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

  1. Introduction

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

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

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

2. The relationship with external partners and the EU agenda

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

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

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

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

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

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

3. The Italy – Libya Memorandum

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

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

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

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

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

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

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

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

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

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

Introduction

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

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

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

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

Banking supervision within the EU

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

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

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

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

The ECB Draft guidance to banks on non-performing loans

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

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

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

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

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

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

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

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

Internal organization and timely intervention on NPLs

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

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

Conclusion

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

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

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

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

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

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

[4] ibid., p. 5

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

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

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

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

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

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

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

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

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

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

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

Selectivity – on the impossibility to reach impartiality through objective criteria

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

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

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

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

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

 Efficiency – Lowering Ambitions to Meet Expectations?

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

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

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

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

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

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

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

Conclusions

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

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

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

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Trump, torture and the United States’ obligations under international law

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

Introduction

            Donald Trump’s election as the next president of the United States has cast doubt on whether the United States will continue to comply with a variety of its different international human rights obligations. One issue in particular, Trump’s attitude towards the use of torture, could significantly diminish the United States’ compliance with its international treaty obligations.  This blog post examines the United States’ international obligations with regard to torture, and whether Trump’s policies as proposed through his campaign statements conform to those obligations.  It concludes that they do not and that if the United States reauthorises the use of torture it will be in violation of its international commitments.

Trump’s statements on torture

Donald Trump’s election as the next president of the United States has cast doubt on whether the United States will continue to comply with a variety of its different international human rights obligations. While significant post-election attention has been paid to how Trump’s proposed policies comport with domestic human rights law, it is also important to analyse whether his positions comply with international law.  One issue in particular, Trump’s position on the use of torture, could significantly diminish the United States’ compliance with its international (treaty) obligations.

Trump’s campaign rhetoric was fraught with contradictory and troubling statements regarding the use of torture. His initial statement on torture came on 25 November 2015, when, at a campaign rally he stated “[w]ould I approve waterboarding? You bet your ass I would. In a heartbeat. I would approve more than that.”On 17 February 2016, Trump asserted that “torture works”, that he believed in the efficacy of waterboarding and that the United States should employ “much stronger” types of torture than waterboarding when questioning suspected terrorists. On 4 March, Trump appeared to back away from that statement when he told the Wall Street Journal that, if elected, he would not order members of the military to violate international law. He almost immediately changed course again indicating on 6 March 2016 that the United States should expand its laws to authorise the use of greater forms of torture. Trump returned to the topic of torture at the end of June when he reaffirmed his affection for waterboarding as an interrogation technique and suggested that he “[doesn’t] think it is tough enough.”

Trump’s declaration that as president he would not ask American troops to violate international law appears anomalous when placed in the context of his other assertions on the issue of torture.  This is particularly true when one considers that he repeatedly advocated in favour of changing domestic law so as to permit a more expansive use of torture as an interrogation technique. However, United States’ law comprehensively bans the use of torture and it would be difficult for Trump to unilaterally alter those provisions.

The United States’ obligations

The prohibition against torture has its roots in the Eighth Amendment of the United States Constitution, which bans the use of cruel and unusual punishment, although there is an ongoing debate as to whether the Eighth Amendment is applicable in all situations involving torture. United States’ law also contains several different explicit prohibitions against torture. 18 U.S.C. §2340A forbids torture if it occurs outside of the United States and the perpetrator is either an American national or can be found in the United States following the alleged criminal act. Additionally, one of Barack Obama’s first acts after becoming president was to issue an executive order in which he specified that individuals detained in an armed conflict were to be treated humanely, were not to be subjected to torture and restricted all interrogation techniques to those discussed in the Army Field Manual 2-22.3. That executive order was reinforced by the McCain-Feinstein Amendment to the National Defense Authorization Act for FY 2016 which made the Army Field Manual 2-22.3 the single and standard guide for all interrogations conducted by American personnel or at American facilities of individuals detained during armed combat. The passage of this Amendment is significant as it eliminates the possibility of Trump unilaterally overruling President Obama’s Executive Order, necessitating Congressional action before torture could be authorised. These protections, together with the 2005 Detainee Treatment Act, which forbids the use of cruel, inhumane or degrading treatment or punishment against detainees, but stops short of banning torture outright, will make it difficult for Trump to permit the renewed use torture.

If Trump were to somehow re-authorise the use of torture under domestic law, those actions would violate the United States’ international obligations under the International Covenant on Civil and Political Rights and the Convention Against Torture.  Article 7 of 1966 the International Covenant, which the United States ratified in 1992, unequivocally states “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” This prohibition against torture was strengthened and made specific through the 1984 Convention Against Torture.  Signed by the United States in 1988 and ratified in 1994, the Convention Against Torture was introduced to combat the use of torture and inhuman or degrading treatment in recognition of the inherent dignity of human beings and the obligation to promote universal respect for human rights found in Article 55 of the Charter of the United Nations.

If taken at face value, always a danger when considering Trump’s statements, his policy regarding the use of torture would conflict with all three subsections of Article 2 of the Convention Against Torture.  Article 2(1) requires each State Party to the Convention to enact effective legislation, laws and administrative rules to prevent acts of torture from occurring in territory under its control. Trump’s statements propose just the opposite as he advocates in favour of laws designed to accommodate and encourage harsher forms of torture. Therefore, not only would Trump’s suggested policies not comply with Article 2(1), they would be directly contradictory to it as they would involve enacting laws and legislation designed to facilitate acts of torture.

Article 2(2) does not allow assertions of exceptional circumstances, including war, threat of war, public emergency or domestic political instability, to justify the use of torture. Trump’s statements make clear that he believes that expanding the laws relating to torture are justified to the extent that doing so is necessary in the context of the United States’ conflict with Islamic State. This is akin to invoking exceptional circumstances based on a state of war as Trump has essentially argued that the vicious tactics employed by Islamic State justify similar brutality on the part of the United States.  Therefore, his position does not comply with Article 2(2).

Article 2(3) of the Convention Against Torture forbids the invocation of orders from a superior officer as a justification for committing acts of torture. If Trump were to enact his stated policies regarding torture, the laws of the United States would not correspond to international law and the United States would find itself in breach of Article 2(3). That is because American service members are subject to the United States’ Uniform Code of Military Justice, Article 90 of which makes it a crime, sometimes punishable by death, to disobey the lawful command of a superior officer. If torture were legal under the laws of the United States, an order to commit torture would be a lawful command as it would be an order that is consistent with the law.  By making torture legal the United States will also legitimise superior orders as a justification for committing torture as the a member of the military will be required to carry out the commanded act as part of his her obligation under Article 90 of the Uniform Code of Military Justice.

To the extent that the United States is engaged in an armed conflict with Islamic State, any change to the United States’ practices regarding torture would also result in the violation of numerous provisions of the Geneva Conventions. The Geneva Conventions and their Additional Protocols outlaw torture in most instances involving armed combat.  Further, acts of torture as described in the Geneva Conventions and the Additional Protocols are considered grave breaches of each convention and, under Article 85 of the First Additional Protocol, those grave breaches can become war crimes. As a result, the decision to commit torture under any of these circumstances would violate the respective convention and might also be considered a war crime.

Above and beyond the United States’ treaty obligations is the fact that the prohibition against torture is considered jus cogens. As such, it is non-derogable and assumes a rank above treaty law and rules of ordinary customary international law. The classification of the prohibition against torture would have a two-fold effect on the United States.  First, it would serve to delegitimise any judicial, legislative or administrative act authorising torture on a national level. Second, those engaging in torture under relevant domestic laws would be exposed to prosecution in international jurisdictions or by a subsequent regime in the United States. This could result in potential repercussions against citizens of the United States that authorise or commit acts of torture, even if done under the pretext of positive national law.

Conclusions

Any change to American policy expanding the use of torture would be in direct contravention of jus cogens and its international treaty obligations.  Unfortunately, Trump has signaled a willingness to modify or opt out of treaty commitments that he believes do not directly benefit the United States and it is unlikely that he would allow the jus cogens nature of the prohibition against torture to constrain his actions as president. Although Trump has stated that he would not direct American troops to violate international law if elected president, his oft-repeated desire to expand the use of torture under domestic law weakens any argument suggesting that he might comply with international law on this issue.  Hopefully, Congress will resist any attempt by Trump to re-authorise the use of torture and the United States will continue to comply with the applicable international human rights standards.

Khalid Sheik Mohammed

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FINALLY, THE FINAL AGREEMENT. A comparative perspective on the Colombian Peace Agreement

After a long and tortuous journey, the final Agreement between the Colombian Government and the FARC-EP[1] has been ratified. The previous version of the agreement, which was announced on past 24th August, was rejected in the referendum held on 2nd October by an unexpected and narrow majority of Colombian citizens. Yet, a process to revise the agreement was held shortly after.

The revised agreement was signed on 24th November and, instead of being submitted to a new referendum, it has been ratified by the Parliament, thereby reaching its final status. Now the time has come for implementation, and both the legislative and the executive branches of the Colombian State are struggling to pass the required laws and reforms in a short time.

Although it is difficult to make a thorough analysis of a transitional project that has not been put into practice yet, an analysis of the Agreement itself from a comparative perspective offers some very interesting insights. The Special Jurisdiction for Peace (SJP hereafter), particularly, shows the results of lessons learnt from other transitional experiences, but it combines them with some quite original features that turns it into a novel and interesting case study.

1) The creation of a special jurisdiction

The decision to create an ad hoc judicial body to deal with the offences committed during a conflict or under a repressive regime is rather common in transitional contexts. One might recall, in addition to the International Tribunals for the former Yugoslavia and Rwanda, the many hybrid or internationalised Tribunals, such as the Extraordinary Chambers in the Courts of Cambodia or the Special Court for Sierra Leona.

All those bodies were created by virtue of an agreement between the State concerned and the United Nations and they always have an international component, either fixed or changing over time (this is the case for the War Crimes Chamber in Bosnia Herzegovina, in which the initial number of 2 foreign judges was gradually reduced until their elimination in 2012).[2]

On the contrary, the Colombian SJP is the outcome of a national decision, and the international community only plays a role as an external observer and guarantor of its implementation. Additionally, whereas the first version of the final Agreement envisaged the presence of a minority of international members within the judicial bodies, this provision has been eliminated in the revised agreement. There is still room for foreign experts, but they act as amici curiae, that is, with a merely consultative role. Just like in the original agreement, their participation is optional, insofar as it occurs only when the accused requires it.[3] Therefore, even if their participation in the processes might have a (positive) impact, the concrete resolutions and judgments will be delivered by Colombian judges.

2) Amnesty, pardon and political crimes

In the special justice system the category of political crimes plays a pivotal role. The Agreement expressly states that people who have been convicted or who face an investigation for a number of political and related crimes shall benefit from an amnesty or pardon. Such possibility was already provided in the Constitutional reform known as “Marco jurídico para la paz”, which granted constitutional status to the transitional principles and mechanisms that were later developed in the negotiation between the Government and FARC.

The same option was taken by South Africa in its transitional process after the fall of the apartheid regime. There, the Truth and Reconciliation Commission (TRC) had the power to grant an amnesty to people who had committed crimes for political reasons.[4] The Act creating the TRC provided a minimum guidance on which offences fell into this category,[5] but it was the Amnesty Committee within the TRC that developed a set of criteria to determine whether a crime fitted in the definition, based on a case by case approach.[6]

The Colombian project has taken a step forward in this regard, since the final Agreement sets out a list of offences that amount to political crimes per se (rebellion, sedition, mutiny, and so on) as well as a number of interpretive criteria to define the related crimes.[7] According to the Amnesty Act, which was passed on 28th December, the former category shall be granted a de jure amnesty, whereas the latter qualification shall be established by the Amnesty Chamber case by case and according to the criteria envisaged in the final Agreement and in the Act. This feature improves the legal certainty and helps preventing inconsistencies and arbitrariness in the relevant decisions.

3) Beneficial measures as an incentive

Another point in common with the transitional experience in South Africa is the application of an incentive mechanism based on the exclusion/limitation of criminal punishment. The South African TRC could only grant an amnesty after the offender made a full disclosure of all relevant facts .[8] In a similar vein, the Colombian SJP may grant beneficial sanctions to those offenders who voluntarily recognise their responsibility. It may exempt them from imprisonment and subject them to restrictions on freedom and to reparation programs, or, in case of a belated recognition, it may impose them a reduced prison term.[9]

Both mechanisms are based on an exchange between the offenders’ contribution to the discovering of the facts and the imposition of beneficial measures. This strategy provides a strong incentive for perpetrators to take part in the procedures aimed at clarifying and declaring the offences and providing reparation to the victims. The contribution thus given by the perpetrators fosters the fulfilment of two key transitional goals, namely, truth and reparation.

The main difference lies in that the South African measure envisaged a total exclusion of criminal punishment, whereas the Colombian system provides for alternative and reduced criminal sanctions under this exchange dynamic. Accordingly, the competent body to grant the beneficial measure in the Colombian project is a tribunal, whereas in South Africa it was a non-judicial body.

 As we have seen in the previous section, amnesty is also envisaged as a tool, but outside this exchange mechanism and only for political and related crimes. This is another difference with the South African experiment, where  the exchange mechanism applied to a wider number of offences, including international crimes, which are expressly excluded from the Colombian amnesty.

4) Alternative sanctions with a restorative content

Among the different sanctions that the Special Jurisdiction for Peace envisages, the most novel ones are the alternative sanctions (which the Agreement calls “sanciones propias”, i.e., “own sanctions”). They shall be imposed if the offenders recognise their responsibility before having been formally charged before the tribunal and are accordingly the most beneficial ones. They encompass the limitation of the offenders’ freedom of movement together with the obligation to perform activities such as environmental protection, substitution of illicit crops, and programs to build infrastructures.

These sanctions have a clear restorative focus, in that they aim at repairing the harm done to victims and communities that were affected by the crimes committed during the conflict. Moreover, they shall be executed at a local level and beneficiaries may have a say in the definition of programs and their execution.

These two features remind of a mechanism that was put into practice in the transitional process in East Timor. There, the Community Reconciliation Procedure, which was a complement of the Comissão de Acolhimento, Verdade e Reconciliação,[10] may impose on the offenders a restorative measure, such as community service (an example was cleaning the community church once a week).[11] The aim of this mechanism was to both grant victims’ reparation and foster offenders’ reintegration into their communities.[12]

The same idea lies under the Colombian “own sanctions”, which are anyway more burdensome insofar as they also imply a restriction on freedom of movement. Nonetheless, the East Timorese mechanism only applied to less serious offences, for example, bodily harm and offences against property, while the serious offences were prosecuted before the Special Panels for Serious Crimes in the Courts of Dili[13] and entailed ordinary prison sentences.

The Colombian proposal is much more ambitious in this regard, since it provides that the “own sanctions” shall apply to very serious offences, including international crimes, under the condition that the offenders recognise their responsibility.

5) Final remarks

These features show that the complex transitional design envisaged in the Agreement between the Colombian Government and FARC-EP has treasured the lessons learnt from many other transitional experiences. But this scheme contains some original features that might offer new models and ideas for Transitional Justice. The creation of a national special jurisdiction, the use of amnesties, pardons and alternative penalties as tools under an exchange mechanism, the imposition of alternative sanctions with a restorative content (even for serious offences), may be interesting mechanisms for future transitional experiences.

Now, the world has its eye on the implementation of this design.

[1] The Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo are the main guerrilla group in the Colombian armed conflict.

[2] G. Werle, F. Jessberger (2014), Principles of International Criminal Law, 3rd ed., 128.

[3] Para. 65, Point 5 (”Victims”) of the Final Agreement.

[4] A. Lollini (2011), “Constitutionalism and Transitional Justice in South Africa” (Oxford – New York: Berghahn Books).

[6] A. Du Bois-Pedain (2007), “Transitional Amnesty in South Africa” (Cambridge: CUP). Political crimes included gross human rights violations, as set out in s 19(3) (b) of the Act. When these offences were concerned, the Committee may not grant amnesty without holding a hearing.

[7] Paras. 39-40, Point 5 (“Victims”) of the Final Agreement.

[8] Section 20(1)(c) of the TRC Act. See also: J. Sarkin-Hughes (2004), “Carrots and Sticks: The TRC and the South African Amnesty Process” (Cambridge: Intersentia).

[9] See the following Section of the post.

[10] Created by UNTAET Regulation 2001/10, “On the establishment of a Commission for Reception, Truth and Reconciliation in East Timor”, 13.07.2001.

[11] W. Lambourne (2012), “Commission for Reception, Truth and Reconciliation (East Timor)”. In L. Stan, & N. Nedelsky (eds.), Encyclopedia of Transitional Justice (Vol. 3, Cambridge: CUP), 46.

[12] Burgess (2005), “Justice and reconciliation in East Timor”. 15 Criminal Law Forum, 135-158.

[13] Created by UNTAET Regulation 2000/15, “On the establishment of Panels with exclusive jurisdiction over serious criminal offences”, 6.6.2000.

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The relationship between Russia and the ICC and the US precedent: Do ‘great’ states act alike?

Introduction

On 16th November 2016 several media outlets announced Russia’s intention to withdraw from the Rome Statute establishing the International Criminal Court (ICC, the Court). Since Russia is not a party to this treaty, the withdrawal they referred to might rather be defined as an attempt to remove the Russian representative’s signature from the ICC Statute. Still, from an international law standpoint, what consequences can arise? A precedent regarding another Permanent Member of the UN Security Council (SC), the US, which has ‘unsigned’ the Statute, could be relevant.[1] This post aims at examining the US precedent and will conclude that all considerations made years ago about it can, mutatis mutandis, be applicable to Russia today. It will be also argued that taking into account the unique object and purpose of the ICC Statute, states’ practice to ‘unsign’ it might not free them from the obligation not to defeat the object and purpose of the Statute.

Russia and the ICC

Russia signed the ICC Statute in 2000, but never ratified it. Some have viewed the withdrawal of the signature as a new signal of a growing aversion of states towards the ICC.[2] Not only have South Africa, Burundi and Gambia stated their intention to withdraw from the ICC Statute earlier this year, but the Philippines has also declared it might do the same. Others have linked such an event to another moment of friction between Russia and the ICC, namely the decision by the Court authorizing an investigation into war crimes and crimes against humanity allegedly committed during the 2008 Russia-Georgia conflict in South Ossetia. Even more importantly, on 14th November 2016 the ICC Prosecutor, Fatou Bensouda, released her 2016 Report on Preliminary Examination Activities, which states as follows.

The information available suggests that the situation within the territory of Crimea and Sevastopol amounts to an international armed conflict between Ukraine and the Russian Federation. This international armed conflict began at the latest on 26 February when the Russian Federation deployed members of its armed forces to gain control over parts of the Ukrainian territory without the consent of the Ukrainian Government. The law of international armed conflict would continue to apply after 18 March 2014 to the extent that the situation within the territory of Crimea and Sevastopol factually amounts to an on-going state of occupation. A determination of whether or not the initial intervention which led to the occupation is considered lawful or not is not required.[3]

Coming just two days after the Office of Ms Bensouda released this report, the Russian decision to ‘unsign’ the Rome Statute therefore acquires significant political importance.

 

The US precedent

At the 1998 UN Diplomatic conference in Rome, the US asked for an unrecorded vote and voted against the adoption of the ICC Statute.[4] Subsequently, on 31 December 2000, President Clinton decided to sign it. It was, however never ratified by the US Congress. On the contrary, in 2002 the US Under Secretary of State for Arms Control and International Security, Bolton, notified the UN Secretary General of President Bush’s intention to ‘unsign’ the Statute. At the time, the US Administration relied on article 18 of the 1969 Vienna Convention on the Law of Treaties (VCLT), which, in its relevant parts, reads as follows.

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:

(a) It has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; (…)

In other words, Bolton’s letter was meant to make the US intention not to become a party to the ICC Statute clear. However, since then, the ICC has been treating the US as a signatory state. In 2010, for example, the US participated in the Kampala Review Conference as an ‘observer state’ and the ICC has reserved this status only to those states that have signed the Statute.[5] Many commentators furthermore argued that, while it was possible for a state to free itself from any obligations arising from a treaty to which it was not a party, according to the VCLT there was not such a thing as the possibility for a state to ‘unsign’ a treaty.

Thus, it seems here unreasonable to depart from such conclusions when it comes to Russia: although in the future they might declare themselves to have ‘unsigned’ the Statute, the signature will still be there. Yet, it might not produce any obligation to cooperate with the Court anymore. But what are the object and purpose of the Rome Statute? Can any state really claim to be free from any obligation to refrain from acts that would defeat such object and purpose?

The object and purpose of the ICC Statute

In April 2016, in its Decision on Defence Applications for Judgments of Acquittal in the case of Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Trial Chamber (V) recalled that ‘[i]n the specific context of the Rome Statute, the Appeals Chamber has held that the purposes of a treaty “may be gathered from its preamble and general tenor of the treaty.” Therefore, the preamble to the Rome Statute must be consulted for the object and purpose of the Statute.’[6]

Thus, it seems here important to recall that in the Preamble, States Parties to the ICC have affirmed ‘that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation.’[7] One of the purposes of the ICC Statute, according to paragraph 5 of the Preamble, is in fact to ‘put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.’

Unlike other states,[8] since the US and Russia are two of the UN SC Permanent Members, it is unlikely that they will ever adopt any resolutions requiring them to cooperate with the Court (for instance, in those cases involving their nationals) on the basis of a SC Resolution adopted under Chapter VII of the UN Charter. Indeed, in relation to those cases that have so far been referred to by the UN Security Council, the Court has made clear that no obligation vis-à-vis the Court arise for States not Parties that are not expressly mentioned in the relevant Resolution. This, of course, would regard also those States that have signed the Statute but for a reason or another but have never ratified it. Thus, once they notify their intention not to become a State Party, US and Russia might be considered free from any obligations to cooperate with the Court,[9]including, for instance, the obligation to surrender their nationals who are accused of having committed one of the ‘most serious crimes of concern to the international community as a whole’ to which the Preamble refers and that, therefore, constitute the object of the treaty.

However, States Parties to the ICC do have a duty to cooperate with the Court, so that if Russian nationals happen to be on their territory, they might be arrested and surrendered to the Court.[10] This might turn out to be particularly relevant in the situation relating to Georgia, as well as with respect to Ukraine, should the Prosecutor decide to open an investigation and be authorized in this sense by the Court. Although Ukraine is not a party to the Statute, on 17 April 2014 and on 8 September 2015 it made two declarations under article 12(3) ICC Statute and, therefore, became equal to any State Party when it comes to its obligations to cooperate with the Court in respect of crimes committed during the periods covered by the two declarations read in conjunction (i.e., since 21 November 2013 on the stipulated territory).

Moreover, looking at the Preamble, and therefore at the object and purpose of the Statute, it is difficult to claim that Russia (as well as the US or any other State not Party) could consider itself free to leave unpunished those among its nationals or, alternatively, who find themselves in Russian territory, allegedly responsible for the commission of at least some of the ‘most serious crimes of concern to the international community as a whole’. This seems to find confirmation in the obligation to prevent Genocide (under article I Convention on the Prevention and Punishment of the Crime of Genocide) and punish those responsible for the commission of the acts provided for by article III of the same Convention, which took place within their territory; to punish war crimes, including those committed by states’ own nationals, and crimes against humanity.[11]

Conclusion

Russia’s recent initiative to ‘unsign’ the ICC Statute might have a strong political significance. When it comes to its legal implications, this might be a Russian attempt to free itself from any obligations to cooperate with the Court in the future, especially with regard to the situation in Georgia and, possibly, in Ukraine. However, first, looking at the US precedent, it appears that the ICC may keep considering Russia a signatory state; second, States Parties will still have their own obligation to cooperate with the Court which may result in the arrest and surrender Russian nationals if abroad; third, even if Russia might be free not to cooperate with the Court, this will not be equal to a right to act and defeat the object and purpose of the Rome Statute. On the contrary, Russia might well be considered obliged to punish those having committed genocide, war crimes and/or crimes against humanity in any case.

[1] Along with the US, Israel and Sudan have also notified to the UN Secretary General their willingness not to become a Party to the Statute. Yet, Israel has been treated as an ‘observer state’ within the meaning of Rule 1 of the ICC ASP Rules of Procedure (see infra fn 5). Since 2005 the UN SC has triggered the ICC jurisdiction on crimes committed in Sudan, which therefore cannot provide a relevant precedent for the purposes of this post.

[2] BBC, ‘Russia withdraws from International Criminal Court treaty’ (16 November 2016) <http://www.bbc.co.uk/news/world-europe-38005282> (accessed 18 November 2016).

[3]The Office of the Prosecutor of the ICC, Report on Preliminary Examination Activities 2016 (14 November 2016) at 158 [emphasis added].

[4]William A. Schabas, ‘United States Hostility to the International Criminal Court: It’s All About the Security Council’ 15 (2003) EJIL 701, 708.

[5] See, Rule 1 of the ICC Draft Rule of Procedure of the Review Conferences (May 2010), or Rule 1 of the Rules of Procedure of the Assembly of States Parties.

[6]Prosecutor v. William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11, Decision on Defence Applications for Judgments of Acquittal, 5 April 2016, at 438.

[7]ICC Statute, Preamble, paragraph 4 [emphasis added].

[8]See UN Doc. S/RES/1593 (2005) and S/RES/1970 (2011).

[9]See articles 86, 87, 89, and 93 ICC Statute.

[10]Ibid.

[11] Nicholas Michel and Katherine Del Mar, ‘Transitional Justice’ in A. Clapham and P. Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (OUP 2014) 864-865.screen-shot-2016-12-02-at-10-42-31

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The 2016 Rojava Social Contract: a Democratic Experiment of Civil and Social Rights in Northern Syria

The region of Rojava, in the north of Syria, also known as Syrian Kurdistan, received international attention for its innovative system of autonomous administration, which was self-proclaimed in January 2014. Through an original Constitution, the so-called Social Contract, the de facto authorities proposed a pioneering political system based on participatory democracy, gender equality, minority rights, ecology and secularism.

After a brief introduction on the region, this post will present the main point of interest from a human rights perspective: the Constitution of Rojava, whose last version, designated as the Social Contract of the Federation of Northern Syria – Rojava, was presented in July 2016. This analysis will then attempt to put the legal instrument in context, presenting its cultural origins. It will, finally, reflect upon the potential impact and broader political and cultural relevance of the political experiment.

The Self-Proclaimed Autonomous Federation of Northern Syria – Rojava

Following years of hostilities with governmental forces, in the context of the Syrian conflict which broke out in 2011, Rojava proclaimed its autonomy from the Syrian Government in January 2014. The Kurdish “Democratic Union Party” (PYD, Partiya Yekîtiya Demokrat‎) led the self-proclaimed autonomous region to elections and to the adoption of its first Constitution: the “Charter of the Social Contract”. The Charter promoted the democratic participation and human rights of minorities within the multicultural region of Rojava, by means of a polity system called “democratic confederalism”. This theory aims to foster coexistence in multicultural societies by transcending the notion of the nation state. The region implemented its autonomous administration without claiming independence, but by choosing to remain part of a united Syria. In May 2014, Daesh started carrying out attacks in the region. The most notable success of the local army, the People’s Protection Unit, YPG (Yekîneyên Parastina Gel‎), was their resistance in the siege of Kobane, one of the three Cantons of Rojava, which lasted from September 2014 to March 2015. The resistance to the siege is considered a turning point in the war against Daesh.

Beyond the military aspect, the most remarkable feature of the region is its innovative system of governance. The system, formalised as the “Charter of Social Contract of Rojava”, was approved in January 2014. The Charter was reformed in July 2016 as the “Social Contract of Rojava – Northern Syria Democratic Federal System” (hereinafter, the Social Contract). The provisions of the reformed version, which is expected to become the definitive Constitution after popular consultation, are examined below.

The Social Contract of Rojava – Northern Syria Democratic Federal System

The first notable element that emerges in the analysis of the grundgesetz of Rojava is that, since its first version in 2014, it has been designated as a “Social Contract” instead of a “Constitution”. The wording refers directly to natural law theory. The expression “Social Contract” implies the idea of an agreement among people aimed to regulate the essential aspects of their coexistence. The name itself distinguishes it from a Constitution, which generally defines the ground norm of States. The notion of the State, and of the nation-state in particular, is presented in the Preamble of the Social Contract as the root of the crises and problems of the people of Rojava. The administration accordingly does not aim to self-proclaim an independent state. At the same time, it does not enter into conflict with the Syrian State but recognizes its territorial integrity and maintains a “tacit alliance” with the government. Article 7 of the Social Contract reiterates that the region does not aim to build a new State. Other rebel groups have criticised the PYD administration for this ambiguous relationship with Assad’s Government.

The Preamble of the 2016 Social Contract lays down a non-exhaustive list of different geographical, ethnic and religious identities living in the community[1]. This marks an improvement from the 2014 version, which listed a closed number of identities solely on an ethnic basis[2]. The Preamble also defines the cultural and spiritual roots of the Rojava society, with a specific reference to the “culture of Mother Goddess”, in addition to apostles, prophets and other spiritual roots, as a means of underlining respect for all spiritual beliefs. Making explicit reference to specific divinities in the constitutional document might be counter-productive for the purpose of building a secular political system, in which different faiths and beliefs coexist. The 2014 Preamble was silent about religious roots and it only called for the construction of a “society free from authoritarianism, militarism, centralism and the intervention of religious authority in public affairs”.

The first 10 articles of the contract establish the basis of the coexistence between different identities within the autonomous region. Articles 10 to 13 concern ecology, protection of the environment and sustainable development. Articles 14 to 17 establish gender equality and the promotion of women participation in all areas of life: in the family as well as in political, social and cultural life. Article 18 specifically covers the promotion of the role of youth in the democratic life of the society. Articles 20 to 40 deal with civil and political rights, including the prohibition of the death penalty and of torture, the right to self-determination, and the principle of non-discrimination, against women and youth in particular. Articles 40 to 54 concern economic and social rights, from free education to specific care for people with special needs. The last part of the Social Contract regulates the institutional side of democratic confederalism: the organization of the democratic participation of people, from the local communities to the Northern Syria Federation.

Participation to the democratic process is guaranteed by a multi-level representation system. The structure consists of Communes, a Neighborhood People’s Council, a District People’s Council, and the Rojava People’s Council. Each level elects co-presidents (the plurality of presidents encourages gender equality and representation of cultural minorities) for decisions pertaining to the local community, and elects delegates which represent them at the higher administrative level. The entire system is grounded on the principles of popular participation and federalism.

Cultural Origins of the Rojava Social Contract

The Social Contract appears to be particularly innovative for the most advanced democratic standards, and more so when compared to its neighboring systems. Kurdish sources insist that the outcome of their political theory and constitutionalism is the result of a shared legislative process, which saw the participation of different parts of the society. It is important, however, not to neglect the role of the Kurdish charismatic leader Abdullah Ocalan as a theorist of the Rojava administration.

Ocalan is among the founders of PKK (Partiya Karkerên Kurdistanê) the Kurdish political force that fought for the independence of Kurdistan from Turkey. The PKK was included by many countries, including the European Union, on their lists of terrorist organizations for their armed attacks which targeted, amongst others, civilians. Ocalan has been detained since 1999 in an isolated Turkish facility. During his detention, Ocalan experienced a deep change in his political thought. Influenced by authors such as Bookchin, Foucault, Wallerstein, and Braudel, he abandoned the Marxist-Leninist ideology that characterized PKK, in order to promote democratic confederalism as the ideal political system to administer multicultural societies. Ocalan authored several books on the matter. In 2006, he rejected the use of violence and proposed the start of peaceful negotiations with Turkey on the Kurdish issue. The crucial novelty in the political struggle, besides the choice of nonviolence, consisted in abandoning the request to establish a Kurdish nation state.

As a former military and political leader, Ocalan maintained a strong charismatic authority on Kurdish people of Rojava, who accepted his nonviolent approach and his democratic confederalist proposal. Despite the participatory processes that characterises institution building in Rojava, the contribution of Ocalan as a political theorist remains decisive to the introduction of principles such as sustainable development, restorative justice, secularism and feminism.

Potential Broader Impact of the Political Experiment

In the midst of the armed conflict in Syria, it is difficult to foresee possible developments in the political system in Rojava. On the one hand, the local administration achieved a certain degree of stability in the region, first gaining autonomy from the central government, then defeating the attacks of Daesh.

On the other hand, the de facto authorities are seeking to improve their legitimacy in the eyes of other Syria rebel forces (which are skeptical of the ambiguous relation between Rojava and the central Government) and also those of the Rojava population, where elections shall take place in 2017.

The main challenge to the potential of the Rojava experience, however, is exclusion from representation at the negotiating table at the Geneva Peace talks, last held in February 2016 and currently suspended. The talks constitute the main international forum where the parties to the conflict in Syria (among which the Syrian government, Turkey, and various rebel groups, but not Daesh) can dialogue and negotiate. UN Special Envoy to Syria, Staffan de Mistura, has accepted the request of Turkey, as well as of other Syrian opposition groups, to exclude the de facto Rojava authorities from the talks. An inclusion to the international forum would have strengthened the Rojava administration, in terms of both its stability in the field and its visibility as an ambitious model, for the international community, to administer a multicultural society.

Conclusions

The Social Contract of the Federation of Northern Syria – Rojava represents an innovative legal system, under an international law perspective, for the Middle East region and for the entire international community. The political success of the Rojava system highly depends on the developments on the field of the Syrian armed conflict. From a cultural and theoretical point of view, however, it already constitutes a model to be followed as an example to administer a democratic and multicultural society.

[1]“We, the people of Rojava: Northern Syria, Kurds, Arabs, Assyrians, Turkmen, Armenians, Chechens, Circassians, Muslims, Christians, Yazidis and various others”.

[2]“We, the people of the Democratic Autonomous Regions of Afrin, Jazira and Kobane, a confederation of Kurds, Arabs, Assyrians, Chaldeans, Arameans, Turkmen, Armenians and Chechens”.

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CRIMINAL PUNISHMENT AND PEACE PROCESS. Some thoughts on the “alternative penalties” envisaged in the Colombian Special Jurisdiction for Peace

On past 24th August the Colombian Government and Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo (FARC-EP) announced a long-awaited final agreement that puts an end to the armed conflict that has lasted for more than 60 years. The agreement is going to be signed today (26th September) in an official act and submitted to referendum on 2nd October. If the outcome of the referendum is favourable, legislative and constitutional reforms shall be passed in order to implement the agreement. Therefore, what they call final agreement is somehow only the beginning of a broader and more complex transitional process.

Despite all these uncertainties and open issues, the content of the agreement confirms that Colombia is leading a new trend in a comparative perspective. Actually, it encompasses a number of innovative solutions that may challenge the dominant view about State obligations when it comes to prosecution and punishment of gross human rights violations in transitional contexts.[1]

One of these novelties are the sanctions provided by the Special Jurisdiction for Peace, which, as mentioned in a previous post of mine, is aimed at dealing, in combination with non-judicial mechanisms, with the serious crimes committed during the conflict.[2]  The sanctions provided under these mechanisms vary depending on whether or not those allegedly responsible for the commission of such crimes plead guilty. If this happens before a formal process is opened against them, these people may be sentenced to “alternative penalties” of 5 to 8 years.

Whilst the former provisional agreement left the category of “alternative penalties” undefined, the final agreement sets out a list thereof. This list distinguishes among the sanctions to be served in rural areas (for example, programs for reparation for displaced peasants, environmental protection, substitution of illicit crops), those to be served in urban areas (for example, programs to build infrastructures or to grant access to potable water) and those related to demining and the disposal of the remains of other arms.

The applicants may submit to the attention of the competent Section of the Special Jurisdiction an individual or collective project to realize an activity or a deed within one of the listed fields. This project has to specify duties, duration, timetable and place of execution, and must provide for consultation with victims that live in the place of execution. The Chamber shall decide the place where the applicant shall live during the serving of this sentence. The agreement clarifies that this restriction in no case can imply imprisonment or detention.

There are many interesting issues at stake regarding this system of penalties. Firstly, their rationale is to combine a limited restriction on fundamental freedoms with a restorative justice perspective.[3] Instead of temporarily isolating perpetrators from society by putting them into jail, these sanctions involve them in reparation mechanisms, thereby satisfying some of the victims’ claims and fostering reintegration and reconciliation.

Secondly, the procedure by which the applicant may propose a project allows the development of more specific and targeted activities, which should pay the due attention to local needs. Furthermore, the fact that perpetrators have a say in the definition of the project encourages their personal commitment.

Thirdly, this type of penalties clearly departs from prison sentences that are ordinarily applied to serious crimes, both at the national and international level. This original feature raises some questions as to the international duty to prosecute and punish gross Human Rights violations.

This duty has emerged in the past years mainly as a result of judicial and scholarly interpretation of international instruments.[4] Beyond the unclear scope of this duty (i.e., does it require both prosecution and punishment? Does it allow for flexible application in transitional contexts?), what matters here is that it does not impose a unique type of penalty. International and hybrid criminal tribunals, including the International Criminal Court, have clearly opted for detention,[5] and the majority of domestic tribunals, when confronted with serious crimes have done the same. Yet, none of the relevant international legal instruments expressly rule out the possibility to apply different sanctions.

By contrast, a number of studies have cast into doubt the capability of prison sentences to serve the fundamental purposes of criminal punishment when dealing with extraordinary massive criminality.[6] Although it is impossible to dwell into the endless debate about the purposes of punishment,[7] it suffices here to recall that the main difference lies between retributivists (in whose view punishment is a way to compensate the evil caused by the offence and, in modern theories, encompasses the idea of proportionality between the offence and the penalty) and consequentialists (according to whom punishment is needed since it prevents the commission of further crimes in the future). Some others focus on the communicative or expressive function of punishment, that is, on its ability to send a message of reprobation and condemnation of the crime to both the offender and society as a whole.[8]

When dealing with massive and heinous crimes, it may be argued that retribution considered as proportionality is frustrated by the seriousness of the crimes itself,[9] as well as by selectivity in prosecution and the inconsistent judicial sentencing practice, at both domestic and international level.[10]

Furthermore, the massive and systematic nature of the crimes committed in Colombia cast some doubts as to the effectiveness of deterrence. Since offenders normally perpetrate the crimes either because they feel gratified to belong to violent groups or because they consider it necessary for their own survival,[11] deterrence, being based on their rational estimate of advantages and drawbacks of crime, falls short of operating. This purpose seems better served, therefore, by other mechanisms, such as institutional reforms that dismantle the violent groups.

 In a similar vein, general deterrence has proved to be a failure, in terms of preventing the commission of further atrocities in the same or other areas. Despite the proliferation of international and internationalised criminal tribunals after the Nuremberg experience, massive atrocities are still committed in many countries.

When facing this kind of crimes, by contrast, there is still room for expressivism.[12]  Yet, in my view, this communicative function is furthered more by a fair process and judgment than by the prison sentence itself:[13] what matters is the acknowledgement of the facts and the charges and the declaration of responsibility made in the judgment.[14]

Furthermore, this communicative purpose is better served by sanctions that, instead of excluding the offenders from the society (as imprisonment does), create a venue for their recognition as members of the polity, although under the condition of them fulfilling some burdensome task.[15]

Besides, one should also take into account the additional and competing goals at which every transitional process aims, namely, social reconciliation, consolidation of the new regime or, as it happens in Colombia, the end of an armed conflict and the building of a sustainable peace. These priorities often require flexibility in the exercise of criminal prosecution and/or in the imposition of criminal punishment, such as the selection of those who are the most responsible ones, the reduction of sentences, or even the controversial provision for conditional amnesties and pardons.[16]

The Colombian Special Jurisdiction does envisage a criminal prosecution, a conviction and the imposition of a punishment. Yet, it amounts to a different kind of sanction, in which the convicted person’s active participation in restorative projects and limited restriction of freedom is preferred to the classic prison sentence. There is no doubt that these penalties fulfil the aim of reintegration of the offenders even better than detention, since they already insert them in the society and give them a task for the benefit of a specific local community. As for deterrence, the alternative penalties probably fall short of achieving it, but the same does, as we have seen, imprisonment as a traditional penalty.

Furthermore, alternative penalties perfectly serve the expressive or communicative purpose of punishment in that they impose a burdensome duty on perpetrators and thereby blame them before victims and the whole society. By actively participating in the recovery of the damages caused by the crimes, the criminals may be more effectively persuaded of the wrongfulness of their acts and of the validity of the norms and the underlying social values infringed by the crimes.

As regards their compatibility with other transitional justice goals, by granting them a more favourable treatment than what they would face under ordinary Criminal Law, these sanctions provide a strong incentive for the perpetrators’ participation in the peace process. This contributes to the consolidation of the new socio-political scenario and to the inclusiveness of the transition. In addition, by requiring the offenders to perform a deed in local communities, they also foster social reconciliation.

Therefore, alternative penalties strike a good balance between retributive considerations, restorative justice, and all the other goals of the transitional process. Instead of predicating that this mechanism is at odds with the so-called fight against impunity (as some NGOs have recently done), one should remind that this fight is not an end in itself, but is instrumental in achieving a number of aims that are admittedly served by criminal punishment. If a penalty other than imprisonment is found to serve those purposes equally well or even better and, in addition to this, allows combining retribution with restoration and other transitional goals, why should it be rejected?

[1] For a thorough analysis of the legal sources and content of this international duty, see: A. Seibert-Fohr, Prosecuting Serious Human Rights Violations (OUP 2009), arguing for a more strict approach; see: J. Chinchón Álvarez, Derecho Internacional y transiciones a la democracia y a la paz, Sevilla (Parthenos 2007), 235 ff. See also the classic work by D. Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’ (1991) 100 Yale Law Journal (8), 2537-2615, and her more recent ‘Settling Accounts Revisited: Reconciling Global Norms with Local Agency’ (2007) 1 International Journal of Transitional Justice, 10-22.

[2] Since its bursting in 1958, the armed conflict has caused over 220,000 deaths and resulted in many other serious offences, such as forced displacement, torture, sexual violence, mostly against civilians. For further details about these abuses, see the report: Comisión Nacional de Memoria Histórica, Informe ¡Basta Ya! (2013).

[3] See para. 60 of the agreement.

[4] The Inter-American Court of Human Rights has played a pivotal role in the affirmation of this duty and has interpreted it in a very strict way, as opposed to the more nuanced interpretation given by the European Court of Human Rights. See: A. Seibert-Fohr, Prosecuting serious Human Rights Violations (OUP 2009); for a critical view, 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, 665-695.

[5] Article 77 of the Rome Statute for the International Criminal Court envisages imprisonment for a term up to 30 years and life imprisonment (under certain circumstances); articles 24 of the ICTY Statute and 23 of the ICTR Statute also establishes imprisonment as the applicable sanction, albeit without a fixed maximum term. Imprisonment is affirmed as the applicable sanction also by the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia (arts. 38-39), by the Statute of the Special Court for Sierra Leone (art. 19), and so on.

[6] See for instance the brilliant study by M. Drumbl, Atrocity, Punishment, and International Law (CUP 2007) 15-18 and 149 ff.

[7] For a clear overview about the main theories surrounding the rationale of punishment, see for instance: S. Cohen, ‘An Introduction to the Theory, Justifications and Modern Manifestations of Criminal Punishment’ (1981-2) 27 McGill Law Journal, 73 ff.; R. Card, Card, Cross & Jones Criminal Law, (21st ed., OUP 2014) 414 ff. and, for a focus on the status of the debate in International Criminal Law, see: R. Cryer, ‘Aims, Objective, Justifications of International Criminal Law’, in R. Cryer et al., An Introduction to International Criminal Law and Procedure (CUP 2014) 28 ff.

[8] A. Duff, Punishment, Communication and Community (OUP 2001).

[9] According to the title of a book by Antoine Garapon, named after the famous sentence by Hannah Arendt, these are “crimes that cannot be punished nor forgiven”: A. Garapon, Des crimes qu’on ne peut ni punir ni pardonner (Odile Jacob 2002).

[10] Inconsistencies emerge regarding the application of sentencing criteria and in the total amount of penalties imposed by international criminal tribunals and domestic courts: see the examples provided by M. Drumbl, Atrocity, Punishment, and International Law (CUP 2007) 46-122. Inconsistency in sentencing is also a typical feature of the case law of both the ICTY and the ICTR: see B. Hola, A. Smeulers, C. Bijleveld, ‘International Sentencing Fact and Figures: Sentencing Practice at the ICTY and ICTR’ (2011) 9 Journal of International Criminal Justice, 411-439.

[11] M. Drumbl, Atrocity, Punishment, and International Law (CUP 2007) 171-3.

[12] D. Luban, ‘Fairness to Rightness: Jurisdiction, Leaglity and the Legitimacy of International Criminal Law’ in Georgetown Public Law Research Paper NO. 1154117 (2008), at 9.

[13] In a similar vein, ibidem, at 7-9.

[14] See A. Duff, Punishment, Communication and Community (OUP 2001); A. von Hirsch, Censure and Sanctions (OUP 1993).

[15] Similarly, A. Duff, Punishment, Communication and Community (OUP 2001), 101 ff.

[16] On the need to strike a balance between these competing goals, see for instance: K. Ambos, ‘The legal framework of Transitional Justice: A Systematic Study with a Special Focus on the Role of the ICC’ in K. Ambos et al. (eds.), Building a Future on Peace and Justice: Studies on Transitional Justice, Peace and Development (Springer 2009) 19 ff.

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

  • Introduction

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

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

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

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

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

  • The content of the report.

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

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

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

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

  • The proposal

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

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

  • Conclusions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Forced marriage as subsumed by the crime of sexual slavery

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

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

Forced marriage as a separate crime against humanity

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

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

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

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

The evolving position of the ICC

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

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

Conclusion

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

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

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

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

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

[5] Ibid, para 701.

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

[7] Ibid, para 711.

[8] Ibid, para 710.

[9] Ibid, para 713.

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

[11] Ibid, para 190.

[12] Ibid, para 191.

[13] Ibid, para 199.

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

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

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

[17] Ibid.

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

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

[20] Ibid, para 93.

[21] Ibid, para 93.

[22] Ibid, para 94.

[23] Ibid.

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