THE INTERNATIONAL COURT OF JUSTICE Nigeria v Vietnam (Germany intervening) Memorandum of Relevant Law 1 st July 2020. To the Honourable Justice, The following memorandum has been compiled in preparation for the upcoming hearing for Questions on the Obligation to Extradite for Crimes of Torture (Nigeria v Vietnam: Germany intervening), on which Your Honour will be passing judgement. This memorandum presents all international law and case law that Your Honour may find relevant enough to apply to the facts of the case at hand or alternatively dismiss as distinguishable. All relevant international law has been provided as written. All case law has been summarised for ease of reading. The contents of this memorandum are as follows; 1. UNCAT: The United Nations Convention Against Torture. Vietnam, Nigeria and Germany are all ratified parties and hence bound by it. 2. Vietnam s UNCAT Reservation. Vietnam has made a reservation to UNCAT under Article 19 of the Vienna Convention. 3. International Objections to UNCAT Parties. A link to a compilation of all reservations made by parties to UNCAT. 4. The Vienna Convention. The international convention on the laws of treaties. Nigeria, Vietnam and Germany are all ratified parties, and hence bound by it. 5. NVET: The Nigeria-Vietnam Extradition Treaty. 6. Relevant Case Law. A compilation of case law that Your Honour may wish to apply to, or distinguish from, the facts at hand.
1. Relevant Sections of UNCAT. Retrieved from: http://www.ohchr.org/documents/professionalinterest/cat.pdf Article 1 1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. Article 2 1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. 3. An order from a superior officer or a public authority may not be invoked as a justification of torture. Article 3 1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
Article 4 1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. 2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature. Article 5 1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases: a. When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State; b. When the alleged offender is a national of that State; c. When the victim is a national of that State if that State considers it appropriate. 2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph (1) of this article. Articles 6 to 7 are irrelevant to the case at hand. Article 8 1. The offences referred to in article 4 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them. 2. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Convention as the legal basis for extradition in respect of such offences.
2. Vietnam s UNCAT Reservation The Socialist Republic of Viet Nam does not consider the Convention as the direct legal basis for extradition in respect of the offences referred to in Article 4 of the Convention. Extradition shall be decided on the basis of extradition treaties to which Vietnam is a party or the principle of reciprocity, and shall be in accordance with Vietnamese laws and regulations. Retrieved from https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iv-9&chapter=4&clang=_en# EndDec 3. International Reservations on UNCAT. The following link leads to a compilation of all reservations of UNCAT made by various parties to the convention. They also include objections to various reservations of UNCAT, including objections made by Germany towards the IDs of various nations. Use the search function (ctrl+f) to look for the names of particular countries. Retrieved from https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iv-9&chapter=4&clang=_en# EndDec 4. The Vienna Convention Retrieved from: https://treaties.un.org/doc/publication/unts/volume%201155/volume-1155-i-18232-english.pdf The Vienna Convention can be examined in determining whether or not Vietnam s Reservation on UNCAT is valid under international law. Article 19 1. A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless: a. The reservation is prohibited by the treaty; b. The treaty provides that only specified reservations, which do not include the reservation in question, may be made; or
c. In cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty. Article 2 (1)(d). "Reservation" means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State; Article 27 1. A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. 5. Relevant Sections of NVET Treaty on Extradition Between The Federal Republic of Nigeria and The Socialist Republic of Vietnam. Signed at Abuja, 29th July 2018. Entered into force 01st August 2019. Article 1 Obligation to Extradite 1) Each Party agrees to extradite to the other Party, in accordance with the provisions of this Treaty, any person who is found in its territory and sought by the other Party for prosecution, trial, or execution of punishment for an extraditable offence. Article 2 Extraditable Offences 1) For the purposes of this Treaty, extraditable offences are offences which, at the time of the request, are punishable under the laws of both Parties by deprivation of liberty for a period of at least one year or by a more severe penalty. 2) For the purposes of this Article, in determining whether an offence is an offence against the laws of both Parties:
a) It shall not matter whether the laws of the Parties place the conduct constituting the offence within the same category of offence or denominate the offence by the same terminology; b) The totality of the conduct alleged against the person whose extradition is sought shall be taken into account and it shall not matter whether, under the laws of the Parties, the constituent elements of the offence differ. 3) Where the offence has been committed outside the territory of the Requesting Party, extradition shall be granted at the Requested Party s discretion. Article 3 Refusal of Extradition 1) Extradition shall not be granted under this Treaty in any of the following circumstances: a) when the Requested Party determines that the offence for which extradition request is an offence bearing political character; b) when the person sought is being proceeded against or has been tried and convicted or acquitted in the territory of the Requested Party for the offence for which his extradition is requested; c) when the Requested Party has well-founded reasons to suppose that the request for extradition has been presented with a view to prosecuting or punishing the person sought, by reason of race, religion, nationality, sex or political opinion, or that that person's position may be prejudiced for any of those reasons. d) when, in exceptional cases, the Requested Party while also taking into account the interests of the Requesting Party deems that, because of the personal circumstances of the person sought, the extradition would be incompatible with humanitarian considerations; 2) The provision of paragraph 1(a) shall not be applicable to the following offences: a) the taking or attempted taking of the life or an attack on the person of a Head of State or a member of his or her family; b) an offence in respect of which the Parties have the obligation to establish jurisdiction or extradite by reason of a multilateral international agreement to which they are both parties. Article 4 Extradition of Nationals 1) Neither of the Parties shall be bound to extradite its own nationals under this Treaty.
2) If extradition is refused solely on the basis of the nationality of the person sought, the Requested Party shall submit the case to its own authorities for prosecution. Article 5 Consideration of Multiple Requests for Extradition 1) Where the Requested Party receives written requests from two or more countries, including the Requesting Party, for the extradition of the same person, the extradition requests will be considered as especially urgent. 2) Upon consideration of extradition requests made towards the Requested Party by the Requesting Party and at least one other country, the following additional factors must be demonstrably taken into account; a) The effective nationality of the person requested for extradition; b) The time and place of the alleged offence; c) Specific interests of the requesting countries; d) The severity of the alleged offence; e) The nationality of the victim/s; f) The date of the extradition request; g) Any other relevant factors. All other Articles are irrelevant to the issues at hand. 6. Relevant Case Law. The ICJ is not bound by any case law, including its own past decisions. This is laid out in Article 38 of the Statute of the Court, which lists all the areas of law which the Court must apply in reaching its decisions. Case law is listed as a subsidiary source, and so is deemed to only be persuasive. Therefore, Judges in the ICJ may choose to follow different lines of reasoning in the current case; however it would be best practice for them to explain why they are following different reasoning; i.e. express why they are distinguishing past cases from the present.
Belgium v Senegal (2012; International Court of Justice) Considers questions relating to the obligation to extradite under UNCAT. Retrieved from: http://www.icj-cij.org/en/case/144 Facts: - Belgium instituted proceedings against Senegal for breach of obligation under UNCAT to extradite former Chadian dictator Hissène Habré, who had been living in Senegal since the collapse of his regime in Chad in 1990. - Belgium had found conclusive evidence that Habré had ordered the torture and killing of 40,000 people throughout his eight year rule. Some of these individuals included Belgians, giving Belgium a right to request extradition under Article 5 (1) (c) of UNCAT. - Senegal claimed they wished to prosecute Habré but were not obligated to extradite him under UNCAT Article 5 (2) because they had made ample efforts to prosecute him within their own borders. They claimed they were struggling to do so because of pressure from ECOWAS (the Economic Community of Western African States), financial difficulties, and internal domestic laws. - Senegal also claimed that Belgium had no right to claim extradition, as it had no connection to Chad or the crimes committed by Habré. Judgement In judging the case, the Court found that; - It had jurisdiction to make rulings regarding obligations to follow UNCAT. - Senegal had breached its duty to UNCAT Article 5 (2). It found that the duty to extradite under UNCAT is binding. - The financial difficulties or pressure from ECOWAS were not significant enough factors to prevent Senegal from extraditing Habré. - Senegal s could not argue that its internal laws prevented it from extradition, because Senegal was party to the Vienna Convention, Article 27 of which prevents the use of internal law to override international obligations. - Any party to UNCAT may insist on another party s performance of obligations to UNCAT, so as to allow more states worldwide to ensure accountability for acts of torture. Ireland v United Kingdom (1978; European Court of Human Rights) Considers questions on defining torture. Retrieved from: http://www.law.umich.edu/facultyhome/drwcasebook/documents/documents/republic%20of%20ir eland%20v.%20united%20kingdom.pdf
Facts: - Police officers in Northern Ireland carried out numerous extrajudicial arrests and imprisonments of Irish citizens suspected to be members of the Irish Republican Army (IRA) over a period of four years. - Prisoners were restrained in uncomfortable stress positions for long periods of time, deprived of food, drink or sleep and were subject to punching and kicking. - The purpose of all of this treatment was for the police to obtain information regarding the plans and movements of the IRA. - This was all done with the permission of the British government, which sought to justify its actions on the grounds that the IRA constituted a public emergency which threatened the life and safety of the UK population. Judgement: In judging the case, the ECHR found that; - Punching, kicking, uncomfortable restrainment and deprivation of food and drink amounts to ill treatment but not torture unless it results in acute physical injury. - The victims age, sex and state of health at the time, and the cruelty of the act versus its necessity are all factors that must be considered in distinguishing ill treatment from torture. - The nation was facing a public emergency and that this should be a factor of consideration. - Given none of the treatment amounted to torture, the British government could justify its actions as being necessary in a state of public emergency. Cantoral - Benavides v Peru (1998; Inter-American Court of Human Rights) Considers questions on psychological torture. Retrieved from: http://www.corteidh.or.cr/docs/casos/articulos/seriec_69_ing.pdf Facts: - The plaintiff and his brother were arrested by the Peruvian police, and taken to an isolated wharf. He was made to listen to his brother being beaten and then thrown into the water to drown. He was told he would be drowned next if he did not speak. Judgement: - The I/ACHR found that; t orture can be inflicted not only via physical violence, but also through acts that produce severe physical, psychological or moral suffering in the victim. (p.100).
Al-Saadoon & Mufdhi v United Kingdom (2010; ECHR) Considers the application of Article 3 of UNCAT. Retrieved from: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-97575%22 ]} Facts: - The plaintiffs had both been accused of murdering a British soldier in Iraq, but had fled to the UK prior to their arrest. - The British government attempted to extradite the plaintiffs to Iraq for trial and punishment. - The plaintiffs claimed that Britain could not extradite them to Iraq under their obligations to Article 3 of UNCAT which prevents extradition to countries where there is a real risk of the extradited person being tortured. Judgement: - The ECHR found that, whilst there was no real risk of the plaintiffs being physically tortured by the Iraqi authorities, there was a real risk of them being executed and that the apprehension of being executed constituted psychological torture. - Therefore, the ECHR issued an injunction against the extradition, and the plaintiffs were prosecuted in the UK. Liechtenstein v Guatemala - Nottebohm s Case (1955; International Court of Justice) Questions relating to the definition of national. Retrieved from: http://www.icj-cij.org/en/case/18/judgments Facts: - Nottebohm was a German who had spent 38 years living in Guatemala. He also occasionally visited Liechtenstein to see his brother. - In 1939 applied for Liechtensteinian citizenship. His request was approved and he formally renounced his German citizenship. - In 1941, Guatemala joined the Allies in World War II. It immediately arrested all German citizens within its borders. Nottebohm was considered a German and imprisoned until the end of the War. - Liechtenstein brought a claim against Guatemala for damages on behalf of Nottebohm, on grounds of Nottebohm being a Liechtenstein citizen and not a German one. Liechtenstein was a strictly neutral state in World War II, and hence Nottebohm was technically not a citizen of the Axis.
Judgements: In judging the case, the ICJ found that; - Though Nottebohm was a technical citizen of Liechtenstein, in that he had legal citizenship and had formally renounced his German citizenship, he was still an effective citizen of Germany. - The Court ruled that in international law, the Court would favour effective citizenry over technical citizenry in most cases. - The test the Court applied to determine whether an individual was effectively a citizen was dubbed the Nottebohm Principle. It states that an individual is not a national of a country because of legal technicality, but rather because they have a meaningful connection to the state in question. - Thus the Courts ruled that his Liechtenstein citizenry would be overruled by his former German citizenry, seeing as he rarely visited Liechtenstein and only had connections to the nation through his brother. There was some evidence that Nottebohm had only sought Liechtenstein citizenry in apprehension of the impending war.