By Daniel Rietiker^*

Introduction

On March 15, 2018, in the case of Naït-Liman v. Switzerland, the European Court of Human Rights (“ECtHR”) held that there had been no violation of the right to access a court within the meaning of Article 6, § 1 of the European Convention on Human Rights (“ECHR”). The case concerned the refusal by the Swiss courts to examine the applicant’s civil claim for compensation for the non-pecuniary damage arising from acts of torture allegedly inflicted on him in Tunisia in 1992.
I offer a critical discussion of this important case with an attempt to define the limits in the global fight against torture. In Part I, I present the facts of the case, as well as the reasoning and the main conclusions of the Court; in Part II, I critically assess the judgment from three different angles. In the final Part, I add several personal conclusions.

I. The ECtHR Decision

The applicant, Abdennacer Naït-Liman, born in 1962, is a Tunisian national who has acquired Swiss nationality during the proceedings before the Swiss tribunals.

He was arrested in April 1992 by the police in Italy and taken to the Tunisian consulate in Genoa. He was then taken to Tunis by Tunisian authorities. He alleges that, from April 25, 1992 to June 1, 1992, he was detained and tortured in Tunis in the premises of the Ministry of the Interior on the orders of A.K., the then-Minister of the Interior. In 1993, he fled Tunisia for Switzerland, where he was granted asylum in 1995.

On July 8, 2004, the applicant lodged a claim for damages with the courts of the Canton of Geneva against Tunisia and against A.K. This claim was not successful and rejected by all courts, in last instance by the Federal Supreme Court, which dismissed it on May 22, 2007. The latter court held that it lacked territorial jurisdiction and that the Swiss courts did not have jurisdiction under the “forum of necessity” in the case at hand, owing to the lack of a sufficient link between, on the one hand, the case and the facts, and, on the other, Switzerland. A forum of necessity is a subsidiary forum, enshrined in Article 3 of the Federal Law on Private International Law, which reads as follows:

Where the Act does not provide for any forum in Switzerland and proceedings abroad prove impossible or it cannot reasonably be required that they be brought, the Swiss judicial or administrative authorities of the locality with which the case has a sufficient connection shall have jurisdiction.

On November 20, 2007, the applicant lodged an application with the Court, whose second section delivered a Chamber judgment on June 21, 2016, holding, by four votes to three, that there had been no violation of Article 6 of the ECHR. On November 28, 2016, a panel of five judges accepted a request to refer the case to the Grand Chamber.

Regarding the merits of the case, the Court applied the traditional test, namely whether the limitation of the access to a court pursued a legitimate aim and was proportionate. It identified several legitimate aims pursued by the restriction on the right of access to a court, which were all related to the proper administration of justice, particularly in terms of the problems in gathering and assessing the evidence, the difficulties linked to execution of a judgment, the State’s wish to discourage forum-shopping, the risk of attracting similar complaints, which could create an excessive workload for the domestic courts, as well as the risk of potential diplomatic difficulties entailed by civil jurisdiction in such circumstances.

With regard to the proportionality of the restriction on the right to access to a court, the Grand Chamber identified two concepts of international law that were relevant for the present case: universal jurisdiction and the forum of necessity.

With regard to a possible international custom in the field of universal jurisdiction, although the States’ practice was evolving, the prevalence of universal civil jurisdiction was not yet sufficient to indicate the emergence, far less the consolidation, of an international custom which would have obliged the Swiss courts to find that they had jurisdiction to examine the applicant’s action. As it currently stood, international treaty law, in particular Article 14 of the UN Convention Against Torture also failed to recognize universal civil jurisdiction for acts of torture, obliging the States to make available civil remedies in respect of acts of torture perpetrated outside the State territory by the officials of a foreign State.

The Court concluded that international law had not obliged the Swiss authorities to open their courts to Mr Naït-Liman on the basis of universal civil jurisdiction for acts of torture.

The Court had then to determine whether international law had imposed an obligation on the Swiss authorities to make a forum of necessity available to the applicant. As the forum of necessity was not generally accepted by the States, it could not be concluded that there existed an international custom rule enshrining the concept of forum of necessity. The Court further noted that there was also no international treaty obligation obliging the States to provide for a forum of necessity.

It followed that international law did not impose on the Swiss authorities the obligation to open their courts with a view to ruling on the merits of the applicant’s compensation claim. Therefore, Switzerland enjoyed a wide margin of appreciation in this area. In other words, its freedom to decide whether or not it considered appropriate to grant to the applicant access to court was not restricted by international law. In order to determine whether the Swiss authorities had exceeded their margin of appreciation in the present case, the Court was required to examine, in turn, Section 3 of the Swiss Federal Law on Private International Law and the decisions issued by the Swiss courts.

The Court concluded that by introducing a forum of necessity with the criteria laid down in Section 3, the Swiss legislature had not exceeded its margin of appreciation. Moreover, it was reasonable to not to take into account the links to Switzerland that the applicant has created since he was awarded asylum in Switzerland because those links did not exist at the moment of the alleged acts of torture.

In conclusion, the Court considered that the Swiss courts’ refusal to accept jurisdiction to examine Mr Naït-Liman’s action seeking redress for the acts of torture to which he was allegedly subjected had pursued legitimate aims and had not been disproportionate to them. It followed that there had been no violation of the right of access to a court within the meaning of Article 6 of the ECHR.

Judge Wojtyczek expressed a partly dissenting opinion. Judge Dedov and Judge Serghides each expressed a dissenting opinion. The latter argued, inter alia, that the majority opinion had not sufficiently taken into account the principle of effectiveness, one of the key principles in the Court’s jurisprudence.

II. Assessment of the Judgment

In part II, I will critically assess the reasoning and main conclusions of the Court. The Part is divided into three sections. Section A will deal with the right of the victims of torture to remedy and reparation; Section B will be devoted to one aspect of the Court’s interpretation methodology in the present case, as well as to its impact on the proportionnality of the restriction to the right to access to court, and Section C, finally, will examine the question whether the erga omnes effect of the prohibition of torture compelled Switzerland to open its courts to the applicant.

A. Remedy and Reparation for Victims of Torture

Without doubt the most important achievement of the judgement lies in the fact that the Court, in several paragraphs, clearly confirmed and highlighted the right for victims of acts of torture to obtain appropriate and effective redress, and that States are encouraged to give effect to this right by endowing their courts with jurisdiction to examine such claims for compensation, including where they are based on facts with occurred outside their geographical frontiers. The following paragraph is a quotation from the “general conclusions” of the Court’s judgment:

[¶] 218. [I]t should be reiterated that this conclusion does not call into question the broad consensus within the international community on the existence of a right for victims of acts of torture to obtain appropriate and effective redress, nor the fact that the States are encouraged to give effect to this right by endowing their courts with jurisdiction to examine such claims for compensation, including where they are based on facts which occurred outside their geographical frontiers. In this respect, the efforts by States to make access to a court as effective as possible for those seeking compensation for acts of torture are commendable.

The Court further stated that the right to obtain such redress is firmly embedded in international law and, in particular, Article 14 of the UN Convention Against Torture, which had been ratified by Switzerland on December 2, 1986. Indeed, Article 14 states, “Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.”

In addition, the Court rightly referred to the UNGA Resolution 60/147, adopted on December 16, 2005, containing in its annex the “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law,” which enshrine in their section VII the right of victims to equal and effective access to justice, adequate, effective and prompt reparation for harm suffered, as well as access to relevant information concerning violations and reparation mechanisms.

Furthermore, the Grand Chamber, in the logic of the ECHR as a “living instrument which…must be interpreted in the light of present-day conditions,” one of its most prominent interpretation principles, expressed the opinion that States are under the duty to follow the potential developments in this dynamic area of law and update their laws and practices accordingly:

[¶] 220. Nonetheless, given the dynamic nature of this area, the Court does not rule out the possibility of developments in the future. Accordingly, and although it concludes that there has been no violation of Article 6 § 1 in the present case, the Court invites the States Parties to the Convention to take account in their legal orders of any developments facilitating effective implementation of the right to compensation for acts of torture, while assessing carefully any claim of this nature so as to identify, where appropriate, the elements which would oblige their courts to assume jurisdiction to examine it.

In other words, the Court accepted and reiterated without hesitation the existance of the right of victims of torture to redress and compensation and left open the door for future developments in the field. The exact scope of this right, however, and in particular the question whether States are obliged to guarantee this right even for acts of torture that were inflicted outside their territories by foreign officials, as the applicants submitted, was more disputed.

B. The Court’s Refusal to Read the ECHR as a Whole
and Its Impact on the Proportionality of the Restriction

Interpreting an international treaty is not a precise, mathematical exercise, but rather an art of identifying those rules among others whose application seems appropriate in a certain situation.^† In the present case, the Court made strong use of the comparative element in order to determine the (broad) margin of appreciation on which Switzerland could rely. This comparative approach is appropriate and in line with international law, deriving from Article 31 § 3 (c) of the Vienna Convention of the Law of Treaties (“VCLT”), according to which “relevant rules of international law” have to be taken into consideration in treaty interpretation. On the other hand, other important interpretation principles, flowing directly from Article 31 § 1 of the VCLT, the so-called general rule of treaty interpretation prescribing that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose,” are not mentioned in the legal analysis of the Grand Chamber.

In particular, the Court did not refer to the principle requiring a treaty provision to be interpreted in light of the entire text of the treaty, a principle raised by one of the third party interveners, Citizens’ Watch, and applied by the Court, inter alia, in ¶ 68 of Klass v. Germany and ¶ 48 of Stec v. United Kingdom (“The Convention must also be read as a whole…”). From my point of view, the lack of consideration of this method of interpretation had important repercussion on the proportionality of the restriction to the right to access a court for the following reasons.

In the instant case, a lot of energy has been used by the Court to determine the width of the margin of appreciation on which Switzerland could rely as a result of the absence of a consensus in this domain. If this is as such not wrong, that the margin of appreciation, as interpreted by the Court in ¶ 78 of Dickson v. United Kingdom and ¶ 68 of Emonet v. Switzerland in a given situation is not determined exclusively by the existence (or absence) of consensus of the Member States of the Council of Europe, but also by the nature and importance of the right at stake, the intensity of the interference, as well as the nature and importance of the aim pursued.

In particular, the Court did not consider the absolute nature of the prohibition of torture within the meaning of Article 3 of the ECHR, as a norm of jus cogens. In the leading case in the field of extraordinary rendition El-Masri v. the former Yugoslav Republic of Macedonia, the Grand Chamber of the Court held:

[¶]195. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation …. The Court has confirmed that even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned ….

The Court chose not rely on this strong language, supposedly because the main question that it had to decide was whether Switzerland had committed a violation of the right to access a court within the meaning of Article 6 of the ECHR. In other words, not confronted with an explicit torture complaint within the meaning of Article 3 of the ECHR, the Court concluded almost automatically from the broad margin of appreciation in the instant case due to lack of consensus concerning universal civil jurisdiction and forum necessitatis to the proportionality of the restriction without pondering the competing interests at stake.

As a result, while the Court heavily—perhaps too heavily—considered how the questions of forum of necessity and universal civil jurisdiction for victims of torture was dealt with abroad, it took a narrow approach towards its own instrument, the ECHR, and did therefore not take into account the broader picture of the case, namely that Mr. Nait-Liman had endured serious acts of torture. From my point of view, this fact could have played a certain role in the question of whether the restriction of the applicant’s right to access a court has been proportionate.

C. The Erga Omnes Effect of the Prohibition of Torture
Did Not Compel Switzerland to Open Its Courts to the Applicant

The prohibition of torture is, as the Court itself has recognized in, for example, ¶ 61 of Al-Adsani v. the United Kingdom, one of the rare norms of jus cogens and an obligation erga omnes. The ICJ, in ¶ 33 of its Barcelona Traction Case, held that, by their very nature, certain obligations are the concern of all States and that, in view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omens. In ¶ 34 of the judgment, the ICJ gave some examples for such obligations, such as the outlawing of acts of aggression, and of genocide and to “the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.”

This has been confirmed later within the Articles on the Responsibility of States for Internationally Wrongful Acts. In accordance with their Article 48 § 1(b), “[a]ny State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if…the obligation breached is owed to the international community as a whole.” Moreover, paragraph 2(b) of the same provision adds that “[a]ny State entitled to invoke responsibility under paragraph 1 may claim from the responsible State…performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached” (emphasis added).

Within the ECHR, a special mechanism establishes, at least in theory, an erga omnes obligation allowing States Parties to file inter-State complaints. In accordance with Article 33 of the ECHR, “[a]ny High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party” (emphasis added). It derives from the wording of this provision that a State Party to the ECHR does not have to be directly injured by a breach of the Convention rights in order to rely on this mechanism.

Practical and concrete examples, however, where States that were not directly affected by a violation of international law intended to invoke responsibility of another States for the safeguard of interests of the international community are very rare, if not inexistance. Antônio Augusto Cançado Trindade, former president of the Inter-American Court of Human Rights and now judge at the ICJ, argues that while the concept of obligation erga omnes has certainly entered in the international case-law, in particular the jurisprudence of the ICJ, that court had, in spite of those references, not yet extracted the consequences of the affirmation of the existence of the concept.^‡

The same can basically be argued for the ECHR, where the examples of inter-State complaints, in particular the successful ones, are very rare. Moreover, the more recent applications do not contain an erga omnes logic, but have been filed by States Parties pursuing the protection of the interests of their own nationals, in the logic of the traditional “diplomatic protection” exercised by States in favour of their nationals. Examples include Georgia v. Russia I in 2014 and subsequent applications (all pending), and Ukraine v. Russia (several applications since 2014, all pending).

To sum up this section, whereas the ECHR is very tough on States Parties when they commit torture on their own territory, States Parties to the ECHR and the Court seem to care less when the impugned facts happen abroad, without obvious link to one of the States Parties to the ECHR. This is understandable and justifiable considering the weakness of the concept of obligation erga omnes in international law, which remains ineffective in practice. The result reached by the ECHR also expresses the clear quantitative difference between a well-integrated regional system of human rights protection, such as the ECHR system, on the one hand, and a universal system, where the same solidarity between members and strong institutions are often lacking, on the other.

Conclusion

Having regard to what precedes, the detailed and well researched judgement explains, in general, convincingly why there was no violation of the right to access a court. It contains some very positive aspects, in particular the confirmation of the existence of the right of victims of torture to remedy and compensation. Moreover, the Court did not shut the door for similar claims in the future by emphazising that this area is dynamic and subject to change and, in the same logic, by inviting the States Parties to the Convention to take account in their legal orders of any developments facilitating effective implementation of the right to compensation for acts of torture.

As a result, it can be argued that the Court struck a defendable balance between the arguments and interests at stake. In particular, even if the concept of obligation erga omnes is more than wishful de lege ferenda, it is not a reality on the global scale yet. As a result, Switzerland, as a State Party to the ECHR, was not compelled, based solely on the prohibition of torture as an obligation erga omnes, to open its tribunals in the sense claimed by the applicant, who had been tortured in Tunisa by Tunisian officilas and who had only Tunisian nationality at the material time.

On the other hand, I argue here that, once it concluded that Article 6 ECHR is applicable to the present case, the Court had certain elements to consider the restriction to the applicant’s right to access a court disproportionate. In terms of judicial policy, it could have done so in a narrow, case-specific manner, without admitting a general duty to establish universal jurisdiction for all future cases of civil actions for reparation of torture. A broader and effective interpretation of Section 3 of the Swiss Federal Law on Private International Law, in light of the special nature of the prohibition of torture in international law (jus cogens), would not have constituted a revolutionary development, but could have enabled the applicant to seek remedy and reparation for the crimes that he had endured in Tunisia. In the same time, it would have constituted a discrete, but significant step for the rights of future victims of torture. To recall and stress the right to an effective remedy and to reparation in favor of victims of torture, on the one hand, but not to find a violation of Article 6 ECHR in the very particular situation of the applicant, on the other, looks, from my point of view, somehow half-hearted and runs at odds with the—generally—very effective and practical protection of human rights guaranteed by this unique Court that has, in the past, so much contributed to the peace and rule of law on the European continent.

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*     PhD., Senior Lawyer at the ECtHR (Strasbourg), international law lecturer at Lausanne University, member of the adjunct faculty of Suffolk University Law School (Boston MA). He was a visiting fellow at Harvard Law School in 2014. The views expressed in this post are strictly personal.

†     See Int’l Law Comm’n, Rep. on the Second Part of Its Seventeenth Session 3–28 January 1966 and on Its Eighteenth Session 4 May–19 July 1966, U.N. Doc. A/6309/Rev.1, at 50, cmt. 4 (1966).

‡    A.A. Cançado Trindade, International Law for Humankind: Towards a New Jus Gentium 313 (2nd ed., 2010).

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.

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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.

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 “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.

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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.