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ICJ delivers judgment in Case Concerning Mutual Assistance in Criminal Matters

The International Court of Justice (ICJ) delivered its judgment in the Case Concerning Mutual Assistance in Criminal Matters on 4 June 2008.
This case is one of the few to have been decided by the Court on the basis of forum prorogatum whereby the jurisdiction of the Court is founded on the conduct of the respondent state in relation to a unilateral application by another state. In this case, Djibouti made an application to the Court on 9 January 2006 in respect of a dispute concerning the refusal of the French authorities to transfer documents relating to a criminal investigation and related incidents. France sent a letter to the Registrar of the Court on 25 July 2006 consenting to the Court’s jurisdiction to decide the dispute which formed the subject matter of the application made by Djibouti. When it came to the ICJ, however, the two parties disagreed over the precise scope of the dispute. The ICJ held that it had jurisdiction over all claims and arguments made in the application as a whole, not just those contained in the section with the title “subject of the application”. Therefore, the Court had jurisdiction over disputes over the transfer of documents to Djibouti and the issuing of summonses to the President of Djibouti and other state officials. However, the Court held that claims relating to the issuing of arrest warrants against two senior Djiboutian officials fell outside of its jurisdiction, as they were not included in the application.
On the merits of the dispute, the ICJ found that France had violated Article 17 of the 1986 Convention on Mutual Assistance in Criminal Matters in force between the two states by failing to notify Djibouti of the reasons for not executing the request for information concerning a criminal investigation being carried out by French authorities. However, France had not violated Article 1 of the Convention which requires the parties to afford to each other the widest measure of mutual assistance in criminal matters, because it was entitled to rely on the exceptions found in Article 2 of the Convention. In this case, the relevant exception referred to the need for a state to prevent prejudice to “its sovereignty, its security, its ordre public or other of its essential interests.” Yet, the Court also noted that it was not sufficient for the purposes of Article 17 to simply refer to an exception in Article 2 as a reason for not executing a request: “Some brief further explanation was called for. This is not a matter of courtesy. It also allows the requested State to substantiate its good faith in refusing the request. It may also enable the requesting state to see if its [request] could be modified so as to avoid the obstacles to implementation enumerated in Article 2.” In other words, the exceptions could not be invoked to simply allow a state to avoid its substantive obligations under the Convention. The duty to offer reasons was an important safeguard on the proper application of the Convention. In the circumstances of the case, the ICJ felt that it was not necessary to order the reasons for refusal to be formally published as they had already passed into the public domain since the dispute was first raised.
Claims relating to attacks on the immunity and inviolability of the Djiboutian President were also dismissed by the ICJ on the basis that the witness summons issued by the French authorities were simply invitations and they entailed no obligation on the President to attend.
Several separate opinions and declarations were appended to the judgment, although no judges dissented.
This is the second substantive judgment on the merits of a case to be delivered by the Court in the past month. The Court currently has a packed docket, with twelve cases formally pending. The Court is currently deliberating the preliminary objections submitted in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide between Croatia and Serbia which was heard in May 2008.  A date for the judgment in that matter has yet to be announced.

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