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Updates on the Activity of the International Court of Justice (January-February 2009)

Elections at the ICJ.

On 6 February 2009 Judge Hisashi Owada (Japan) was elected President of the International Court of Justice (ICJ) by his peers and Judge Peter Tomka (Slovakia) was elected Vice-President, each for a term of three years.

Elections were also held for the Chamber of Summary Procedure and of the Budgetary and Administrative Committee of the Court. Article 29 of the Court’s Statute provides that, with a view to the speedy dispatch of business, the Court shall form annually a Chamber composed of five judges which, at the request of the parties, may hear and determine cases by summary procedure. The Court also selected two judges for this Chamber for the purpose of replacing judges who find it impossible to sit.  Members of the Chamber of Summary Procedure are: President Hisashi Owada (ex officio), Vice-President Peter Tomka (ex officio), Judges Abdul G. Koroma, Thomas Buergenthal, Bruno Simma. Substitute members are: Judges Bernardo Sepúlveda-Amor, Leonid Skotnikov.

ICJ Revises Practice Directions III and VI and Adopts New Practice Direction XIII.

As part of the ongoing review of its procedures and working methods, on 30 January 2009 the ICJ revised Practice Directions III and VI and adopted new Practice Direction XIII.

Practice Direction III, as amended, requires the parties not only to “append to their pleadings only strictly selected documents” but also urges them “to keep written pleadings as concise as possible, in a manner compatible with the full presentation of their positions”. In Practice Direction VI the Court reiterates the need to keep oral pleadings as brief as possible, in compliance with Article 60, paragraph 1, of the Rules of Court and more specifically requests parties to focus, in the first round of oral proceedings, “on those points which have been raised by one party at the stage of written proceedings but which have not so far been adequately addressed by the other, as well as on those which each party wishes to emphasize by way of winding up its arguments”. New Practice Direction XIII gives guidance to the parties as to how their views with regard to questions of procedure can be ascertained, under Article 31 of the Rules.

Summary of Legal Proceedings.

The International Court of Justice started this year with two judgments and a number of decisions, from which the Request for Interpretation of the Avena Case and the start of the proceedings by Belgium against Senegal regarding the latter’s failure to prosecute the former President of Chad, Hissène Habré, will be commented in more detail below. It is also worthy to note here the start of proceedings by Germany against Italy in late 2008 (Case Concerning Jurisdictional Immunities). Another case pending now in the docket of the Court is that started on 20 January 2009 by FYROM against Greece, namely Application of the Interim Accord of 13 September 1995 .

On 3 February 2009 the Court also delivered its judgment in the case concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine) whereby the Court established the single maritime boundary delimiting the continental shelf and exclusive economic zones of Romania and Ukraine.

1)         Request for Interpretation of the Avena Case (Mexico v. USA, Judgment of 19 January 2009)

On 19 January the ICJ issued its judgment in the case Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America). This case was brought by Mexico in response to the then pending Medellin execution in Texas after the US Supreme Court dismissed his right to have his case reviewed, as ordered by the original ICJ Avena Judgment of 31 March 2004.

The Court found that the matters raised by Mexico could not give rise to an interpretation of the Judgment and that the United States of America breached the Order indicating provisional measures of 16 July 2008 in the case of Mr. José Ernesto Medellín Rojas, who was executed on 5 August 2008.

The Court reaffirmed the continuing binding character of the obligations of the United States of America under paragraph 153 (9) of the Avena Judgment and took note of the undertakings given by the United States of America during the legal proceedings.

The Court found that the appropriate reparation in this case consisted in the obligation of the United States of America to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals referred to in subparagraphs (4), (5), (6) and (7) above, by taking account both of the violation of the rights set forth in Article 36 of the [Vienna] Convention [on Consular Relations] and of paragraphs 138 to 141 of [the present] Judgment.

Judges Koroma and Abraham appended declarations to the Judgment of the Court; Judge Sepúlveda-Amor appended a dissenting opinion to the Judgment of the Court.

The dissenting opinion of Judge Judge Bernardo Sepulvedor-Amor of Mexico is of particular interest in that he criticizes the Court for not settling the issue of how and why the USA should enforce the judgment of the ICJ and for failing to clarify issues of reception of international law in domestic systems and principles of State responsibility.

2)         Case Regarding the Prosecution of Hissène Habré (Belgium v. Senegal, Application of 19 February 2009)

On 19 February Belgium instituted proceedings before the ICJ against Senegal, on the grounds that a dispute exists “between the Kingdom of Belgium and the Republic of Senegal regarding Senegal’s compliance with its obligation to prosecute” the former President of Chad, Hissène Habré, “or to extradite him to Belgium for the purposes of criminal proceedings”. It also submitted a request for the indication of provisional measures in order to protect its rights pending the Court’s Judgment on the merits.

In its Application, Belgium maintained that Senegal, where Mr. Habré has been living in exile since 1990, has taken no action on its repeated requests to see the former Chadian President prosecuted in Senegal, failing his extradition to Belgium, for acts including crimes of torture and crimes against humanity.

Belgium contended that under conventional international law, “Senegal’s failure to prosecute Mr. H. Habré, if he is not extradited to Belgium to answer for the acts of torture that are alleged against him, violates the [United Nations] Convention against Torture [of 10 December 1984], in particular Article 5, paragraph 2, Article 7, paragraph 1, Article 8, paragraph 2, and Article 9, paragraph 1”. It added that, under international custom, “Senegal’s failure to prosecute Mr. H. Habré, or to extradite him to Belgium to answer for the crimes against humanity which are alleged against him, violated the general obligation to punish crimes against international humanitarian law which is to be found in numerous texts of derived law (institutional acts of international organizations) and treaty law”.

To found the Court’s jurisdiction, Belgium first invoked the unilateral declarations recognizing the compulsory jurisdiction of the Court made by the Parties pursuant to Article 36, paragraph 2, of the Statute of the Court on 17 June 1958 (Belgium) and 2 December 1985 (Senegal).  Moreover, Belgium indicated that “both States have been parties to the United Nations Convention against Torture of 10 December 1984” since 21 August 1986 (Senegal) and 25 June 1999 (Belgium). Article 30 of the Convention provides that any dispute between two States parties concerning its interpretation or application which it has not been possible to settle through negotiation or arbitration may be submitted to the ICJ by one of the States. Belgium contended that negotiations between the two States “have continued unsuccessfully since 2005” and that it reached the conclusion that they had failed on 20 June 2006. Belgium stated, moreover, that it suggested recourse to arbitration to Senegal on 20 June 2006 and notes that the latter “failed to respond to that request . . . whereas Belgium has persistently confirmed in Notes Verbales that a dispute on this subject continues to exist”.

At the end of its Application, Belgium requests the Court to adjudge and declare that,

“the Court has jurisdiction to entertain the dispute [between Belgium and Senegal] regarding Senegal’s compliance with its obligation to prosecute Mr. H. Habré or to extradite him to Belgium for the purposes of criminal proceedings;

Belgium’s Application is admissible;

the Republic of Senegal is obliged to bring criminal proceedings against Mr. H. Habré for acts including crimes of torture and crimes against humanity which are alleged against him as author, co-author or accomplice;

failing the prosecution of Mr. H. Habré, the Republic of Senegal is obliged to extradite him to the Kingdom of Belgium so that he can answer for his crimes before the Belgian courts”.

As mentioned above, Belgium also submitted a request for the indication of provisional measures. It requested the Court “to indicate, pending a final judgment on the merits”, provisional measures requiring the Respondent to take “all the steps within its power to keep Mr. H. Habré under the control and surveillance of the judicial authorities of Senegal so that the rules of international law with which Belgium requests compliance may be correctly applied”.

 

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