Time-Limitation Clause Against Private Litigants of the East African Court of Justice: A Call for a Purposive Interpretation of Article 30(2) of the East African Community

Dr. Ally Possi

Post-Doctoral Fellow, North-West University, South Africa; lecturer, the Law School of Tanzania

 

Introduction

This post exposes time-limitation obstacle facing private litigants in accessing one of the African regional economic community judiciaries: the East African Court of Justice (EACJ, or the Court). The EACJ is the judicial organ embedded to settle disputes in connection with the East African Community (EAC) integration activities. Comparatively, the EACJ is a replica of other regional economic community courts, currently in existence, such as the Court of Justice of the European Union.

Private litigants play a key role in modelling states’ behaviour to realise their integration ambitions. One of the operational principles of the EAC is the ‘people-centered’ co-operation form of integration (art 7(1)(a) of the EAC Treaty).[1] Therefore, it was not an oversight to permit individuals to account Member States before the EACJ, whenever there is an infringement of the EAC Treaty. However, article 30(2) of the Treaty restricts private litigants to lodge their complaints: within two months of the enactment, publication, directive, decision or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant.

Following a significant level of silence on the stringent rule, this post is important considering the nature of the subject it tackles. Judges have been narrowly and strictly interpreting article 30(2) of the EAC Treaty, preventing private litigants to lodge their complaints to the EACJ with ease. Eventually, individuals are being denied access to justice. This post, therefore, argues that EACJ judges need to broadly and purposely interpret article 30(2) of the EAC Treaty, while at the moment the extension of the two months’ time window is denied on grounds that are contrary to the spirit of the EAC Treaty. Thus, this post provides some legal evidence for EACJ judges to stretch this interpretation.

East African Court of Justice

The Court is established pursuant to article 9 of the EAC Treaty, as one of the EAC organs bestowed with a mandate of interpreting and applying the EAC Treaty (see art 23, 27(1)). The Court is composed of two Divisions – the First Instance Division (FID), which has jurisdiction over most matters, and the Appellate Division (AD), where matters initially dealt by the FID are considered for appeal, as well as applications for advisory opinions. Worth a mention, accessibility to the EACJ by private litigants, challenging the acts of EAC Member States, is one of the most modern features in the catalogue of international and regional courts.

It is now about sixteen years after EACJ’s official inauguration on 30 November 2001. In 2005 the EACJ received its first case concerning a power struggle for enacting EAC laws between the Council and the East African Legislative Assembly (EALA). The turning point to the Court’s fortune was in 2007, when EAC Treaty was hastily amended as a means of retaliation from Member States,[2] due to a judgment by the Court faulting the manner in which members of EALA from Kenya were elected (see Anyang’ Nyong’o v AG of Kenya).

The process of amending the Treaty was, however, nullified in EALS v AG of Kenya & Others, of which the Regional Bar Association successfully challenged the amendment process by contending that EAC citizens were not consulted over the proposed amendment; a process required by the Treaty.[3] Thus, the EACJ found the amendment process was contrary to the letter and spirit of the EAC Treaty, of which one of its founding norms requires a people-centered driven form of integration. Despite of the EACJ decision, the amended Treaty retained its legal force. Perhaps, the nature of the EACJ’s decision, which was in a declaratory form, had something to do with its weak implementation; which is a matter of another academic debate. Nevertheless, it is important to point out that EAC Member States, as most African states, have the tendency of not complying with the decisions of international bodies. Be it as it may, it was through that illegal-pronounced amendment that article 30(2) was inserted.

EACJ’s approach on article 30(2)

The stance of the EACJ over article 30(2) EAC Treaty is appreciatively conservative; the article is strictly interpreted within its generic context. Consequently, many fresh cases are on the verge of facing dismissal, as it is unrealistic for private litigants to have a full case ready for court registration within sixty days. Case preparation takes time and demands resources. The EACJ has jurisdiction over a region where the majority of the people are least advantaged and under resourced. By being uncompromised to the two-months’ time draconian rule, judges are therefore denying individuals access to justice.

However, in the early EACJ cases, where article 30(2) EAC Treaty was at the focal point of dispute, the FID used to condone it. In IMLU v AG of Kenya, for instance, the applicant accused Kenya of violating the EAC Treaty, for failing to prevent or punish the perpetrators of the violence occurred at Mount Elgon during the 2007 general election. Kenya refuted such allegations by objecting the time in which the applicant’s complaint was lodged. In its decision, the FID stated (at p. 10):

It is our considered view, that the matters complained of are failures in a whole continuous chain of events from when the alleged violations started until the Claimant decided that the Republic of Kenya had failed to provide any remedy for the alleged violations. We find that such action or omission of a Partner State cannot be limited by mathematical computation of time.

The above reasoning was the FID’s stance in the early few cases with time-limit concerns.[4] When those cases reached the AD, however, they all were overturned on the grounds that the EACJ does not have any mandate to stretch time limits; and that arguments on the application of the doctrine of continuing violation cannot be sustained since EACJ is not a human rights court, where the doctrine is relevant (see AG of Uganda v Omar Awadh). As it stands, no flexibility is seen from the EACJ yet to at least liberally interpreting article 30(2) EAC Treaty.

The AD’s position came at a time when minds of all those affiliated with the EACJ were fresh from the suspicious 2007 Treaty amendment, of which the AD was created. It was also the first batch of AD appointed judges who presided on the above appealed time-limit cases. While there is no evidence of the then AD judges lacking impartiality, speculations on the AD’s verification role over FID cannot be shrugged-off with ease.

A call for a purposive interpretation

Article 30(2) EAC Treaty should be interpreted in light of its object and maiden purpose.[5] The following are reasons for the call. First, before the faulted 2007 Treaty amendment, article 30(2) was not inserted purposely to allow private litigants to have their share in playing a role within EAC integration without restrictions. After inserting article 30(2), individuals are now not able to access the EACJ with comfort. In fact, the provision was inserted in a discriminatory manner, as it is only applicable to private litigants and not to other potential applicants, such as the EAC Secretary General.[6] Therefore, strictly interpreting article 30(2) of the EAC Treaty is against the maiden spirit of the Treaty of allowing EAC citizens to have a say in the activities of their economic bloc.[7]

Second, private litigants are key in spearheading integration goals through litigation on matters directly associated with integration. By strictly applying article 30(2) EAC Treaty, applicants will not easily access the EACJ, eventually denying them access to justice and hindering them from playing a crucial role in shaping the integration. A society such as that of the EAC where most indigents are illiterate and legal services are scarce, a time-window of sixty days is minute. One would take about six months and above to gather evidence, jotting-down pleadings, and seeking legal assistance; let alone the time to be aware of legal procedures or even the existence of a court such as the EACJ. Thus, there is a need of applying the time limit rule with more logic.

Third, looking at the nature of cases received by the EACJ since its inception, the Court has been failing to attract traders due to its remedial powers and other related pitfalls.[8] In having a two months’ time limit for lodging a complaint, traders in the region will keep-on boycotting the Court and find other more favourable avenues to solve their disputes. Thus, by harshly interpreting article 30(2) EAC Treaty, the Court does not help its course of making traders bring commercial-related disputes before it.

Fourth, Rule 4 of the EACJ Rules of Procedure allows the Court to extend time in all procedural matters. Time-limits are also matters of procedure that judges should take note of and apply the rule for the benefit of individual litigants. It is somewhat surprising to find EACJ judges not toiling enough to broadly interpret article 30(2).

Fifth, there is evidence that the doctrine of continuing violation is commonly used in other legal matters, including tort and environmental law.[9] It is unfound for the Court to declare that the doctrine of continuing violation is only relevant to courts with human rights jurisdiction. Looking at matters concerning contracts, clearly, their nature of violation can be continuous. Being a regional economic community court, it is expected that trade and contractual related matters will be handled to the Court. By strictly interpreting article 30(2) of the EAC Treaty, to the extent of not upholding the continuing violation doctrine, the Court might not receive many critical cases, and in this respect it might fail to attract traders.

Sixth, using the same thread of reasoning from EACJ judges that the EAC Treaty does not explicitly confer the Court with a mandate to extend the restrictive time-limit, one can advance an argument that the Treaty also does not prevent EACJ judges from extending time-limits. Even more so, another glance to article 30(2) finds a phrase ‘within the article’, meaning that the rule is only determined upon weighing all circumstances at present. Thus, the EACJ can extend time for lodging complaints depending on the situation at hand.

Conclusion

Article 30(2) EAC Treaty is a hurdle to private litigants before the EACJ. By maintaining and conservatively applying the provision, genuine intention of having direct individual access to the EACJ becomes meaningless. A more recent attempt disputing article 30(2) proved futile (Steven Dennis v AG of Burundi & Others), when FID held that article 30(2) EAC Treaty conforms established Community norms. Understandably so, the FID cannot rule contrary to the AD. This latest decision has dashed private litigants’ hopes of getting rid of the draconian time-limitation rule. Therefore, it is submitted that, in the future, the EACJ should provide an interpretation of article 30(2) EAC Treaty based on its object and purpose, as established in the Vienna Convention on the Law of Treaties (art 31(1)).

 

 

 

 

[1] For a general understanding of the EAC principles, see: KC Kamanga and A Possi, ‘General principles governing EAC integration’ in E Ugirashebuja et al (Eds), East African Community law: Institutional, substantive and comparative EU aspects (Brill-Nijhoff, Leiden 2017) at 202-216.

 

[2] Henry Onoria, ‘Botched-up Elections, Treaty Amendments and Judicial Independence in the East African Community’ (2010) J. Afr. L. 74-94.

[3] Art 150 read together with art 7(1)(a) of the EAC Treaty.

[4] IMLU v AG of Kenya Ref No. 3/2010 of (29 June 2011); Rugumba v AG of Rwanda Ref No. 8/2010 (30 November 2011).

[5] Art 31 of the Vienna Convention on the Law of Treaties, 1969.

[6] See arts 28,29 and 30 of the EAC Treaty.

[7] Art 7(1)(a) of the EAC Treaty.

[8] James Gathii, ‘Variation in the Use of Sub-Regional Integration Courts between Business and Human Rights Actors: The Case of the East African Court of Justice’ (2016) Law & Contemp. Probs. 37-62.

[9] AC Lin ‘Application of the Continuing Violations Doctrine to Environmental Law’ (1996) 23 Ecology Law Quarterly 713-777; Elad Peled 2004-2005 ‘Rethinking the Continuing Violation Doctrine: The Application of Statutes of Limitations to Continuing Tort Claims’ (2004-2005) 41 Ohio Northern University Law Review 343-388. Ally

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The Government’s Great Repeal Bill: How the exception relating to the Charter of Fundamental Rights of the European Union will impact on the protection of Human Rights in UK

Introduction

 

On 13 July 2017 the Government of the UK published the long-awaited Great Repeal Bill, a single legislative measure which is planned to enter into force in March 2019, when the two-year Brexit negotiation process comes to an end. In brief, the bill will revoke the European Communities Act of 1972 and transpose European Union (EU) law, ‘wherever practical’, into UK law. Any European Court of Justice’s case law issued until March 2019 will also acquire the legal strength and authority of a UK Supreme Court’s decision.

Although Parliament will be able to vote on it no sooner than next autumn, the publication of the Bill has already resulted in a great amount of criticisms, above all, on the exclusion of the Charter of Fundamental Rights of the EU (hereafter, ‘the Charter’) from the application of the Bill, pursuant to its section 5 (4). This post first argues that the Charter, as many EU laws, is currently part of UK domestic law, thanks to section 2(1) of the European Communities Act 1972; which contradicts the Government’s stance in this respect; then, it argues that after Brexit, and with regard to those cases currently governed by EU law, the exclusion of the Charter would diminish the level of protection of human rights in the UK. This notwithstanding the European Convention of Human Rights (ECHR), incorporated in UK law via the 1998 Human Rights Act will still be enforced, but it argues that the ECHR will not grant the same human rights protection.

 

The Charter of Fundamental Rights of the European Union and the European Convention of Human Rights

 

In 2000, at the Nice European Council, the EU Members States adopted the Charter of Fundamental Rights of the EU, which in some respects is broader than the ECHR in that it enlists, in addition to civil and political rights, economic and social and societal rights. In 2009, the Charter became binding pursuant to article 6(1) of the Treaty of Lisbon, which assigned to the Charter ‘the same legal value as the Treaties.’ EU Member States have a duty to observe it only in application of the EU law, namely: when a national legislation transposes an EU directive; 
a public authority applies EU law; or a national court applies or interprets EU law.

 

The Treaty of Lisbon, under article 6 (2), provides that the EU “shall accede” to the ECHR. While the accession has not taken place yet, all EU institutions and Member States are in any case obliged to interpret the Charter in light of existing jurisprudence of the ECtHR. Under Article 52(3) of the Charter, States have a legal obligation to give the same meaning and scope to the rights of the two instruments, insofar as they correspond.

 

On the applicability of the Charter to the UK

 

In Lisbon, Protocol 30 to the treaty related to the application of the Charter of fundamental rights of the European Union to Poland and to the United Kingdom was adopted. This Protocol generated a significant confusion with respect to the legal effects on the UK. Some have argued that this implied a sort of opting out, so that the Charter has no legal value in the UK. Others embraced an opposite view, so that the Charter could have created new justiciable rights. To sort out this controversy, in 2014 the European Scrutiny Committee of the House of Commons published a report with the evocative title of ‘The application of the EU Charter of Fundamental Rights in the UK: a state of confusion’. The Committee concluded that the Protocol had reaffirmed that the Charter has legal strength in so far as all national authorities had to apply and interpret EU law, but it did not create new independent rights. In this respect, the Charter is directly effective in the UK, by virtue of Section 2(1) of the European Communities Act 1972 which in its relevant parts reads as follows:

 

‘All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly'[emphasis added].

 

The Committee indeed recommended that, in order to disapply the Charter from the UK, ‘primary legislation be introduced by way of an amendment to the European Communities Act 1972’. Therefore, since the Charter has the same legal value as the Treaties, with respect of any EU law, it is automatically part of the UK domestic law, pursuant to the 1972 Act of Parliament. In fact UK Courts have often made reference to the Charter and checked its compatibility with the EU law as implemented in UK.[1] Furthermore, in 2013 the Grand Chamber of the Court of Justice of the EU held:

 

‘where a court of a Member State is called upon to review whether fundamental rights are complied with by a national provision or measure which, in a situation where action of the Member States is not entirely determined by European Union law, implements the latter for the purposes of Article 51(1) of the Charter, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of European Union law are not thereby compromised’ [emphasis added].

 

Consequently, it is surprising that under Section 5(4) of the Great Repeal Bill, ‘[t]he Charter of Fundamental Rights is not part of domestic law on or after exit’ [emphasis added].

 

On the protection of fundamental rights provided by the Charter and the ECHR

 

After Brexit, as provided by the Great Repeal Bill, any public authority or national court in the UK could keep on applying or interpreting what was originally EU law, as this would become, ‘wherever practical’, UK law. However, so far, the relevant EU law has been interpreted in the case law of the Court of Justice of the EU in light of the Charter. If the Charter were not applicable to the UK any more, this might result in then-former EU law being significantly different from its ‘original’ version at the moment of its transposition; furthermore, its interpretation would be left to decisions to be taken on a case-by-case basis. These two factors taken together might have serious consequences in respect to the certainty of the law.

Concerning the application of the law, as far as the rights overlapping with the ECHR are concerned, this would result in a different kind of protection. Indeed, those civil and political rights provided by the Charter, in compliance with one of the most fundamental principles of the EU law, have a direct effect in the UK as many EU laws do. But if the Charter had no effect in the UK after Brexit, victims of human rights violations could only rely on the ECHR. Yet, under section 6 of the Human Rights Act 1998, while ‘[i]t is unlawful for a public authority to act in a way which is incompatible with a Convention right’, this does not apply to an act if

 

—(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

 

Thus, the kind of protection provided by the ECHR is not comparable to what people in the UK currently have in the application of EU law, thanks to the Charter and the European Communities Act 1972.

The same kind of reasoning would a fortiori apply to all those rights that are not protected by the Human Rights Act, including many economic and social rights, when they already are justiciable rights in the UK and in the application of EU law. Indeed, while it is true that the Charter did not add any new justiciable right, it is currently relevant when it comes to verify whether any EU law is compatible with it; to the contrary, domestic law (as all former EU legislation will become after the Great Repeal Bill is adopted) granting the same rights will not prevail over conflicting statutes.

 

Conclusion

 

On 13 July 2017 the Government of the UK published the Great Repeal Bill, which is going to be discussed in Parliament no sooner than next autumn. Section 5(2) of the Bill, which is meant to enter into force when the UK actually leaves the EU, provides for the Charter of Fundamental Rights of the EU not to be considered domestic law in the UK at the moment of Brexit, nor after it. This post has shown how the Charter is currently part of UK domestic law, thanks to Section 2(1) of the European Communities Act 1972. It has also been argued that, should the Bill enter into force as it stands at the moment, there may arise a problem in terms of the certainty of the law because, lacking the possibility of making reference to the Charter when interpreting and applying it, former EU law would already miss something at the moment of its transposition and national authorities would be left with the burden of filling the gaps it would leave. As for the protection of fundamental rights in the UK, this might be subjected to a considerable change too. Indeed, concerning those civil and political rights that are also provided by the ECHR, national authorities are bound not to give priority to the Human Rights Act, incorporating the ECHR in the UK system, when this is in conflict with national legislation. Thus, the protection of these rights, when violated in application of a norm incorporated by the then former EU law, will be left to a different, less incisive, kind of remedy than that offered by the Charter (and many EU laws!) at present. This would be a fortiori true with regard to those rights, including economic and social rights, which are not protected by the Human Rights Act.

[1] See, for instance, [2017] EWCA Civ 431, [2017] EWCA Civ 397 at 74; [2017] EWHC 1174 (Admin) at 100-101; [2017] EWHC 931 (Admin) at 59; [2017] EWHC 577 (Admin) at 38; [2017] EWCA Civ 35; [2017] EWCA Civ 41 at 136; [2017] EWCA Civ 243 at 1; [2017] EWHC 331 (Admin) at 17; [2017] EWHC 827 (Admin) at 30; [2016] QB 1003 at [99]; [2017] CAT 9 at 80; [2017] UKUT 125 (IAC) at 34; [2017] UKFTT 167 (TC) at 435; on the Charter not conferring new rights nor expanding those rights stemming from EU law, see, e.g., [2017] EWHC 695 (QB) at 13-16; on the disapplication of a national measures conflicting with the Charter see, e.g., [2017] EWCA Civ 121 at 60; [2015] EWCA Civ 311, [2015] 3 WLR 409. Interestingly, the First Section of the ECtHR has recently reaffirmed the legally binding nature of the Charter in a case against the UK.May

 

 

 

 

 

 

 

 

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The International Community’s Approach to Reprisals against the Use of Chemical Weapons in Syria: a Risk for the Jus ad Bellum Regime?

Introduction

On 26 June 2017, the Government of the United States of America issued a statement to inform that Syria appeared to be preparing a chemical attack, and to threaten the use of force if one took place. Earlier, on 28 May, the President of France similarly declared to be ready to use force as a reprisal against the use of chemical weapons by Syria. Both declarations followed the actual military intervention of 7 April, when the United States launched a missile strike against the Syrian airbase of Shayrat, claiming to be acting in response to an alleged chemical attack by Syrian forces in Khan Shaykhun.

Most commentators defined the attack as a clear violation of international law, perpetrated  in the absence of self-defence justification and without any Security Council authorisation, which – as detailed below – are the only two exceptions to the prohibition to use force foreseen by the UN Charter. Conversely, the vast majority of States condemned the use of chemical weapons allegedly used by Assad, but not the forcible countermeasure taken against it.

Several observers and scholars argued that the silence of the international community on the violation of the prohibition to use of force is shaping a new customary norm, allowing States to use force in case of grave violations of international law. This post will question this assumption, which bears the risk of a dangerous rift in the jus ad bellum regime.

The Attacks in Khan Shaykhun and Shayrat and the Reactions of the International Community

With the bombardment of Shayrat on 7 April 2017, the US directly used force, for the first time, against the Syrian army. The US presented the attack as a reaction to the alleged use of Sarin gas by Syrian forces in an airstrike in Khan Shaykhun three days earlier. The parties to the conflict did not agree on the dynamics of the events and no independent investigation confirmed the use of chemical weapons by the Syrian government, despite the mandate of the Organization for the Prohibition of Chemical Weapons-United Nations Joint Investigative Mechanism to monitor their use in Syria. The Organisation for the Prohibition of Chemical Weapons did find traces of Sarin in Khan Shaykhun, but could not state which party to the conflict was responsible for its use. The US and French intelligence blamed the Syrian Government for the attack, whereas Russia, and Syria itself, denied any responsibility of Assad’s Government.

The US attack was in fact criticised as an act of aggression by Syria, by its main allies in the area, Russia and Iran, and other States like North Korea. The legitimacy of the attack was firstly affirmed by the US and its allies in the area. Interestingly, most States not involved in the conflict criticised Syria for using chemical weapons, but not the US aggression in itself. US and French statements issued in the following months reiterated this position. This may suggest an acquiescence towards the legality of limited military interventions, or rather just a certain diplomatic tolerance for limited interventions, which are qualified as legitimate but not legal.

The prohibition to use force in international law and its exceptions

The prohibition to use force against the sovereignty of States is the cornerstone of the UN Charter, which prohibits the use of force at art. 2(4): “All Members shall 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”. The Charter foresees two limited exceptions: when the UN Security Council authorises States to take “action by air, sea, or land forces as may be necessary to maintain or restore international peace and security” (art. 42), and on the ground of self-defence (art. 51). The prohibition was reaffirmed by the International Court of Justice in several cases, and it may amount to a jus cogens norm.

The analysis of the compliance of the attack with the UN Charter is therefore uncontroversial: the US did not claim self-defence or seek a Security Council authorisation. The attack was consequently carried out in violation of the Charter.

However, a school of thought advocates the legitimacy of a third exception to the prohibition to use force. In the absence of self-defence claims and Security Council authorisation, a military intervention would be legitimate to respond to gross violations of international law involving atrocities perpetrated against civilian populations. The debate on the existence of such an exception usually refers to doctrine of humanitarian intervention. This doctrine has no generally shared definition – let alone recognition – in international law, but it is considered a particular form of use of force in a foreign State, characterised by a) the purpose to stop or oppose mass atrocities; b) the lack of consent of the State c) the absence of a legal mandate from the UN Security Council. Humanitarian intervention does not have a clear legal basis or a defined scope, but it is considered to involve a major military commitment, which comprehensively addresses the humanitarian crisis. In addition, humanitarian intervention concerns mass atrocities against civilian populations, which have taken place in Syria during the conflict, but without provoking interventions. Thus, the case at hand would not fall within the debate on humanitarian intervention – which was not invoked by the U.S. to justify the attack. The attack of 7 April on the Syrian base of Shayrat would rather constitute a single episode of forcible countermeasure against the use of chemical weapons.

Forcible countermeasures in international law

In cases of international wrongful acts, international law allows affected States to adopt countermeasures, subject to various limitations (e.g., the existence of a breach, the need of a prior demand for reparation, the necessity to comply with proportionality), including the prohibition to use force, as clearly stated in art. 50 the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission (ILC) in 2001. Thus, forcible countermeasures, sometimes referred to as reprisals, are in principle illegal under international law.

In the aftermaths of the 1998 NATO military intervention in Serbia, Antonio Cassese[1] – inter alia the first President of the ICTY – argued that a new international customary norm was in statu nascendi, modifying the status of the prohibition of forcible countermeasures in international law. According to this author, in cases of gross violations of human rights, the use of force as a countermeasure could be allowed, under certain conditions. Cassese acknowledged that this sort of derogation from the regulation of the use of force did not yet exist in international law[2] because of the lack of sufficient State practice, while there was already an opinio iuris ac necessitatis, given the diplomatic position of the majority of States concerning the NATO intervention.

Almost twenty years later, in the light of the development of the approach of States to the use of force, a consistent State practice did not evolve. The silence of States could arguably express an acquiescence to the adoption of forcible countermeasures against gross human rights violations. Even in this case, it would constitute an exception, and State practice does not show any crystallization of a similar customary norm.

In case of use of force without any Security Council authorisation, States have mostly relied on an extensive interpretation of the principle of self-defence. In contrast, States do not usually claim the possibility to use force as a reprisal for a violation of human rights.

Furthermore, in the last decades, the international community’s approach against military interventions like the bombing of Shayrat was strengthened by the criminalisation of the act of aggression. The crime of aggression was included in the Rome Statute of the International Criminal Court with a series of amendments at the 2010 Review Conference in Kampala. The ICC Assembly of States Parties is currently preparing to activate the Court’s jurisdiction over the crime. In its definition, the crime of aggression clearly covers actions like the 4 April attack on Syria.

Conclusion

To conclude, the statements against the use of chemical weapons by Syria raised the debate on the emergence of an opinion iuris allowing forcible countermeasures in case of gross violations of human rights. Still, the scarcity of State practice hinders the creation of a new customary norm which is capable to infringe the UN system of jus ad bellum. States do not seem ready to permit derogations from the prohibition to use force. In the lex lata, the bombardment of Shayrat, and the following threats to further use force against Syria constitute a clear violation of the jus ad bellum.

The absence of an explicit condemnation, without any consistent State practice, does not risk creating a customary derogation to the prohibition to use force as enshrined in the UN Charter with a new customary norm. Rather, it may suggest a certain diplomatic tolerance for limited interventions, which are sometimes defined as legitimate but not legal. This does not question the prohibition to use force, which is the key international rule to protect international peace and security.

[1]Antonio Cassese, ‘Ex iniuria ius oritur: Are We Moving Towards Legitimation of Forcible Humanitarian Countermeasures in the World Community?’ [1999] 10(1) European Journal of International Law 23-30

[2] Antonio Cassese, ‘A Follow Up: Forcible Humanitarian Countermeasures and Opinio Necessitatis’ [1999] 10 (4) European Journal of International Law 791-799; Bruno Simma, ‘NATO, the UN and the use of force: legal aspects’ [1999] 10(1) European Journal of International Law 1-22.

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ABOUT THE IMPLEMENTATION OF THE COLOMBIAN PEACE AGREEMENT: THE COMMISSION FOR THE ELUCIDATION OF TRUTH

1- Introduction

The peace process in Colombia is at an exciting and challenging stage.

After the signing of the revised Peace Agreement with the FARC-EP (hereby, Final Agreement) in past November and after its ratification by the Parliament,[1] Colombia is currently implementing its provisions and creating the mechanisms envisaged therein.

On 4th April, a Constitutional Law was passed to provide the Comprehensive System for Truth, Justice, Reparation and Non-Repetition envisaged in the Final Agreement with a constitutional framework. Following this, on 5th April, a Presidential Decree established the Commission for the Elucidation of Truth, Coexistence and Non Repetition (hereby, CET or the Commission), which is a key element of that System.

2- Basic features of the Commission for the Elucidation of Truth

The Decree 588/2017 sets out the rules for the creation, composition and functioning of the CET, although most of it is a literal transposition of the chapter 5.1.1. of the Final Agreement where the creation of a Truth Commission was agreed.

The Commission will be an autonomous, non-judicial and temporary body. It will have a three years mandate to perform its task, plus a previous six months period (to be calculated after the election of its commissioners) to organise and prepare its functioning (art. 1).

It shall consist of 11 members, of which no more than 3 can be foreigners. Commissioners shall be nominated, among people who stand for the post, by a Selection Committee consisting of 5 experts nominated by national and international institutions.

Its main goals are: to provide a thorough explication of the armed conflict, to promote the acknowledgement of victims and social coexistence, to contribute to the creation of a transformative environment for reconciliation and consolidation of democracy (art. 2).

Its mandate (art. 11) consists in investigating and clarifying:

  • gross human rights violations and violations of International Humanitarian Law perpetrated during the conflict, with a special focus on massive or systematic violations;
  • the collective responsibilities of both official and non-official actors;
  • the impact of the conflict in different spheres;
  • the historical context of the conflict, its root causes and its development;
  • the phenomenon of paramilitary violence;
  • the forced displacement of people and the plundering;
  • the relationship between the conflict and the drug trafficking;
  • the positive experiences of resilience and transformation in local communities affected by the conflict.

3- Some critical remarks

3.1- Timeframe

It is noteworthy that neither the Final Agreement nor the Decree fix an exact timeframe for this investigation: article 12 of the Decree states that it covers “the conflict”, but without specifying a conventional starting date. Moreover, it allows the Commission to deal with previous historical events, insofar as they help understanding the root causes of the conflict.

This decision allows a wide and complete investigation, but may cause some doubts and debates as to when exactly to fix its starting point.

In addition, the long duration of the conflict and the possibility to take into account even previous events may pose the risk of an overly broad mandate, which could entail difficulties in terms of providing a complete and satisfactory analysis of the conflict. This risk is even more important when considering the relatively short timeframe (3 years) in which the body is expected to conclude its work, as well as the fact that its activity is not limited to collect and examine information, but also encompasses other tasks, such as the creation of public spaces for the promotion of debate and acknowledgment (art. 13.2).

3.2- Transparency and effectiveness guarantees

The rules about the functioning of the CET pay a special attention to transparency and public monitoring of its work. This concern might be seen in the provision according to which the Commission shall adopt its own methodology and make it public (art. 14), in the obligation to inform society at least every six months about its activities (art. 13.11) and in the stress on the implementation of an outreach strategy and its links with mass media (art. 13.8). The Commission shall also adopt measures to create and preserve archives (art. 13.9) and give the widest dissemination of its final report once it is published (art. 13.5).

These provisions provide a guarantee that the activities of the Commission are accessible to victims, civil society and to every stakeholder in the peace process. They also favour a constant monitoring by these actors, thereby granting a stronger legitimacy to the mechanism and its good practices.

Lastly, the decision to create a follow-up committee after the publication of the final report (art. 32) is intended to facilitate the effective implementation of the recommendations that will be formulated in the final report. The creation of such mechanisms in other (few) transitional experiences[2] has proved to be an effective means to prevent the recommendations made by Truth Commissions from being just ink on paper.

3.3- Relevance of and for victims

The Introduction to the Decree and its Article 5 reiterate the idea that victims are a central concern in the peace process, by acknowledging the need to create the CET as soon as possible as a means to grant victims’ right to the truth.

Additionally, the Commission’s activity shall be focused on victims: the Decree states that its tasks encompass “creating… public hearing … with a view to hear different voices, the first being that of victims” (art. 13.2). It is also called to promote orientation to victims and affected communities that take part in the Commission’s activity (art. 13.6) and to develop a strategy enabling an active cooperation with victims’ organisations and their initiatives at the local level.

These provisions, together with the recognition of the positive effect of victims’ proposals for the elaboration of this Decree (as its Introduction states), show the active role that victims should and do have in the development of this transitional mechanism. Besides that, they confirm the will to enhance grass-root initiatives and to integrate them into the institutional transitional project.

3.4- Different venues for different truths

The Decree confirms the separation of the Commission from the judicial branch, as the Final Agreement already affirmed, by stating that the information gathered by this body shall not be sent to judicial authorities in order to charge somebody with a crime or to present evidence,[3] nor shall judicial authorities summon its transmission (art. 4).

In addition, the express focus on collective responsibilities (art. 13.2) and the exclusion of the practice of naming names[4] contribute to separate the object of the Commission’s investigation from judicial procedures.

These provisions prevent the possible infringement of the suspects’ defence rights, including the right not to incriminate oneself, which would be violated if their statements given before the CET were used within a trial. They also prevent the overlapping between the Commission’s activity and judicial investigations, and possible conflicts between them, as happened for instance in the peace process in Sierra Leone.[5]

Lastly, they make it clear that the Colombian transitional project encompasses different venues for different truths: a criminal jurisdiction to ascertain individual criminal responsibility for specific offences, and a Truth Commission for a wider, less constrained and victim-oriented analysis of the violent experience.[6]

4- Conclusion

The thorough design of the CET shows that Colombia has taken advantage of the advice of experts in the field and of the lessons learnt from other Truth Commissions. The wide mandate given to the Commission, the attention paid to transparency, effectiveness, victims’ participation and the separation from judicial investigations are positive features that may contribute to the success of this mechanism.

This forum for knowledge and acknowledgment will probably be a key element for the peace-building process and the reconciliation of the Colombian society.

[1] For an analysis of the peace process and of the main novelties of the Peace Agreement, see my previous post.

[2] The 2000 Truth, Justice and Reconciliation Commission Act in Sierra Leone envisaged the creation of a follow-up committee (art. 18) and the 2005 Truth and Reconciliation Commission Act in Liberia gave the Independent National Human Rights Commission the task to monitor the implementation of the recommendations made by the TRC (Art. X, Section 46).

[3] This does not prevent the Commission from using documents that may be used as documentary evidence in a criminal trial (art. 4).

[4] This option was taken by very few Truth Commissions, such as those of El Salvador and Rwanda. In both cases it posed serious challenges to political stability, besides the problems related to the defence safeguards: P. Hayner, ‘Fifteen Truth Commissions – 1974 to 1994: A Comparative Study’ (1994) 16 HRQ 597, 647 ff.

[5] The contrast between the Special Court of Sierra Leone and the Truth and Reconciliation Commission arose when Hinga Norman, who was standing trial before the former body, asked to give a public declaration before the Commission. The case, which posed significant problems as to the respect of fair trial rights, showed the lack of coordination – and possibly the mutual distrust – between the two institutions. See: M. Nesbitt, M. (2007). ‘Lessons from the Sam Hinga Norman Decision of the Special Court for Sierra Leone: How trials and truth commissions can co-exist’ (2007) 8(10) German Law Journal 977. For a more optimistic view about the relationship between the two institutions, see: W. Schabas, ‘A synergistic relationship: the Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone’ (2004) 15 CLF 3.

[6] On the separation between Truth Commissions and the judicial branch see: M. Freeman, Truth Commissions and Procedural Fairness (CUP 2006) 69 ff.

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Trump’s Travel Bans and Extreme Vetting: How They Violate Basic Human Rights

Caleb Wheeler, PhD Student in International Law, Middlesex University, London

One of Donald Trump’s first actions as president of the United States was to issue an Executive Order banning the citizens of seven Muslim majority countries, Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for a period of 90 days. He justified the ban on the grounds that it would be detrimental to the United States if citizens of those states were permitted to enter the country while a review was being conducted of the existing screening and vetting procedures utilized to determine whether a person should be issued an entry visa. The implementation of the ban was halted by the issuance of temporary restraining orders by multiple federal district courts, and on 9 February, the Ninth Circuit Court of Appeals refused to stay enforcement of those temporary restraining orders. Unperturbed, President Trump issued a second executive order on 6 March in which he sought to ban citizens from six of the seven countries identified in the first ban (having removed Iraq from the original list) from entering the United States. That executive order was also challenged in Court, and federal district courts in Hawai’i and Maryland again prevented its implementation through the issuance of restraining orders. While much of the attention given to the travel bans focuses on the discriminatory effects they have on Muslims from certain countries, considerably less consideration has been given to the types of screening and vetting procedures the administration wishes to impose and the potential effects these new measures would have on the rights of all travelers to the United States. This blog post will demonstrate that policies requiring foreign travelers to reveal private electronic data are impermissible under United States’ domestic law and international law and should be avoided.

 

Both bans are titled ‘Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States’ and have the stated purpose of improving “the screening and vetting protocols and procedures associated with the visa-issuance process”. The goal of these improvements is to identify those individuals seeking to fraudulently enter the United States, and those that support terrorism, violent extremism, acts of violence towards any group of people within the United States or who prevent a risk of causing harm following entry. A number of specific techniques have been suggested to promote the proper identification of individuals falling into these categories, including: in-person interviews, the creation of a database of identity documents and amending application forms so as to better identify fraudulent answers. More general methods have also been proposed involving the development of mechanisms to determine whether applicants are not misrepresenting their identities, whether they may commit, aid or support violent terrorist acts after entering the United States and a catch-all category permitting the government to use “any other appropriate means for ensuring the proper collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility”.

 

It is these latter, more general, categories that cause consternation, particularly in light of recent media reports suggesting that the new screening and vetting requirements could require foreign visitors to reveal their mobile phone contacts, social media passwords and financial data before gaining entry to the country. According to a senior Department of Homeland Security official, the goal of collecting mobile phone contact information is to learn the identities of those individuals who potential visitors are communicating with. Additionally, the secretary of the Department of Homeland Security previously stated that the purpose of demanding that people reveal their passwords is to allow the United States government to “see what they do on the internet.”

 

These proposals raise significant national and international right to privacy concerns. Domestically, the Fourth Amendment of the United States Constitution prohibits the unreasonable search and seizure of a person’s property and requires that search warrants be supported by probable cause. In 2014, the United States Supreme Court held in Riley v California that the police need a warrant to search the information contained on a mobile phone confiscated during a lawful arrest. That decision was based on a finding that mobile phone owners have a privacy interest in the data contained therein that can only be intruded upon through a valid warrant. Recently introduced bills in the Senate and House of Representatives seek to extend the warrant requirement set out in Riley v. California to searches of “electronic equipment and online accounts” occurring at the United States’ borders. The bills specifically state that there is a reasonable expectation of privacy about a persons’ digital content of their electronic information and online accounts and that it is unreasonable under the Fourth Amendment to permit border agents to access electronic equipment without a warrant. The bills do explicitly limit that right to privacy to “United States Persons” as described in 50 U.S. Code § 1801, a designation which encompasses citizens of the United States, lawful aliens with permanent residence and corporations incorporated in the United States. Despite this limitation, the general proposition remains that the right to privacy limits access to information contained on mobile devices. Further, the Fourteenth Amendment of the Constitution entitles non-citizens to equal protection under the law and the Supreme Court has specifically granted non-citizens the right to challenge government actions infringing on rights delineated in the Constitution. Therefore, any measures requiring individuals to produce that information would be unlawful.

 

International law also invalidates any argument that the right to privacy only extends to American citizens and other lawful residents. Article 17 of the International Covenant on Civil and Political Rights (ICCPR, or ‘the Covenant’), which the United States ratified in 1992, explicitly forbids the arbitrary or unlawful interference with an individual’s privacy. When delineating what sort of information States Parties must put in their reports to the Human Rights Committee, interference was described as unlawful when it does not comply with the laws of the State seeking to interfere with an individual’s privacy, and it is arbitrary when it does comply with the State’s laws, but where those laws are not in accord with the provisions, aims and objectives of the Covenant. The Committee goes on to find that interference with the right to privacy must be reasonable under the particular circumstances and should only be authorised to the extent that it is essential to the interests of society that such information is disclosed. This is a high bar to clear, and requires a case-by-case inquiry into each situation. Therefore, even if it could be shown that the information sought is essential to the interests of the United States, that it is reasonable to infringe on the right to privacy and that the right to privacy as it is understood in the United States does not prevent access to the information, a blanket demand that all foreign visitors provide contact, password and financial information will fail as it will not comply with the required fact specific inquiry.

 

In a 2013 resolution, the General Assembly of the United Nations clarified the parameters of the right to privacy as it pertains to digital information. The General Assembly specifically indicated that it was “deeply concerned” about the collection of personal data and its impact on the exercise and enjoyment of civil rights and emphasised that the unlawful or arbitrary collection of personal information is a highly intrusive act that violates the right to privacy. It called upon all states to respect the right to privacy and to establish measures meant to implement their human rights obligations. Although non-binding, this resolution indicates a rejection by the world community of the sort of measures the Trump administration hopes to impose. The General Assembly resolution also requested that the United Nations Commissioner for Human Rights submit a report addressing the right to privacy in the digital age. Although the resulting report primarily focused on information accumulated through mass surveillance programmes, it did clarify that, in addition to the requirements set out by the Human Rights Committee, any limitation on the right to privacy has to comply with other human rights and must not render the right meaningless. Limitations failing to meet these criteria are considered unlawful and/or arbitrary.

 

Therefore, it is important to examine whether limitations to the right to privacy also impact other human rights. In this instance, the proposed new screening and vetting requirements could act as an infringement on the First Amendment right to free speech. The First Amendment prevents the government from abridging the freedom of speech and allows people to make political statements critical of the government without fear of punishment, unless such statements are meant to incite imminent lawless action or constitute a legitimate threat to the president’s life. Knowing that their private statements could be subject to scrutiny by the United States’ government, and possibly act as a barrier to their entry into the country, could prevent individuals from speaking freely out of fear of the possible repercussions. This is particularly true where, as here, a person can enter the United States is left to the discretion of an individual Customs and Border Protection officer, and entry can be denied even if the traveler possesses a valid visa.

 

The ICCPR also forbids the infringement of free speech, although it characterizes it as two rights: the freedom of expression and the freedom of opinion. The freedom of opinion, as set out in Article 19, is not subject to any exception or restriction, meaning the government is not permitted to infringe upon it in any way. By comparison, the freedom of expression, which includes any type of dissemination of ideas, can be limited for national security reasons. Therefore, the proposed screening and vetting cannot limit a person’s ability to hold an opinion but they can limit whether the person can express that opinion. However, the standard for implementing such a restriction is high and they will only be found lawful if they are necessary to protect national security and are not overbroad so as to exceed their protective function.

 

Screening and vetting procedures that require foreign visitors to disclose private digital information raise First Amendment and Fourth Amendment concerns and are of dubious constitutionality. Further, even if these significant Constitutional issues can be overcome, such measures are also impermissible under international law. That is unlikely to act as much of a impediment on President Trump’s attempts to implement these procedures as he has demonstrated hostility towards international human rights law during his presidency. The best hope to avoid this proposed widespread violation of the Constitution is for the Federal Courts to continue to play their important role in upholding the rights of individuals.

*Picture courtesy of usa.gov

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The International Criminal Court Summer School 2017 19 to 23 June 2017, NUI Galway, Ireland

The annual International Criminal Court Summer School at the Irish Centre for Human Rights is the premier summer school specialising on the International Criminal Court. The summer school allows participants the opportunity to attend a series of intensive lectures over five days. The lectures are given by leading academics on the subject as well as by legal professionals working at the International Criminal Court. The interactive and stimulating course is particularly suited to postgraduate students, legal professionals, scholars, and NGO workers. Participants are provided with a detailed working knowledge of the establishment of the Court, its structures and operations, and the applicable law. Lectures also speak to related issues in international criminal law, including: genocide, war crimes, crimes against humanity, the crime of aggression, jurisdiction, fair trial rights, and the rules of procedure and evidence.

This year’s ICC Summer School will include a topical special session on Corporate Crimes and the International Criminal Court.

The list of speakers at the 2017 ICC Summer School includes the following: Professor William Schabas (Irish Centre for Human Rights/Middlesex University); Professor James Stewart (University of British Columbia); Dr. Fabricio Guariglia (Office of the Prosecutor, International Criminal Court); Professor Megan A. Fairlie (Florida International University);  Professor Ray Murphy (Irish Centre for Human Rights); Dr. Rod Rastan (Office of the Prosecutor at the International Criminal Court); Dr. Mohamed M. El Zeidy (International Criminal Court); Professor Donald M. Ferencz (Middlesex University);  Dr. Noelle Quenivet (University of the West of England); Dr. Nadia Bernaz (Middlesex University); Dr. James Nyawo (INTERVICT, Tilburg University); Dr. Nadia Bernaz (Middlesex University); Mr. Richard J. Rodgers (Global Diligence LLP); Mr. John McManus (Crimes Against Humanity and War Crimes Section, Canadian Department of Justice); Dr. Noelle Higgins (Maynooth University); Dr. Shane Darcy (Irish Centre for Human Rights).

The registration fee of €450 includes all conference materials, all lunches and refreshments, a social activity and a closing dinner. The registration fee also includes a complimentary copy of Professor William Schabas’ book ‘An Introduction to the International Criminal Court‘. The closing date for registrations is 1 June 2017.

To register and for more information regarding the 2017 ICC Summer School, please visit their website  and follow them on Facebook or Twitter.

Should you have any queries, please email them.

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The Approach to Deterrence in the Practice of the International Criminal Court

 

Introduction

Scholarship has been extensively exploring the theme of the capability of international justice to deter international crimes. At first, studies concerned the ad hoc tribunals,[1] then they focused on the International Criminal Court[2] (hereinafter ICC, or the Court).  The ICC is considered to be a major tool by which the international community can deter international crimes.  With “potentially unlimited geographic jurisdiction”,[3] the ICC raised higher expectations related to its power to deter atrocities worldwide.

Among scholars of different views, a general consensus can be identified, that is, despite skeptical or more optimistic approaches and findings, it is not possible, at the moment, to reach definitive conclusions about the deterrent power of the ICC, or of international justice in general. The reasons are to be found in the scarcity of data, given the relatively recent establishment of the Court, and in research methodology itself.[4]

This post will try to present the main aspects of the debate on the deterrent power of the ICC, and to offer an analysis of the use of the concept of deterrence in the ICC’s case law. It will show that the Court has consistently relied on deterrence as a key principle to determine sentences. In so doing, it has attempted to respond to the general expectations, even in the absence of certainty about the existence of a deterrent effect.

The deterrent effect of international justice: the main issues

The entire deterrence theory is based on the notion that the perpetrator is a rational actor who decides to perpetrate crimes following a cost-benefit analysis.[5] This is particularly questionable in the context of international crimes, where it is disputed whether the perpetration of atrocities implies the need to consider “the risk of prosecution against the personal and political gain of continued participation in ethnic cleansing and similar acts.”[6]

Deterrence is usually categorised as specific (dissuading the condemned individual to repeat the crime) or general (discouraging other people from engaging in the same conduct).[7] The particular nature of international crimes might raise a further aspect: “expressive”[8] or “social”[9] deterrence, which is possibly more effective than the “classic” or “prosecutorial” one. This angle, which can vary in the analysis of the authors but generally reflects the theory of positive general prevention, focuses on the “secondary stigmatising effects of the punishment”,[10] as “a consequence of the broader social milieu in which actors operate: it occurs when potential perpetrators calculate the informal consequences of law-breaking.”[11]

Jo and Simmons, focusing on the social angle and on certain categories of mens rea, submit that the deterrent effect of international justice varies according to the degree of accountability of the perpetrator and his/her interest in obtaining legitimacy. Consequently, state actors would be more deterrable than non-state actors.[12]

Furthermore, authors generally recognise that it is not the severity of the punishment which creates a deterrent effect but, rather, the likelihood of being prosecuted and condemned.[13] The issue is particularly relevant in international criminal law, in which uncertainty of punishment is inevitably higher than in it is in average national judicial systems. In Furundjiza, the International Criminal Tribunal for the former Yugoslavia plainly enunciated this aspect, together with the “expressive” value of an international judgment:

It is the infallibility of punishment, rather than the severity of the sanction, which is the tool for retribution, stigmatization and deterrence. This is particularly the case for the International Tribunal; penalties are made more onerous by its international stature, moral authority and impact upon world public opinion.[14]

Deterrence in the practice of the International Criminal Court

Deterrence is not specifically mentioned in the Rome Statute which, instead, makes reference, in the Preamble, to the prevention of international crimes, as a consequence of putting an end to impunity. Prevention and deterrence are sometimes used as synonyms, but their meaning is not completely interchangeable. The former is indeed wider and encompasses the latter, as there are forms of preventing crimes that are not related to judicial deterrence. It is fair to assume, nevertheless, that the aim “to put an end to impunity” and, consequently, “to contribute to the prevention” of international crimes, comprises the concept of deterrence.

The approach to deterrence in the practice of the Court may be analysed from two aspects. First, is whether deterrence ought to be considered as a criterion in the selection of cases to prosecute. Second, is whether deterrence is a key factor to be taken into account in determining sentences. While the former assumption appears to have been dismissed by both the Appeals Chamber and the Office of the Prosecutor, the latter constitutes a consistent practice of the Court.

In Lubanga,[15] the Pre-Trial Chamber affirmed that, to strengthen the effect of deterrence, the Court should focus only on high-ranking perpetrators, as individuals who can “prevent or stop the commission” of international crimes. The Appeals Chamber rejected this view, observing that the deterrent effect of the Court would be guaranteed only by avoiding any a priori exclusion of certain categories of perpetrators “from potentially being brought before the Court”.[16] The Prosecutor’s policy paper on case selection and prioritisation, issued in September 2016, seems to confirm the approach of the Appeals Chamber, i.e., that the deterrent function of targeting high ranking perpetrators is questionable, and lower-ranking perpetrators should not be excluded from prosecution in virtue of a contested deterrent effect.

Concerning the use of deterrence in determining sanctions, on 22 March 2017, the Trial Chamber in Bemba, consistently with the Court’s previous practice in Katanga[17] and Al Mahdi,[18] recognised deterrence, in both its general and specific effects, as one of the primary purposes of sentencing:

The primary purpose of sentencing […] is rooted […] in retribution and deterrence. With regard, in particular, to deterrence, the Chamber is of the view that a sentence should be adequate to discourage a convicted person from recidivism (specific deterrence) as well as to ensure that those who would consider committing similar offences will be dissuaded from doing so (general deterrence).

Conclusions

The debate on the possible deterrent power of the ICC, and of international justice in general, is open and a growing scholarship has been investigating the issue with various and original methodologies. In the absence of any definitive evidence on the issue, the Court has been maintaining deterrence among the primary purposes of its sentences, but this latter has not, so far, influenced the prosecutorial strategy.

The topic deserves further reflection, as new findings may acquaint the practice of the Court, thus making the ICC an effective tool for the prevention of atrocities.

[1] David Wippman, ‘Atrocities, Deterrence, and the Limits of International Justice’ [1999] 23(2) Fordham International Law Journal 12

[2] David Bosco, ‘The International Criminal Court and Crime Prevention: Byproduct or Conscious Goal?’ [2011] 19(2) Michigan State Journal of International Law 164

[3] Antonio Cassese, International Criminal Law (3rd edn, Oxford University Press 2013) 326

[4] William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press 2010) 61

[5] Ronald Akers, ‘Rational Choice, Deterrence, and Social Learning Theory in Criminology: The Path Not Taken’ [1990] 81(3) The Journal of Criminal Law and Criminology 65

[6] David Wippman n. 1

[7] Stephen L. Quackenbush, ‘General Deterrence and International Conflict: Testing Perfect Deterrence Theory’ [2010] 36 International Interactions.

[8] Kate Kronin-Furman, Amanda Taub, ‘Lions, Tigers and Deterrence, Oh My. Evaluating Expectations in International Criminal Justice’ in Yvonne McDermott, William Schabas (eds), The Ashgate Research Companion to International Criminal Law, Critical Perspectives, (Routledge, 2013)

[9] Hyeran Jo and Beth A. Simmons, ‘Can the International Criminal Court Deter Atrocity?’ [2016] 70 International Organization.

[10] Kate Kronin-Furman, Amanda Taub (n.8).

[11] Hyeran Jo and Beth A. Simmons (n.9).

[12] Hyeran Jo and Beth A. Simmons (n.9).

[13] Christopher W. Mullins and Dawn L. Rothe, ‘The Ability of the International Criminal Court to Deter Violations of International Criminal Law: a Theoretical Assessment’ [2010] 10 International Criminal Law Review.

[14] Furundžija (IT-95-17/1-T), Judgment, 10 December 1998, (1999) 38 ILM 317, para. 290.

[15]Lubanga (ICC-01/04–01/06–8), Decision on the Prosecutor’s Application for a Warrant of Arrest, 10 February 2006, paras. 54–5.

[16]Situation in the Democratic Republic of the Congo (ICC-01/04), Judgment on the Prosecutor’s Appeal Against the Decision of Pre-Trial Chamber I Entitled ‘Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58’, 13 July 2006, para. 73.

[17] Trial Chamber II, Prosecutor v. Germain Katanga, Decision on Sentence pursuant to article 76 of the Statute, 23 May 2014, ICC-01/04-01/07-3484-tENG-Corr, paras 37-38;

[18] Prosecutor v. Ahmad Al Faqi Al Mahdi, Judgment and Sentence, 27 September 2016, ICC-01/12-01/15-171, paras 66-67 bensouda

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The Malta Declaration and the Italy – Libya Memorandum: a troubled relationship with external partners in migration

  1. Introduction

On 3 February 2017, at the Informal Summit of the EU Heads of States or Governments chaired by the European Council President, Donald Tusk, the 28 European leaders discussed the “external dimension” of migration in relation to European external borders. The debate centred around issues such as the shared urgency, as has been expressed over the last years by several Mediterranean EU Member States, to deal with the massive inflows of third-country nationals through the Central Mediterranean Route. As a result of the meeting, the assembly adopted the Malta Declaration on the external aspects of migration (addressing the Central Mediterranean route), through which it reaffirmed the shared principles of the EU agenda on migration and the willingness to strengthen the external borders by supporting its external partners – Libya in this case – to deal with the management of the flows.

On the same occasion, Italy signed a mutual agreement with Libya, called the “Memorandum”, with the aim of combating irregular immigration and human trafficking, as well as re-enforcing the security of the Italian and Libyan borders.

This post focuses on the most critical points emerging from the Malta Declaration and the Italy – Libya agreement on Central Mediterranean route inflows, with the aim of highlighting the most recent and significant positions on the externalisation of border control as expressed by the European Union itself and by the Mediterranean Member States.

2. The relationship with external partners and the EU agenda

Since 2011, the European Union has faced a huge migratory inflow of third-country nationals (mainly) entering through its external borders in the Mediterranean. Facing the need to frame its migration policy, and also with the aim of supporting its Member States to manage a, sadly predictable, humanitarian crisis (especially in the case of Italy and Greece), the European Union set a European Agenda on Migration. This has been articulated in four pillars, corresponding to the principles and objectives of the institutions, which traditionally balance the necessity to create a harmonised Common European Asylum System and the protection of the EU’s external borders, in accordance with the national and supranational security paradigm. The four pillars could be summarised as follows: the creation of a common European asylum system based on harmonisation and fair sharing of responsibility among states; control at the external borders and the guarantee of supranational and national security; the fight against irregular and illegal immigration; and the provision of international protection to third-country nationals who are eligible to obtain it.

In this context, as part of the political aspects of the Agenda in line with the aim to reinforce its relationship with the “eastern periphery” of Europe, in March 2016 the EU drew up an agreement with the Republic of Turkey (the EU – Turkey statement). This introduced the so-called “one to one scheme” to resettle Syrians and to partially implement the protection of the external borders on the Greek and Western Balkans route.

The Malta Declaration of February 2017 seems to follow the EU’s tendency to engage its neighbouring partners in border control and in the sharing of responsibility relating to the management of the massive influx of migrants and the humanitarian issues that frequently arise as a consequence. After reaffirming the determination to act in full respect of human rights, international law, and European values, paragraph 2 underlines the significant decrease of arrivals, through the Eastern Mediterranean route and the Western Balkans, as a result of the EU – Turkey statement last March. Paragraphs 3 and 4 highlight the urgency to manage the Central Mediterranean route and recall the determination to significantly reduce the migratory flows along that route.

Since Libya is one of the main countries of departure through that route, the EU has determined that it would support the Libyan authorities and communities in the shared management of the flows departing from its coast. The Declaration includes, among its obligations for the EU, that of supporting IOM (International Organisation for Migration) and UNHCR (United Nation High Commissioner for Refugees) with the aim of arranging the most adequate reception facilities for migrants in Libya. However, the primary objective, seems to consist of reducing the pressure on Libya’s land borders (especially its southern borders) and continuing to reinforce the link with Libya in its operations on the coast.

In addition to this, while the High Representative (hereinafter HRVP) Federica Mogherini stated that migration issues should be the core matter at stake, it appears that the relationship between the EU and Libya is going to address objectives which go far beyond the management of the migration crisis and to seek the improvement of the EU relations with the African Union, as well as the attempt to play a key role in solving the political crisis in Libya. Moreover, while it would be unfair not to underline that the HRVP stressed the importance of increasing human rights protection standards as part of the training support offered by the EU to Libyan authorities, it is also noteworthy that the final remarks of the Malta Declaration contain the commitment to reinforce EU return capacities, albeit in compliance with international law principles.

In the absence of further details, specific reports and agendas, it is difficult, at the moment, to fully understand what the improvement of the EU’s return capacities, and the reinforcement of its external borders, would imply for the EU institutions, especially in relation to the Central Mediterranean Route. The only indications at the moment concern the EU’s refusal to apply a scheme similar to that of the EU – Turkey statement to the EU – Libya relationship program on migrants; at the same time, paragraph 6 (i) of the Malta Declaration, also states that the “EU welcomes and is ready to support Italy in its implementation of the memorandum of Understanding signed on 2 February 2017 by the Italian Prime Minister and the Chairman of the Presidential Council Al – Serraj”.

3. The Italy – Libya Memorandum

The Memorandum of Understanding signed on 2 February 2017 by the Italian Prime Minister and the Chairman of the Presidential Council Al – Serraj seems to act as a hybrid source of mutual obligations in the issue at hand. Normally this type of legal document aims to define principles which seek to protect mutual interests between two or more parties. Compared to other public international law instruments, particularly those which are binding in nature, Memoranda of Understanding guarantee a higher degree of flexibility in the definition and further modification of commitments. In the case of the Italy – Libya memorandum, its strength could probably be found in its political impact. In this sense, it aims to achieve cooperation with North African countries in the management of migration inflows and to combat illegal migration and human trafficking. It also seems to reinforce good institutional relations between the two countries by continuing to support the establishment of peace and democracy in Libya.

Apart from the extremely dense content of the agreement, which contains different issues and commitments between Italy and Libya, the Memorandum also suffers from a number of shortcomings and reflects the same vagueness of the Malta Declaration- which could be summarised as follows. While the idea of cooperation and mutual support between the parties emerges as the most important statement of the Memorandum, the text does not seem to be able to express clearly and in sufficient detail: the peculiarities of the temporary reception program for migrants in Libya; or the border and security control of the southern borders of Libya by its partner; or the type of support to be accorded to the African countries of origin in accordance with the idea of the “Euro–African cooperation” in order to eliminate the phenomenon of the “illegal immigration”.

Furthermore, probably one of the most serious issues concerns the fact that Libya has never signed the 1951 Geneva Convention relating to the Status of Refugees. The Refugee Convention was the first instrument to introduce a proper definition of the status of refugee. It bestowed a specific juridical condition upon individuals needing international protection. This has imposed a duty upon States parties to ensure a minimum standard of protection and guarantees dealing with the phenomenon of displaced and disenfranchised people worldwide since the aftermath of the Second World War.

All things considered, the Memorandum and the Malta Declaration, represent legal documents mainly focused on migration matters. The fact that Libya is not a State Party to the Refugee Convention raises some concerns about how this demanding agreement will be implemented in such a sensitive field of emergency and foreign policy.

4. The risk of the failure to plan: final remarks.

The Informal Summit in Malta and the adoption of a Memorandum of Understanding between Italy and Libya have raised some concerns about the EU’s management of migration through the use of its external partners at its periphery. This is especially because both its partners, Turkey and Libya, are currently facing serious political and social troubles. This means that they are not in a position to ensure the high standard of protection of individuals required by international human rights law and international refugee law.

The result is that the EU in primis, presumably under the pressure of its Mediterranean member states, is trying to delegate the management of a huge humanitarian crisis by appointing external partners and charging them with an important responsibility in the name of national and supranational security without providing for adequate individual guarantees.

Despite the fact that the urgency of the ongoing humanitarian crisis demands a prompt and adequate response in terms of management by the EU institutions (and Member States), it seems to be predictable that a short-sighted plan adopted today by one of the greatest current supranational institutions could risk creating an even worse and unmanageable new reality in the distant future. The hazardous plan to counterbalance an ongoing huge humanitarian crisis with almost blind agreements, dependent upon uncertain conditions, with external partners could result in unpredictable consequences. Borrowing Benjamin Franklin’s words, ‘if you fail to plan you plan to fail’.

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The ECB imposes a new strategy on the management of NPLs: a first analysis of the “Draft Guidance to Banks on Non-performing Loans”

Daria Sartori, PhD, Trainee Lawyer, Mercanti Dorio e Associati; Giulia Ferrari, PhD, Attorney-at-Law, Mercanti Dorio e Associati

Introduction

In general terms, non-performing loans (NPLs) are bank loans which are considered as unlikely to be paid back because of the debtor’s delay in paying the agreed instalments or interest for a certain amount of time.[1] When a loan is non-performing, banks must set aside capital on the assumption that the loan will not be paid back, thus reducing their capacity to provide new loans.[2] When banks are overburdened by NPLs, the entire economy suffers, one of the consequences being that privates will face difficulties in having access to credit.

Within the EU, the issue of NPLs has been a substantial one since the outbreak of the financial crisis of 2007-2008. At a macroeconomic level, the significant upward trend of NPLs has reflected the consequences of heightened unemployment, depreciated currency and tight financial conditions.[3] At bank level, the excessive amount of NPLs has been linked to poor loan underwriting, monitoring and control.[4]

NPLs are now specifically addressed by the “Draft guidance to banks on non-performing loans” (the Guide), drafted by the European Central Bank (ECB) and open to public consultation from 12 September to 15 November 2016. The Guide collects a number of best practices identified by the ECB in the course of its supervisory functions and relating to the issue of NPLs, defined as all exposures of banks which are held to be at risk of non-repayment according to EU standards.[5] While the Guide is not, technically speaking, a binding instrument, non-compliance with its standards may trigger the imposition of supervisory measures for credit institutions which, pursuant to Regulation n. 468/2014 of the European Central Bank of 16 April 2014, fall within the ECB’s scope of supervision (so-called “Significant Institutions”, or SIs).

The present contribution provides an overview of the Guide and highlights the main issues relating to the problem of NPLs at bank level.

Banking supervision within the EU

Following the financial crisis of 2007–2008, EU institutions have called for the creation of a “banking union”, ensuring the safety and soundness of the European banking system thorough increased financial integration and stability. The first step towards a banking union has been the creation of a Single Supervisory Mechanism (SSM), comprising the European Central Bank (ECB) and the national supervisory authorities of the participating countries. The SSM’s task is to ensure that EU policies and rules on the prudential supervision of credit institutions are implemented in a coherent and effective manner.

The ECB’s supervisory functions are exercised in accordance with the EU Capital Requirements framework, i.e. the Capital Requirements Regulation[6] and Capital Requirements Directive.[7] These instruments transpose into EU law the standards elaborated at international level by the Basel accords, and they confer on supervisory authorities the power of imposing measures.

With regard to the ECB, these measures range from less stringent (such as the power “to impose additional or more frequent reporting requirements”, pursuant to Article 16 of the Capital Requirements Regulation) to substantial ones (such as the power to impose pecuniary sanctions for non-compliance with ECB regulations or decisions, pursuant to Council Regulation (EC) No 2532/98 of 23 November 1998).

Whereas the Draft guidance to banks on non-performing loans is not an instrument allowing the ECB to impose sanctions, its standards represent the ECB’s supervisory expectation for the future and non-compliance may trigger supervisory measures,[8] such as those articulated by Article 16 of the Capital Requirements Regulation. Thus, the standards of the Guide can be considered as de facto binding for SIs, who should plan ahead interventions on their internal organization and policies in order to be able to meet the requirements by the time the Guide’s final version will be publicly available.

The ECB Draft guidance to banks on non-performing loans

On 12 September 2016 the ECB has launched public consultation on the “Draft guidance to banks on non-performing loans”. The consultation has been closed on 15 November 2016 but the comments received by the ECB have not been published yet, and the Guide itself is still in its draft version.

As mentioned above, the Guide collects a number of best practices relating to the issue of non-performing loans. It includes seven Annexes, providing samples of criteria and practices relating to every phase of the NPL life cycle.

The term “non-performing loans”, as used by the Guide, refers to non-performing exposures (NPE), as defined by the European Banking Authority (i.e., exposures satisfying either or both the “90 days-past-due” and “unlikely-to-pay” criteria),[9] as well as to foreclosed assets and performing exposures with an elevated risk of turning non-performing.[10]

According to the Guide, SIs must develop a specific NPL strategy, on the basis of a comprehensive assessment of the operating environment, i.e. of internal capabilities (self-assessment) and external conditions. The strategy thus elaborated must include targets relating to the development of operational capabilities and projected NPL reductions over the short (indicative 1 year), medium (indicative 3 years) and long-term line horizons. An operational plan must be developed accordingly, approved by the management body and reviewed at least annually. Credit institutions with high levels of NPLs are expected to report their NPL strategy and operational plan to the banking authority in the first quarter of each calendar year.

The strategy and plan must be embedded in processes at all levels of organization, and human resources must be organized accordingly. Thus, for instance, the NPL Guide requires the creation of separate NPL workouts units (WUs), dealing with NPLs along their life cycle and composed by staff members with dedicated NPL expertise and experience. Technical resources must be also implemented, including automated monitoring processes of the loan status, with early warning signals and reporting.

Credit institutions must implement effective and efficient control processes for the NPL workout framework, involving three lines of defence. The first line of defence comprises control mechanisms within the NPL workout units, ensuring that the NPL policy is adequately embedded in daily processes. The second line must ensure that the first line of defence operates effectively: it comprises risk management and compliance functions and requires continuous monitoring and reviewing of NPL operating model’s performance. The third line comprises the internal audit function, which must conduct regular (i.e., at least annual) assessments to verify adherence of the NPL framework to the NPL policy. Annex 5 to the Guide provides key elements of NPL framework-related policies (such as arrears management policy, forbearance policy, debt recovery/enforcement policy) that should be implemented by high NPL banks.

An entire chapter of the Guide is dedicated to NPLs secured by immovable property held as collateral.[11] In the past, delays in assessing the decline of real estate value have proved to affect substantially credit institutions’ balance sheets. In fact, a high number of NPLs is secured by immovable property, and the value of the latter may significantly change over time. The Guide requires regular monitoring and reviewing of the valuations for collaterals, carried out by independent and qualified appraisers in accordance with the requirements set forth by Article 208(3) of the Capital Regulation Directive. It emphasizes the importance of maintaining the valuations for collaterals in line with market changes: thus, while establishing a minimum regular interval for updates (one year for commercial immovable property, three years for residential), it also requires credit institutions to carry out more frequent valuations where the market is subject to substantial negative changes and/or where there are signs of significant decline in the value of the individual collateral. In this last regard, banks are also required to establish their own criteria for determining whether a “significant decline” has taken place.

With regard to NPL impairment measures and write-offs, the Guide encourages credit institutions to align consistently with the standards set out by the Capital Requirements Regulation and Capital Requirements Directive, even when the institution is part of a group and some units of the group are not located in the EU.

Internal organization and timely intervention on NPLs

The Guide stresses the importance of adequate internal organization and coherent NPL policies, allowing timely intervention on NPLs. These aspects are particularly significant when it comes to dealing with high value NPLs, whereby the sums involved are significant (usually, because the loan is granted to enterprises/corporations). In this case, a good management of NPLs can affect both the bank’s capacity to conduct businesses profitably and the good functioning of the overall economy.

With regard to high value NPLs, measures aiming to restructuring are more appropriate than enforcement measures. However, in order to be effective, restructuring must be timely and conducted by staff with adequate expertise and experience. Restructuring is a process to which banks frequently turn too late (when the exposure has significantly worsened, making it more difficult for the borrower to repay the entire debt). For this reason, the Guide’s focus on the organization of human resources and on the timely recognition of NPLs should be appreciated: an increased attention by credit institutions to these aspects can positively affect the economic growth.

Conclusion

In the light of the best practices collected by the ECB in the Draft guidance to banks on non-performing loans, credit institutions subject to the Single Supervisory Mechanism must tackle NPLs by assessing the operating environment, developing and implementing a specific NPL strategy and an operational plan.

The Guide’s focus on internal organization and timely intervention on NPLs is particularly appreciated, as it favours solutions to the main issues contributing relating to the problem of NPLs at the bank level.

Whereas the Guide is not a binding instrument, compliance with its standards may trigger the imposition of supervisory measures by the ECB on Significant Institutions. For this reason, SIs should plan ahead interventions on their internal organization and policies in such a way as to be compliant with the Guide’s standards by the time its final version will be publicly available.

[1] For a technical definition of NPLs, infra sub n. 7 and 8

[2] For a general overview of the topic, see the ECB’s explanation at: https://www.ecb.europa.eu/explainers/tell-me/html/npl.en.html

[3] IMF Working Paper of the European Department Non-Performing Loans in CESEE: Determinants and Macroeconomic Performance, by Nir Klein, March 2013, p. 3 (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2247224)

[4] ibid., p. 5

[5] Draft guidance to banks on non-performing loans, sub par 1.3

[6] Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012, OJL 176, 27.6.2013, p. 1–33

[7] Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC, OJL 176, 27.6.2013, p. 338–436

[8] Draft guidance to banks on non-performing loans, sub par 1.2

[9] See paragraph 145 of Annex V to the “Implementing Technical Standards on Supervisory Reporting” (ITS)

[10] Draft guidance to banks on non-performing loans, sub par. 1.3

[11] Draft guidance to banks on non-performing loans, sub par 7, “Collateral valuation for immovable property”

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The Policy Paper on Case Selection and Prioritisation: a (Vain?) Effort to Address Issues of Bias and Inefficiency

In September 2016, the Office of the Prosecutor (OTP) of the International Criminal Court (hereinafter, the ICC or “the Court”) published a Policy Paper on Case Selection and Prioritisation (“the Policy Paper” or “the document”).

The document follows a long series of papers on policy and strategy of the ICC Prosecution. By delivering such documents, the OTP aims to clarify some aspects of its work. This effort of transparency has the purpose of dissipating allegations of bias and managing public expectations towards the Court. The document was awaited to respond to criticisms commonly raised by observers. First, the lack of objectivity in the selection of cases, often targeting only one side within a situation, as detailed below. Second, the lack of efficiency in terms of quantitative results, with five completed trials in the Court’s first 15 years of work.

This post will argue that, despite the efforts of transparency of the OTP, the Policy Paper does neither fulfill expectations concerning the bias critique, nor does it offer valuable solutions to the problem of efficiency.

Selectivity – on the impossibility to reach impartiality through objective criteria

 The Policy Paper broadly reiterates the principles affirmed in the Rome Statute and confirmed by the practice of the Court: impartiality and objectivity, to avoid one-sided or biased case selection. Paragraph of the document 20 quotes:

“The Office will examine allegations against all groups or parties within a particular situation to assess whether persons belonging to those groups or parties bear criminal responsibility under the Statute. However, impartiality does not mean “equivalence of blame” within a situation. It means that the Office will apply the same processes, methods, criteria and thresholds for members of all groups to determine whether the crimes allegedly committed by them warrant investigation and prosecution.”

Although this principle is uncontroversial, the statement fails to address the issue of prosecutions and investigations targeting only one side within a situation, which appears to be an unfortunate pattern in the action of the Court. In cases where the Court’s jurisdiction was triggered through a self-referral (e.g. Uganda, the Democratic Republic of Congo, the Central African Republic, Ivory Coast and Mali), the OTP did not target any state official. To the contrary, it focused solely on the rebels, i.e. the non-state actors adversaries of the referring Government. Conversely, in the Darfur and Libya situations, referred by the UN Security Council, prosecutions disregarded crimes perpetrated against government officials. In Darfur, no charges were made for crimes committed against Sudanese troops; the only rebels who were indicted faced charges for attacking Peacekeepers. In Libya, prosecutions targeted only officials of the then Libyan Arab Jamahiriya.

From a legal point of view, the ICC Prosecutor has consistently proclaimed the duty to deal with all the groups and parties within a situation. This position has been clear since in the context of the first self-referral by the Government of Uganda in 2004. Under the principle of ‘‘symmetric interpretation’ of a referral enshrined in Rule 44(2) of the Rules of Procedure and Evidence, the Prosecutor clarified his mandate to impartially prosecute international crimes within the situation referred regardless of possible selectivity in the text of the referral. Yet, in practice, not only was the referral jointly announced in January 2004 by then Prosecutor Luis-Moreno Ocampo and Ugandan President Yoweri Museveni, but prosecutions have only targeted rebel leaders so far.

Beyond the Ugandan situation, it appears that the Court regularly joins the side of the subject referring the situation (i.e. the local Government or the Security Council; the Kenyan situation, triggered by the proprio motu initiative of the Prosecutor, makes exception). The reiteration of the OTP position on impartiality in the policy paper does not change the matter. Indeed, the bias issues of the ICC seem to have deeper institutional roots, which cannot be properly addressed by stating objective criteria in a policy paper.

 Efficiency – Lowering Ambitions to Meet Expectations?

The lack of efficiency in the first 15 years of the Court’s work can be assessed from a mere quantitative point of view, given the scarce number of completed trials, but also from a qualitative perspective. The most ambitious prosecutions have targeted high-profile individuals identified as the most responsible for the crimes investigated. Joseph Kony, Omar al Bashir, Uhuru Kenyatta and Muammar Gaddafi are distinct examples of senior figures that the ICC indicted, but could not apprehend and prosecute.

The main obstacle lies in the failure of States to cooperate with the Court on the field, to implement the arrest warrants and the decisions of the ICC. The discretionary power of the Prosecutor, still, allows her to focus on cases with a reasonable prospect of conviction. In particular, the Policy Paper states that:

“The Office may also decide to prosecute lower level-perpetrators where their conduct has been particularly grave or notorious.  The notion of the most responsible does not necessarily equate with the de jure hierarchical status of an individual within a structure, but will be assessed on a case-by-case basis depending on the evidence.”

This confirms a shift from the previous prosecutorial strategy, which implied to “investigate and prosecute those who bear the greatest responsibility” and was already mentioned in the Prosecutorial Strategy paper published in February 2010.

The purpose of the new strategy is clearly to privilege targeting individuals who are likely to appear on trial before the Court. This approach appears grounded from a legal point of view, as it does not contrast with the Rome Statute; and it seems desirable from a policy point of view, given the failures in the more ambitious prosecutions mentioned above.

However, this prosecutorial strategy has been the object of controversy within other international tribunals. At the ICTY, Prosecutor Goldstone decided to start prosecuting low-level perpetrators. His aim was both to respond to public pressure, which asked for prompt indictments, and to build stronger cases for future prosecutions against higher-level individuals. The ICTY Judges, nevertheless, explicitly objected to the strategy in a public statement and requested the Prosecutor to target high-level perpetrators. Judge Cassese defended the action as a means to safeguard respect  for the ICTY Statute[1]. The Prosecutorial strategy then shifted to focus on higher-level perpetrators.

At the ICC, the first trial seeming to implement the new strategy, against al Mahdi in the situation of Mali, has been criticised by scholars on various grounds. The strategy also reminds of the criticisms levelled against the low-level charges that the Prosecutor brought in the Lubanga case. Thomas Lubanga received the arrest warrant while he was detained, inter alia, for torture, and was convicted before the ICC to 14 years for the war crimes of enlisting and conscripting children.

Conclusions

The first independent permanent international criminal court has been surrounded by pressures and expectations since before its entry into force in 2002. The Court is often expected to achieve results beyond the scope of its mandate, for instance, when its action is invoked in the middle of an armed conflict, or to solve an international crisis. The efforts of the OTP to deliver information on its policy and strategy may indicate attention on outreach, to improve the public image of the Court.

The Policy Paper on Case Selection and Prioritisation appears as an attempt to justify the selectivity of cases through the introduction of an objective legal criteria. However, this does not respond to the problem of political interference with the Court, which still depends on the support of States and international organisations – and consequently on their political will –  to fulfill its mandate. Basically, the new prosecutorial strategy appears to be aimed at collecting a major number of convictions in a shorter time, at the detriment of the relevance and of the quality of the prosecution. This could betray a further lack of independence, this time from the pressure of international public opinion.

[1] “the Statutes of the international tribunals do set out some general guidelines, if only implicitly, by suggesting that they must prosecute the most serious international crimes. However, such guidelines are rather loose. It falls to the prosecutor, who enjoys immense discretion and total independence, to decide upon his or her strategy and to set the priorities and the main targets of prosecutorial action. […] the Judges as a whole are the only body that can try to reorient prosecutorial action so as to keep it within the Statute’s explicit or implied objectives.” A. Cassese, ‘The ICTY: A Living and Vital Reality’, (2004) 2(2) JICJ 585, at 587. A. Cassese, ‘The ICTY: A Living and Vital Reality’, (2004) 2(2) JICJ 585, at 587.

 

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