The EU Commission’s Fifth Report on relocation and resettlement of migrants: a(nother) proposal.

  • Introduction

On the 13th of July (2016) the European Commission issued the fifth report on relocation and resettlement of migrants  from the external EU’s borders, addressed to the European Parliament, the European Council and the Council.  The report provides an updated state of the situation of relocation and resettlement of migrants eligible to obtain international protection in EU countries in the light of the urgent migration crisis that Italy and Greece especially have been facing since 2015. The considerable increase in the number of migrants – many of whom are entitled to apply for relocation/resettlement – has imposed to the Commission to update its last report (i.e., the one issued in June 2016) with the aim of keeping the institutions fully informed about the situation at the “external borders” of Europe.  After a brief introduction about the relevant legislative framework, this post aims to underline some critical issues emerging from the relocation and resettlement policies of the European Union as set out in the official documents published so far.

  • The Council’s decisions establishing provisional measures in the area of international protection for the benefit of Italy and Greece.

The relocation and resettlement policies of the EU have been framed, firstly, by the Council Decision 2015/1523 of 14 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece. This was followed, just a few days later, by the Council Decision 2015/1601 of 22 September 2015 (hereafter the Decision), which provided for a few changes regarding the number of migrants needing a relocation plan. With regard to the latter instrument, it was adopted in accordance with Article 78, para 3, of the Treaty on the Functioning of the European Union, which authorises the Council to adopt provisional measures when one or more Member States are faced with an emergency situation involving a massive inflow of third countries’ nationals, in order to relieve those Member States. This provision regulates the main points that the European Union should respect in order to establish a common policy of asylum, subsidiary protection and temporary international protection for eligible third country nationals. The principle of mutual solidarity and the rule of fair sharing of responsibility between Member States in the management of the refugee crisis at the external borders have been recognised as the two keystones of the Decision. In addition, the individual rights granted by the Charter of Fundamental Rights of the European Union (hereinafter the Charter), along with the rights of vulnerable groups, act on the background of the Decision, balancing the needs of both public order and national security, these two becoming an inevitable paradigm of the management of every humanitarian crisis by the EU.[1]

The 23rd introductory paragraph of the Decision permits a temporary derogation from the Dublin’s Regulations System. This system provides that the Member State in which third countries’ nationals enter is responsible for their international protection. In recognition of the emergency situation in Greece and Italy, those countries have been relieved of this ‘entry and stay’ rule set out in article 13 of Reg. 604/2013.[2]

However, the Decision has let several shadows and grey areas subsist, together with the necessity to solve some critical issues. Some of these have been faced by the new report and the draft proposal for a European Union regulation establishing a Union Resettlement Framework – which has been attached to the report – while some others have been left unsolved/unresolved?. As for the latter, one could consider, for instance, the unclear legal force of the relocation and resettlement rules as regards the Member States.

  • The content of the report.

The goal of the Fifth Report[3] is to accelerate the implementation of the relocation and resettlement schemes by the Member States. It is articulated in two sections, dedicated to the relocation (1) and the resettlement (2) schemes, respectively, and containing different highlights which emerged during the reporting period, from 14th of June to 11th of July. In particular, the report warns against the bad situation of Italy in comparison to Greece. While relocation transfers from Greece have increased during the reporting period as compared to the previous one (from 594 to 710), those from Italy have decreased and remain at an unsatisfactory level (66 compared to 186). In this connection, major concerns have been expressed by the Commission regarding the relocation of vulnerable groups, especially unaccompanied minors. [4]

On the one hand, the report requires Italy to provide clearer information on the number of arrival, to develop a special procedure for the relocation of unaccompanied minors, which is at this time extremely slow, to open additional hotspots as planned and to improve its cooperation with the other Member States. On the other hand, it was difficult for the Commission to ignore that so far several Member States have not complied with their obligations as established by the Council Decision of 22nd September 2015. Despite the deployment of many experts to Greece and Italy by the European Asylum Support Office, the data provided by the fifth report show an increasing level of (humanitarian) emergency and a worrisome deterioration of the refugee crisis. It unfortunately appears that the efforts made by and the means available to the countries at the external borders are not yet sufficient to face the ongoing inflow of migrants seeking international protection.

Regarding the resettlement scheme (sub 2 of the Decision), it has resulted in the resettlement of about 8000 people (mostly Syrian nationals from Jordan, Lebanon and Turkey) to twenty different countries. The Commission has also made reference to the EU–Turkey statement of 18 March 2016, which foresees the activation of the Voluntary Humanitarian Admission Scheme with Turkey, currently still at the negotiation stage. This scheme is part of the general political agreement between EU and Turkey concluded last March with the aim of stopping the unconditional flow of migrants from the eastern route to Greece.[5]

The report’s conclusion is twofold. On the one hand, the Commission has urged Italy to quickly step up its processing capacity and to cooperate more closely with Member States in implementing the relocation scheme, especially regarding the situation of the vulnerable group of unaccompanied minors.  On the other hand, the Commission has exhorted all Member States to urgently provide an adequate response to the crisis and to build up support of Italy and Greece by increasing the number of pledges. The Commission has also expressed its concern by ‘reserving the right to take action against those Member States not complying with their obligation’.[6] This statement – which could play a role in terms of political effectiveness – compels the EU institutions to ask themselves about the kind of actions that could be taken in order to induce Member States to comply with the Council’s Decision.

  • The proposal

The problem highlighted by the Commission’s report has not been solved by the proposal attached thereto, establishing a Union Resettlement Framework and amending Regulation (EU) n. 516/2014.[7] The explanatory memorandum of the proposal underlines the ’voluntary basis’ of the resettlement commitments of all Member States, as established by the framework regulation. The effort required might be considered ‘binding’ given the principles of fair sharing of responsibility and solidarity, which are crucial to the aim of building a Common European Asylum System and consistent with the policy on better migration management adopted by the European Agenda on Migration.[8]

In this sense, the proposal acknowledges several core principles and good practices in the field, namely: a) reducing divergences between Members States and creating common rules for resettlement; b) discouraging second movements of the resettled people in the EU; c) distinguishing the policy of resettlement from the so-called Dublin’s regulation system; d) increasing the already central role of the United Nation High Commissioner for Refugees (hereinafter UNCHR), European Asylum Support Office (hereinafter EASO) and stakeholders in general to support Member States in managing the crisis; e) protecting fundamental rights linked to asylum and international protection, in accordance with Articles 18 and 19 of the Charter and with the principle of non discrimination;[9] f) offering priority protection to vulnerable groups;[10] g) arranging two different procedural pathways, namely, an ordinary one and an expedited one, depending on the grade of  urgency.

  • Conclusions

The publication by the Commission of the Fifth Report on relocation and resettlement has created some momentum for EU institutions and Members States to consider the status of the common European system in the field of asylum and international protection. While certain satisfactory steps have been made at the external borders of Greece, the Italian situation remains critical and very few chances to sort out the problems generated by the massive inflow of migrants there are in sight. The main issue at stake is still the lack of synergy and mutual cooperation among Member States when it comes to relocation and resettlement. Notwithstanding the political pressure exerted by the Commission, the invocation of the supreme principles of solidarity and fair sharing of responsibility in migration crisis has failed to induce Member States to comply with their commitments. Together with the absence of a mechanism of sanctions in cases of non-implementation of the Council Decision by Member States, this is liable to lead to the failure of the relocation and resettlement policy.

One day, the strength of common principles might be sufficient to induce Member States to implement the obligations arising from any decisional act of the European Union, especially in such a delicate political field as the management of a migration crisis. For now, the European Union is unable to compel Members States (regardless of the proximity to the external border) to implement its plans on relocation and, indeed, to respect the fair sharing of responsibility. Therefore it cannot manage this huge crisis in a proper way and, considering the proportions of the emergency, this might result in the collapse of the whole system.

[1] On this point see, for example, the creation and the update of the EURODAC system, starting from the COUNCIL REGULATION (EC) No 2725/2000 of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention; another example could be the attention paid to the defence of external borders and the fight against irregular immigration which are central to the migration crisis management of the EU, as provided by the EU- Turkey statement of 18th March 2016 and within the new proposal itself of 13th of July 2016.

[2] The so-called Dublin’s Regulation System establishes which Member State is responsible for the examination of the asylum application. See Regulation (EC) No 1560/2003 and Regulation (EU) No 604/2013.

[3] Fifth Report on relocation and resettlement from the Commission to the European Parliament, the European Council and the Council, Brussels 13.7.2016, COM(2016) 480 final.

[4] Fifth Report, COM(2016) 480 final, 8 – 9.

[5] On this issue see, among others, G. Goalwin, The EU-Turkey Agreement on Refugees: Echo of a Tragic Past, available online at http://religionandpolitics.org/2016/05/03/the-eu-turkey-agreement-on-refugees-echo-of-a-tragic-past/ accessed 30th August 2016.

[6] Fifth Report on relocation and resettlement, COM (2016) 480 final, Brussels 13.07.2016, p. 11.

[7] Regulation (EU) No 516/2014 of the European Parliament and of the Council of 16 April 2014 establishing the Asylum, Migration and Integration Fund, amending Council Decision 2008/381/EC and repealing Decisions No 573/2007/EC and No 575/2007/EC of the European Parliament and of the Council and Council Decision 2007/435/EC.

[8] The European Commission set out the long-term policy on better migration in the European Agenda on Migration, which developed President Juncker’s Political Guidelines. Proposal for a Regulation COM (2016) 468 final, 2016/0225 (COD), p.5.

[9] The principle of non discrimination is granted by several Universal and Regional legal provisions on human rights, namely: Article 1, 2 and 7 of the Universal Declaration of Human Rights; Article 2 and 26 of the International Covenant on Civil and Political Rights; Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination; Article 1, 8 and 24 of the American Convention on Human Rights; Article 14 of the European Convention of Human Rights.

[10] To individuate the vulnerable groups, the Commission also refers to other international tools such as the United Nations Conventions and the Conventions of the Council of Europe.

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Forced marriage as an independent crime against humanity in the ICC decision confirming the charges against Dominic Ongwen

International human rights law prescribes that marriage shall only be entered into with the free and full consent of both spouses.[1] Forced marriage thus constitutes a human rights violation and is also a criminal offence in the domestic law of some countries.[2] Additionally, international criminal courts have recently determined that forced marriage may amount to a crime against humanity when forming part of a systematic or widespread attack against a civilian population. The present post analyses the evolution of this new crime against humanity, from its conceptualisation as a form of sexual slavery to its recognition as a separate crime against humanity falling under the category of ‘other inhumane acts’. The latest stage in this evolutionary process was reached by the Pre-Trial Chamber II of the International Criminal Court (‘ICC’) in its decision of 23 March 2016 confirming the charges against Dominic Ongwen.[3] By acknowledging the particular features of forced marriage and distinguishing it from sexual slavery, this decision critically enables the prosecution of the crime in situations as prima facie different as the phenomenon of ‘bush wives’ in African armed conflicts and the state policy of ‘group marriages’ enforced in Cambodia under the Khmer Rouge.

Forced marriage as subsumed by the crime of sexual slavery

The practice of forced marriage in conflict situations has been prevalent in countries including Sierra Leone, the Democratic Republic of the Congo and Uganda. Within these contexts, it has generally involved the abduction of young women ‘taken as wives’ by rebel soldiers and thereafter exposed to enslavement, rape, forced labour and forced pregnancy. Forced marriage was charged as a crime against humanity for the first time before the Special Court for Sierra Leone (‘SCSL’) in the case of Prosecutor v. Brima, Kamara and Kanu (‘the AFRC case’).[4] The main point of contention regarding this charge in the SCSL Trial Chamber’s decision was whether to characterise forced marriage as a separate crime against humanity, under the category of ‘other inhumane acts’ in article 2(i) of the SCSL Statute, or as a predominantly sexual crime amounting to a form of sexual slavery.

The Prosecution argued that acts of forced marriage are ‘distinct from sexual acts, because they force a person into the appearance of marriage by threat or other coercion.’[5] Accordingly, it alleged that forced marriage qualified as the crime against humanity of an ‘other inhumane act’, the key element for its characterisation as such being that the conduct is of similar gravity to other listed crimes against humanity.[6] The Trial Chamber, however, rejected this view on the basis that the evidence was not capable of establishing a crime of forced marriage distinct from sexual slavery. It determined that the relationship between the perpetrators and the victims of forced marriage was one of ownership – a constituent element of the crime of sexual slavery – and that the use of the term ‘wife’ merely indicated the intent of the perpetrator to exercise said ownership.[7] The Trial Chamber held that the victims of forced marriage within the armed conflict in Sierra Leone did not endure particular trauma from the mere use of the label ‘wife’, over and above the harm ensuing from the ‘sexual slavery’ element of the crime. It went so far as considering that, even if there had been evidence of such additional trauma, the crime would not be of similar gravity to the other listed crimes against humanity, a condition for being characterised as an ‘other inhumane act’.[8] The majority of the Trial Chamber, Justice Doherty dissenting, concluded that forced marriage is completely subsumed by the crime of sexual slavery and that ‘there is no lacuna in the law which would necessitate a separate crime of ‘forced marriage’ as an ‘other inhumane act.’[9]

Forced marriage as a separate crime against humanity

The SCSL Appeals Chamber overturned this decision on the basis that forced marriage as practised in Sierra Leone amounted to more than sexual slavery both in terms of the conduct itself and of the ensuing harm.[10] In the first place, it considered that ‘the perpetrators of forced marriages intended to impose a forced conjugal association upon the victims rather than exercise an ownership interest and that forced marriage is not predominantly a sexual crime.’[11] The Appeals chamber emphasised that this marital relationship entailed mutual obligations for both parties, the ‘wives’ being coerced into performing various duties, including sexual intercourse, domestic labour and forced pregnancy, while the ‘husbands’ provided food, clothing and protection, notably against rape by other men. It underlined the exclusive character of the relationship, at least on the part of the victim, as an element distinguishing forced marriage from sexual slavery and giving a different dimension to the crime.[12]

Contrary to the Trial Chamber, the Appeals Chamber also considered that the imposition of marriage on the victims resulted in suffering of similar gravity to that caused by the other listed crimes against humanity and that forced marriage was thereby capable of qualifying as an ‘other inhumane act’. It stressed that, in addition to the harm ensuing from the ‘sexual slavery’ element of the crime, ‘bush wives’ and their children born from the forced marriage ‘suffered long-term social stigmatisation’ by their association with the perpetrators and faced difficulties in reintegrating their community after the war.[13] The Appeals Chamber defined forced marriage as ‘a situation in which the perpetrator through his words or conduct, or those of someone for whose actions he is responsible, compels a person by force, threat of force, or coercion to serve as a conjugal partner resulting in severe suffering, or physical, mental or psychological injury to the victim.’[14] It found that, when forming part of a systematic or widespread attack against a civilian population, this practice amounts to the crime against humanity of an ‘other inhumane act’.

The phenomenon of ‘bush wives’ differs in several respects from forced marriage as practised in Cambodia under the Khmer Rouge. In the latter context, forced marriage was one element of a state policy aiming to assert complete control over every aspect of the lives of individuals, including their sexuality. It involved the selection of spouses by the regime leadership on the basis of their membership to a same category of people. Their marriage in ‘group weddings’ were solemnized by the swearing of an oath of loyalty to the Khmer Rouge.[15] Forced marriage in Cambodia pursued the primary aims of severing pre-existing family ties, in order to guarantee complete loyalty to the regime, and controlling the procreation of individuals, rather than subjecting the victims to sexual slavery.

In the closing order of case 002, the Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia (‘ECCC’) qualified forced marriage as the crime against humanity of an ‘other inhumane act’, following the definition set out by the SCSL Appeals Chamber.[16] They determined that acts of forced marriage practised under the Khmer Rouge satisfied the elements of this definition since they were part of a widespread attack against the civilian population and entailed the forced imposition of a marital status on the victims, which resulted in severe physical or mental suffering of a degree of gravity comparable to the other listed crimes against humanity.[17] The applicability of the SCSL Appeals Chamber definition to situations as different as the ‘bush wives’ phenomenon in African armed conflicts and the Khmer Rouge policy of forced marriage seems to confirm the viability of this crime as a separate crime against humanity distinct from sexual slavery.

The evolving position of the ICC

In the decision on the confirmation of charges against Katanga and Ngudjolo, the ICC’s Pre-Trial Chamber I seemed to agree with the SCSL Trial Chamber that forced marriage is a form of slavery. Indeed, when considering a charge of sexual slavery, it held that this crime ‘also encompasses situations where women and girls are forced into “marriage”, domestic servitude or other forced labour involving compulsory sexual activity, including rape, by their captors.’[18]

However, in the more recent decision on the confirmation of charges against Ongwen, the ICC’s Pre-Trial Chamber II took note of the evolution of the definition of forced marriage in the case-law of the SCSL and of the ECCC. It confirmed that forced marriage ‘constitutes the crime of an other inhumane act within the meaning of article 7(1)(k) of the [Rome] Statute’, warranting a charge distinct from sexual slavery.[19] The ICC Chamber concurred with the SCSL Appeals Chamber in finding that ‘the central element of forced marriage is the imposition of “marriage” on the victim, i.e. the imposition, regardless of the will of the victim, of duties that are associated with marriage, as well as of a social status of the perpetrator’s “wife”’.[20] It also underlined the exclusivity of this conjugal relationship as ‘the characteristic aspect of forced marriage’, an element distinguishing the crime from sexual slavery and other crimes against humanity.[21] With regard to the ensuing harm, the ICC Chamber held that the social stigma resulting from the imposition of marriage entails ‘that the victims of forced marriage suffer separate and additional harm to those of the crime of sexual slavery, or other crimes under the Statute.’[22] Indeed, it determined that the interest protected by the characterisation of forced marriage as an ‘other inhumane act’ is ‘the basic right to consensually marry and establish a family’, as enshrined in international human rights instruments, which differ from the values underlying the crime of sexual slavery, i.e. physical and sexual integrity.[23]

Conclusion

International criminal courts appear to have settled on the view that forced marriage, when forming part of a widespread or systematic attack against a civilian population, may amount to the crime against humanity of an ‘other inhumane act’ if the conduct satisfies two elements, irrespective of whether it also amounts to sexual slavery. The first is the imposition of marriage on the victims without their consent. The second requires that this forced conjugal association inflicts severe physical or mental suffering on the victims. This definition has proved to be, on the one hand, wide enough to adequately capture the main features of the crime as committed in very different contexts and, on the other hand, narrow enough to distinguish it from the often analogous crime of sexual slavery. It will be interesting to see if the constituent elements of the crime will be confirmed by the Trial Chambers of the ICC and of the ECCC in the two cases involving a charge of forced marriage that are currently pending before those courts, thereby completing the decade-long process of elaboration of a new crime against humanity.

[1] Universal Declaration of Human Rights (10 December 1948) UN Doc A/810 91, art 16(2); International Covenant on Civil and Political Rights (16 December 1966) 999 UNTS 191, art 23(3); Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (10 December 1962) 521 UNTS 231, art 1; Convention on the Elimination of All Forms of Discrimination against Women (18 December 1979) 1249 UNTS 13, art 16(1)(b).

[2] For example, English law has recently been amended to make forced marriage a criminal offence liable to a maximum sentence of 7 years’ imprisonment, see section 121 of the 2014 Anti-social Behaviour, Crime and Policing Act, entered into force 16 June 2014.

[3] Situation in Uganda, Prosecutor v Ongwen, Decision on the confirmation of charges, Case no ICC-02/04-01/15, 23 March 2016.

[4] Prosecutor v Brima, Kamara and Kanu, Trial Judgment, Case no SCSL-04-16-T, 20 June 2007.

[5] Ibid, para 701.

[6] On the elements of the crime of other inhumane acts, see ibid, para 698.

[7] Ibid, para 711.

[8] Ibid, para 710.

[9] Ibid, para 713.

[10] Prosecutor v Brima, Kamara and Kanu, Appeals Judgment, Case no SCSL-04-16-A, 22 February 2008.

[11] Ibid, para 190.

[12] Ibid, para 191.

[13] Ibid, para 199.

[14] Ibid, para 196. See also Prosecutor v. Sesay, Kallon and Gbao, Appeals Judgment, Case no SCSL-04-15-A, 26 October 2009, para. 736.

[15] See Neha Jain, ‘Forced Marriage as a Crime against Humanity: Problems of Definition and Prosecution’ (2008) 6 Journal of International Criminal Justice 1013, 1024-1025. See also Extraordinary Chambers in the Courts of Cambodia, Case 002 Closing Order, 15 September 2010, paras 841-861.

[16] Extraordinary Chambers in the Courts of Cambodia, Case 002 Closing Order, 15 September 2010, paras 1442-1445.

[17] Ibid.

[18] Situation in the Democratic Republic of the Congo, Prosecutor v Katanga and Ngudjolo, Decision on the confirmation of charges, Case no ICC-01/04-01/07, 30 September 2008, para 431.

[19] Prosecutor v Ongwen, Decision on the confirmation of charges (n 3), para 95.

[20] Ibid, para 93.

[21] Ibid, para 93.

[22] Ibid, para 94.

[23] Ibid.

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The European Court’s Grand Chamber decision in Biao v. Denmark: A case of indirect discrimination against nationals of non-Danish ethnic origins

Introduction

Within the context of the on-going EU migration crisis, Denmark has been subjected to huge criticisms with regard to a recent bill that is considered to violate asylum seekers’ fundamental rights. More recently, on 24 May 2016 the Grand Chamber of the European Court of Human Rights (ECtHR) issued its decision in the case Biao v. Denmark, regarding matters of family reunification and held that Denmark had unjustifiably violated the prohibition of non-discrimination towards some of its nationals.[1] The Court found, by twelve votes to five, that there has been a violation of Article 14 of the European Convention of Human Rights (ECHR) read in conjunction with Article 8 of the Convention.[2] The Government had indeed failed to show that there were compelling or very weighty reasons unrelated to ethnic origin to justify the indirect discrimination to which the applicants had been subjected arising from the relevant national legislation.[3] Notably, this decision came after the Chamber, in 2014, had found that the Danish authorities had struck ‘a fair balance between the public interest in ensuring effective immigration control and the applicants’ need to be granted family reunion in Denmark and concluded that there had been no violation of Article 8 taken alone.[4]

In order to reach its conclusions, and consistently with its practice, the Grand Chamber considered ‘instructive’ to interpret the Danish legislation on family reunification in the light of the relevant EU law, including the Court of Justice of the European Union’s case law in the matter.[5] This post aims at examining the Grand Chamber’s decision in light of the recent developments in the relationship between the Courts of Strasbourg and Luxembourg. It will be concluded that the decision in Biao v. Denmark is perfectly consistent with the ECtHR’s practice of not only making reference to EU law and the case law of the Court of Luxembourg, but also verifying the compatibility of national legislations or practice with the ECHR, trying to look at the former through the lens of the relevant EU law or case law. Some comments on the political value of this decision when it comes to Denmark and migration issues are also included among the conclusions.

 

The facts

 

The case of Biao v. Denmark concerns the applicants’ complaint about the Danish authorities’ refusal to grant them family reunification in Denmark. Mr Biao is a Danish national of Togolese origin who is married to Asia Adamo Biao, a Ghanaian national. They live in Sweden and have a son who got Danish citizenship due to his father’s nationality. Their application for residence permit in Denmark and, therefore, their family reunification got refused in 2003 and 2004. The Danish Supreme Court upheld such a refusal in January 2010.

Before the ECtHR the applicants claimed to have been subjected to indirect discrimination in the application of the attachment requirement provided by the Danish Aliens Act as amended in December 2003, which introduced the so-called 28-year rule.[6] Pursuant to such a rule, in order for a Danish national, who has not acquired his/her nationality from the moment he/she was born and that is married to a third country national, to enjoy the privileges associated to citizenship in matters regarding family reunification, he/she needs to prove that he/she has got stronger ties with Denmark than with any other country by residing in Denmark for at least 28 consecutive years. The 28-year rule thus resulted in a differential treatment between Danish-born citizens and other nationals, as Danish nationals who had acquired nationality from the moment they were born were exempted from such a requirement.[7] This treatment was also an indirect discrimination on the basis of race or ethnic origin because persons acquiring Danish nationality later in life ‘would overwhelmingly be of different ethnic origins, that is other than Danish’.[8]

The conclusions of the Court

Having recalled that ‘a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group’,[9] and that indirect discrimination does not necessarily require a discriminatory intent,[10] the Grand Chamber considered it to be a reasonable assumption that people, who have acquired a Danish nationality later in life, would be more likely to be of non-Danish ethnic origins and that, to the contrary, Danish-born people were more likely to belong to the Danish ethnic group.[11]

According to the Court, the burden of proof was then on the Government to show that the difference in the impact of the legislation pursued a legitimate aim and was the result of objective factors unrelated to ethnic origin. Indeed,

‘no difference in treatment based exclusively or to a decisive extent on a person’s ethnic origin is capable of being justified in a contemporary democratic society and a difference in treatment based exclusively on the ground of nationality is allowed only on the basis of compelling or very weighty reasons.’[12]

Although the Court noted that Article 8 ECHR when taken alone ‘cannot be considered to impose on a State a general obligation to respect a married couple’s choice of country for their matrimonial residence or to authorise family reunification on its territory’,[13] it also held that it could apply to the present case what had been concluded in Konstantin Markin v. Russia with regard to difference in treatment on the ground of sex. That is, that ‘general biased assumptions or prevailing social prejudice in a particular country do not provide sufficient justification’.[14] The Court found that similar reasoning should apply to discrimination against naturalised nationals and therefore excluded that the problems relating to integration could be sufficient justification for the 28-year rule.

The Court also affirmed that thanks to Article 5 (2) of the European Convention on Nationality, which has been ratified by 20 states, including Denmark, there was a trend towards a European standard aiming to eliminate the discriminatory application of rules in matters of nationality between nationals from birth and other nationals.[15]

Hence, it concluded that, ‘having regard to the very narrow margin of appreciation in the present case’,[16] the Government had ‘failed to show that there were compelling or very weighty reasons unrelated to ethnic origin to justify the indirect discriminatory effect of the 28-year rule’.[17]This rule indeed has ‘a disproportionately prejudicial effect on persons who acquired Danish nationality later in life and who were of ethnic origins other than Danish.’[18]

EU Law and the ECtHR

It is well known that the two legal regimes pertaining to the EU and the ECHR are quite different when it comes to the principle of non-discrimination.[19] Moreover, although the Treaty of Lisbon, under article 6 (2), provides for the possibility for the EU to accede to the ECHR, in December 2014 the Court of Justice of the European Union (CJEU) issued a negative opinion in this respect. Furthermore, in its recent practice the Court of Luxembourg has increasingly avoided making explicit reference to the ECtHR’s case law.[20] As for the European Convention, according to the CJEU,

‘[i]t must be borne in mind that, in accordance with Article 6(3) TEU, fundamental rights, as guaranteed by the ECHR, constitute general principles of the EU’s law. However, as the EU has not acceded to the ECHR, the latter does not constitute a legal instrument which has been formally incorporated into the legal order of the EU.’[21]

The Strasbourg Court, on its side, has been constantly referring to both EU law and the case law of the CJEU. For instance, in its recent case Arlewin v. Sweden,[22] the Court has pronounced itself on the compatibility of the Swedish courts’ practice in application of Brussels I Regulation (44/2001) with the ECHR. In this respect, it has been observed that:

‘[t]he Court of Strasbourg relies upon the findings of the Luxembourg Court and reaffirms the existence of a direct dialogue between the two jurisdictions, with the first affirming the findings of the second in a noteworthy manifestation of its endeavour to choose –whenever possible- an interpretation of the ECHR that facilitates the proper application of EU law by national authorities.’

Consistently with this view, in Biao v. Denmark the Grand Chamber also took into consideration the relevant EU law and CJEU’s case law. Indeed, although, ‘[t]he rules for family reunification under EU law did not apply to the applicants’ case in August 2004’, the ECtHR noted that:

‘it is instructive to view the contested Danish legislation in the light of relevant EU law. Given that the first applicant has moved to Sweden, by virtue of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the member States, and in the light of the CJEU’s judgment of 25 July 2008 in Metock v. Minister for Justice, Equality and Law Reform (…), the applicants and their child now have a prospect of success in applying from Sweden for a residence permit in Denmark.’[23]

Conclusions

Different legal issues arise from migration, as it is a multifaceted and complex phenomenon. Apart from the current EU migration crisis, which mostly relates to non-EU nationals, some national policies regulating issues concerning migrants can have an impact on the rights of EU nationals. If it is true that the non-discrimination prohibition contained in Article 14 ECHR has not acquired a perfectly overlapping application with the EU non-discrimination legislation, it is also worth noticing that the Strasbourg Court has examined the relevant Danish legislation in the light of the relevant EU law and affirmed that the applicants’ new applications could now possibly have ‘a prospect of success in applying from Sweden for a residence permit in Denmark’.

This decision will probably lead Danish authorities to amend their Aliens Act and abolish the 28-year rule. It is however striking that at a time when ‘no difference in treatment based exclusively or to a decisive extent on a person’s ethnic origin is capable of being justified in a contemporary democratic society’, a national legislation of both an EU member and CoE state has been considered to have indirect discriminatory effects on the sole ground of race/ethnicity.

[1]Case of Biao v. DenmarkApp no. 38590/10 (ECHR, 24 May 2016).

[2]Ibid. at 154.

[3]Ibid. at 138 [emphasis added].

[4]Ibid. at 64.

[5]Ibid. at 135.

[6]Ibid. at 35.

[7]Case of Biao v. DenmarkApp no. 38590/10 (ECHR, 24 May 2016) at 25.

[8]Ibid. at 102.

[9]Ibid. at 103.

[10]Ibid.

[11]Ibid. at 112.

[12]Ibid. at 114 [emphasis added].

[13]Ibid. at 117.

[14]Ibid. at 126.

[15]Ibid. at 132.

[16]Ibid. at 138.

[17]Ibid.

[18]Ibid.

[19] See, e.g., See also European Union Agency for Fundamental Rights, Handbook on European non-discrimination law (Publication Office of the European Union 2011).

[20]OddnýMjöllArnardóttir and Antoine Buyse, Shifting Centres of Gravity in Human Rights Protection: Rethinking Relations Between the ECHR, EU, and National Legal Orders(Routledge 2016) 19-24.

[21] Opinion 2/13, Delivered on 18 December 2014 (full court), at 179.

[22]Case of Arlewin v. Sweden App no 22302/10 (ECHR, 1 March 2016).

[23]Ibid. at 135 [emphasis added]. See also European Union Agency for Fundamental Rights, Handbook on European non-discrimination law (Publication Office of the European Union 2011) 58-59.European-Court-of-Human-Rights.jpg

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The UN Working Group on Arbitrary Detention on Mr. Assange’s affair: one decision for two statuses.

Introduction

On the 4th of December 2015 the Working Group on Arbitrary Detention of the Human Rights Council (hereinafter WGAD) adopted Opinion no. 54/2015 concerning the detention of Julian Assange, the creator of Wikileaks.[1] The content of the decision, due to its undeniable political weight, has echoed worldwide. It has been held that the deprivation of Mr. Assange’s liberty was arbitrary and in contravention of Articles 9 and 10 of the Universal Declaration of Human Rights and Articles 7, 9(1) (3) (4), 10 and 14 of the International Covenant on Civil and Political Rights, with only one dissenting opinion of member Vladimir Tochilovsky. This post aims to provide a general overview of the decision, and endeavours to underline, particularly, the different sensitive matters arising from the two different statuses of Mr Assange: that of an asylum seeker and that of a defendant.

 

The Case                   

Apart from the well-known US issue linked to the Wikileaks scandals, Mr. Assange has faced a controversial judicial case which resulted in his deprivation of liberty.[2] In 2010, a Swedish prosecutor started an investigation against Mr. Assange following several allegations of sexual misconduct. As a result, Mr Assange spent 10 days in isolation in London’s Wandsworth prison, 550 days under house arrest, and thereafter has been in the confines of the Embassy of the Republic of Ecuador in London. In 2012, he was granted political asylum by Ecuador, based on the risk of extradition to Sweden without any guarantee of non-refoulement to the US, where he risked facing the death penalty. According to the source, in 2014 the Stockholm District Court upheld a European Arrest Warrant (EAW) with the aim of returning Mr. Assange back to Sweden for questioning regarding an ongoing preliminary investigation.

The WGAD was requested to express its opinion on the circumstances on which Mr. Assange’s detention was based, in light of his current status of asylum seeker, his juridical situation in Sweden and the role of the UK in managing the European Arrest Warrant issued by the Swedish authorities.

 

The Issues

The WGAD decision’s pathway could be traced through three different points: the definition of Mr. Assange’s condition as “detention”, which the WGAD was requested to qualify as arbitrary or not; the binding force of the international law obligation imposed on the UK and Sweden to accept the status of Mr. Assange as a political asylum seeker; and the parallel juridical matter giving rise to the minimum standard of guarantees which must be granted to the suspect/accused in criminal proceedings.

In relation to the first point, the source’s allegations underlined the necessity to establish a proper definition of detention which should take account of the particular circumstances of Mr. Assange’s experience as an asylum seeker.

In this sense, the source prompted the Working Group to follow three key points in its reasoning: the inability of Mr. Assange to access the full benefit of the grant of asylum; the continuing and disproportionate period of time which has characterized the denial of access to these guarantees; and the ground of the EAW issued by the Swedish authorities.[3] The Swedish Government supported that Mr. Assange had voluntarily decided to remain in the confines of the Ecuadorian Embassy, without the possibility for the Swedish authorities to control his decision. The UK Government considered the use of the Embassy’s premises in avoiding arrest as a violation of the Vienna Convention on Diplomatic Relations, according to the duty of the UK to extradite him as requested by Sweden through the EAW.[4] Both State responses seem to have disregarded the crucial factor behind this matter: Mr Assange’s fear of extradition to the US. Against this backdrop, and specifically the risk of the death penalty, it should have been harder for them to come to the conclusion that Mr Assange’s choice of self -confinement was a free determination.[5]

The second point dealt with by the WGAD was the finding of a binding international law obligation imposed on the UK and Sweden to recognise Mr Assange’s status as a political asylum seeker, in light of the asylum granted to him by the Republic of Ecuador. The Governments’ responses were based on the limited scope of the Latin American Convention on Diplomatic Asylum, ratified by Ecuador but not by the UK and Sweden, due to its nature as a regional instrument. The Swedish Government affirmed that “the Latin American Convention on Diplomatic Asylum does not constitute general international law. On the contrary it is a regional instrument and no similar instruments or practices exist elsewhere”.[6] They also affirmed that general international law does not recognise diplomatic asylum as implied by the source and this position found support in the 1950 Asylum case of the International Court of Justice. The ICJ excluded any obligation by a third State to recognise the asylum granted to an individual by another State.[7] However, as underlined by the comments from the source, at least two legal provisions create international law obligations both for the UK and Sweden, namely, Article 14 of the Universal Declaration of Human rights;[8] and Article 1 of the 1951 Refugee Convention, as well as subsequent Protocols on the status of refugees, which define all the related obligations for States Parties. First among others, is the non- refoulement provision.[9] Despite the understandable (political) reservations by both Governments in unconditionally recognising Mr. Assange as a political refugee, there was no justification for relying only on the “regional” value of the political asylum granted by Ecuador according to the Latin American Convention, without considering other international obligations as well.[10]

 The last point dealt with by the WGAD was in relation to the European Arrest Warrant and the minimum standard of fair trial guarantees which should have been granted to Mr Assange, as a defendant, by the Governments. The EAW, issued by the Stockholm Court against Mr. Assange, presented several controversial points. Notably, the Swedish authorities underlined that there was no casual link between their EAW and the self-confinement of Mr. Assange in the Ecuadorian Embassy. This overlooks the denial of the UK and Sweden to recognize Assange’s status as an asylum seeker, despite the worldwide publicity his case has received due to his controversy with the US. The juridical ground of the Swedish EAW remained unclear. Mr. Assange was not charged as defendant. Nevertheless, the Governments used the argument of the “criminal prosecution for ordinary crime” in order to exclude Mr. Assange’s right to asylum. That represented a clear contradiction; on the one hand, the Swedish authorities rejected the qualification of Mr. Assange as an “accused”; yet on the other hand, they used the criminal investigation to justify the EAW, as well as the denial of political asylum. It is worth noting that the EU Framework Decision of 13 June 2002 on the European Arrest Warrant clearly established, in Article 1 (paras 1 and 3), the definition of the EAW, as well as the minimum standard of procedural guarantees which must be respected.[11] In this sense, Article 1 para 3, referring to Article 6 of the European Convention on Human Rights, clearly establishes a link between the status of the requested person and the accused/suspect under investigation.[12]

At the same time, the UK’s position on the execution of the EAW was not entirely comprehensible. In the UK Court’s opinion, the extradition of Mr. Assange was deemed to be fair and proportionate, yet in 2014 a corrective legislation entered into force in the UK with the aim to – among others – bar extradition where no decision to bring a person to trial has been made. As rightly underlined by the source’s comments, the UK should have recognised both the absence of the necessary judicial grounds behind Sweden’s issuing of the EAW, and the vulnus of the procedural guarantees apparently justified by Mr. Assange’s classification as not a “proper defendant”, which de facto resulted in a clear violation of Article 6 of the ECHR and Article 14 of the ICCPR.

Conclusion

After a concise discussion, the WGAD concluded that Mr Assange’s deprivation of liberty must be charged as an arbitrary detention “in contravention of Article 9 and 10 of the Universal Declaration of Human Rights and Articles 7, 9(1), 9(3), 9(4), 10 and 14 of the International Covenant on Civil and Political Rights”.[13]

The different sensitive issues at stake made the WGAD’s pathway arduous to walk. The necessity to combine the delicate (political) asylum problem with the judicial cooperation matters also involved the hard juridical arguments of the disproportionality of the EAW and the violation of the minimum standard of procedural guarantees. In spite of the several criticisms as to the decision’s content, the WGAD analysed all the matters involved and summarised them in a clear and brief decision, which could have been the only way to settle the controversy easily and “rapidly”. All things considered, the evident lack of homogeneity between the several issues involved, as well as the serious political matters against the backdrop of this affair, have resulted in a conclusive decision which deserves to be appreciated.

 

[1]. The decision was published on the 5th of February 2016.

[2] The use of the expression “deprivation of liberty” intentionally discloses the content the decision and the opinion of the author, as the first question which the WGAD was called to solve was the qualification of the Mr. Assange’s condition as deprivation of liberty or restriction.

[3] On the question whether the self – confinement of Mr. Assange in the Embassy of Ecuador could be reasonably defined as “detention”, the source affirmed that “the Working Group on Arbitrary Detention had agreed in previous cases that a deprivation of liberty exists where someone is forced to choose between either confinement, or forfeiting a fundamental right – such as asylum – and thereby facing a well – founded risk of persecution” (Opinion no. 54/2015, adopted by the Working Group on Arbitrary Detention on its 74th Session, p. 3).

[4] The individual dissenting opinion of Tochilovsky linked the denial of the qualification of Mr. Assange’s restriction as detention to a substantial lack of competence of the WGAD in the light of its mandate. The Governments, on their side, emphasized this point to justify how the situation of Mr. Assange was the result of his own choice to not leave the Embassy.

[5] For an interesting point of view on that point, see Interview with former UNWGAD Chair and Norwegian International Law Professor Mads Andenas, in www.justice4assange.com/UN- Working-Group-on-Arbitrary.html, who stated that “Liberty must be capable of being realized in actuality. Where the exercise of such liberty would have significantly coercive results, such as further deprivations of liberty or putting other rights at risk, this cannot be described as liberty in practice”.

[6] Opinion no. 54/2015, Governments’ responses, p. 6.

[7] Asylum case (Col. v. Peru), Judgment, 1950 ICJ Reps. 273 (Nov 20). On this point, see also M. Happold, Julian Assange and the UN Working Group on Arbitrary Detention, on EJIL: Talk! (www.ejiltalk.org), 5 Feb. 2016.

[8]Everyone has the right to seek and to enjoy in other countries asylum from persecution”.

[9] See among others, W.T. Worster, The contemporary international law status of the right to receive asylum, Int J Refugee Law (2014), 6 (4) 477-499.

[10] The Latin American Convention on diplomatic asylum (i.e. the Caracas Convention) was adopted within the Organization of American States (OAS) and was signed by both the Republic of Ecuador and the USA. That is why it is correct to qualify it as a regional instrument of human rights law, to distinguish it from the universal tools of general international law.

[11] COUNCIL FRAMEWORK DECISION of 13 June 2002 (2002/584/JHA) on the European arrest warrant and the surrender procedures between Member States 1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

[12] 3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.

[13] Opinion no. 54/2015 adopted by the Working Group on Arbitrary Detention, p. 17.

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The US and Information and Telecommunications in the Context of International Security: Which implications for the ius ad bellum?

INTRODUCTION

The issue of information security has been the subject of study of the First Committee of the UN General Assembly since 1998. This study originated in a proposal submitted to the General Assembly by the Russian Federation , which later became the consensus Resolution 53/70, inviting all States to inform the Secretary-General of their views about, inter alia, the ‘[a]dvisability of developing international principles that would enhance the security of global information and telecommunications systems and help to combat information terrorism and criminality’.[1] Since then, four Groups of Governmental Experts (GGEs) have been established and submitted the result of their work to the UN Secretary General, who is asked to report to the General Assembly. A fifth group has been established in December 2015, being expected to meet for the first time in August 2016 and submit its report in 2017.

In October 2014 the US submitted before the fourth GEEs a position paper, which was not, however, completely embraced by the other experts in their 2015 final report. This paper is in any case relevant as it is possible to derive from it important conclusions regarding the US opinio iuris on some aspects of the ius ad bellum, in particular the law of self-defence. This post aims at highlighting such implications and is structured as follows. First, I will analyse the issue of Information and Telecommunications in the Context of International Security as it has been dealt with within the UN; then, I will focus on the US position paper. I will conclude that, when it comes to the notion of ‘armed attack,’ the US Administration might have a broader understanding than the international community as a whole, to such an extent as to include any violation of article 2(4) UN Charter.

 

Information and Telecommunications in the Context of International Security at the UN

In line with its predecessors’ mandate, the fifth GGEs is supposed ‘to continue to study, with a view to promoting common understandings, existing and potential threats in the sphere of information security and possible cooperative measures to address them and how international law applies to the use of information and communications technologies by States’.[2] Since both the 2013 and 2015 reports consistently affirmed that international law, in particular the UN Charter, is applicable to the cyber-sphere, and that the latter applies ‘in its entirety’,[3] it is unclear why it could still remain to be seen how the Charter would apply. In fact, the UN Charter and all relevant UN instruments should provide sufficient guidance in this respect.

The reasons behind this uncertainty seems to be connected with a political tension within the GEEs. Russia, China, Pakistan, Malaysia and Belarus have in fact strongly opposed to the US proposal of making an express reference to article 51 UN Charter, namely, the provision regulating states’ inherent right to use force on the grounds of self-defence to repel or prevent an actual or imminent attack.[4] They argued that the acceptance of this proposal would permit the US to affirm its supremacy in the cyberspace, which would then become another militarized area.

The report finally adopted does not mention article 51 UN Charter, but identifies

‘as of central importance the commitments of States to the following principles of the Charter and other international law: sovereign equality; the settlement of international disputes by peaceful means in such a manner that international peace and security and justice are not endangered; refraining in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations; respect for human rights and fundamental freedoms; and non-intervention in the internal affairs of other States.’[5]

Moreover, while recognizing the need for further study in this respect, the report notes ‘the inherent right of States to take measures consistent with international law and as recognized in the Charter.’ [6] The reference here is clearly to the right to use force in self-defence, without explicitly mentioning it.

The US and the notion of armed attack

Leaving aside any consideration with regard to what the next GGEs could further establish, what is interesting here is the US legal position on the matter. Indeed, it might help clarifying the Administration’s stand on some aspects of the ius ad bellum as they are provided by the UN Charter, the corresponding norms of customary law, and all other relevant instruments adopted within the UN, including the UN GA Res 3314 (1974).

This Resolution, adopted by consensus by the General Assembly in 1974, provided a definition of aggression, which -at least in some of its parts- has been considered reflective of customary law by the International Court of Justice.[7] Its Article 3 also provides a non-exhaustive list of acts that constitute aggression. At the 2010 Kampala Review Conference, States Parties to the International Criminal Court adopted a consensus definition of the crime of aggression which makes an explicit reference to the Resolution and incorporates its article 3. The US has since then kept consistently opposing the Kampala amendment for a number of reasons, including its reference to Resolution 3314.

While not all acts of aggression would also constitute an ‘armed attack’ within the meaning of article 51 of UN Charter, the latter is no doubt both an act of aggression and a serious violation of article 2(4) UN Charter, which requires states to refrain ‘in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations’.[8] The force to which the provision makes reference has been originally conceived so as to encompass only military episodes.[9]

The US position paper submitted in 2014 broadens the range of situations in which a state may legally resort to force in self-defence. First, the paper expands the definition of armed attack, and therefore indirectly enlarged the list of acts of aggression, by including some cyber activities. In particular,

‘States should consider the nature and extent of injury or death to persons and the destruction of, or damage to, property. Although this is necessarily a case-by-case, fact-specific inquiry, cyber activities that proximately result in death, injury, or significant destruction, or represent an imminent threat thereof, would likely be viewed as a use of force / armed attack.’[10]

Such a ‘threat of an imminent armed attack in or through cyberspace is not [always] associated with a corresponding threat of imminent armed attack through kinetic means’,[11] and, consistently with what the US has been affirming since the 9/11 terrorist attacks,[12] can be committed by states or non-state actors.

Second, the position paper equated an armed attack to a generic ‘use of force’ (borrowing this language from article 2(4) UN Charter), without specifying the gravity or seriousness thereof. This means, therefore, that every single violation of article 2(4) UN Charter would constitute an armed attack and, as a consequence, an act of aggression.

Last but not least, in relation to those cases of self-defence fought against non-state actors and without the consent of the so-called territorial state, the US position paper reaffirmed what has been claimed over the last decades with regard to the US war against different terrorist organizations, namely, that an alleged victim State may resort to force when the territorial state is unwilling or unable to stop or prevent the actual or imminent armed attack.[13] This would also apply to the case of an ‘armed’ attack launched in or through cyberspace. However, it was added,

‘[i]f the territorial State does not consent to the use of force on its territory because it proposes to take a reasonable alternative course of action to respond to the actual or imminent armed attack or to allow others to do so, it generally should not be treated as “unwilling”.’[14]

This statement constitutes further clarification with respect to previous practice and could no doubt apply within the context of any US pre-emptive use of force against terrorist groups based in a state considered to be unwilling because it is ‘publicly silent’ when facing the risk of a military intervention justified on such grounds.

CONCLUSION

Although not wholly embraced by the fourth UN GEEs’s report adopted, the US position paper submitted to the Group in 2014 might reflect the Administration’s opinio iuris in relation to some spheres of the law of self-defence. On the one hand, as consistently claimed by the US since the 9/11 terrorist attacks, an armed attack within the meaning of article 51 UN Charter may be committed by either state or non-state actors. Moreover, an alleged victim state could act in self-defence also against a non-state actor, and even in the absence of the territorial state’s express consent.

On the other hand, the US position paper suggested that the US Administration could consider as armed attack (which, by its nature, is also an act of aggression) any violation of article 2(4) UN Charter. It furthermore provided a broader definition of armed attack so as to include cyber activities that do not imply any kinetic force. These two aspects, if upheld by the group, might well contribute to the modification of both the relevant provisions of the UN Charter and the correspondent customary norms.

[1] UNGA Res 53/70 (4 January 1999) UN Doc A/RES/53/70, para 2(c) [emphasis added].

[2] UNGA Res 70/237 (23 December 2015) UN Doc A/RES/70/2376, para. 5 [emphasis added].

[3] See UNGA 70/174 (22 July 2015) UN Doc A/70/174 paras. 24 and 28 (c). Cf UNGA 68/98 (24 June 2013) UN Doc A/68/98 para. 19.

[4] US Secretary of States, Daniel Webster, Letter to the British Envoy Extraordinary and Minister

Plenipotentiary in Washington on 24 April 1841 (as cited in Eric Heinze, Malgosia Fitzmaurice,

Landmark Cases in Public International Law (Martinus Nijhoff Publishers 1998) 1247-1255.

[5] See UNGA 70/174 (22 July 2015) UN Doc A/70/174 para. 26 [emphasis added].

[6] ibid. para. 28 (c) [emphasis added].

[7] Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits) General List No 70 [1986] ICJ at 195.

[8] Article 2 (4) UN Charter [emphasis added].

[9] See, e.g., US Representative to the Sixth Committee of the UN General Assembly, John S Cooper,

Statement on 25 November 1968 (1080th meeting) in OR of the UN General Assembly (Twentythird

session). Sixth Committee. Legal questions. Summary records of meeting (1968).

[10] Ibid.

[11] Ibid.

[12] See US Permanent Representative to the UN, John D Negroponte, Letter to the President of the UN Security Council on 7 October 2001 UN Doc S/2001/946.

[13] See Yoram Dinstein, War, Aggression and Self -Defence (5th ed., Cambridge University Press 2011) 275.

[14] United States paper submitted to the 2014–15 Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security (October 2014).

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The Hutchinson and Hammerton cases. The Human Rights Act within the case law of the European Court of Human Rights

Introduction.

The Human Rights Act 1998 (HRA) is a piece of legislation incorporating the rights set out in the European Convention on Human Rights (ECHR) into UK law. The Act allows individuals to challenge a decision of a public authority within UK Courts, on the grounds that it violates their rights under the ECHR. It places upon domestic courts the duty to interpret all existing legislation in a manner that it is compatible with the ECHR. Whenever this is not possible, the Act allows for a ‘declaration of incompatibility’ to be issued by the UK Supreme Court; however, this declaration does not affect the validity of the legislation contested. This remains exclusive competence of the Parliarment.

The Act was passed into law in 1998 with overwhelming cross-party support and the backing of the then Conservative Party leadership. However, today, the same Act is at the centre of a hot debate originating in the Conservative Party’s intention to repeal this piece of legislation. The Conservative Manifesto 2015 promised to “scrap the Human Rights Act, and introduce a British Bill of Rights” and statements have been made by Prime Minister David Cameron and Home Secretary Theresa May to the effect that the Act constitutes an unbearable intrusion by a foreign Court into UK politics and affairs. Furthermore, Prime Minister David Cameron has declared that the UK may even consider withdrawing from the European Convention system. The upcoming referendum on ‘Brexit’, althought formally unrelated, will probably revive the debate on both issues.

The present post wishes to contribute to the debate on the possibility of repealing the Human Rights Act by discussing its role in relation to the case law of the European Court of Human Rights (EctHR), with specific reference to two recent judgments in which the HRA has played a substantial role.

Hutchinson and Hammerton

Only a very small percentage of the applications lodged against the UK before the ECtHR passes the initial threshold of admissibility: between 1999 and 2010, the estimated number was around three per cent.1 Among inadmissibility decisions, many are motivated by the non-exhaustion of domestic remedies. The exhaustion rule, set forth in Article 35 of the European Convention, expresses a general principle of international law2 and is grounded in the principle of subsidiarity, according to the notion that “it falls, firstly, to the national authorities to redress any violation of the Convention.”3 The rationale behind the rule is to grant national authorities the opportunity to prevent or put right the alleged violations of the Convention.4 Thus, the ECtHR declares inadmissible applications which are not preceded by the activation of available and effective domestic remedies designed to redress the violation(s) contested.

The case law of the ECtHR demonstrates that non-exhaustion of remedies provided by the Human Rights Act often constitutes the ground for the inadmissibility of complaints lodged against the UK.5 Whenever claimants lodge an application against the UK, they must have relied, at least in substance, on the Human Rights Act before British courts in order for their application to be admissible. Accordingly, the Human Rights Act represents an important “filter”, which is capable of preventing the European Court of Human Rights from finding against the UK. British courts, well-aware of the importance of this filter, make use of their powers to interpret domestic law in accordance with the Human Rights Act so as to prevent the possibility that a certain piece of legislation gives rise to a violation of the European Convention.

This happened, for instance, in the recent Hutchinson case, whereby the European Court of Human Rights found no violation of the Convention thanks to the interpretative developments achieved at the domestic level by the Court of Appeal.6 The issue at stake was the indefinite duration of life sentences which, according to the European Court of Human Rights’ case law, is compatible with Article 3 of the Convention (prohibition of torture and inhuman and degrading treatments) only where there is both a prospect of release and a possibility of review.7 In the UK, the Secretary of State has the discretion to release a whole-life prisoner under Section 30 of the Crime (Sentences) Act 1997. However, chapter 12 of the so-called Lifer Manual provides that release can be only ordered if a prisoner is terminally ill or physically incapacitated.8 This restrictive provision has been at the centre of a debate between UK Courts and the European Court of Human Rights.9 Eventually, in R v. Newell; R v. McLoughlin, the Court of Appeal supported a wide interpretation of Section 30, allowing the Secretary of State to exercise his power of release outside the strict limits of the Lifer Manual.10 Acknowledging the importance of such an interpretation, the European Court of Human Rights concluded, in Hutchinson, that “the power to release under section 30 of the 2003 Act, exercised in the manner delineated in the Court of Appeal’s judgments in Bieber and Oakes, and now R. v. Newell; R v. McLoughlin, is sufficient to comply with the requirements of Article 3”.11

The case law of the ECtHR also demonstrates that flaws in the system delineated by the Human Rights Act may result in adverse judgments against the UK. An example can be found in the recent Hammerton case, which originated in a violation of the due process of law: the applicant had been sentenced for contempt of court after a committal hearing where he had not benefitted from the assistance of a lawyer.12 The Court of Appeal acknowledged that the lack of legal representation constituted a violation of the right to legal assistance set out in Article 6 § 3 c ECHR. However, the High Court dismissed the applicant’s claims for damages under common law, noting the lack of malice of the County Court. Furthermore, it refused the applicant’s claim for damages under the Human Rights Act 1998, noting that section 9(3) precludes damages in respect of a judicial act done in good faith, with the exception of damages required by Article 5 § 5 of the Convention, which was deemed not to be applicable in the applicant’s case because the irregularity was not so gross or obvious as to be not in accordance with the law.13 Thus, the applicant had not been afforded appropriate redress, nor it was possible for him to argue that the relevant legislation ought to be read in a manner compatible with Article 13 ECHR (right to an effective remedy) or to seek a declaration of incompatibility, because the Human Rights Act excludes from the scope of “Convention rights” the right guaranteed by Article 13 ECHR. Because of this lacuna in the British system of protection for human rights, the ECtHR dismissed the Government’s objection as to non-exhaustion of domestic remedies and eventually found a violation of Article 6 ECHR (fair trial), because “the domestic remedies available to the applicant in relation to his complaint under Article 6 were not fully “effective” for the purposes of Article 13, since they were not capable of affording adequate redress for the prejudice suffered by him in the form of the lengthened deprivation of liberty”.14

The Human Rights Act and the case law of the ECtHR.

The above mentioned decisions demonstrate the by the Human Rights Act: on the one hand, it represents a valuable tool for adjusting the British legal system to the values enshrined in the European Convention on Human Rights, thereby avoiding adverse judgments by the European Court; on the other hand, it encourages domestic authorities to step in to protect citizens where a lacuna in the domestic law endangers their rights.

A recent study has underlined that the number of adverse judgments against the UK has shown a slight downward trend since 2005, possibly motivated by the entry into force of the Human Rights Act.15 Even though the same study warns that the annual figures are so low that it is not possible to discern a clear trend pre- and post- Human Rights Act, the figures for the years following the release of this study appear to confirm the existence of such a trend. Indeed, in 2011, only eight adverse judgments were released, against 1,553 applications allocated to a judicial formation; in 2012, there were ten adverse judgments against 1,732 allocated applications; in 2013, eight adverse judgments against 912 allocated applications; in 2014 four adverse judgments against 720 allocated applications; and in 2015, four adverse judgments against 575 allocated applications. These numbers confirm the downward trend noted by the study, and also a slight downward trend in the number of allocated applications. It would be beyond the limits of the present contribution to investigate elements such as the number of inadmissibility decisions grounded on the presence of an effective remedy provided by the Human Rights Act: however, the two judgements analysed above clearly demonstrate the relevance that the Act plays in the determinations reached by the European Court of Human Rights.

On a general note, it is worth reiterating that the Human Rights Act was adopted by the UK Parliaments with an overwhelming cross-party majority and that the same European Convention on Human Rights has been the result of the work of prominent British lawyers, such as Sir David Patrick Maxwell Fyfe, a Conservative politician who was the Chair of the Committee on Legal and Administrative Questions of the Council of Europe’s Consultative Assembly from 1949 to 1952. Repealing the Human Rights Act might risk not only increasing the number of adverse judgments by the ECtHR, but also undermining the prominent position established by the UK within the Council of Europe and taint its international reputation as a pioneer in the protection of human rights. Using the words of human rights lawyer Jonathan Cooper, “there is nothing more British than the Human Rights Act. And through it, our values are being woven into human rights law across the globe.

1

A. Donald, J. Gordon, P. Leach, The UK and the European Court of Human Rights,Equality and Human Rights Commission Research report 83, 2012, p 34

2

ICJ, Interhandel (Switzerland v Unted States) Judgment of 21 March 1959; Article 41(1)(c) ICCPR; Article 46 American Convention on Human Rights; Articles 50 and 56(5) African Charter of Human and People’s Rights

3

Gafgen v Germany (GC), App no 22978/05, 1 June 2010; Siliadin v France, App no 73316/01, 26 July 2005

5

Amongst many others, see: Peacock v UK (Decision), App no 52335/12, 5 January 2016; Bahmanzadeh v UK (Decision), App no 35752/13, 5 January 2016; Roberts v UK (Decision), App no 59703/13, 5 January 2016

6

Hutchinson v. UK, App no 57592/08, 3 February 2015

7

Kafkaris v Cyprus [GC] Application no. 21906/04, 12 February 2008

8

Indeterminate Sentence Manual (the Lifer Manual), issued as Prison Service Order 4700

9

R v Bieber [2009] 1 WLR 223; R v David Oakes and others [2012] EWCA Crim 2435, [2013] 2 Cr App R (S) 22; Vinter and others v UK [GC], Apps nos 66069/09, 130/10, 3896/10, 9 July 2013

11

Hutchinson v. UK, App no 57592/08, 3 February 2015

12

Hammerton v UK, App no 6287/10, 17 March 2016, paras 6-15

13

Hammerton v UK, paras 26-35

14

Hammerton v UK, paras 146-147

15

A. Donald, J. Gordon, P. Leach, The UK and the European Court of Human Rights, Equality and Human Rights Commission Research report 83, 2012, p 36

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Perinçek vs. Switzerland on the backstage: the majority approach and the separate opinion of Judge Nussberger.

 

  1. Introduction.

On the 15th of October 2015 the Grand Chamber of the European Court of Human Rights (the Court) issued its second instance judgment in the case of Perinçek v. Switzerland. This judgment has the potential to play a central role in the Court’s case law on Article 10 of the European Convention on Human Rights (the Convention), relating to freedom of expression, as well as contributing to the wider cultural and historical debate about the sensitive issue of genocide denial.

This post will focus, in particular, on the main conclusions of the judgment and the partly concurring and partly dissenting opinion of Judge Nussberger, who contested the points in the judgment that this post will highlight as the most interesting.

2. The facts.

The case originated from the application of a Turkish national, Mr. Dogu Perinçek, a doctor of laws and the chairman of the Turkish Workers Party. During several conferences in Swizterland, the applicant publicly denied that the mass atrocities perpetrated by the Ottoman Administration in 1915 against Armenians amounted to genocide. While Mr Perincek did not deny that killings and deportations took place, he contested the legal characterisation of the acts as “genocide” and defined the term “Armenian genocide” as an “international lie”. However, on the basis of his statements, he was found guilty of “racial discrimination” under Article 261bis para 4 of the Swiss Criminal Code and he was convicted. The Chamber and the Grand Chamber, albeit on the basis of partly different reasons, held that the conviction and the associated punishment constituted a disproportionate interference with the exercise of his right to freedom of expression and violated Article 10 of the Convention. However, it is noteworthy that both Chambers also underlined the fact that their decisions did not have any implications on the ongoing debate regarding whether the massacres and deportations of the Armenians legally constituted genocide.

3. The application of Article 10 para 2: the Grand Chamber between legal concepts and historical debate.

In its judgment, the Grand Chamber tries to avoid touching upon certain sensitive issues which are not strictly relevant to its decision (such as whether the massacres constituted genocide).[1] Nevertheless, the case has raised several interesting issues, although only some of them can be qualified as legal problems, strictly speaking.[2]

The Court first analysed whether the interference with Article 10 of the Convention was lawful and had a legitimate aim (a); then, it assessed whether it was necessary in a democratic society (b).

In the course of analysing whether the interference was lawful and pursued a legitimate aim, the following controversial issues emerged: the foreseeability of both the norm and the criminal penalty, where the Court found that the approach of the Swiss authorities could reasonably be expected;[3] the definition of the “prevention of disorder” (partly contrasting with the wider concept of the “interest of public order), in regard to which it found no evidence that, at the time that they were made, the applicant’s statements were perceived by the Swiss authorities as a means of aggression capable of leading to public disturbances, in spite of the presence of both Armenian and Turkish communities in Switzerland; [4] and the protection of the rights of others (the contemporary Armenians), which the Court accepted as a justification for an interference of the applicant’s freedom of expression (the same could not be said for the protection of the honour of the victims).[5]

The Court finds that the criminal conviction of the applicant represented an unfair interference (unnecessary in a democratic society) with his freedom of expression and violated Article 10 of the Convention.

Under the Convention, the existence of a pressing social need for the interference must be balanced against the protection of the Armenian community’s rights covered by Article 8 and the right to freedom of expression.[6] In order to determine that the acts of the Swiss government were proportionate and, therefore, constituted the permissible interference with the right protected by Article 10, a link between the conviction of the applicant and the protection of the dignity of the Armenian community in general should have been established. Even if the Armenian community had possibly built its identity also based on the qualification of Armenian people as victims of mass atrocities (whose protection is consonant with the universal protection of human rights), there was no evidence that the above-mentioned link existed in the current case.[7]

Two points, among others, in the final part of the Court’s reasoning deserve particular attention.

The evaluation of the context of the interference: historical, geographical and time factors.              

The Court evaluated the geographical and historical context in which the statements were made. This stage of the reasoning inevitably involved a comparison with the phenomenon of Holocaust denial in western democracies, an issue consistently present in the background of the judgment.[8]

The Court found that the historical experience of each country must play a central role in the determination of the social and moral responsibility of States to outlaw mass atrocity denial; at this point, it is worth highlighting which public statements (and other forms of expression) are actually incompatible with democracy and human rights and, for that reason, not protected by the Article 10 of the Convention.[9] While the phenomenon of Holocaust denial in European countries had been considered extremely dangerous for the protection of the identities, because of the risk of a resurgence of racial discrimination and anti–Semitism, the Court apparently did not find this to be the case in relation to the facts related to the Armenian massacre in Switzerland in the 21st century. Although the Armenian community in Switzerland was in open disagreement with the view of the Turkish community about the legal characterisation of the 1915 events, this did not increase the risk of creating a tense atmosphere or of other dangerous consequences, such as, the promotion of racism and an antidemocratic agenda.[10] The Court also remarked that due to the considerably long time lapse between the historical events and Perinçek’s statements, it would be inappropriate to deal with them severely.[11]

The international law obligation to criminalise genocide denial. 

The Court was then called to determine whether or not the interference by the Swiss authorities could have been justified by an obligation to criminalise genocide denial under international law. In this respect, it did not find any international legislative tool (among treaties or customary law) which could reasonably create a binding international law obligation. According to the UN Human Rights Committee, the relevant provisions of the ICCPR provide that, unless the conduct, was incompatible with the prohibition of incitement to violence, hatred and racial discrimination, the freedom of expression and of opinion must be always guaranteed and protected. [12]

4. The partly concurring and partly dissenting opinion of Judge Nussberger.

In her separate (partly concurring and partly dissenting) opinion, Judge Nussberger interestingly challenged one of the main conclusions of the Court.[13] While she accepted the main conclusion on the violation of Article 10 of the Convention, even if by following a different pathway, she rejected the majority approach, contesting the unreasonable distinction between Holocaust denial and the denial of the Armenian genocide, as well as the weakness of the “geographical factor” and the “time lapse” arguments.

Judge Nussberger affirmed that it appeared to be unclear why only those sanctions imposed by the State Parties for the Holocaust denial have been considered compatible with the spirit and the provisions of the Convention. In order to justify the criminalization of its denial, the Court had referred to the notion of public order needs (that is, prevention of the incitement to violence and racial discrimination) and the historical and geographical links between the Nazi crimes and the duty of the States that had been affected, to criminalise its denial . Judge Nussberger rejected this approach, stating that these factors could lead to the wrong conclusion that it is only those States directly involved in mass atrocities and/ or genocide have the moral responsibility to distance themselves from these events.[14]

Notwithstanding the judgment’s consistent argument that there exists no international law obligation to criminalise genocide denial, the doubts created by the ineluctable comparison with Holocaust denial cannot be ignored, especially because of two elements: first, the arguments based on the ‘geographical’ factor and ‘time lapse’ do not appear to be strong enough to defend against the clear discrepancy in the way the denial of two mass atrocities of the 20th century are treated; second, the debate on the legal qualification of (and also on the search of the historical truth about)  the Armenian events of 1915 has gained a central position in the international arena which ought not to be difficulty underestimated.

5. Conclusion.

 At the end of this brief overview of the main controversial points of the final judgment in Perinçek, one could conclude that, despite several attempts at reaching a consistent and strictly legal solution to the case, the judgment has an undeniable impact on the cultural debate that cannot be overlooked.

The reasoning of the Court has offered the opportunity to reflect on some matters which emerged from the sensitive comparison with Holocaust denial, namely: first, the need to balance the freedom of the expression with the risk of compromising the public order, as well as, the sense of identity of individuals and communities, which gave an interesting point of view about protection of minorities’ rights and its link with the prevention of public disorder; second, the importance of considering both time and the historical factors when evaluating whether, in accordance with the spirit of universal protection of human rights, a duty the States to criminalise mass atrocities denial does exist.

 

[1] Perincek v. Swizterland (GC) ( ECtHR, 15 October 2015) § 100 – 102.

[2] The G.C. dealt with the position of the Court regarding the “Historical debates” from para. 213 to para. 220 of the judgment.

[3] This is particularly in view of the Swiss National Council’s 2003 motion recognising the 1915 events as genocide..

[4]Perincek v. Swizterland (GC) ( ECtHR, 15 October 2015), § 148 – 154.

[5] Although the applicant’s statements did not aim to direct the accusation of the Armenian genocide “as international lie” towards the victims, his definition of Armenians as “instruments of the imperialism” could be seen as affecting the dignity of the Armenians, therefore justifying interference with his right to freedom of expression.

[6] In determining whether the decisions of the authorities were compatible with the Convention, the margin of appreciation of the national Courts in their jurisdictions must be evaluated case by case

[7] In addition, in terms of the possible remedies that could have been adopted to interfere with the right to freedom of expression (e.g. the civil remedies) within the marginal of appreciation of the Swiss authorities, the criminal conviction certainly appears to be the most serious form of interference and that has resulted in the lack of proportionality.

[8] Paras 209 – 220.

[9]  See X. v. The Federal Republic of Germany, no. 9235/1981, Commission decision of 16 july 1982, Decision and reports (DR) 29, p. 194; Marais v. France, no. 31159/96, Commission decision of 24 june1996, DR 86- B, p. 184; Witzsch v. Germany app. No. 41448/98 (ECtHR 20 April 1999), Gollnisch v. France app.no. 48135/08 (ECtHR 7 June 2011).

[10] The situation might have been different judged in a country where the hostility between the communities could have provoked hatred towards the Armenians or could have otherwise impacted the protection of the rights of the minority.

[11] About the likelihood that controversial remarks about historical facts could bring back memories of past suffering see among others Editions Plon v. France, app. No. 58148/2000 (ECtHR 2004 – IV) and Hachette Filipacchi Associes v. France, app. no. 7111/01 (ECtHR 14 June 2007).

[12]  CCPR/C/GC/34, 102nd session of the UN Human Rights Committee.

[13] The judgment also has a Joint dissenting opinion of Judges Spielmann, Casadevall, Berro, De Gaetano, Sicilianos, Silvis and Kuris and an Additional dissenting opinion of Judge Silvis, joined by Casadevall, Berro and Kuris.

[14] Then, to support this affirmation, he added that “to seek to vindicate the rights of victims of mass atrocities regardless of the place where they took place is consonant with the spirit of the universal protection of human rights and wholly sufficient to justify legislation of this kind” in Judge Nussberger, separate opinion, in Perincek v. Swizterland (GC) ( ECtHR, 15 October 2015), recalls at S.A.S. v. France (GC) (ECtHR 2014), § 153.

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The European Court of Human Rights decision in Nasr and Ghali v. Italy: Impunity for Enforced Disappearance in Milan

Introduction

On 23 February 2016 the Chamber of the European Court of Human Rights (ECtHR, the Court) issued a judgment in the case of Nasr and Ghali v. Italy. The Court unanimously found Italy responsible for violations of Article 3 of the European Convention of Human Rights (ECHR) (prohibition of torture and inhuman or degrading treatment), Article 8 ECHR (right to respect for private and family life), Article 13 ECHR (right to an effective remedy) with respect to both applicants, and of Article 5 (right to liberty and security) with respect to Mr Nasr.

The Egyptian national Hassan Mustafa Osama Nasr, aka Abu Omar, was granted asylum in Italy and settled in Milan, where he married Ms Ghali. On 17 February 2003 he was kidnapped by a team of agents of the U.S. Central Intelligence Agency, with the cooperation of Italian agents. Leaving from the Aviano U.S. air base, he was transferred, through the Ramstein US air base in Germany, to Egypt, where he was secretly detained and tortured for over 12 months. He was released on 19 April 2004, when he contacted his wife and stated his version of the events. The details of the abduction were later confirmed by proceedings before Italian courts. The Italian judiciary was able to establish the facts, but not to fully dispense justice and prosecute those responsible, because of the shield of state secrecy imposed by the Italian Government. Mr Nasr’s kidnapping is an example of the post-9/11 counter-terrorism practice of “extraordinary renditions”, which, as argued below, can be characterized as enforced disappearances.

This analysis aims to contextualise Nasr and Ghali v. Italy in the broader jurisprudence of the extraordinary renditions cases examined before the ECtHR, while focusing on the findings of the case at stake concerning the responsibility of Italian institutions (namely, the Government, Chief of State and Constitutional Court) in providing impunity to those responsible. Furthermore, it will examine the practice of extraordinary renditions in international law, to establish whether the case can fit the definition of enforced disappearance, and how this could enhance the protection of renditions victims.

Extraordinary Renditions Before the ECtHR

“Extraordinary rendition” refers to the illegal arrests and secret transfers of alleged terrorists from the countries of arrest to black sites, where detainees are subjected to interrogations which include torture or inhuman or degrading treatments. The U.S. carry out extraordinary renditions with the cooperation of several states, with the aim to question “high value detainees” through “enhanced interrogation techniques” that could not be performed on U.S. soil. The practice is secret and, notwithstanding documentation by NGOs and institutions,[1] its details remain largely unknown. It apparently started in the aftermath of 11 September 2001 and was limited, but not abolished, by the Obama Administration with the “Ensuring Lawful Interrogations” Executive Order of 22 January 2009. Within the context of the current electoral debate, Presidential candidates express various and inconsistent opinions about such practice.

Before Nasr and Ghali, the ECtHR had handed down two decisions relating to extraordinary renditions. First, in the 2012 case of El-Masri v. “The former Yugoslav Republic of Macedonia”, which concerned a German citizen, Khaled El Masri, who was arrested by CIA agents the night of 1 January 2004. He was detained in secret, in a Skopje hotel, for 3 weeks and then transferred to Kabul. He was released after 4 months of interrogations. The El Masri case is possibly the most blatant example of an erroneous rendition: the agents mistakenly believed to have arrested and questioned Khalid Al Masri, a person allegedly involved in the 9/11 attacks. The Grand Chamber held that such extraordinary rendition violated a combination of Articles of the European Convention: namely, Articles 3, 5, 8 and 13.

The second decision was issued in the case of Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland and concerned a black site on European territory: Stare Kiejkuty facility. In addition to the violations of Articles 3, 5, 8 and 13 ECHR found in El Masri, the decision referred to Poland’s failure to cooperate with the Court in violation of its obligation under Article 38 ECHR. After the detention in Poland, furthermore, Al Nashiri was transferred to Guantanamo Bay, where he risked facing the death penalty, entailing the violation of Articles 2 (right to life) and 6 (right to a fair trial) of the European Convention, along with Article 1 (abolition of the death penalty) of Protocol No. 6 to the ECHR.

In the most recent Nasr and Ghali, Mr Nasr’s extraordinary rendition has been defined as “the most disturbing case” and “the most grotesque rendition”[2] because of the amount of evidence left by the agents involved.[3] A reporter defined the mission, which involved luxurious restaurants and hotels in Venice and Florence, as “La Dolce Vita War on Terror”. Since details of the operation were available to the prosecutor, and generally to the public, the Court (para 254) found that State secrecy was not relied on to genuinely protect sensitive information, but rather to grant impunity to those responsible. Differently from El Masri and Al Nashiri, the ECtHR (para 265) found that, in this case, domestic proceedings had already taken place, establishing the truth, identifying the persons responsible and securing their convictions (the 4 November 2009, the District Milano Court convicted 22 CIA agents in absentia). However, due the intervention of the executive, the judgments have not been enforced.

Various institutions have hindered judicial proceedings. First, the Italian Government, under successive Presidents, imposed State secrecy over the acts committed by the Italian intelligence agency (SISMI), shielding the agents involved in Nasr’s rendition. In addition, the ECtHR affirmed (para 270) that US agents never sought extraditions. Second, the Chiefs of State (namely, Presidents Napolitano and Mattarella) granted pardons to three US agents involved. Third, the Constitutional Court affirmed the supremacy of State secrecy over any other constitutional concern in two separate decisions (that is, decisions no. 106/2009 and no. 24/2014). In addition to the violations identified in earlier cases, the Court further held that the rendition constituted a treatment towards Ms Ghali, Mr Nasr’s wife, that violated Articles 3 and 8 ECHR.

Extraordinary Rendition in International Law: Possible Characterisation as Enforced Disappearance

Extraordinary rendition as such does not constitute a specific crime in international law. It can however fall within the legal definition of enforced disappearance. Enforced disappearances are defined by Article 7 of the Rome Statute of the International Criminal Court (ICC) relating to crimes against humanity. A broader definition is provided by Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance (CED), entered into force in 2010, which reads as follows: “For the purposes of this Convention, ‘enforced disappearance’ is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law”. The United States, primary responsible for the practice, are not party to the ICC Statute and have not ratified the CED. Still, extraordinary renditions are perpetrated by nationals, and on the territory, of States that have ratified both instruments, which is the case of Italy.

As described above, extraordinary rendition entails the cumulative violation of a number of rights, in the course of a single, if complex, pattern of conduct. In the ECtHR case law, violated rights include the right to personal liberty and security, the respect for private and family life, the right to access effective remedy, and in certain cases, the right to life. Extraordinary rendition, furthermore, generally involves the perpetration of torture and other inhuman or degrading treatment, which is not a necessary element of the crime of enforced disappearance.

In Al Nashiri (para 520), the Court affirmed that “the rationale behind the program was specifically to remove those persons from any legal protection against torture and enforced disappearance”. In El Masri (par. 240),the Grand Chamber held that “the applicant abduction and detention amounted to ‘enforced disappearance’ as defined in international law”. In El Masri, the Court furthermore found another feature pertaining to enforced disappearances: the right to truth, which should not be obstructed by the concept of State secrecy (par. 191) and has both a private and public dimension.

The characterization of extraordinary renditions as enforced disappearances has various advantages in enhancing the protection of the victims. First, it provides a clear definition of an otherwise complex criminal conduct, which involves a combination of human rights violations; second, it excludes any possible derogation, including cases relating to national security, regularly alleged in these types of counter-terrorism operations; third, when it is contextualized as part of a widespread or systematic attack against a civilian population, it envisages the potential to define the practice as a crime against humanity. 

Conclusion

The decision of the Chamber in Nasr and Ghali v. Italy marked a remarkable step in addressing the issue of extraordinary renditions in Europe. The decision finds state secrecy, which had notably be confirmed by two judgements of the Italian Constitutional Court, not to be compatible with the rights protected by the European Convention. Finally, the possible characterisation of the conduct as enforced disappearance opens new avenues for a stronger protection of the victims of extraordinary renditions.

[1]              Council of Europe, Committee for Legal Affairs and Human Rights, “Secret detentions and unlawful inter-state transfers involving Council of Europe member states, 2007;  European Commission for Democracy Through Law; “Opinion on the International  Legal Obligation of Council of Europe Member States in Respect of Secret Detention Facilities and Inter-State Transport of Prisoners”, 2006.  European Parliament, Temporary Committee on the alleged use of European countries by the CIA for the transport and illegal detention of prisoners, 2007; Amnesty International, Below The Radar, Secret flights to torture and ‘disappearance’, 2006; Human Rights Watch, The United States’ “Disappeared” The CIA’s Long-Term “Ghost Detainees”, 2004.

[2] “La più grottesca extraordinary rendition”, Claudio Fava, “Quei bravi ragazzi”, Sperling, 2007.

[3]Tullio Scovazzi, “Tortura e formalismi giuridici di basso profilo” in Rivista di diritto internazionale, 4, 2006.

 

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‘Retroactivity’ and ‘detriment’ in Article 51(4) of the Rome Statute: The divergent approach between the Trial and Appeals Chambers in the Kenya prior-recorded testimony proceedings

On 12 February, the Appeals Chamber at the International Criminal Court (ICC) unanimously reversed Trial Chamber V(a)’s Decision on the Prosecution’s Request for Admission of Prior Recorded Testimony in the case against Kenyan deputy President William Ruto and former radio journalist and Head of Operations at Kenyan radio station Kass FM, Joshua Arap Sang. While the proceedings raised a number of interesting legal questions, the determining factor on Appeal was the interpretation of Article 51(4) of the Rome Statute, which prohibits the retroactive application of amendments to the Rules of Procedure and Evidence (RPEs) where such application would be detrimental to the accused.

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Public Conscience and the Evolution of International Law

The concepts of “public conscience” and “principles of humanity” have played a crucial role in the evolution of international law in the last century. The ambiguity of the terms, and the lack of a clear definition and scope, have permitted a creative application of the principles and have fostered extensive interpretations of norms. This post intends to examine these non-legal concepts, in an attempt to further strengthen their contribution to the development of international law.

The role of public conscience and dictates of humanity in the evolution of international law

The international law principles of “laws of humanity” and “dictates of public conscience” have gained relevance during the 19th Century. First mentioned in the so-called Martens Clause[1], these principles were reiterated, albeit with varied wording, in several humanitarian law and human rights treaties.[2] Their role and purport in international law were examined by the International Court of Justice and by human rights bodies. International Criminal Tribunals, from Nuremberg to the ICTY, also relied on these principles.[3] They are currently recognized as principles of international law, applicable in times both of armed conflict and of peace.

The existence of a public conscience that expresses “sentiments of humanity”[4] is a phenomenon conceived at the end of the 18th Century and has been growing ever since. The affirmation of this notion in international law allowed progressive interpretations of international agreements by judges and treaty bodies, and a constant evolution of customary law.

The notion of public conscience, meaning public opinion, or vox populi, played a crucial role in promoting negotiations of treaties and conventions[5]. In so doing, it shaped a “large body of public international law derived from humanitarian sentiments and centred upon the protection of the individual”[6].

After the Second World War, indeed, the diffusion of democratic regimes in various continents, with the parallel phenomena of decolonisation, globalisation, and the – albeit partial – democratisation of the international system, provided the public opinion with a fundamental role in the evolution of international law. Media development, together with technologies, gave further strength to the phenomenon. Across the decades, plenty of observers monitored and reported the positions of States delegations in diplomatic meetings. In so doing, the presence of civil society mitigated the adoption of decisions based purely on State interests, and promoted decisions taken in the interests of other sectors of society, or again, for the common interests of mankind.

As for the notion of humanity, it has also played a crucial role in the conclusion of international agreements in the last century. The history of the law of treaties experienced a gradual change. From bilateral treaties concluded in the name of state interests, and mainly under the principle of reciprocity, multilateral treaties thrived, throughout the 20th Century and especially from the aftermaths of World War II, with a different purpose: to safeguard the common interests of mankind.[7]

Public opinion is considered to have crucially contributed, for instance, to the adoption of treaty prohibitions on bacteriological (biological) and chemical weapons; to the negotiation of the 1997 Ottawa treaty, a disarmament treaty prohibiting antipersonnel land mines; and to the inclusion, in the Rome Statute of the International Criminal Court, of the war crime of conscripting and enlisting children into armed forces or groups. [8]

This view of the impact of public opinion  on the adoption of treaties implies a univocally positive influence of public opinion on the evolution of international law: in so doing, it gives an oversimplified perspective of the “public conscience” notion , which takes for granted that the vox populi only advocates positive instances of protection of human dignity and peaceful relations in the international community. Rather, the public conscience has a wide range of opinions and sentiments to be expressed, e.g. discriminations and hatred based on identity. So far, its voice was generally expressed by NGOs advocating progressive instances of humanitarian concern and of human rights protection. Should the trend of public involvement persist, different opinions and sentiments, not necessarily corresponding to the interests of humanity, could enter the international debate. The complexity of the concepts at stake invites a deeper reflection, in order to fully enquire into the potential value of these principles.

Sentiments of humanity, a possible definition

In order to find a definition for “sentiments of humanity” it is worth using the theory offered by a recent branch of psychology[9], which stems from an interpretation that is spread widely over various cultures since ancient history. This theory distinguishes between three kinds of human “sentiments”, which reflect istinctivity, emotivity and rationality. The three originate from different parts of the brain, respectively: the cerebellum, the limbic system and the neocortex, typical of different phases of the evolution of the human species. The three can be defined with the greek words of the three kinds of love: eros, philia and agape.

Eros is the instinctual feeling. It is related to anger, to joy, to sexual passion, but it is also related to inner values, e.g. a sense of justice. The deep feeling that allows distinction between what is right and what is wrong. In this interpretation, the concept of eros encompasses its etymological opposite, thanatos, by including both positive and negative instincts. Agape is the emotive side of love, reflecting the Latin word caritas. It relates to affection and a sense of protection towards the family. It is the love between mother and son, brother and sister, and also the kind of faith that links religious entities to human beings. Finally, philia is the admirative and contemplative love. It allows understanding and cognisance of being part of the entire humanity, to feel empathy for other human beings, not only for family or national links, but in the quality of members of mankind.

Each kind of sentiment has a certain impact on positions and opinions that concern the international community. For example in a situation of armed conflict, Eros is logically associated to violence, to the brutal instinct that leads people to harm other people. At the same time, it can inspire action against war and its consequences. For instance, it might be the instinctual feeling that inspired the first development of the laws of armed conflict, with Henry Dunant’s action after the battle of Solferino. The most powerful leaders are similarly inspired by strong inner values of righteousness and justice.

In the same way, agape’s impact is twofold. As an emotive love, it can foster solidarity among people; it can rebuild confidence and trust in communities. But agape can also have a negative impact as far as it constitutes an exclusive, and not an inclusive, sentiment. The feeling of agape is not directed towards any other human being, it is not erga omnes. Rather, it is directed to a specific group of people, of the same family, the same identity. Consequently, agape contributes to building divisions between people and nations. Furthermore, since agape encompasses love towards a divinity, it can foster religious hatred or fanaticism.

Philia is the only kind of love to inspire empathy towards all human beings, without personal gain, without distinction of nationality, religion or any other identity ground. It can be defined as the consciousness of being interlinked to all other human beings. It allows one to feel and conceive that mankind has common interests to pursue. Philia is the specific “love towards humanity” that contributed to the evolution of international law. Fundamental concepts of international law such as “crimes against humanity”, the ICRC’s fundamental principle of humanity and the concept of “public conscience” mentioned in the Martens Clause, are permeated by this “humanitarian sentiment”, as it is the inalienable and universal human dignity, which is the basis of human rights law.

Conclusion

In the last century, public conscience has played a crucial role in the evolution of international law, and it can still contribute to the development of humanitarian protection and human dignity in general. However, it is necessary not to overlook the possibility of negative manifestations of public conscience and to promote only one specific aspect, i.e., the consciouness of being part of the same humanity, or philia. This is the notion that so far has emerged in international negotiations, constituting the background condition allowing international actors to advocate international law agreements and, ultimately, pursue the common interests of mankind.

[1]              First included in the Hague Convention II with Respect to the Laws and Customs of War on Land of 1899.

[2]                             Theodor Meron, The Humanization of International Law, Brill Nijhoff, The Hague, p. 21, 2006.

[3]              Meron, op. cit., p. 23.

[4]              International Court of Justice, Corfu Channel Case, Individual Opinion by Judge Alvarez, 1949.

[5]           Tetsuya Toyoda, Influence of Public Opinion on International Law in the Nineteenth Century,  Alberta Law Review, Vol 46, No 4, 2010.

[6]              Jean Pictet, The need to restore the Laws and Customs relating to armed Conflicts, in International Review of the Red Cross, 9, pp 459-483, 1969.

[7]              “In fields such as public health, communications, maritime security, protection of maritime resources, literary, artistic and scientific property, metrological unification, and protection of certain basic human rights, multilateral treaties were called upon to serve an entirely new purpose: the defence of the common interests of mankind.”

Paul Reuter, Introduction to the Law of Treaties 2-3 (2nd ed. 1995) cit. in Meron, op. cit.

[8]              The three examples are proposed by Theodore Meron, op. cit. p. 21-23.

[9]              Claudio Naranjo, Character and Neurosis: An Integrative View. (Gateways). Nevada City, 1994.

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