“IMPUNITY” FOR GROSS HUMAN RIGHTS ABUSES? THE PARDON OF FUJIMORI

1. Introduction

On 24th December 2017, the Peruvian President Kuczynski granted a pardon to the former President Alberto Fujimori, convicted in 2009 as indirect perpetrator “by means of a criminal organised apparatus” for the aggravated kidnapping, aggravated murder and serious injuries, committed during the Barrios Altos and La Cantuta massacres.[1] Fujimori had already served 12 out of the 25 years of imprisonment to which he had been sentenced.

On 2nd February 2018, the Inter-American Court of Human Rights (IACtHR) held a hearing in the monitoring compliance proceedings relating to the Barrios Altos case: on that occasion, victims of the massacre argued that Kuczynski’s pardon of Fujimori amounts to an infringement of the duties imposed on Peru by the Barrios Altos judgment. The decision of the Court is due shortly.

Meanwhile, the pardon has been strongly criticized by the Peruvian civil society, and by human rights activists worldwide. Not only was it controversial as to the procedure, timing and the alleged underlying motives leading to its adoption, but it also reignited the debate surrounding the admissibility of amnesties, pardons and other waivers of punishment for people convicted of gross human rights violations.

2. Issues of legitimacy, hidden motives and reasoning

Kuczynski’s pardon of Fujimori has raised a lot of criticism in Peruvian society, not only because the memory of the human rights abuses committed during the dictatorship is still alive and sensitive, but also because of the circumstances in which the measure was adopted.

Firstly, the pardon was granted surprisingly fast, almost without any opportunity for a debate, just a few days after a parliamentary motion to remove the current President of Peru, Pedro Paulo Kuczinsky, from his post on the basis of allegations of corruption. According to public opinion, the pardon would be the result of a quid pro quo agreement between Kuczinsky and the Fujimorist party Fuerza Popular, in order to get support against the impeachment.

Secondly, the measure was formally grounded on humanitarian reasons, which apply to cases of terminal diseases or poor health, rendering imprisonment a threat to life, health or integrity. In this regard, commentators have pointed out that, besides the need for a more detailed reasoning, the medical diagnosis about Fujimori’s health is rather doubtful. The former President was indeed receiving special medical attention in jail and in hospital, whenever needed. Furthermore, his personal doctor also participated in the Board recommending the release, thereby raising issues as to the impartiality of the Board itself.

3. The big issue: can international crimes be pardoned?

3.1. Strict vs. flexible interpretation of the duty

The evolution of International Human Rights Law and International Criminal Law in the past decades has ed to the emergence of a duty to prosecute and punish those allegedly responsible for those crimes.[2] The scope of this duty and its content are still debated in case law and in scholarly literature; in this regard, we can recall the existence of two opposite views, referred to as the “human righters’” and the “peace makers’” positions.[3] The former maintain a strict interpretation of the duty, entailing a full ban on amnesties and pardons for international crimes/gross human rights (HR) violations, irrespective of the democratic legitimacy of the measure and of the context in which it is issued.[4] The latter purport a more flexible interpretation, according to which there would be room for these kinds of measures, as long as an exceptional context of transition so requires and insofar as they meet some legitimacy requirements. Therefore, whilst self-amnesties, self-pardons or blanket amnesties can never be accepted, an amnesty or pardon issued by legitimate democratic institutions, and made conditional to certain limits and requirements, might be considered as compatible with international norms.[5]

Yet, when adopting this second, more flexible interpretation, one should bear in mind that this flexibility can seemingly be justified by the existence of a transitional context,[6] in which specific goals, priorities and limits legitimate a partial modification of the rules for prosecution and punishment of offenders. One might doubt that Peru is still living in a transitional context: after the collapse of Fujimori’s dictatorship in 2000, the country has experienced a progressive strengthening of the recovered democratic institutions. Although the spectre of the Fujimorism (brought about by the dictator’s daughter Keiko) is still very alive, this is due to the citizens’ free choice in democratic elections. Therefore, it is difficult to argue that Peru is currently living a transitional process in which the need for peace, consolidation of the new institutions and social reconciliation are priorities over the claim for punishment of perpetrators of human rights abuses.

These considerations may cast doubts as to the grounds for granting this pardon, if not on the legitimacy of the pardon itself. However, it is this Author’s belief that some criticisms to the measure should be more carefully addressed.

3.2. The legal qualification of the facts

Fujimori was not formally convicted of crimes against humanity, but for ordinary crimes (kidnapping, murder and injuries). At one point the judgment qualified the facts as crimes against humanity.[7] However, the Supreme Court did not derive from this qualification any other consequence, such as the non-application of amnesties or of statutory limitations,[8] and it did apply the sentencing framework provided for by the Peruvian Criminal Code for the ordinary crimes of aggravated kidnapping and murder. The goal possibly pursued by the Court in qualifying the facts as crimes against humanity was to impose the maximum sentence and to send a strong message to society as to the gravity and blameworthiness of the offences.[9]

However, the offences for which Fujimori was sentenced, according to the judgment, were ordinary crimes. Therefore, they would not fall within the scope of the prohibition on amnesties and pardons that International Law sets out for international crimes. The IACtHR has argued that the duty extends to the wider category of gross HR violations.[10] But, whereas the agreement on the ban on (at least self and blanket) amnesties and pardons for international crimes is almost unanimous, its expansion beyond this category is much more controversial.[11]

3.3. Does a partial pardon entail impunity?

An issue deserving further consideration is whether the pardon granted to Fujimori actually entails a form of impunity (which is exactly what the international norm aims to avoid).

Leaving aside specific features of different legal systems, pardons, in contrast with amnesties, do not eliminate the criminal conviction, nor the assessment of facts contained in the judgment.[12] They exonerate only from serving the sentence, or, as in this case, a part of it. Actually, this measure does not deny Fujimori’s criminal responsibility, nor eliminate the part of the sentence that he has already served (which is half of the whole sentence imposed on him).

Consequently, one might wonder whether the international norm requires, besides criminal prosecution, the full serving of the sentence. On which grounds is the latter necessary? Does it really grant some kind of satisfaction to victims? And, despite the due respect and concern for the victims and their claims, should not the State take into consideration also other interests?

4. Conclusion

The pardon of former President Fujimori raised protests in Peru because of its allegedly political (and not humanitarian) nature and has fuelled the debate about the admissibility of amnesties and pardons for those held responsible for international crimes.

In fact, the pardon has highlighted the lack of clarity and consensus about the international duty to prosecute and punish international crimes, i.e. about its limits (the possibility of a flexible application in transitional contexts), its scope (its applicability beyond the category of international crimes) and its content (the requirement for a full serving of the sentence).

It will be interesting to see how the decision of the IACtHR, in the framework of the monitoring compliance proceeding in the Barrios Altos case, evaluates the compatibility of the measure with the duties imposed on the Peruvian State by the Barrios Altos judgment.

[1] Peruvian Supreme Court, Sala Penal Especial, Fujimori Fujimori, Alberto, exp. nº A.V. 19-2001, 7 April 2009. The judgment also qualifies the facts as crimes against humanity, but it does not formally use that label for the conviction: for more detail, see section 3.2 of this post. For a commentary on the judgment, see: K. Ambos, ‘The Fujimori Judgment: A President’s Responsibility for Crimes Against Humanity as Indirect Perpetrator by Virtue of an Organized Power Apparatus’, (2011) 9 Journal of International Criminal Justice, 137; J.M. Burt, ‘Guilty as Charged: The Trial of Former Peruvian President Alberto Fujimori for Human Rights Violations’, (2009) 3(3) International Journal of Transitional Justice, 384.

[2] K. Ambos, Treatise on International Criminal Law. Vol. I (OUP, 2013), 393-45.

[3] J. Chinchón Álvarez, Derecho internacional y transiciones a la democracia y la paz (Parthenos, 2007) 280.

[4] Ibidem, 437; M. C. Bassiouni, ‘The Need for International Accountability’, in M. C. Bassiouni (ed.), International Criminal Law, vol. III (New York, 1999), 6; N. Roht-Arriaza, L. Gibson, ‘The Developing Jurisprudence on Amnesty’, (1998) 20(4) Human Rights Quarterly, 843; C. Edelenbos, ‘Human rights violations: a Duty to Prosecute? ’, (1994) Leiden Journal of International Law, 5.

[5] K. Mcevoy, L. Mallinder, ‘Amnesties in Transition: Punishment, Restoration, and the Governance of Mercy’, (2012) 39(3) Journal of Law and Society, 410; K. Ambos, ‘The Legal Framework of Transitional Justice’, in K. Ambos, J. Large, M. Wierda (eds.), Building a future on peace and justice: studies on transitional justice, conflict resolution and development (Berlin, 2009), 19; L. Mallinder, ‘Amnesties’, in M. C. Bassiouni (ed.), The Pursuit of International Criminal Justice: A world Study on conflicts, Victimization, and Post-Conflict Justice, vol. I (Intersentia, 2010), 900; D. Orentlicher, ‘Settling Accounts Revisited: Reconciling Global Norms with Local Agency’, (2007) 1(1) International Journal of Transitional Justice, 10.

[6] D. Orentlicher, “Settling Accounts Revisited: Reconciling Global Norms with Local Agency”, International Journal of Transitional Justice, vol. 1, n. 1, 2007, 10, at 14 et seq.

[7] Point II and para. 710 of the reasoning.

[8] It has been argued that this interpretive strategy was unnecessary in this case, since no amnesty law was in force and the time for statutory limitations had not passed yet: see E. Maculan, ‘La respuesta a las graves violaciones de derechos humanos entre derecho penal e internacional. Observaciones sobre el caso Fujimori’, (2012) 14(5) Revista Electrónica de Ciencia Penal y Criminología, 1.

[9] Ibidem.

[10] IACtHR, Barrios Altos v. Peru, 14 March 2001, IACHR, Serie C No. 75, paras. 41 et seq.; Albán Cornejo y otros v. Ecuador, 22 November 2007, IACHR, Serie C No. 171, para. 111; in Bulacio v. Argentina, 18 September 2003, IACHR, Serie C. No. 100, paras. 116 et seq., the Court refers to the even wider category of “human rights violations” (with no gravity threshold required). For a critical overview of this case law, see: E. Malarino, ‘Judicial Activism, Punitivism and Supranationalisation: Illiberal and Antidemocratic Tendencies of the Inter-American Court of Human Rights’, (2012) 12 International Criminal Law Review, 665.

[11] K. Ambos, Treatise on International Criminal Law. Vol. I (OUP, 2013), 394-5; A. Seibert- Fohr, Prosecuting serious Human Rights Violations (OUP, 2009), 274 et seq.

[12] A. Gil Gil, ‘El tratamiento jurídico de los crímenes cometidos en el conflicto armado colombiano. La problemática jurídica en el marco de la dicotomía paz-justicia’, in A. Gil Gil, E. Maculan, S. Ferreira (eds.), Colombia como nuevo modelo para la justicia de transición (IUGM, 2017), 40.

 

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Can the effects of an ECtHR’s judgment be extended? The answer of the Italian courts as to the guarantees of criminal trial

Introduction

Under Article 46, paragraph 1, of the European Convention on Human Rights (‘ECHR’), “the High Contracting Parties undertake to abide by the final judgments of the Court in any case to which they are parties”. According to the European Court of Human Rights (‘ECtHR’), this provision implies that “a judgment in which the Court finds a violation imposes on the respondent State a legal obligation (…) to choose (…) the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects”.[1] Thus, judgments issued by the ECtHR may require the interested State to adopt measures which go beyond the scope of the concrete case under review.

This interpretation of the provision is in line with the role of the ECtHR, a court whose task is not limited to solving disputes between parties but extends to the safeguard of general interests.[2] At domestic level it may raise the issue of whether and, in the affirmative, how, the effects of a judgment finding a violation of the Convention should be extended to other cases.

The present post analyses how the Italian system deals with this issue, with specific reference to the ECtHR’s judgments finding violations of the guarantees of criminal trial. First, it recalls the remedies developed by Italian courts to enforce the ECtHR’s judgments; then, it describes how these remedies are applied to extend the effects of an ECtHR’s judgment to other cases. It will be argued that the exceptional review under article 630 CPP is now to be considered as the “ordinary” remedy, both to enforce ECtHR’s judgments and to extend the effects of such judgments to similar cases.

The enforcement of ECtHR’s judgments

The Italian legislator has not yet dealt with the enforcement of ECtHR’s judgments finding violations of the guarantees of criminal trial comprehensively.[3] Thus, the enforcement of these judgments is mostly left to the interpretative efforts of the Italian courts, which, as described in a previous post, have relied on different solutions.

The Italian Court of Cassation has applied analogically two sets of procedural remedies: the “ricorso straordinario per errore materiale o di fatto”, an extraordinary appeal to correct material errors contained in the Court of Cassation’s judgments, under article 625bis Code of Criminal Procedure (‘CPP’);[4] and the “incidente d’esecuzione” procedure, providing remedies to deal with issues arising in the execution of a sentence, under articles 666 and following CPP.[5] In 2011 the Constitutional Court has added a further remedy, by declaring the partial unconstitutionality of article 630 CPP, insofar as it did not include ECtHR judgments finding a violation of criminal guarantees among the exceptional circumstances allowing the review of a final conviction.[6]

Therefore, the Italian system counts three different options to implement the ECtHR’s judgments finding violations of the guarantees of criminal trial and apply them to a case: the “ricorso straordinario per errore materiale o di fatto” under article 625bis CPP; the “incidente d’esecuzione” procedure under articles 666 and following CPP; the exceptional review of a final conviction under article 630 CPP.

The extension of ECtHR’s judgments to other cases

The issue of whether and how an ECtHR’s judgment finding violations of the guarantees of criminal trial may be extended to other cases was first examined by the Italian courts following the case of Scoppola v Italy (n.2).[7] The case originated in some amendments to the provision regulating the reduction of a life sentence, following trial under summary procedure. The ECtHR found a violation of the principle of legality in criminal law (Article 7 ECHR), as Italy failed to apply retroactively the more lenient law to Mr Scoppola.

The decision was implemented in Mr Scoppola’s case through the “ricorso straordinario per errore materiale o di fatto”.[8] With regard to individuals in similar positions, the Italian Government adopted a quite simplistic view, recalling “the possibilities offered by the procedure of incidente d’esecuzione to those in the same situation as the applicant in this case”.[9] However, the Court of Cassation had to intervene, following the refusal by a lower court to extend the effects of the Scoppola judgment through the “incidente d’esecuzione” procedure.

On that occasion, the Court of Cassation stated that the conclusions reached in Scoppola have general nature, and that the effects of a judgment finding a general and objective violation of the Convention should be extended to identical cases, notwithstanding the existence of a final domestic decision which would normally prevent reconsideration of the case.[10] The acknowledgment of limits to the res judicata principle, on the ground of an ECtHR judgment issued in a case other than the one under review, was in itself innovative.[11] Furthermore, the Court of Cassation deferred a question of constitutionality to the Constitutional Court, which took this opportunity to clarify that the “incidente d’esecuzione” procedure can be used when the issue at stake is a mere redetermination of the sentence to be imposed, whereas the exceptional review under article 630 CPP concerns trials that must be reopened.[12]

The distinction between these remedies and the “ricorso straordinario per errore materiale o di fatto” was the object of further examination by the Court of Cassation, following the case of Contrada v Italy (n. 3).[13] The case originated in the introduction, by way of interpretation, of a new crime. The ECtHR found a violation of the principle of legality in the case of Mr Contrada, because he had been tried and found guilty for facts committed before the moment in which the case law introducing the new crime had settled: which is to say, at a time when the crime was not yet clearly foreseeable.

Following this judgment, the Court of Cassation was confronted with appeals by individuals claiming to be in the same situation as Mr Contrada, and asking for an extension of the effects of the judgment to their cases.[14] In the first case, Mr Dell’Utri, an Italian politician, requested the annulment of his final sentence by way of “ricorso straordinario per errore materiale o di fatto” under article 625bis CPP. The Court of Cassation declared the remedy not applicable, underlying that -unlike the two previous cases in which this remedy had been used-[15] Mr Dell’Utri had no ECtHR’s judgment in his favour, nor had he asked for a mere modification of his conviction.[16] Mr Dell’Utri then applied for revocation or non-execution of his sentence, under articles 673 and 670 CPP. Both remedies operate in the executive phase of the judgment, and are thus species of the wider genus “incidente d’esecuzione”. The Court of Cassation recalled the judgment issued by the Constitutional Court in the post-Scoppola cases and clarified that, after 2011, the exceptional review introduced by way of interpretation under article 630 CPP has become the “ordinary” remedy to enforce ECtHR judgments.[17] This remedy may be applied not only to enforce a judgment in the specific case under the ECtHR’s review, but also to extend the effects of such judgments to similar cases; and not only for violations of Article 6 ECHR, but also when violations of Article 7 ECHR are at stake.[18] The “incidente d’esecuzione” procedure, to the contrary, may be used as a “residual” remedy only upon three conditions: that the ECtHR’s judgment has general nature; that the case at stake is identical to the one decided by the ECtHR; that execution does not require a previous declaration of unconstitutionality or any discretional evaluations by the execution judge.[19] Having assessed that in the case of Mr Dell’Utri these conditions were not met, the Court rejected his application.[20]

In the second and most recent case, the Court of Cassation recalled and fully endorsed these conclusions about the ambit of application of the “incidente d’esecuzione” procedure and of the exceptional review under article 630 CPP.[21]

Interestingly enough, in the lapse of time between these two judgments, a different section of the Court of Cassation rejected a request for extraordinary review lodged under article 630 CPP.[22] The refusal was grounded on the fact that the applicant was not directly interested by the ECtHR judgment of which he had asked enforcement, thus contradicting the Court of Cassation’s position developed since 2011 in the post-Scoppola cases, and reaffirmed in the post-Contrada ones.[23] As for now, the judgment remains a unicum in the case law of the Court of Cassation: however, it certainly demonstrates how a jurisprudential solution may be subject to revirements.

Final remarks

In the Italian legal system, the absence of a comprehensive legislative intervention on the enforcement of ECtHR judgments finding violations of the guarantees of criminal trial has led domestic courts to intervene. Procedural remedies are applied analogically (“ricorso straordinario per errore materiale o di fatto” under article 625bis Code of Criminal Procedure; “incidente d’esecuzione” procedure under articles 666 and following CPP), and a general remedy has been introduced (exceptional review of a final conviction under article 630 CPP).

The most recent developments of the Italian case law deal with the issue of how to extend the effects of an ECtHR judgment to cases other than the one under the ECtHR’s review. In the absence of any organic stance by the executive or by the legislative power, cooperation between higher courts seems to have led to a solution. According to a set of judgments by the Court of Cassation and the Constitutional Court, the exceptional review under article 630 CPP is now to be considered as the “ordinary” remedy, both to enforce ECtHR’s judgments and to extend the effects of such judgments to similar cases. The “incidente d’esecuzione” procedure, instead, represents a residual solution which may be used when the effects of the ECtHR’s judgments pertain exclusively to the execution phase and do not require the use of any discretional power by the judge.

Doubts have been cast on this conclusion by a recent conflicting judgment of the Court of Cassation, which, however, remains so far isolated. In any case, it must be pointed out that only a comprehensive legislative intervention could solve, once and for all, the issues of enforcement of the ECtHR’s judgments in the Italian system.

 

 

 

[1] Inter alia: Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000‑VIII; Sejdovic v. Italy [GC], no. 56581/00, § 119, ECHR 2006‑II.

[2] Under Article 19 of the Convention, the Court’s task is to “ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and its Protocols”. On Article 49 ECHR: S.Bartole, P. DeSena, V. Zagrebelsky, Commentario breve alla convenzione europea per la salvaguardia dei diritti dell’uomo e delle libertà fondamentali, CEDAM Padova 2012, pp. 749 ff.

[3] Currently, the only legislative intervention has been the one allowing the reopening of proceedings celebrated in absentia, introduced by law 67/2014 with the specific aim of bringing the system in compliance with the numerous findings of violation by the ECtHR. On this topic, see: G. Di Paolo, La Rescissione Del Giudicato Ex Art. 625-Ter C.P.P.: Rimedio Effettivo O Meccanismo Virtuale?, Penale Contemporano 2015.

[4] E.g.: Cass sez VI, 12 novembre 2008, Drassich (2009) Cass Pen 1457.

[5] E.g.: Cass sez I, 1 dicembre 2006, Dorigo (2007) Cass Pen 1447. On this remedies in Italian criminal procedure: G. Lattanzi, E. Lupo, Codice di procedura penale: rassegna di giurisprudenza e di dottrina, VII / VIII, Giuffré Milano 2013.

[6] C Cost, sent n 113/2011.

[7] Scoppola v. Italy (no. 2) [GC], no. 10249/03, 17 September 2009.

[8] Cass., sez. V, 11 febbraio 2010, n. 16507, Scoppola.

[9] CM/ResDH(2011)66.

[10] Cass. pen., Sez. Un., ord. 19 aprile 2012 (dep. 10 settembre 2012), n. 34472, Pres. Lupo, Est. Milo, Imp. Ercolano.

[11] A wide number of commentaries is available on this judgment. By way of example, see: F. Viganò, Pena illegittima e giudicato. Riflessioni in margine alla pronuncia delle Sezioni Unite che chiude la saga dei “fratelli minori” di Scoppola, Penale Contemporaneo, 1/2014.

[12] C Cost, sent n. 210/2013.

[13] Contrada v. Italy (no. 3), no. 66655/13, 14 April 2015.

[14] The follow-up cases of the Contrada judgment have encouraged a wide scholarly debate. See, by way of example: F. Viganò, Il caso Contrada e i tormenti dei giudici italiani: sulle prime ricadute interne di una scomoda sentenza della Corte EDU, Penale Contemporaneo, 26.4.2016; A. Manna, La sentenza Contrada e i suoi effetti sull’ordinamento italiano: doppio vulnus alla legalità penale?, Penale Contemporaneo, 4.10.2016.

[15] Cass sez VI, 12 novembre 2008, Drassich (2009) Cass Pen 1457; Cass., sez. V, 11 febbraio 2010, n. 16507, Scoppola.

[16] Cass., sez. V pen., sent. 14 marzo 2016 (dep. 8 luglio 2016), n. 28676/16, Pres. Bruno, Rel. Catena, Ric. Dell’Utri.

[17] Cass., sez. I pen., sent. 11 ottobre 2016 (dep. 18 ottobre 2016), n. 44193/16, Pres. Mazzei, Rel. Magi, Ric. Dell’Utri, p. 29.

[18] Ibid, p. 27.

[19] Ibid, p. 30.

[20] Ibid, pp. 35-40.

[21] Cass., Sez. I, sent. 10 aprile 2017 (dep. 27 novembre 2017), n. 53610, Pres. Mazzei, Rel. Rocchi, Ric. Gorgone.

[22] Cass. pen., sez. II, sentenza 20 giugno 2017 (dep. 7 settembre 2017), n. 40889, Pres. Fiandanese, rel. Recchione, ric. Cariolo.

[23] For a critical commentary of this decision: S. Bernardi, La Suprema Corte torna sui limiti di operabilità dello strumento della “revisione europea”: esclusa l’estensibilità ai “fratelli minori” del ricorrente vittorioso a Strasburgo, Penale Contemporaneo, 26.9.2017

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The UK and the right to life: Some preliminary remarks on the UK Government’s observations on the Draft General Comment no 36

In July 2017 the UN Human Rights Committee finalised the first reading of its Draft General Comment no 36 on article 6 (right to life) of the International Covenant on Civil and Political Rights (ICCPR). All stakeholders, including Member States, other UN and regional human rights mechanisms, National Human Rights Institutions, NGOs, research institutions, and academics were invited to provide their observations by 6 October 2017.  In November 2017, the UN Human rights Committee started the second reading of its Draft General Comment. This post aims to provide some preliminary remarks on the UK Government submissions, which should be interpreted while bearing in mind a significant difference between the UK position and the Draft Comment: according to the former, indeed, there is no hierarchical relationship among rights, and the right to life is not the ‘supreme’ right among all others, as it is, conversely, for the latter.[1] This post will focus on three specific areas of concern for the UK: the desirability of an international treaty banning any Lethal Autonomous Weapons Systems (LAWS), the relationship between the regimes of international human rights and international humanitarian law, the linkage between the right to life and any act of aggression.

 

On the ban of any Lethal Autonomous Weapons Systems (LAWS)

 

Starting from the assumption that in the development of new kind of weapons Sates should always consider the possible implications of such weapons for the right to life, the UN Human Rights Committee, at paragraph 12 of its Draft General Comment, holds that ‘the development for use in military operations of new lethal autonomous robotics lacking in human compassion and judgement, raises difficult legal and ethical questions concerning the right to life, including questions relating to legal responsibility for their use’. The Committee therefore concludes that this kind of weapons should not be developed or put in operation; neither in time of war or peace. The UK Government, on the contrary, considers that since it is unclear whether these weapons would ever be developed, it would be pointless to have an international agreement banning them pre-emptively.[2] Thus, the UK ‘strongly urges’ to delete the part relating to the need to avoid the development and/or ban of any LAWS. Yet, this conclusion seems to lie more on the non-existence of such weapons, which furthermore still lack of a definition, than on their legality under international law. In this respect, the UK aligns its positions to the other EU member states. As Veronique Caruana has pointed out, however, in the future we might witness «the continued development of a “class of systems capable of selecting targets and initiating the use of potentially lethal force without the deliberate and specific consideration of humans”». Considering that the issue has been broadly debated among governments, scholars,[3] and NGOs, the prospect of developing such weapons seems in fact to be a concrete possibility.

 

On the relationship between International Humanitarian Law and Human Rights Law

According to paragraph 67 of the Draft General Comment, the Covenant as a whole continues to apply in time of armed conflict,[4] as the two regimes of Human Rights Law and International Humanitarian Law (IHL) are complementary, rather than mutually exclusive. The UN Human Rights Committee concludes that during an armed conflict States have therefore an obligation to disclose, inter alia, ‘whether non-lethal alternatives for attaining the same military objective were considered. They must also investigate allegations of violations of article 6 in situations of armed conflict in accordance with the relevant international standards.’[5] In respect of both these points the UK Government submits that International Humanitarian Law is lex specialis applicable during an armed conflict,[6] and under this regime there is no rule imposing upon states an obligation to consider whether a non-lethal means was available.[7] Moreover, while it is admitted that States have an obligation to investigate breaches of IHL in accordance to international legal standards, they reject the submission that in time of an armed conflict such obligation to investigate would also apply to any violation of article 6 ICCPR.[8] This would be somehow equal to interpret the two regimes of International Humanitarian Law and Human Rights Law as mutually exclusive, and might have serious implications when it comes to the implementation of the principles of proportionality and necessity, which are much more stringent within the context of the International Human Rights regime.[9] This would also place the UK far from the interpretation given by the European Court of Human Rights (ECtHR) of the positive procedural obligations stemming from article 2 (Right to life) of the European Convention of Human Rights (ECHR).[10] The ECtHR has indeed ‘held that the procedural obligation under Article 2 continues to apply in difficult security conditions, including in a context of armed conflict’.[11] In the opinion of the Strasbourg Court these obligations include a duty to carry out an effective investigation,[12] which might comprise criminal procedures, but also inquiries on state responsibility. [13] This might apply to cases of death of civilians as well as soldiers,[14] and can also require the investigators to ‘establish basic facts about the use of indiscriminate weapons’, when the former were ‘crucial for the assessment of the causal link between their use and the casualties’.[15] The Court has in fact found that the ‘use of explosive and indiscriminate weapons, with the attendant risk for human life, cannot be regarded as absolutely necessary’. [16]

 

 

On the implications for the right to life as a result of acts of aggression

 

The last two paragraphs of the Draft Comment no 36 are dedicated to the implications for the right to life in case of war, and even more specifically, in the event of the commission of any act of aggression contrary to the UN Charter. Paragraph 71, notably provides as follows: ‘States parties engaged in acts of aggression contrary to the United Nations Charter violate ipso facto article 6 of the Covenant. Moreover, States parties that fail to take all reasonable measures to settle their international disputes by peaceful means so as to avoid resort to the use of force do not comply in full with their positive obligation to ensure the right to life.’

The UK, at paragraph 34 of its observations, comments by stating: ‘We are rather surprised at the inclusion of paragraphs 70 and 71; these appear to be better suited to an aspirational document rather than a General Comment. We do not consider that the content is helpful, nor that it is within the Committee’s mandate.’ Thus, in the UK Government’s opinion the loss of lives resulting from the usage of an unlawful means, that is, in this specific case, an illegal war or an act of aggression, would not fall within the jurisdiction of the UN Human Rights Committee. It is however unclear where this limitation should be inferred from. In Europe, the Strasbourg Court has kept holding that article 2 ECHR (right to life) cannot be subject to any derogation, under article 15 ECHR, if not with regard to ‘lawful acts of war’.[17] A contrario, one might argue that all other means should be considered as unlawful and cannot find any justification under the ECHR. Moreover, it rests to be shown how, under which circumstances and towards whom such paragraphs might ever end up being in any way ‘unhelpful’.

 

Conclusion

 

The UN Human Rights Committee is currently at its second reading of the Draft General Comment no 36 on article 6 ICCPR (right to life). Between its first and second reading, the Committee invited all stakeholders to submit their observations. This post focused on the UK position on article 6 ICCPR, which significantly departs from the Draft Comment in many aspects. First, the UK while aligning itself with the position taken by all other EU member states, differs from the UN Committee’s Draft General Comment, when the Government considers it pointless to ban or refrain from developing any LAWS. In the opinion of the UK Government, in fact, these weapons have not been developed yet and a significant amount of uncertainty surrounds their future characteristics, effects and even definition. Second, while the UN Human Rights Committee considers the Covenant to apply during an armed conflict, the UK sees the regime of International Humanitarian Law as lex specialis and deems there exists no positive obligation to investigate any violation of article 6 ICCPR. Nor do they think they have any obligation to disclose whether any non-lethal means was available. This might have huge implications on the implementation of the principles of necessity and proportionality, which refer to different standards, depending on which regime, i.e., Human Rights Law or International Humanitarian Law, is indeed applicable. In this respect, the UK would put itself far from the stance of the ECtHR’s case law. Third, the UK considers the UN Human Rights Committee went beyond its jurisdictions, when it inserted paragraphs 70-71 in the Draft General Comment. These paragraphs concern the casual relation between any unlawful armed conflicts, or more specifically any acts of aggression contrary to the UN Charter, and an automatic violation of article 6 ICCPR. However, when it comes to any possible implications for the right to life, it is unclear where the UK could infer any limitation of the UN Human Rights Committee’s ratione materiae jurisdiction. Moreover, it rests to be shown how, and especially under which circumstances and towards whom, such paragraphs could be in any way ‘unhelpful’. In sum, the UK position on the right to life differs significantly from the UN Committee, and in many occasions this would be equal to a less comprehensive protection of the individuals’ right to life. This might find an explanation in the UK vision of human rights, which according to the Government’s observations relating to the Draft General Comment no 36, would not have any hierarchical relationship, so that the right to life would not be seen as ‘the supreme’ among all other rights any more.

[1] UK Governments, Comments on the UN Human Rights Committee’s Draft General Comment No 36, the right to life (6 October 2017) at 5. Cf Human Rights Committee, ‘General comment No. 36 on article 6 of the International Covenant on Civil and Political Rights, on the right to life’ (Revised draft prepared by the Rapporteur) available at < http://www.ohchr.org/Documents/HRBodies/CCPR/GCArticle6/GCArticle6_EN.pdf> visited on 5 December 2017. Cf Case of TagayevaaAnd Others v. Russia App no 26562/07  (ECHR, 13 April 2017) at 599.

[2] UK Governments, Comments on the UN Human Rights Committee’s Draft General Comment No 36, the right to life (6 October 2017) at 12.

[3] See, e.g., Nehal Bhuta, Claus Kreβ, Autonomous Weapons Systems: Law, Ethics, Policy (CUP 2016).

[4] Cf The relevant ECtHR’s case law. See William Schabas, The European Convention on Human Rights. A Commentary (OUP 2015) 154-55.

[5] UK Governments, ‘Comments on the UN Human Rights Committee’s Draft General Comment No 36, the right to life’ (6 October 2017) at 67. Cf William Schabas, The European Convention on Human Rights. A Commentary (OUP 2015) 156-58.

[6] Cf Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Reports (2004) 136, para. 106. See also Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) ICJ Reports (2005) 168, para. 216.

[7] UK Governments, ‘Comments on the UN Human Rights Committee’s Draft General Comment No 36, the right to life’ (6 October 2017) at 33.

[8] Ibid.

[9] As for the ‘absolute necessity’ requirement according to the ECtHR, see Case of McCann and Others v. The United Kingdom App no 18984/91 (ECHR, 27 September 1995) at 149; Case of Andreou v. Turkey App no 45653/99 (ECHR, 27 October 2009) at 55; Case of Putintseva v. Russia App no 33498/04 (ECHR, 10 May 2012) at 69. As for the proportionality requirement as developed by the ECtHR, see Case of Wasilewska and Kałucka v. Poland App nos 28975/04 and 33406/04 (ECHR, 23 February 2010) at 56-57; Case of Finogenov and Others v. Russia App nos 18299/03 and 27311/03 (ECHR, 4 June 2012) at 236. See also Conor Foley, UN Peacekeeping Operations and the Protection of Civilians: Saving Succeeding Generations (CUP 2017) 183.

[10] William Schabas, The European Convention on Human Rights. A Commentary (OUP 2015) 139. Cf Case of the “Mapiripán Massacre” v. Colombia (Inter-American Court of Human Rights, 15 September 2005) at 238.

[11] Case of Al-Skeini and others v. The United Kingdom App no 55721/07 (ECHR, 7 July 2011) at 164;Case of Mocanu and Others v. Romania App nos 10865/09, 45886/07 and 32431/08 (ECHR, 17 September 2014) at 319. See also Case of Benzer and Others v. Turkey App no 23502/06 (ECHR, 12 November 2013) at 184.

[12] See, for instance, See also Case of Benzer and Others v. Turkey App no 23502/06 (ECHR, 12 November 2013) at 198.

[13] Case of Al-Skeini and others v. The United Kingdom App no 55721/07 (ECHR, 7 July 2011) at 174.

[14] Smith v Secretary of State for Defence [2010] UKSC 29, at 70-72.

[15] Case of TagayevaaAnd Others v. Russia App no 26562/07  (ECHR, 13 April 2017) at 527.

[16] ibid at 609.

[17] Case of Al-Skeini and others v. The United Kingdom App no 55721/07 (ECHR, 7 July 2011) at 162.

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The Criminality of the Catalan Independence Referendum

Michelle Coleman, PhD Student in International Law at Middlesex University (London)

 

On 1 October 2017 a referendum vote in the Catalan region of Spain devolved into violence when police officers deployed by the national government attempted to prevent people from voting. According to some reports almost 900 people, including voters and potential voters, were injured. While recognising that there are disputed versions, this post follows the critics of the Spanish police’s actions, as described by the main NGOs and other academic bloggers.

 

This referendum asked the people of Catalonia whether they wanted the region to gain independence from Spain. This blog post explores the potential criminality that has arisen from participating in the referendum by organisers, voters and potential voters. Specifically, it will argue that participating in the referendum was not a per se criminal act. Participants could be investigated for crimes that occurred in the course of their participation, but not for the participation itself. Moreover, the police should not have targeted potential voters, using disproportionate force, because this violated the freedom of expression and did not fulfil the police’s duties of crime prevention or investigation.

 

Referendum’s Background and Constitutional Court Decision

 

Catalonia is an autonomous region in Northeastern Spain. The region’s quest for independence has a long history that has become more active in recent years. In January 2016, Carles Puigdemont was sworn in as the President of the Government of Catalonia. A staunch supporter of independence, he ran his campaign on the platform that he would hold a referendum on whether the region should become independent. The Spanish government has always opposed Catalan independence and the Constitutional Court found a previous move for Catalan independence to be unconstitutional in 2010.

 

On 19 September 2017 the Spanish Constitutional Court declared the proposed referendum unconstitutional on the grounds that there is no legal mechanism within Spanish law to allow a region to secede. They also held that the public prosecutor could investigate the leaders of the Catalan Parliament, as organisers of the referendum, for any potential crimes committed by organising the referendum.

 

Participating in an Unconstitutional Referendum is Not a Per Se Criminal Act

 

The Constitutional Court’s decision that the referendum was unconstitutional does not make participating in the referendum a criminal act. The decision merely means that the question that the referendum was asking was unconstitutional because there is no constitutional provision that allows for succession by referendum. As provided by the nullum crimen sine lege principle, an action is not a crime without a law criminally prohibiting that action at the time the action was committed. In Spain, there is no criminal law specifically prohibiting unconstitutional referendums, and because it is a civil law country, this law cannot be created by the Constitutional Court. Thus, the act of participating in the unconstitutional referendum is not a per se criminal act.

 

Just because there is no specific criminal law prohibiting unconstitutional referendums, does not mean that the act of holding or participating in such a referendum cannot result in a criminal charge. Holding or participating in the referendum may evidence a violation of an already existing criminal law. This is why the Constitutional Court stated that the public prosecutor could investigate the leaders of the Catalan Parliament; organising and holding the referendum may be evidence of treason, sedition, civil disobedience, misuse of public funds, and other crimes which already exist within Spanish criminal law. This is different however, from organising the referendum automatically becoming a criminal activity because the referendum’s topic has been held to be unconstitutional.

 

What About Voters or Potential Voters?

 

As explained above participating in the referendum itself is not a criminal offence. Further, while there is no fundamental right to vote in referendums, voting in a referendum is not in itself a criminal act, even if the referendum was held unconstitutional. Thus, voters and potential voters cannot be prosecuted for voting or attempting to vote in the referendum.

 

The situation for voters and potential voters is different from that of the organisers and Catalan leaders. Even without a right to vote in a referendum, voting itself is not a criminal act, it is merely an expression of opinion. Basically a referendum is someone is asking a question and someone else (a voter) providing their answer or opinion. This activity is protected under the right to freedom of expression. The fact that the referendum was declared unconstitutional does not change this; individual voters are still allowed to express their opinion on whether Catalonia should secede from Spain. Unlike organizing the referendum which could be evidence of crimes such as sedition, voting in the referendum does not have the same effect. Expressing an opinion against the Spanish government is not illiegal or criminal — people have been doing it for years. Thus, voters and potential voters merely participating in the referendum by stating their opinion are not committing a criminal act or providing evidence of a crime. They are exercising their right to express their opinions.

 

Of course, there can be some laws that were violated during the course of casting a vote. Among those crimes might be trespassing. Potential voters did not have proper permission to be on the property where the polling places were located. For example, many schools owned by the Spanish government. The Spanish government did not give permission for the public to use the school for holding an illegal referendum. Without proper permission, anyone entering the school for the referendum would be trespassing and could suffer criminal penalties. Whether trespassing occurred however was highly dependent on the situation. It would not occur in locations where the rightful owner of the property gave permission for the property to be opened to the public for the purpose of the referendum. Rightful owners have the ability to give permission for anyone to enter their property for any purpose they choose.

 

The Police Should Not Have Targeted Potential Voters

 

In an attempt to prevent the referendum from taking place, Spain’s paramilitary Civil Guard took charge of Mossos d’Esquadra (the Catalan police force). There were two ways for the police to prevent illegal elections from occurring: to focus on stopping the organisers and closing or preventing entry to any polling places or focus on potential voters and prevent them from entering a polling place or casting their vote. The first method focuses inward, on the referendum itself, while the second focuses outward on the general public. The police used both methods.

 

From the perspective of the Spanish government, closing or preventing entry to polling places may be a justified police action. The police are preventing crime by preventing an unconstitutional referendum, stopping individuals from trespassing in the polling locations, and perhaps even gathering evidence against organisers who may be liable. It is common to prevent property crime (such as trespassing) from occurring by protecting the property itself. This can be a legitimate method of suppressing an illegal action provided the police act within their normal powers. This can be done without focusing on potential voters outside of polling stations.

 

Police actions against voters and potential voters, who are not illegally inside polling locations, are not justified. Directing police actions toward potential voters wrongfully targets individuals who have not committed crimes. It punishes individuals by restraining them and restricting their movements and, at times, using violence against them. Essentially, targeting potential voters in the streets treats them in the same manner as those who are suspected of crimes. The result is not crime prevention or investigation but a stifling of freedom of expression. Yet, police officers may use force to restore public order. In that case, however, they should always comply with the necessity and proportionality requirements.

 

By focusing on the potential voters outside the occupied public buildings, the police acted as though they were the targets of crime prevention. The police took their crime prevention duties too far by targeting those whose actions were not criminal. In so doing the police exceeded the scope of their powers and reacted violently towards thousands of individuals who were merely expressing their fundamental right to freedom of expression. vote catalonia

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The ‘Long, hot summer’ of the European Union through the Mediterranean route

Introduction

 

Summer 2017 has come to an end and, as every year, it is time for the post-facts evaluation for the European Union and its Mediterranean Member States on the ongoing so-perceived migration crisis. Summer is in fact generally considered the harshest season of the year in terms of inflows’ management.

In the last few months, the European Union has strengthened its policy of partnership with third countries – especially with African countries – first and foremost with Libya.  The specific political situation in Libya, together with the alleged violations of human rights against migrants in the management of the Central Mediterranean route, have caused some concerns by institutions, international organisations and, most of all, the Prosecutor of the International Criminal Court (ICC), Ms Fatou Bensouda. This post aims to provide a critical overview of the ‘lights and shadows’ relating to the recent management’s policy of the European Union on the central Mediterranean route in partnership with Libyan authorities.

 

The 13th report on Libya’s situation addressed by the ICC Prosecutor Office to the UN Security Council

 

On the 8th of May 2017, on the occasion of the 13th report on the situation of Libya presented to the United Nations Security Council (hereinafter “the Council”), the Prosecutor of the ICC highlighted her Office’s concerns with respect to the country situation.[1] In particular, she underlined that the Office of the Prosecutor ‘continues to collect and analyse information relating to serious and widespread crimes allegedly committed against migrants attempting to transit through Libya’ and that it (…) is carefully examining the feasibility of opening an investigation into migrant-related crimes in Libya should the Court’s jurisdictional requirements be met.’.[2]

The report also mentions data from the International Organization for Migration (hereinafter “IOM”), according to which a significant number of migrants have attempted to reach the Italian coasts from Libya throughout the whole 2016.[3] The alarming issue – as reported – relates to the large amount of unofficial detention centres apparently arranged in Libya for migrants and, overall, to the inhumane conditions and poor treatment of detained migrants.[4] According to the allegations considered by the Prosecutor, migrants were victims of serious crimes, involving any form of violence (from torture to sexual violence), human trafficking, exploitation and smuggling by both State and non-State actors, including militias.[5]

The report concludes on migration’s matters by recalling the mutual engagement on the side of the ICC and the European Union as a whole (together with several international agencies and the Libya’s Government of National Accord) aiming at sharing information and collect elements related to the alleged crimes against migrants in Libya, as well as to the conduct of facilitation and financing of illegal migration through Libya and the Central Mediterranean route.

The Prosecutor’s statement, together with the alarming situation in Libya, reveals the fragmented and alarming framework which the EU must deal with on the “externalization” of the migration matters.

 

The European Union summer agenda on central Mediterranean route

The 6th of September, the EU Commission (hereinafter “the Commission”) submitted its 5th Progress Report on the Partnership Framework with third countries under the European Agenda on Migration. The Report specifically deals with the co-operation with Libya on migration through the Central Mediterranean route and sums up the main steps recently taken by the European Union.[6] After the apparently ‘successful’ implementation of the EU – Turkey agreement on the Balkan route, which has reduced the pressure on Greek borders, the Report focuses on the Italian situation, considering the massive inflows from some African states through the Libyan route. The report recalls the IOM data, showing the downward trend of arrivals via the Central Mediterranean route in comparison with summer 2016 as a positive consequence of the EU- funded actions, including the improved co-operation with Libya in border control activities.

In particular, the Commission drafted an Action plan to ‘support Italy, reduce pressure and increase solidarity’. Among its main conclusions, the Commission’s plan suggested to adopt measures by EU actors, European agencies and external partners to support Italy in reducing inflows,[7] to increase the amount of funding to be allocated to the North – Africa window of the EU-Africa Trust Fund and to help engage with Tunisia, Egypt and Algeria to encourage them to join the Seahorse Mediterranean Network.

As the Commission pointed out, the strategy of reducing outflows and enhancing security and stability implies a presumably successful combination of factors, namely: the cooperation in monitoring and increasing borders’ control, counter- terrorism activity and national security prevention through the improvement of the EUBAM Libya programme, the involvement of North African countries authorities in anti–smuggling and anti–trafficking programmes, such as the EUNAVFOR Med Operation Sophia and the SEAHORSE Mediterranean Project.

By increasing its material support to international organisations and strengthening the partnership with North African countries, the Commission aims to grant a satisfactory standard of protection to migrants and refugees and assist individuals in voluntary return from Libya to countries of origin. The pragmatic cooperation in the field of assisted and voluntary returns seems to be functional to the ‘discouraging’ policy, adopted by the European Union to ensure the asylum system’s integrity by reducing irregular movements. On the other hand, the Commission continuously stresses the importance for Members States to implement resettlement policies for those in need of international protection (while waiting for the announced reform of the European Common Asylum Legislation), also through the assistance provided by the UN forces.

Except for the EU-Turkey agreement’s experience -whose consequences in terms of human rights implications are not entirely clear yet– this practice, known as the ‘externalization of borders scheme’, is  relatively new, at least for the European Union. It might imply several critical issues. Firstly, the so called ‘assisted voluntary return’ policy, which seems to base the entire externalization partnership, may raise some issues in terms of compatibility with  the principle of non–refoulement, depending on the different situations of countries of origin and transit.[8] In fact, the policy of massive voluntary returns does not grant a satisfactory case by case analysis of individuals’ entitlement of international protection, hence it risks to go beyond the limits of the principle of protection against return to a country where a person has reason to fear persecution, as established by several international instruments relating to refugees, both at the universal and regional levels.[9] Secondly, concerning the ICC Prosecutor’s statement and report, the shared management of such a sensitive matter with a third country facing a serious political instability, such as Libya, might lead to grave consequences in case of perpetrations of international crimes. The institutional agenda of the EU summits, however, does not seem to have these issues at the heart, notwithstanding the copious declarations made also during the last “restricted” Paris summit.

This might become even more delicate  in the light of the agreement of mutual cooperation and assistance, signed in 2006, which binds the European Union and the ICC, according to which the EU is committed to  cooperate in the prevention and repression of crimes against humanity, as well as to ensure the highest standard of human rights protection as a priority

 

Conclusion

 

The solutions adopted by the European Union on the central Mediterranean route were originally the result of a short-sighted approach, reacting to an emergency. Nevertheless, the EU and its Member States should not ignore the ongoing violations allegedly committed against thousands of migrants in a climate of uncertainty about the identification of State and non-State actors’ responsibilities.

While the ICC Prosecutor expresses her Office’s concerns for the alleged human rights violation against migrants in Libya, the European Union tries to reinforce its partnership with African third countries, first and foremost with Libya, with the aim to ensure a prominent level of borders’ protection against illegal inflows, without, at least formally, forgetting its own core principles and duties on fundamental rights protection.

The EU should also respect its previous commitments with the ICC – and the International community as a whole -to cooperate in the prevention and repression of crimes against humanity, as well as to ensure the highest standard of human rights protection as a priority.

On the occasion of the G20 Summit, the President of the European Commission, Jean-Claude Juncker, and European Council President, Donald Tusk claimed as follows.  

Europe’s role in the world and our responsibility at the international level in these turbulent times are growing’ and hopefully so as ‘the EU’s continued commitment to defending our shared values of freedom, democracy, the rule of law and respect for human rights, and to promoting these values in Europe and around the world.

The time for a new farsighted approach of the EU to migration matters might therefore have come.

 

[1] The report has been adopted pursuant Resolution 1970 (2011) of the UN Security Council (S/RES/1970 (2011).

[2] Statement of ICC Prosecutor to the UNSC on the Situation in Libya (08th May 2017), para25-29.

[3] IOM, Libya Migration Crisis Operational Framework (Mcof). 7, accessed on 26th September (https://www.iom.int/sites/default/files/our_work/DOE/MCOF/MCOF-Libya-2017-2019.pdf).

[4] Thirteenth Report of the Prosecutor of the International Criminal Court to the United Nations Security Council pursuant to UN SC Res 1970 (2011), paras 23-24.

[5] Thirteenth Report of The Prosecutor of the International Criminal Court to the United Nations Security Council pursuant to UN SC Res 1970 (2011), paras 23-24.

[6] Fifth Progress Report on the Partnership Framework with third countries under the European Agenda on Migration, Brussels, 6.9.2017 COM(2017) 471 final, para 3.

[7] i.e,. additional funding and material support to Italy and to Libyan authorities to manage and prevent movements, readmission and resettlement agreements with some of countries of origin or transit, mobilisation of EU Agencies in cooperation with Libyan authorities to strengthen controls at the southern border, accelerate Assisted Voluntary Returns from Libya and Niger to countries of origin, working with the IOM.

[8] Gabriella Carella, ‘Il sonno della ragione genera politiche migratorie’ (SIDIBLOG, il blog della società italiana di diritto internazionale e diritto dell’Unione Europea, 11 Settembre 2017) http://www.sidiblog.org/2017/09/11/il-sonno-della-ragione-genera-politiche-migratorie/ accessed on 11th September 2017.

[9] Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention) Article 33(1).

 

 

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Gard and Others v. UK. Passive euthanasia of a minor patient and the limits to parental authority

Introduction

The case of Charles Gard (better known as “Charlie”) originates in the unfortunate conditions of a baby boy suffering from an incurable disease, whose life-sustaining treatment have been withdrawn on 28 July 2017 in accordance with UK law, notwithstanding his parents’ contrary will and after a legal dispute conducted before UK Courts and at European level.

The last stage of the dispute has been the decision issued by the European Court of Human Rights, First Section (“ECtRH”, or “Court”) on 27 June 2017, declaring inadmissible the application lodged against the United Kingdom by Charles’s parents, also on behalf of their son, for alleged violations of Articles 2 (right to life), 5 (right to liberty and security), 6 (right to fair trial) and 8 (right to respect for private and family life) of the European Convention on Human Rights (“ECHR”, or “Convention”).

The Court’s declaration of inadmissibility forms part of the developing body of European decisions on end-of-life situations. The present post describes the facts of the case and the ECtHR’s assessment on the complaints raised under Article 2 and 8 ECHR, focusing on two aspects of the decision: the use of the criteria developed in the recent Lambert judgment to assess whether domestic law regulating passive euthanasia is compatible with the Convention; the choice of expressly dealing with the issue of limits to parental authority in end-of-life choices concerning minors – issue which is likely to animate future debates on end-of-life situations.

 The case

Charles Gard was a baby boy suffering from a very rare and severe disease determining a progressive deterioration of his health since the age of two months and severely affecting his brain, muscles and ability to breath, so to require, inter alia, artificial ventilation.

In January 2017, the possibility of treating Charles with a form of therapy previously used on patients with a similar disease was being evaluated. In the meanwhile, the baby suffered from a severe epileptic crisis. In the light of the irreversible damages suffered by Charles’ brain, clinicians agreed that the therapy would be futile and that it would only prolong the baby’s suffering. They informed Charles’ parents of this conclusion and applied the UK High Court for an order stating that it would be lawful, and in the patient’s best interests, for artificial ventilation to be withdrawn and palliative care provided.

The High Court, noting the medical experts’ consensus on the fact that the treatment would have been futile and potentially painful for the patient, declared it lawful and in the patient’s best interest for artificial ventilation to be withdrawn.

Charles’ parents appealed on several grounds. Among them, it is worth recalling their argument according to which the ‘best interest of the child‘ criterion may be used only in cases whereby parents opposing a course of treatment do not have a viable alternative therapeutic option.[1]

The Court of Appeal dismissed this and the other arguments. Subsequently, the Supreme Court rejected the applicants’ request for permission to appeal on point of law. Charles’ parents applied the European Court of Human Rights, complaining, inter alia:

– on Charles’ behalf and on their own, of a violation of Article 2 ECHR (right to life), arguing that the hospital was blocking life-sustaining treatments and, thus, state authorities were violating their positive obligations to protect life;

– on their own behalf, of a violation of Article 8 ECHR (private and family life), alleging that there had been a disproportionate interference with their parental rights.

 The Court’s assessment on the complaints under Articles 2 and 8 ECHR.

Article 2 ECHR (right to life)

When analysing whether the applicants had locus standi on behalf of their son, the Court took the opportunity to point out that in end-of-life situations involving minors the parents’ role ‘is […] arguably to be accorded greater weight’ than in cases (such as Lambert) whereby the unconscious patient had had the opportunity to lead an adult life and express his views on end-of-life situations.

As to the substantive issue raised under Article 2, the Court examined not only the applicants’ complaint that the hospital was blocking access to life-sustaining treatment, but also the complaint (raised only at domestic level) that Charles’ right to life would be violated if treating clinicians were to withdraw artificial ventilation against his parents’ will.

With reference to the first complaint, the Court recalled its previous case-law, according to which positive obligations under Article 2 may include the duty for the State to put in place an appropriate legal framework to deal with access to experimental treatment; However, this cannot be interpreted as requiring access to unauthorised medicinal products for the terminally ill to be regulated in a particular way (Hristozov and Others v Bulgaria 2012). As the United Kingdom has a regulatory framework to deal with access to experimental treatment, which ‘is derived from the relevant European Directives’, the Court concluded that the applicants’ complaint under this head was manifestly ill founded.

As to the complaint concerning the withdrawal of life-sustaining treatment (or ‘passive euthanasia’), the Court made use of the criteria elaborated by the Grand Chamber in Lambert and Others v France (GC 2015), according to which it should be assessed whether:

– A regulatory framework compatible with the requirements of Article 2 exists in domestic law and practice;

– The patient’s previously expressed wishes were considered, together with those of the persons close to him and the opinions of other medical personnel;

– There is the possibility to approach the courts in the event of doubts as to the best decision to be taken in the patient’s interests.

The Court concluded that the second complaint under Article 2 was also manifestly ill founded, considering the following reasons:

– The regulatory framework in place in the UK to deal with passive euthanasia is compatible with the requirements of Article 2 (as assessed in Glass v UK (dec) 2003, first case involving, inter alia, the withdrawal of life-sustaining treatment in a minor patient whose parents oppose the treating clinicians’ choices);

– A guardian had been appointed expressly for ensuring that Charles’ wishes were taken into account, and the opinions of all medical personnel and parties involved (including the parents) had been adequately considered;

– UK domestic rules do impose a duty on clinicians to apply to courts in the event of doubts.

Article 8 ECHR (right to respect for private and family life)

Under Article 8, the applicants complained that the alleged lack of respect for their parental will constituted a violation of their right to private and family life.

The Court acknowledged that there had been an interference with the applicants’ rights under Article 8. However, this would not constitute a violation of Article 8 if: it was “in accordance with the law”, it pursued a legitimate aim (or aims), and it could be regarded as “necessary in a democratic society”.

With regard to the first two criteria, the Court found that the interference was lawful and that it pursued a legitimate aim (i.e. the protection of “health and morals” and “rights and freedoms” of a minor). As for the necessity test, the Court recalled the applicants’ argument that interference with their parental rights based on the ‘best interest of the child‘ test was unnecessary. In response to that, on the one hand,the Court pointed out that ‘there is a broad consensus – including in international law- in support of the idea that in all decisions concerning children, their best interest must be paramount‘; on the other hand, it clarified that, according to its case law, the necessity test requires ‘consideration of whether, in the light of the case as a whole, the reasons adduced to justify the measures are “relevant and sufficient”’. Also in consideration of the margin of appreciation doctrine (according to which, the less consensus among the Member States, the wider their margin of appreciation) the Court concluded that the decisions taken by the domestic courts did not show any element of arbitrariness and dismissed the complaint as manifestly ill-founded.

Final remarks

This is the first occasion in which the Court has applied the criteria developed in Lambert v. France to evaluate the compatibility of domestic laws regulating passive euthanasia with the Convention.

The body of Court’s decisions on end-of-life situations cannot be considered, yet, as case law. Still, the choice of applying to the Gard case the conclusions reached in Lambert can be regarded as a wilful development in that direction. In fact, the Court analysed the complaint relating to the withdrawal of life-sustaining treatment even though this had been raised by Charles’ parents only before UK Courts: The choice of expressly dealing with this argument can be considered as an opportunity to apply the Lambert conclusions to a new case, thus reinforcing their ‘general criteria’ nature. Thanks to this choice, in future decisions on passive euthanasia cases the Lambert criteria might gain a more authoritative dimension.

In the Gard decision, the Court also considered the issue of limits to parental authority in end-of-life choices concerning minors. In analysing the applicants’ locus standi to raise a complaint under Article 2 on their son’s behalf, the ECtHR clarified that, in cases involving minors, the very early age of the patient is a factor that can be taken into consideration when determining the weight to be attributed to parents’ choices. At the same time, in analysing the complaint raised under Article 8, the Court pointed out that the ‘best interest of the child‘ criterion must always be paramount.

These clarifications are particularly welcome, if one considers that in the only previous comparable case (Glass v UK 2004) the Court had not explicitly confronted the issue of limits to parental authority in end-of-life choices concerning minors. Quite understandably, in the light of the context (i.e., a decision of admissibility, and not a judgment) the issue was approached with caution in Gard: however, it is now more likely that, in the future, other cases of this kind will be brought to the attention of the Court, when arguments concerning the limits to parental authority could play an even more relevant role.

[1] See par. 58 of the Court of Appeal decision

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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 European Union (Withdrawal) 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 European Union (Withdrawal) 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 European Union (Withdrawal) 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 European Union (Withdrawal) 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 European Union (Withdrawal) 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 European Union (Withdrawal) 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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