor Gaeta. Not only does the UNCAT establish a clear obligation upon states parties to ensure that all acts of torture are offences under their criminal law, this author also contends that Article 4 of the UNCAT obliges states parties to criminalize, in their domestic law, the crime of torture as such.

Ezéchiel Amani Cirimwami is currently completing a joint PhD at the Vrije Universiteit Brussel and the Université Catholique de Louvain on the procedural obligation to extradite or prosecute for core international crimes and the role human rights law plays when considering this obligation. Beginning in March 2019 he will be a visiting researcher at the Max Planck Institute for International, European and Regulatory Procedural Law as part of their Guest Program. In addition, Ezéchiel Amani is a sitting judge in the Democratic Republic of the Congo after having served as a deputy public prosecutor for a number of years.