Redefining Jus Cogens. An Insight into the International Law Commission’s Discourse on Peremptory Norms of General International Law

Ana Srovin Coralli (Master in International Law from the Graduate Institute (Geneva) and Master in Law from the Faculty of Law (Ljubljana); ana.srovin@graduateinstitute.ch) &

Christian Bukor (Master student in Law, European Faculty of Law (Nova Gorica); cbukor@gmail.com)

 

Three months have passed since the 70thannual session of the International Law Commission (ILC) came to its conclusion in August 2018.[1]Perhaps it is no exaggeration to say that jus cogens was for the majority of the members, at least with respect to the meetings which took place in Geneva, the most intriguing topic scheduled on this year’s agenda. Indeed, the third report on peremptory norms of general international law, which resulted in 13 draft conclusions,[2]not only triggered significant interest from a great majority of the ILC members, but it also stimulated a vivid and provocative discussion among them.

 

Even though nowadays a special status of jus cogens in international law is beyond dispute, many controversies and disagreements surrounding the legal consequences and effects of peremptory norms still persist. Having this in mind, it is crystal clear that the Special Rapporteur Dire Tladi has been confronted with no easy task. Precisely because of the difficulty of the subject matter, it is important to note that the ILC members generally agreed on the quality of his third report, noting that it makes an important step forward in clarifying the consequences and the effects of the highest norms in international law.[3] This post provides a summary of the ILC’s discourse on the jus cogens debate in Geneva, with a focus on the most controversial aspects of the relevant report.

 

Overview of the report and the draft conclusions

 

At the outset, it should be explained that the ILC’s topics under consideration are mainly handled by the individual Special Rapporteurs, whose duties include the preparation of reports on the assigned topics and the proposition of draft conclusions, which could then potentially serve as guidelines or articles of a treaty. The present contribution will tackle both the newly-proposed draft conclusions on the topic of jus cogens and the yearly report of the Special Rapporteur on the same topic.

 

As a preliminary remark, it should be emphasized that the ILC generally promotes the idea of relying on the1969 Vienna Convention of the Law of Treaties(VCLT) when preparing draft conclusions on the topic of jus cogens. It has been agreed among the members that this was respected by Mr. Tladi, as his report clearly takes the VCLT into account.[4]It would, however, be premature to conclude that no concern was raised by the ILC members during the debate on the subject. Recalling that the VCLT was drafted with a particular subject in mind, namely the law of treaties, some of the members warned that the Convention should be considered with caution when adopting a new set of rules on a different topic.[5] This approach seems more correct, as it stresses that international law is an evolving and flexible system, although consistency between legal documents remains crucially important in law. It is for this reason that the ILC should consider other relevant sources and take into account the development of international law over time.

 

Another issue raised during the debates was whether it is appropriate to focus on certain consequences and effects of jus cogens.[6]Specifically, some of the members were reluctant to support the explicit reference to the United Nations Security Council (SC) resolutions and certain issues concerning international criminal law.[7]Noting that such references might be selective and consequentially problematic, the majority of members refused to include it in the draft conclusions. In so doing, an opportunity was missed to explore the consequences of jus cogens more widely, including the implications of a conflict with SC resolutions, and the impact of peremptory norms in international criminal law. There is furthermore a need for an explicit stipulation affirming that any principle or rule established through any source of international law, including general principle of law, may not be valid if it is in contrast with a norm of jus cogens nature.

 

Specific issues on the table

 

The effect of jus cogens on treaty relations has been acknowledged as one of the most uncontroversial aspects of the third report.[8]In the eyes of the ILC members, the Special Rapporteur managed to prove the inherent nature and non-derogability of jus cogens norms. Therefore, all treaties must be consistent with these norms.[9]Nevertheless, the remaining matter of controversy is the general rule on the non-severability of treaty provisions, when a provision is part of a treaty which was in conflict with jus cogens at the time of its conclusion.[10]Whereas some of the members agreed on this matter, the stability of treaty relations was prioritized by others, who claimed that the general rule of severability would be preferable. By taking the latter approach, the rule of non-severability would be presented as a special rule for cases relating to article 53 of the VCLT, which would, in effect, result in the prioritization of treaty relations without departing from the VCLT.

 

Another interesting question on the recommended dispute settlement procedure in case of invalidity of a treaty because of a conflict with jus cogens was pointed out during the debates.[11]More precisely, doubt was raised as to the immediate consequences following a decision by the International Court of Justice (ICJ) or by an arbitral tribunal; would such decision lead to the invalidation or termination of a treaty, or would it be merely declaratory in nature? In the view of the majority, the treaty would, in fact, become invalid immediately.

 

Furthermore, the draft conclusion 17 explicitly states that SC resolutions do not establish any binding obligations if they violate jus cogens norms. Recalling the aim of the presented draft conclusions, which is to formulate general rules, this approach was unwelcomed by the majority of the ILC members.[12]Indeed, as the legal order in international law now stands, it would be possible for a state to refuse the fulfillment of any obligation endorsed in SC resolutions on the basis of a conflict with jus cogens. It is nevertheless clear that if such a provision was adopted, this could not only result in political disturbances – it would be almost impossible to implement it in practice.

 

As for the responsibility of states, two draft conclusions concerning states’ obligation with respect to a situation conflicting with jus cogens have been brought into question by the ILC members.[13]To be exact, the bone of contention was whether it is justified to differentiate between the active and the passive state obligations, namely the “duty to cooperate” and the “duty not to recognize and assist”, depending on the gravity of breach of jus cogens norm. This approach conflicts with previous documents of the ILC (see article 41 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts). In spite of the departure from the wording used in the aforementioned article, it seems reasonable to support the Special Rapporteur’s insistence to differentiate between different states’ obligations. Imposition of a lower standard, namely, not to recognize and assist in any situation which resulted from a violation of jus cogens norms, should be regarded as a welcome novelty. Indeed, it would be completely absurd to consider the gravity of the breach of jus cogens in this situation and therefore give the impression that it is lawful to recognize and assist in situations where the breach of jus cogens norms is not considered “serious”.[14]

 

Yet, the real trigger for divergent opinions were the draft conclusions addressing specific aspects of jus cogens and international criminal law. They stipulated state obligation to prosecute in cases of commission of “jus cogens crimes”, i.e. crimes violating jus cogens norms, and the irrelevance of the immunity ratione materiae for those offences.[15]These findings involve a number of highly complex issues. Firstly, any suggestion on a universal agreement concerning the duty to exert universal jurisdiction for all jus cogens crimes is insufficiently proven. This is evidenced by the fact that many states have expressed a clear reluctance towards the existence of the aforementioned duty.[16]Secondly, the discussion on the (ir)relevance of immunity ratione materiae for jus cogens crimes has demonstrated a certain level of misunderstanding among the ILC members, e.g. concerning the difference between immunity from civil and criminal proceedings. More importantly, a clear line between state and personal immunity has not been emphasized sufficiently. As a result, the reference to the ICJ judgment Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), as proof that there exists an exception to the rules on immunity,[17]appears inaccurate and unpersuasive. In this case, the ICJ has even explicitly stated that the only immunity in question is the immunity of a state, and that in any event, this should be considered without prejudice to the immunity of an official of the state.[18]

 

What comes next?

 

The ILC’s discussions on jus cogens are to be continued next year and many challenging questions will come into play again. According to the emphasis given to the issue, an illustrative list of jus cogens norms is to be expected sometime in the future.[19]Also, the need for a separate discussion on regional peremptory norms has been stressed on many occasions.[20]It would, therefore, be interesting to see how such norms could be subsumed under the current definition of jus cogens which stipulates them as “norms accepted and recognized by the international community of States as a whole.”[21]

 

Before concluding the present analysis, it is important to point out a core concern: it is evident that the ILC considers states’ consent and agreement to be crucial in all matters related to jus cogens. In this respect, it should be noted that the values protected by jus cogens are above states and their will, hence, their consent can never be the most relevant or the only decisive factor for their definition. Regardless of states’ perception of the peremptory norms, jus cogens should be perceived as principles which aim to protect the interests of the international community as a whole, and which therefore impose legitimate limitations to some other key principles of international law, such as stability of treaty relations, or the superior and binding nature of SC resolutions. While we do not wish to prejudge the accuracy of the ILC’s current approach, we wonder whether it is truly independent from state or political influence.

 

 

 

 

[1]The session ended on 10 August 2018 as provided by the UNGA Resolution 72⁄116 (7 December 2017) UN Doc A⁄RES 72⁄116, at para 14.

[2]For the full text of the proposed draft conclusions see ILC, ‘Third report on peremptory norms of general international (jus cogens) by Dire Tladi, Special Rapporteur’ (12 February 2018) UN Doc A⁄CN.4⁄714, at para 160.

[3]ILC, ‘Report of the ILC on the Work at its 70th Session (30 April–1 June and 2 July–10 August 2018) UN Doc A⁄73⁄10, at para 111.

[4]Ibid, at para 113.

[5]Apart from the individual ILC members, Mr. Tladi also raised similar concerns. Ibid, at para 153.

[6]See, e.g., ibid, at para 131.

[7]See full texts of draft conclusions 17, 22 and 23 in ILC, ‘Third report’ (n 2), at para 160.

[8]ILC, ‘Report of the ILC on the Work at its 70th Session (n 3), at para 154.

[9]See full text of draft conclusions 10 to 13 in ILC, ‘Third report’ (n 2), at para 160.

[10]ILC, ‘Report of the ILC on the Work at its 70th Session (n 3), at para 119.

[11]Ibid, at paras 123–124.

[12]Ibid, at para 132.

[13]See full text of draft conclusions 20 and 21 in ILC, ‘Third report’ (n 2), at para 160.

[14]This argument was also introduced by the Special Rapporteur. ILC, ‘Report of the ILC on the Work at its 70th Session (n 3), at para 159.

[15]See full text of draft conclusions 22 and 23 in ILC, ‘Third report’ (n 2), at para 160.

[16]Roger O’Keefe, ‘Universal Jurisdiction: Clarifying the basic concept’ (2004) 2 JICJ 754. See also Dapo Akande’s response related to the topic: (…)“where universal jurisdiction is lawful the state exercising it will usually be permittedto prescribe globally. But it is not required to do so.” Galli Toma, ‘Universal Jurisdiction or Regional Lawfare’ (EJIL: Talk!, 1 June 2016)         <https://www.ejiltalk.org/universal-jurisdiction-or-regional-warfare/>  accessed 2 November 2018.

[17]See, e.g., ILC, ‘Report of the ILC on the Work at its 70th Session (n 3), at para 161.

[18]Jurisdictional Immunities of the State (GermanyvItaly, Greece intervening), Judgment, ICJ Reports 2012 (3 February 2012), at para 91. See also para 87 of this judgment.

[19]Ibid, at para 150.

[20]Ibid, at para 151.

[21]Vienna Convention on the Law of the Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT) art 53.Jus cogensJus cogensJus cogens

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In the Spotlight: The Legitimacy of the International Criminal Court

By Caleb H Wheeler

Lecturer in Law at Middlesex University, London

 and author of the recently published book The Right to Be Present At Trial in International Criminal Law (Brill 2018)

c.h.wheeler@mdx.ac.uk

 

Recently, the International Criminal Court (‘ICC’ or ‘the Court’) has increasingly found itself in the political spotlight. On 10 September John Bolton, a United States National Security Adviser, attacked the Court as ‘illegitimate’ and claimed that ‘for all intents and purposes, the ICC is already dead.’ Donald Trump reinforced those contentions in his address to the United Nations General Assembly on 24 September when he asserted that ‘the ICC has no jurisdiction, no legitimacy and no authority.’ This blog post will examine the context of Bolton and Trump’s statements about the legitimacy of the International Criminal Court in an effort to determine whether they were challenging its legitimacy vis-à-vis the United States or if they meant to question its overall legitimacy. It finds that the Court’s overall legitimacy is not in question but that it is very limited in how it can exert jurisdiction over the United States.

 

There is some basis for the argument that the International Criminal Court lacks legitimacy with regard to the United States. As a treaty-based legal institution, the International Criminal Court is limited to exercising authority only in the territory of those states that have consented to such an exercise of power. The United States is not a state party to the International Criminal Court and as such the Court can only apply jurisdiction over its populace in two situations. The first is if an American citizen commits a crime on the territory of a state that is a party to the Statute. The second would arise following a Security Council referral to the Court of a situation occurring in the United States. However, as a permanent member, the United States can veto any Security Council decision, making it functionally impossible that there ever will be such a referral. Further, The United States has negotiated over 100 bilateral agreements in which states parties to the Rome Statute have agreed that they will not surrender Americans found on their territory to the International Criminal Court. While it is not strictly true that the International Criminal Court can never exercise jurisdiction over Americans accused of international crimes, it can only happen under a narrow set of circumstances.

 

The context of Trump and Bolton’s statements may also suggest that they were specifically challenging the International Criminal Court’s legitimacy to act in relation to the United States. Trump’s comments were prefaced by the qualifier, ‘[a]s far as America is concerned…’ This statement can be interpreted in two ways. It could mean that the Court has no jurisdiction, legitimacy or authority when it comes to Americans or acts that take place on the territory of the United States. It could also mean that the United States rejects the jurisdiction, legitimacy, and authority of the Court in toto.

 

Bolton’s comments seem to confirm that American criticism of the International Criminal Court is largely focused on its perceived interference with state sovereignty. Not surprisingly, his comments are primarily designed to protect American interests, but he also argues against any possible interference by the Court with Israel’s construction of settlements in the West Bank. He also threatens sanctions against the Court if it attempts to initiate proceedings against ‘us, Israel or other US allies.’ While Bolton clearly dislikes the International Criminal Court as a whole, he is particularly concerned with the possibility that it might exercise judicial authority over citizens of states not party to the Court Statute. This is made clear in his summation in which he states, ‘an international court so deeply divisive and so deeply flawed can have no legitimate claim to jurisdiction over the citizens of sovereign nations that have rejected its authority.’ Although the United States is not directly mentioned, it is apparent that the possibility that the Court might try to exert authority over the United States, and to a lesser extent Israel, is foremost in Bolton’s mind. Ultimately it should come as no real surprise that the United States would prioritize protecting its citizens over the interests of justice. The late Cherif Bassiouni predicted that the interests of states and Realpolitik would be the ‘principle obstacles to the effectiveness of the ICC.’

 

A much more complicated question is raised if Trump and Bolton meant to suggest that the International Criminal Court is generally illegitimate. Bolton, speaking on behalf of the president, challenges the overall legitimacy of the Court by attacking its ‘unfettered powers’ and for being structured in a way that he believes is ‘contrary to fundamental American principles’. A superficial reading of this statement leads to the conclusion that Bolton is asserting that the International Criminal Court lacks legitimacy only in relation to the United States. However, when placed in its larger context it becomes apparent that Bolton’s statement could have been meant to attack the legitimacy of the Court as a whole. In a journal article published in 2000, Bolton specifically stated that ‘the Court and the Prosecutor are illegitimate’ and he directly tied their lack of legitimacy to the way in which the Court is structured.[1]Bolton expresses particular concern with what he characterises as the prosecutor’s ‘potentially enormous, essentially unaccountable powers’ that give her the ability to exercise jurisdiction over citizens of states that are not party to the Rome Statute. He also believes that the Court’s decision not to implement a tripartite structure, with three equal and co-extensive branches, means that it lacks the necessary checks and balances to adequately protect the liberty of individuals. Bolton further claimed, both in 2000 and 2018, that the Court’s Statute is so deeply flawed as to be irreparable. It is reasonable to believe that the comments made in September 2018 are a continuation of the position he first set out in 2000, and thus to conclude that the perceived problems with the Court’s structure and Statute impair its overall legitimacy. As Bolton was speaking in his official capacity as a national security adviser, and his comments were partially echoed by President Trump, one could infer that the United States believes that the International Criminal Court suffers from a fundamental lack of legitimacy.

 

Only weeks before Bolton’s speech, a group of 132 parliamentarians from five Southeast Asian states released a joint statement in which it called on the United Nations Security Council to refer Myanmar to the International Criminal Court for human rights abuses allegedly committed against the Rohingya ethnic group. That was followed on 25 September, a group of six South and North American states formally referredVenezuela to the International Criminal Court for international crimes allegedly being committed there. This referral and proposed referral act to contradict the United States’ position on the legitimacy of the Court. This is demonstrated by the fact that both groups believe that the International Criminal Court is the appropriate venue at which to prosecute the perpetrators of the crimes alleged. The Court’s legitimacy was bolstered by Canada’s president, Justin Trudeau when he asserted, ‘[t]he International Criminal Court has our full support and confidence.’ The Southeast Asian parliamentarians also implicitly recognized the legitimacy of the Court when they directly linked referral to the Court as the best pathway to accountability for the alleged perpetrators. These actions and statements leave no doubt that those nations involved still believe in the Court’s legitimacy.

 

Most importantly, the inherent legitimacy of the International Criminal Court is demonstrated by the fact that there are 123 states parties to the Court. This constitutes 64 percent of all members of the United Nations. Those 123 nations confirm their belief in the Court’s legitimacy by accepting the jurisdiction of the Court within their territory and over their nationals. Interestingly, Bolton tries to downplay this source of legitimacy in his remarks by suggesting that because 70 nations are not member states, and because of the large population of some of those states, ‘most of the world’ has rejected the Court.

 

The Court itself confirmed its own legitimacy in its recent decision on its jurisdiction over the crime against humanity of deportation as alleged against the government of Myanmar. In that decision, Pre-Trial Chamber I found that the International Criminal Court possesses ‘objective international personality’ as a ‘legal-judicial-institutional entity’ that is separate and apart from the legitimacy conferred upon it by the recognition of its states parties. That legitimacy is evidenced by the Court’s engagement and cooperation with both states parties and non-states parties alike. The United States is included amongst the non-states parties that have engaged and cooperated with the Court by virtue of its status as an observer state to the Assembly of States Parties of the International Criminal Court. In fact, at the most recent Assembly of States Parties the United States implicitly acknowledged the Court’s legitimacy when it identified the important role the International Criminal Court can play in ensuring that justice is delivered to the victims of international crimes.

 

The overall legitimacy of the International Criminal Court is not in doubt. Numerous international actors, including the government of the United States, have reconfirmed its legitimacy. Therefore, the comments made by Bolton and Trump must be viewed as a repudiation of the International Criminal Court’s ability to exercise jurisdiction over citizens of the United States. That being said, simply because the Court cannot exercise jurisdiction over Americans does not also mean it is illegitimate as far as the United States is concerned. What Bolton and Trump are really expressing is their disapproval with the manner in which the Court operates and their concern that it might exercise jurisdiction over American citizens in one of the small areas still open to it. In the end, these comments are really nothing more than rhetoric designed to achieve the political objective of undermining the Court at the expense of justice.

 

[1]John R Bolton, ‘The Risks And Weaknesses Of The International Criminal Court From America’s Perspective’ (2000) 64(1) Law and Contemporary Problems 167, 169blog

Photos courtesy: Spencer Platt/Getty Images: Andrew Harnik/AP Photo: The International Criminal Court

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Are two warrants of arrest better than one? The second warrant of arrest against Al-Werfalli and the ICC practice

Introduction

 

On 4 July 2018, the Pre-Trial Chamber I of the International Criminal Court (ICC, or ‘the Court’) issued a warrant of arrest for Mahmoud Mustafa Busayf Al-Werfalli, a Libyan national, commander in the Al-Saiqa Brigade, for his alleged criminal responsibility for the war crime of murder of ten people on 24 January 2018, in Benghazi, pursuant to article 8(2)(c)(i) of the Rome Statute. The warrant follows a previous one for the same person, which is still pending and was issued on 14 August 2017 with reference to seven incidents, occurred from 3 June 2016 until 17 July 2017 in Benghazi or surrounding areas, in which 33 persons were murdered.

The present post aims at analyzing the second warrant of arrest, by comparing it with the ICC relevant practice. It will argue that it is unclear why the Court decided to issue a second warrant at all and that issuing a second warrant carries the risk of engulfing the work of the Court without bringing any advantages.

 

The warrants of arrest against Al-Werfalli and the ICC practice

The ICC jurisdiction over the situation in Libya has been triggered by the UN Security Council, which on 26 February 2011 unanimously adopted resolution 1970and referred the situation since 15 February 2011 to the Prosecutor of the ICC.  On 3 March 2011, the Prosecutor announced her decision to open an investigation in the situation in Libya.  The Security Council adopted Resolution 1970 acting under Chapter VII of the UN Charter and ‘taking measures under its Article 41’, which provides that ‘[t]he Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures’. Thus, although Libya is not a party to the Rome Statute. following the first warrant of arrest, in 2017 the Court could request Libya to cooperate in the arrest and surrender of Mr. Al-Werfalli.

On 1 May 2018, the Prosecution submitted, under seal, a request to amend the first warrant of arrest, pursuant to article 58(6) of the Rome Statute which reads as follows:

The Prosecutor may request the Pre-Trial Chamber to amend the warrant of arrest by modifying or adding to the crimes specified therein. The Pre-Trial Chamber shall so amend the warrant if it is satisfied that there are reasonable grounds to believe that the person committed the modified or additional crimes’ [emphasis added].

Yet, on 4 July 2018 the Pre-Trial Chamber ‘consider[ed] it appropriate to issue a second warrant of arrest pursuant to article 58(1) of the Statute to complement the First Warrant of Arrest, rather than amend it pursuant to article 58(6) of the Statute’.[1]

Under Article 58(1) Rome Statute,

the Pre-Trial Chamber shall, on the application of the Prosecutor [emphasis added], issue a warrant of arrest of a person if, (…) it is satisfied that: (a) There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; and (b) The arrest of the person appears necessary: (i) To ensure the person’s appearance at trial; (…) or (iii) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances.

 

Thus, under this provision, the Pre-Trial Chamber should issue a warrant of arrest only when the Prosecutor makes a request to this effect. However, in the present case, the Prosecutor did not make a request for a new warrant, but for amendments to the first one so as to include the charges relating to the crimes committed on 24 January 2018. Could the Prosecutor’s request for amendments form the basis of the second warrant of arrest issued by the Pre-Trial Chamber on 4 July 2018? Nothing in articles 56 and 58 ICC Statute suggests so. Moreover, if one looks at the ICC practice, the decision of the Pre-Trial Chamber I to issue a second warrant of arrest against Mr. Al-Werfalli has a number of flaws.

First, no previous case can offer a justification about why the Pre-Trial Chamber has issued a second warrant without any explicit request by the Prosecutor. The ICC has already issued a second warrant of arrest against the same person with resInternational_Criminal_Court_building_(2016)_in_The_Haguepect to Mr. Al-Bashir in 2010 and to Mr. Bosco Ntaganda in 2012. As for the former, the second warrant of arrest was issued after the Appeals Chamber had concluded that the Chamber had acted ‘erroneously in rejecting the application for a warrant of arrest in relation to the counts of genocide on the basis that the existence of genocidal intent of the suspect was “only one of several reasonable conclusions available on the materials provided by the Prosecution”.’[2]  The decision to issue a second warrant of arrest, therefore, ‘only amend[ed] the First Decision to the extent necessary to implement the Appeals Decision and neither a re-assessment of the materials originally supporting the Prosecution’s Application, nor the analysis of materials other than those [were] warranted’.[3] In other words, there had been no need of a new request by the Prosecutor, and the decision to issue a second warrant of arrest, instead of amending the first one, was probably due to practical reasons. The arguments raised in relation to the immunities of incumbent Heads of State could indeed apply, mutatis mutandis, in this case. In particular, one could consider the nature of the crime of genocide[4]and of the obligations arising from the Genocide Convention, which might add on the obligations arising from a referral by the UN Security Council.

As for Mr Bosco Ntaganda, the issuance of a second warrant of arrest against him came after an explicit request of the Prosecutor, who in fact contended ‘that the arrest of Bosco Ntagandais necessary at this stage within the meaning of Article 58(1)(b) of the Statute, both to ensure his appearance at trial and to ensure that he does not obstruct or endanger the investigation, and further to seek compliance with the arrest warrant already in force.’[5]While it is unclear why the Prosecutor asked for a second warrant to be issued, instead of amendments to the first one, there is no doubt that in this case, the decision of the Pre-Trial Chamber followed an explicit request of the Prosecutor.

Second, no warrant of arrest- be it the first or the second one- has ever proved effective. The issuance of this warrant of arrest appears to be justified, as it was in the case against Mr Ntaganda,[6]by the need to seek compliance with the arrest warrant already in force: the Chamber declared being, ‘satisfied that Mr Al-Werfalli is unlikely to cooperate with a summons to appear, within the meaning of article 58(7) of the Statute, considering that the First Warrant of Arrest remains unexecuted.’[7]However, it is unclear why and how a second warrant of arrest should be complied with, when the first one hadn’t. While Mr. Ntaganda surprisingly decided to surrender voluntarily,[8]Mr. Al-Bashir is still at large and keeps on travelling to states both parties[9]and not parties to the ICC Statute (see, e.g., here and here).  Being well aware of these precedents, the Prosecutor might have opted for a request to amend the first warrant of arrest against Mr. Al Werfalli, instead of asking for a new warrant.

In the case of Mr. Al-Werfalli, a second warrant of arrest against the same person seems to be even more unmotivated as, although relating to different incidents, in both cases, Al-Werfalli is charged with murder as war crimes. Thus, the necessity of issuing a second warrant could not be grounded on the possible distinct obligations arising from different international instruments, as some may argue in relation to the second warrant issued against Mr. Al-Bashir. Nothing in the ICC practice therefore suggests that a second warrant could ‘ensure the person’s appearance at trial’ under article 58(1)(b)(i) ICC Statute.

Lastly, as clearly admitted by the Pre-Trial Chamber I,[10]in the case of Mr. Al-Werfalli the mere existence of a first warrant pending against him did not deter him from keeping on committing international crimes. Thus, it is unclear how the condition under article 58(1)(b)(iii) Rome Statute could be met in relation to the second warrant.

In sum, the issuance of a warrant of arrest could risk engulfing the work of the Court, without getting any advantages out of it.

 

Conclusion 

The rationale behind the decision of the ICC Pre-Trial Chamber I to issue a second warrant of arrest against Mr. Al-Werfalli is unclear and the ICC practice concerning second warrants of arrest (namely, against Mr. Al-Bashir and Mr. Ntaganda), does not provide any clarification. Indeed, the second warrant against Mr. Al-Bashir was the consequence of the decision of the Appeals Chamber reversing the decision of the Pre-Trial Chamber not to include charges of genocide in the first warrant. Furthermore, in that case, the decision of issuing a second warrant could be related to the obligations arising from the Genocide Convention, which could justify having two separate pending warrants. The second warrant against Mr. Ntaganda was issued after an explicit request by the Prosecutor and concerned different international crimes. When it comes to Mr. Al-Werfalli, however, the ICC Prosecutor had submitted a request to amend the first warrant, and it is therefore unclear how the Pre-Trial Chamber I used the request to issue a second warrant, which is notably relating to the same category of crimes of the first one. Moreover, the ICC practice offers some evidence that the issuance of a second warrant of arrest cannot favour in any way the execution of the first warrant, or make cooperation by states more likely, nor could it per se deter the continuing commission of international crimes. Thus, it remains unclear why the Pre-Trial Chamber I decided to issue this second warrant at all, and its decision’s compliance with article 58 (1) ICC Statute, might possibly constitute a ground for appeal in the future.

 

 

[1]Pre-Trial Chamber I, ‘ Second Warrant of Arrest’ in the Case of The Prosecutor v. Mahmoud Mustafa Busayf Al-Werfalli(4 July 2018) ICC-01/11-01/17, at para 7.

[2]The Appeals Chamber, ‘Judgment on the appeal of the Prosecutor against the “Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir”’ in the Situation in Darfur, Sudan
The Prosecutor v. Omar Hassan Ahmad Al Bashir
  (3 February 2010) ICC-02/05-01/09-OA, at para. 1.

[3]The Pre-Trial Chamber I, ‘Second Decision on the Prosecution’s Application for a Warrant of Arrest’ in the Situation in Darfur, Sudan The Prosecutor v. Omar  Hassan Ahmad Al Bashir  (12 July 2010) ICC-02/05-01/09 , at para 2.

[4]Dapo Akande, ‘ICC Issues Warrant of Arrest for Bashir on charges of Genocide’ (EJIL: Talk!, 12 July 2010)https://www.ejiltalk.org/icc-issues-warrant-of-arrest-for-bashir-on-charges-of-genocide/#more-2433accessed 20 August 2018.

[5]Office of the Prosecutor, ‘Second Corrigendum of the Public Redacted Version of Prosecutor’s Application under Article 58 filed on 14 May 2012 (ICC-01/04-611-Red)’ in the Situation in the Democratic Republic of the Congo (16 May 2012) ICC-01/04-611-Red-Corr2, at 143.

[6]Pre-Trial Chamber II, ‘Decision on the Prosecutor’s Application under Article 58’ in the case of The Prosecutor v. Bosco Ntaganda (13 July 2012) ICC-01/04-02/06, at para 80.

[7]Pre-Trial Chamber I, ‘ Second Warrant of Arrest’ in the Case of The Prosecutor v. Mahmoud Mustafa Busayf Al-Werfalli(4 July 2018) ICC-01/11-01/17, at para 36.

[8]H.D., ‘A surprising surrender’ (The Economist, 19 March 2013) https://www.economist.com/baobab/2013/03/19/a-surprising-surrenderaccessed 20 August 2018.

[9]See, e.g., Dapo Akande, ‘ICC Reports Kenya and Chad to the UN Security Council over Bashir’s Visits’ (EJIL: Talk!,28 August 2010) https://www.ejiltalk.org/icc-reports-kenya-and-chad-to-the-un-security-council-over-bashirs-visits/accessed 20 August 2018; Dapo Akande, ‘The Bashir Case: Has the South African Supreme Court Abolished Immunity for all Heads of States?’ (EJIL: Talk!,29 March 2016) https://www.ejiltalk.org/the-bashir-case-has-the-south-african-supreme-court-abolished-immunity-for-all-heads-of-states/accessed 20 August 2018.

[10]Pre-Trial Chamber I, ‘ Second Warrant of Arrest’ in the Case of The Prosecutor v. Mahmoud Mustafa Busayf Al-Werfalli(4 July 2018) ICC-01/11-01/17, at para 36. See also Pre-Trial Chamber II, ‘Decision on the Prosecutor’s Application under Article 58’ in the case of The Prosecutor v. Bosco Ntaganda (13 July 2012)ICC-01/04-02/06, at para 80.

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The Concept of Abuse of Process in the Immunities Case between Equatorial Guinea and France before the ICJ

Dr. Eugenio Carli, Ph.D. (Research Fellow Political and International Sciences Department, University of Siena, eugenio.carli86@gmail.com)

 

Overview of the Dispute

On 13 June 2016 Equatorial Guinea (the Applicant) filed an Application instituting proceedings against France (the Respondent) before the International Court of Justice (ICJ or ‘the Court’) claiming that certain ongoing criminal proceedings in France against the Equatoguinean Second Vice-President – Mr. Teodoro Nguema Obiang Mangue – constituted a violation of the immunity from criminal jurisdiction he is entitled to under international law. The Application also claimed that the seizing of a building located in Paris used for the purposes of the diplomatic mission of Equatorial Guinea in France constituted a breach of the norm on the inviolability of the premises of diplomatic missions. The Applicant maintained that the ICJ had jurisdiction both on the basis of the Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Diplomatic Relations of 18 April 1961(the ‘Optional Protocol’)[1]and of Art. 35 of the United Nations Convention against Transnational Organized Crime of 15 November 2000(the ‘Palermo Convention’).[2]

In the third of its preliminary objections of 30 March 2017, France affirmed that the case’s referral to the ICJ is ‘completely artificial’ (para. 59), because ‘Equatorial Guinea links its claims to conventional provisions which, given the facts of the case, cannot be regarded as a credible basis for the exercise of the Court’s jurisdiction’ (para. 58) and, as claimed in the oral proceedings, ‘en l’absence manifeste de toute voie de droit’ (p. 48, para. 8) (i.e.through an abuse of process). France also upheld that the Application filed by Equatorial Guinea constituted an abuse of rights and should, therefore, be dismissed.

The case is interesting because it confirms the tendency of the ICJ to not uphold claims by Respondent States aimed at asserting the commission of an abuse of process by the Applicant party, this time providing few more indications as to the scope of application of this principle.

 

The Notion of ‘Abuse of Process’ and the ICJ Case Law

The abuse of process can be defined, in general terms, as the use of a legal process to accomplish an unlawful purpose, by resorting to illegal, malicious, or perverted means.[3]As Kolb puts it, abuse of process ‘consists of the use of procedural instruments or rights by one or more parties for purposes that are alien to those for which the procedural rights were established, especially for a fraudulent, procrastinatory or frivolous purpose, for the purpose of causing harm or obtaining an illegitimate advantage, for the purpose of reducing or removing the effectiveness of some other available process or for the purpose of pure propaganda’.[4] The notion at stake can be considered as a corollary of the international law principle of good faith with which the former shares a certain degree of vagueness.

While the notion of abuse of process has become dangerously popular in international investment arbitration in recent years,[5]the same cannot be said with regard to the practice of the ICJ, which has not yet provided for a definition of abuse of process and have thus far rejected all claims concerning this particular conduct. One of the first cases where the ICJ was faced with this issue was the Arbitral Award of 31 July 1989, in which Senegal upheld that Guinea-Bissau’s Application was inadmissible since Guinea-Bissau was trying to misuse a declaration with the intention of casting doubts on the validity of the arbitral award. However, the judges rejected the argument affirming that ‘Guinea-Bissau’s Application [was] properly presented in the framework of its right to have recourse to the Court in the circumstances of the case’.[6]In Certain Phosphate Lands in Nauru Australia upheld that Nauru had failed to act consistently and in good faith in relation to rehabilitation of the phosphate lands at stake, but the judges concluded again that the Application by Nauru had been properly submitted and that its conduct did not amount to an abuse of process.[7]In Armed Activities in the Territory of the Congo Rwanda contended that the re-submission of the same application by Congo was a clear abuse of process, but the ICJ decided not to remove the case from its list, without giving any further explanation.[8]

These judgments show that abuse of process only concerns the preliminary phases of proceedings (not the merits) and is, in particular, linked to the admissibility of a claim. This is confirmed by the judgment on the Immunities Case, discussed below.

 

The Content of the Claim of ‘Abuse of Process’ made by France and the Position of the ICJ

As mentioned earlier, France claimed that the Application submitted by Equatorial Guinea should be rejected, constituting an abuse of process. More specifically, the Applicant allegedly reversed the ordinary procedural sequence, claiming breaches by the Respondent of its international obligations and requesting the Court to make a finding to that effect, but remaining ‘evasive’ and ‘cursory’ as to the basis for the exercise of the Court’s jurisdiction.[9]Therefore – as argued by France – the conduct of Equatorial Guinea is in contrast to the fundamental principle of international law, which provides that no State may be subject to the jurisdiction of an international court without its consent.[10]Moreover, according to the Respondent, the Application contained similar submissions to those articulated in a previous one, dated 25 September 2012, when France had not accepted the exercise of the ICJ’s jurisdiction, which has led Equatorial Guinea to find a strategy to devise that lack of consent in the present case. This strategy consisted, on the one hand, in acceding to the Optional Protocol – yet without specifying which provision of the Vienna Convention on Diplomatic Relations is at the origin of the dispute with France – and, on the other, in invoking the Palermo Convention, whose provisions, according to France, do not concern the present facts.

On its part, in its written statement, Equatorial Guinea contended that it had recourse to dispute settlement procedures in good faith and in accordance with the conditions and requirements laid down in the Optional Protocol and in the Palermo Convention. In particular, the Applicant maintained that seizing the ICJ, ‘even immediately after accepting its jurisdiction’, does not constitute an abuse of process and that under international law ‘there is no limitation period for invoking bases of jurisdiction’.[11]

In its judgment on Preliminary Objections of 6 June 2018, the ICJ first drew a distinction between the concepts of abuse of process and abuse of rights. While admitting that ‘the basic concept of an abuse may be the same’, the judges argued that consequences stemming from the two may be different.[12]After having mentioned earlier cases in which the ICJ had to deal with those issues, the judges tried to clarify the scope of application of the abuse of process, by saying that it ‘goes to the procedure before a court or tribunal and can be considered at the preliminary phase of these proceedings’.[13]In light of this, the Court concluded, by fourteen votes to one,[14]that ‘Equatorial Guinea, having established a valid title of jurisdiction, should [not] be barred at the threshold without clear evidencethat its conduct could amount to an abuse of process. It is only in exceptional circumstancesthat the Court should reject a claim based on a valid title of jurisdiction on the ground of abuse of process’ and this was not the case.[15]

 

Final Remarks

The ruling of the Court confirms that abuse of process only comes into play as a preliminary objection as to admissibility. The concept is defined in very narrow terms by the judges, so as to raise the threshold of application. Furthermore, a clear explanation of why the abuse of process did not occur in the present case is hardly substantiated. Judges seem to assert that when a valid title of jurisdiction is present, hardly ever an abuse of process can prevent the continuance of proceedings.[16]In so doing, the Court seems almost to put those two distinct concepts on a hierarchical scale of values, with the one corresponding to a valid title of jurisdiction prevailing.

Moreover, the way the Court deals with this aspect looks slightly dismissive. In particular, it remains uncertain what is to be meant as ‘clear evidence’ and what France should have proved for its claim to be upheld. Even analysing the Respondent’s arguments, the diversity and vagueness of the elements supporting the claim of an abuse of process against Equatorial Guinea seem to confirm the view that the content of this concept is still unclear in the context of international adjudication.[17]Yet this was a good (missed) opportunity for the Court to clarify the issue, in order to avoid applicant States to take advantage of this case law in the future. Eurgenio

 

 

 

[1]According to Art I of the Optional Protocol, ‘[d]isputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the [ICJ] and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol’.

[2]Art 35, par 2, of the Palermo Convention provides that ‘[a]ny dispute between two or more States Parties concerning the interpretation or application of this Convention that cannot be settled through negotiation within a reasonable time shall, at the request of one of those States Parties, be submitted to arbitration. If, six months after the date of the request for arbitration, those States Parties are unable to agree on the organization of the arbitration, any one of those States Parties may refer the dispute to the International Court of Justice by request in accordance with the Statute of the Court’.

[3]In the present post we will only deal with the concept of abuse of process– considered as an application of the abuse of rightsprinciple – having the ICJ ruled that the latter requires an examination of the merits of the case which has yet to be done at the time of writing. It is however interesting to note how the Court is extremely careful to keep the two concepts distinct from one another, probably with a view to raise the threshold for inadmissibility.

[4]R Kolb, ‘General Principles of Procedural Law’ in A Zimmermann et al. (eds), The Statute of the International Court of Justice: A Commentary (Oxford University Press 2006) 831, para 65.

[5]See on this E Gaillard, ‘Abuse of Process in International Arbitration’ in ICSID Review(2017), pp 1-21.

[6]ICJ, Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment, ICJ Reports 1991, p 53, para 27.

[7]ICJ, Certain Phosphate Lands in Nauru(Nauru v. Australia), Preliminary Objections, Judgment, ICJ Reports 1992, p 240, para 38.

[8]ICJ, Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, ICJ Reports 2006, p 6, para 25.

[9]ICJ, Immunities and Criminal Proceedings(Equatorial Guinea v. France), Preliminary Objections of the French Republic, 30 March 2017, paras 60-61.

[10]Ivi, para 75.

[11]ICJ, Immunities and Criminal Proceedings(Equatorial Guinea v. France), Written Statement of the Observations and Submissions of the Republic of Equatorial Guinea on the Preliminary Objections Raised by the French Republic, 31 July 2017, para 1.73.

[12]ICJ, Immunities and Criminal Proceedings(Equatorial Guinea v. France), Judgment, Preliminary Objections, 6 June 2018, para. 146.

[13]Ivi, para. 150.

[14]Judge Donoghue against.

[15]ICJ, Immunities and Criminal Proceedings(Equatorial Guinea v. France), Judgment, Preliminary Objections, 6 June 2018, para. 150 (emphasis added).

[16]Like the one owned by Equatorial Guinea on the basis of the Vienna Convention on Diplomatic Relations, having the Court found that it lacks jurisdiction under the Palermo Convention.

[17]Undue shortness and evasiveness of the question of the Court’s jurisdiction, lack of any conventional provisions binding the Parties to submit such a dispute to the Court, prior lack of consent by France to its exercise of jurisdiction, etc.

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TORTURE AND INHUMAN AND DEGRADING TREATMENT IN EUROPEAN JURISPRUDENCE. COMMENTS ON THE CASE OF JUANANEA AND YARZABAL V. SPAIN

1. Introduction

On 13th February 2018 the European Court of Human Rights (ECtHR) issued a judgment in the case of Portu Juanenea and Sarasola Yarzabal v. Spain,[1] condemning the Spanish State for a violation of art. 3 of the European Convention of Human Rights (ECHR) in both its material and procedural dimensions. The case stems from an episode of alleged torture or inhuman treatment perpetrated by members of the Guardia Civil [civil guard] in the context of the repression of the terrorist group ETA.

Beyond the controversy still surrounding the alleged torturous practice applied by the Guardia Civil against ETA detainees, the judgment in this case is interesting because it confirms the difficulty in drawing a clear line between the different concepts of torture on the one hand, and inhuman and degrading treatment on the other.

2. The case and judgment

The applicants, Portu Juanenea and Sarasola Yarzabal, are former members of ETA who were arrested on 6th January 2008 by a specialised antiterrorist unit of the Guardia Civil. They report that during their arrest they suffered physical and psychological ill treatment by Police officers, such as injuries and insults, and that they were subsequently taken to an isolated place where they were subjected to beatings, mock execution and waterboarding. A medical examination undertaken the following day confirmed that both had suffered injuries, the origins of which were compatible with the facts as described by the applicants.

A judicial investigation was therefore opened against 15 members of the Guardia Civil who had taken part in the arrest of the applicants. All the defendants denied the charges and declared that the injuries that were caused in the context of the arrest were an exercise of the legitimate use of force which was required to prevent the suspects from escaping.

The first-instance judgment convicted four of the defendants for the offences of injuries and torture, while acquitting the others. But this conviction was reversed by the Spanish Supreme Court which found that there was no sufficient evidence that the injuries suffered were caused by ill-treatment intentionally perpetrated by the Police officers.

The ECtHR, contrary to that judgment, concluded that there was sufficient evidence of the facts, as described by the applicants, that they had suffered inhuman and degrading treatment when they were in the custody of the Guardia Civil. As a consequence, the Court declared that Spain had violated art. 3 ECHR in its substantive dimension. Furthermore, the ECtHR found that the Spanish Supreme Court, in reversing the first-instance judgment, did not make a “scrupulous assessment” (para. 94) of the facts, as required by art. 3 ECHR, thereby violating the procedural dimension of the norm as well.

Nevertheless, the Court concluded that the facts did not meet the requirements of the definition of torture, as it has been progressively developed by ECtHR jurisprudence. However, it did find that the acts perpetrated against the applicants constituted inhuman and degrading treatment.

3. The conceptual distinction between torture and inhuman treatment in the European jurisprudence

Despite the universal acknowledgment of the ban on torture in international and regional human rights treaties,[2] there are some significant discrepancies as to its notion and structure in the international instruments that prohibit it. Against such a fragmented framework, the ECtHR has undertaken the difficult task to clarify the definition of the constitutive elements of torture and the distinct features between this conduct and inhuman treatment.[3] Despite its efforts, such clarification has not been reached yet.

Although art. 3 ECtHR encompasses both torture and inhuman and degrading treatment, the distinction between them is primarily relevant because universal jurisdiction is apparently consolidated only with regard to torture.[4] Furthermore, a conviction for torture usually allows the imposition of a higher sentence and it is deemed to have a “special stigma”[5] attached.

Through previous judgments, the Court has developed two basic criteria for distinguishing between the two prongs of art. 3. The first considers torture to be an aggravated form of inhuman treatment, implying a greater intensity of the harm or suffering inflicted,[6] the second focuses on the requirement for a specific purpose (punishing, humiliating or getting a confession), in addition to the intentional nature of the conduct, as a distinctive feature of torture as opposed to other forms of ill-treatment.[7]

However, in relation to the first criterion, jurisprudence has not been consistent in determining the exact threshold for an act to be qualified as torture as opposed to inhuman treatment. Actually, the Court itself has previously admitted that the classification of a particular conduct may change over time.[8]

To interpret this requirement, the Court has developed the principle of the relative assessment, according to which one must consider both the general circumstances surrounding the facts, such as the duration of the treatment and its physical effects, as well as the circumstances relating to the specific victim, such as, sex, age and state of health.[9] Yet, the weight attributed to each of these elements in the concrete cases varies. So too does its interpretation, as the Northern Ireland case demonstrates. Here, the combined use of the so-called five techniques of interrogation was deemed to amount to torture by the European Commission but, in contrast, was considered to be of insufficient intensity and cruelty to be qualified as such by the European Court. As a result, it was labelled by the latter as inhuman and degrading treatment, and a revision request presented by Ireland has been recently dismissed on the ground of technical reasons.

As to the second criterion developed by the Court, which focuses on the specific purpose of torture, this not only poses some problems in relation to the requirement to demonstrate of a subjective element, but also narrows the scope of the offence.

The ECtHR has also explored a combined application of the two criteria, taking into account both the scale of severity of the suffering and the existence of a specific purpose.[10] This combined approach is also followed in the case under comment.

4. Application to the present case

The majority of the Court finds that the ill-treatment imposed on the applicants does not amount to torture because, on the one hand, it does not reach the required severity threshold and, on the other hand, there is no sufficient evidence of the existence of a specific purpose (para. 84).

This judgment therefore follows an approach based on the combined application of the two criteria developed by the ECtHR. Yet, it does not solve the uncertainties surrounding the definition of their constitutive elements, as the partially dissenting opinion (DO) demonstrates. The latter labels the facts as torture, on the basis of a different assessment of the evidence provided.

The different conclusion stems from two considerations. First, after recalling the various elements that may define particular conduct as torture, in accordance with the principle of the relative assessment (para. 72), the majority then focuses exclusively on the lack of evidence that the treatment caused long-term effects on victims (para. 84). Contrary to this, the partially dissenting opinion points out that one of the applicants had to spend five days in the hospital (3 of which were in an Intensive Care Unit) because of the injuries he suffered, and that this met the severity threshold of torture (para. 11 DO).

Second, whereas the majority found that no sufficient evidence demonstrated the existence of a specific prohibited purpose in the police officers’ behaviour (para. 84), the minority established specific purpose from the context of the arrest. Its circumstances suggested that the officers knew that the suspects were members of ETA and were eager to punish them for this membership (paras. 13-15 of the DO).

Both conclusions are, in my view, reasonable from a legal point of view, and the fact that the Court was split 4-3 in this judgment confirms the difficulty to find a shared interpretation on these highly controversial and discretional matters.

5. Conclusion

This judgment shows that, despite the significant effort by the ECtHR to define torture and inhuman treatment and to draw a clear distinction between the two concepts, the assessment of the respective constitutive elements is far from being settled. Beyond the intrinsic relativity of the principle of the relative assessment applied by the Court, maybe it has to be accepted that it is not possible at all to identify precise and consistent elements that unequivocally qualify a fact as torture. Much depends on the judges’ discretionary and inevitably subjective interpretation of the evidence, and it has to be dealt with on a case by case basis.

[1] ECtHR, Portu Juananea et Sarasola Yarzabal c. Espagne, No. 1653/13, 13 février 2018 (original in French). The Judgment has become final on 13th May 2018, because reference of the case to the Grand Chamber has not been requested in three months after its date.

[2] Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, of 9 December 1975; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984; Inter-American Convention To Prevent And Punish Torture, adopted by the Organisation of American States on 9 December 1985.

[3] E. Maculan, ‘Judicial definition of torture as a paradigm of cross-fertilisation. Combining harmonisation and expansion’, 2015 (84)3 Nordic Journal of International Law, 456.

[4] B.R. Roth, ʻJust Short of Torture. Abusive Treatment and the Limits of International Criminal Justiceʼ, 2008 (6) Journal of International Criminal Justice, 215.

[5]  ECtHR, Ireland v. UK (Northern Ireland case), 18 January 1978, No. 5310/71, §167.

[6] EComHR, Denmark, Norway, Sweden, Netherlands v. Greece (Greek case), 4 October 1969, No. 3321/67, 3322/67, 3323/67, 3344/67, §186; ECtHR, Gäfgen v. Germany, 1 June 2010, No. 22978/05, §90; El-Masri v. The Former Yugoslav Republic of Macedonia, 13 December 2012, No. 39630/09, §197.

[7] ECtHR, Tyrer v. UK, 25 April 1978, No. 5856/72, §13; ECtHR, Egmez v. Cyprus, 21 December 2000, No. 30873/96, §78; Denizci v. Cyprus, 23 May 2001, No. 25316-25321/94 and 27207/95, §§384-386.

[8] ECtHR, Selmouni, v. France, 28 July 1999, No. 25803/94, §101.

[9] Northern Ireland case, § 162.

[10] ECtHR, Aksoy v. Turkey, 18 December 1996, No. 21987/93, §§ 63-64; more recently, Cestaro v. Italy, 7 April 2015, No. 6884/11, §§ 171-176.descarga

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Deportation of the Rohingya people as a crime against humanity and the territorial jurisdiction of the ICC

Alessandra M De Tommaso (PhD student in international law, Middlesex University (London); alessandra.detommaso@gmail.com)

  1. Introduction

On 9 April 2018, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC, or the Court) submitted a request pursuant to article 19(3) of the Rome Statute establishing the ICC (or the RomeStature, or the Statute) seeking a ruling on whether the Court may exercise its jurisdiction “over the alleged deportation of the Rohingya people from Myanmar to Bangladesh”. On 11 April 2018, the President of the Pre-Trial Division, Judge Antoine Kesia‐Mbe Mindua, assigned the matter to Pre-Trial Chamber I for further determination. On 7 May 2018, the Pre-Trial Chamber issued a decision inviting Bangladesh to submit its observations on the Prosecution’s request.

Article 19(3) of the Statute grants the Prosecutor the power to request a ruling from the Court on a question of jurisdiction or admissibility.[1]To date, this is the first time that the OTP submits a request pursuant to article 19(3).  In the case at hand, the need for such a ruling arises from the exceptional circumstances of the situation concerning the Rohingya people. Indeed, in this case, only the receiving State (Bangladesh) has accepted the ICC’s jurisdiction, while the originating State (Myanmar) has neither ratified the Rome Statute nor accepted the Court’s jurisdiction underarticle 12(3) of the Statute.

In its Request, the OTP addresses two legal issues: (i) the definition of deportation as a crime against humanity pursuant to article 7(1)(d) of the Statute; and (ii) the scope of the Court’s territorial jurisdiction under article 12(2)(a) of the Statute. This post provides a brief overview of the arguments submitted by the OTP, focusing in particular on the observations concerning the inherent transnational character of the crime of deportation and its implications on the territorial jurisdiction ofthe ICC.

  1. Deportation as a crime against humanity under the Rome Statute

The first issue addressed by the Prosecutor concerns the definition of deportation as an independent crime against humanity distinct from the crime of forcibletransfer. The Rome Statute lists both crimes under article 7(1)(d), which reads as follows:

“For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

[…]

(d) Deportation or forcible transfer of population;”[2]

Although included under the same provision, deportation and forcible transfer should be interpreted as two separate offences.[3]Indeed, as argued by the Prosecutor, deportation requires that the victim is forced to cross a de factoor de jureinternational border, whereas forcible transfer refers to internal displacement.[4]Such a distinction has constantly been recognised in the copious jurisprudence of the ICTY on the matter.[5]To provide a recent example of that, in 2016, the Trial Chamber in Prosecutor v Radovan Karadzic observed:

‘488. The elements of deportation and forcible transfer are substantially similar. Deportation and forcible transfer are defined as: (i) the forced displacement of one or more persons by expulsion or other forms of coercion, (ii) from an area in which they are lawfully present, (iii) without grounds permitted under international law. There is an important distinction between the two crimes; for deportation, the displacement of persons must be across a de jureborder between two states or, in certain circumstances, a de factoborder, and for forcible transfer, the removal may take place within national boundaries.’[6]

Interestingly, it is from the case law of the ICC that some uncertainty may still arise on the legal standing of deportation as an autonomous crime. In the Rutocase, Pre-Trial Chamber II described ‘deportation or forcible transfer’ under article 7(1)(d) of the Statute a ‘unique crime’ with ‘two labels’, leaving any concrete determination on the distinction existing between the two labels to the Trial Chamber.[7]In recalling this precedent, the OTP contests that it was in the intention of the Pre-Trial Chamber II to conflate the two crimes and observes that in many other occasions the ICC Pre-Trial Chambers have implicitly recognised the distinct nature of the two crimes by confirming charges ‘onlyof forcible transfer and notdeportation’.[8]

Therefore, the OTP concludes that deportation under article 7(1)(d) of the Statute is anautonomous crime, requiring the forcible displacement of persons across an international border. It followsthat deportation has an inherently transnational component and ‘is not completed until the victim has been forced to cross a de jureor de facto international border’.[9]

  1. The scope of the territorial jurisdiction of the Court under article 12(2)(a) of the Statute

The transnational character of deportation implies that not all legal elements of the crime occur on the territory of a single State. By definition, indeed, the crime is established only when the victim crosses the border of the State where he or she lawfully resided, to enter the territory of a different State. No particular issues arise when both the originating State and the receiving State are Parties to the Statute. But what happenswhen only one of the two States has ratified the Rome Statute?

Pursuant to article 12(2)(a) of the Statute, the Court may exercise its territorial jurisdiction when ‘the conduct in question’ occurred on the territory of a State Party or of a State that hasaccepted the Court’s jurisdiction.[10]The Statute provides no guidance on how the term ‘conduct’ should be interpreted in the context of article 12(2)(a) of the Statute. Thus, the Court is left with the task of establishing whether the term ‘conduct’ refers only to the criminal conduct or includes also its consequences, and whether the provision applies to the partial commission of a crimeon the territory of a State Party or requires all the elements of the crime to occur on that territory.[11]Narrowly interpreted, the provision might restrict the Court’s territorial jurisdiction only to instances where the whole conduct (understood as the physical manifestation of the criminal act/omission) took place on the territory of a State Party, irrespectively of its consequences.

In its Request, the OTP firmly refuses such a narrow interpretation. First of all, the Prosecutor argues that the correct way of interpreting article 12(2)(a) of the Statute is to read the term ‘conduct’ as a synonymous of ‘crime’, so to include the criminal act/omission and its consequences.[12]The Prosecution then argues that the ‘conduct’ requirement under article 12(2)(a) of the Statute means that ‘at least one legal element of an article 5 crime must occur on the territory of a State Party’.[13]Indeed, the OTP submits that excluding the Court’s territorial jurisdiction when only some of the elements of a crime occurred on a State Party’s territory would be inconsistent with ‘the general and long-establishedapproach of the international community in exercising criminal jurisdiction’ and would go against the object and purpose of article 12(2)(a).[14]

Applying this interpretation of article 12(2)(a) of the Statute to the crime of deportation, the Prosecution submits that the ICC may exercise itsterritorial jurisdiction ‘eitherif the originating State is a State Party to the Court orif the receiving State is a State Party to the Court’.[15]In case of deportation, indeed, it is not relevant that the coercive acts took place only on the territory of a State not Party, ‘since the coercion and the movement of the victim [across the border] are distinct legal elements under article 7(1)(d)’.[16] In the Prosecutor’s own words:

“… in adopting the Statute as a whole, the drafters manifestly intended to grant the Court ‘jurisdiction over the most serious crimes of concern to the international community as a whole’. This expressly included the crime of deportation, which has an inherently transnational character. If it was understood arguendo that article 12(2)(a) jurisdiction was only established where all the elements of a crime were committed on the territory of a State Party, this would exclude the Court’s jurisdiction over deportation—which requires one element that always occurs beyond the territory of the victims’ State of origin—unless both States are Parties to the Rome Statute.”[17]

Thus, it is the Prosecutor’s conclusion that, in the situation concerning the Rohingya people, the circumstance that the receiving State (Bangladesh) is a State Party may trigger the Court’s territorial jurisdiction even though the originating State (Myanmar) is not a Party to the Statute.

  1. Conclusion

The Prosecution’s Request should be saluted as a positive attempt to bring justice to the Rohingya people.[18]From a more general perspective, the Request should also be welcomed for its interesting insights in the interpretation of the Court’s territorial jurisdiction in connection with those crimes which have an inherently transnational character. Even if the judges of the Pre-Trial Chamber will not adopt the broad interpretation of article 12(2)(a) of the Statute submitted by the Prosecution, the latter’s request may give them the opportunity to clarify one of the still untouched issues concerning the territorial reach of the Court’s jurisdiction. However, it is not unrealistic to suppose that the Pre-Trial Chamber may refrain from embracing the Prosecutor’s interpretation of article 12(2)(a), as a similar determination may stir complaints from States not Parties to the Statute, fearing  future ‘interventions’ by the Court.Rohingya

[1]Article 19(3) of the Rome Statute.

[2]Article 7(1)(d) of the Rome Statute.

[3]Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, ICC-RoC46(3)-01/18-1, 9 April 2018, para 13.

[4]Ibid., , paras. 15-2.7

[5]See e.g. Gotovina et al. case(Judgment) IT-06-90, 15 April 2001, para. 1740; Kristíc case (Judgment) IT-98-33-t, 2 August 2001, para. 521; Krnojelac case(Judgment) IT-97-25-T, 15 March 2002, para. 474; Karadžić case(Public Redacted Version of Judgment Issued on 24 March 2016 – Volume I of IV) IT-95-5/18-T, 24 March 2016, paras 488-490.

[6]Karadžić case(Public Redacted Version of Judgment Issued on 24 March 2016 – Volume I of IV) IT-95-5/18-T, 24 March 2016, para 488.

[7]Ruto case(Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute) ICC-01/09-01/11-373, 23 January 2012, para 268.

[8]Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, ICC-RoC46(3)-01/18-1, 9 April 2018, para 26 [emphasis in the original].

[9]Ibid., para 26.

[10]Article 12(2)(a) of the Rome Statute.

[11]See, on this regard, Michail Vagias, ‘The Territorial Jurisdiction of the International Criminal Court – A Jurisdictional Rule of Reason for the ICC?’ (2012) 59 Netherlands International Law Review 43, 44; Jean-Baptiste Maillart, Article 12(2)(a) Rome Statute: The Missing Piece of the Jurisdictional Puzzle, EJIL: Talk! https://www.ejiltalk.org/article-122a-rome-statute-the-missing-piece-of-the-jurisdictional-puzzle/(last accessed on 9 May 2018).

[12]Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, ICC-RoC46(3)-01/18-1, 9 April 2018, para46.

[13]Ibid., para 28.

[14]Ibid., paras 25 and 29.

[15]Ibid., para 28 [emphasis in the original].

[16]Ibid., para 28.

[17]Ibid.,para 49.

[18]See Human Right Watch, ICC Prosecutor’s Unprecedented Bid to Bring Justice to Rohingya, 10 April 2018, https://www.hrw.org/news/2018/04/10/icc-prosecutors-unprecedented-bid-bring-justice-rohingya(last accessed on 9 May 2018).

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The dismissal of the revision request in the case of Ireland v UK

 Introduction*

On 20 March 2018 the European Court of Human Rights (ECtHR) has dismissed, by six votes to one, the Irish Government’s request to revise the 1978 Ireland v UK judgment.[1]

The case concerned the use, by British authorities, of ‘disorientation’ or ‘sensory deprivation’ techniques on men detained under emergency powers during Northern Ireland’s civil strife. The so-called ‘five techniques’ consisted in hooding, wall standing in stress position for long periods of time, sleep deprivation, subjection to noise, food and water deprivation. The conclusion reached in 1978 by the ECtHR was that, although the techniques ‘undoubtedly amounted to inhuman and degrading treatment’, ‘they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood’.[2]

The revision request, submitted under Rule 80 § 1 of the Rules of Court, aimed at obtaining a different legal qualification of the techniques: the Irish Government produced newly discovered evidence, on the basis of which it was alleged that the 1978 judgment should have considered the techniques as torture.[3]

The five techniques have been used by other Governments’ agencies in Afghanistan, Iraq and detention facilities such as Guantanamo, and the 1978 judgment has been cited by the 2002 ‘Torture Memo’ to justify the conclusion that the use of similar techniques by the United States did not amount to torture. It is therefore not surprising that the dismissal of the revision request has provoked strong reactions among human rights activists.

However, the dismissal is correctly grounded on technical arguments which derive logically from the Court’s case law, and it should not be read as a rejection of the opinion according to which the techniques amount to torture. The present post analyses the dismissal and argues that it should be welcomed as a proof of the Court’s consciousness of the extent of its own interpretative powers.[4]

The 1978 judgment

Ireland v UK was the first interstate application lodged before the ECtHR. Its exceptional nature lied also in the fact that the respondent Government had acknowledged the violation for which the applicant state had set in motion the proceedings.[5] Thus, before the Court it needed not to be established whether the five techniques had been used: what was disputed was the amount of damages caused by them, a key factor for their legal qualification under Article 3 of the European Convention on Human Rights (ECHR, or the Convention).

Article 3 ECHR prohibits ill-treatments of two kinds: ‘torture’ and ‘inhuman and degrading treatments’. The dividing line between the two notions has been clarified progressively by the Court’s case law,[6] but in 1978 it was already clear that the severity of the treatment played a significant role in the distinction.[7]

The European Commission issued a report and concluded, by a unanimous vote, that, while it was clear that the techniques resulted in no physical injury, the available evidence did not allow to establish the exact degree of their psychiatric after-effects;[8] however, in light of their systematic application and of the underlying purpose (i.e., extracting information from prisoners) they amounted to torture.

The Court, to whom the case was subsequently referred, reached a different conclusion. While sharing the view that the five techniques amounted to inhuman and degrading treatments, having regard to other instruments of international law,[9] it concluded that the notion of torture is meant to attach ‘a special stigma to deliberate inhuman treatment causing very serious and cruel suffering’.[10] In the light of the factual findings, the Court concluded that the five techniques did not occasion ‘suffering of the particular intensity and cruelty implied by the word torture as so understood’.[11]

The revision request

The revision request lodged by Ireland was grounded on Rule 80 of the Rules of Court, which reads as follows:

‘A party may, in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party, request the Court, within a period of six months after that party acquired knowledge of the fact, to revise that judgment.’

The Irish Government alleged that in 2014 it had become aware of previously secret documents, including medical reports by Dr. L (one of the experts heard by the Commission), which if known to the Court at the time of the judgment, would or might have had a decisive influence.[12] The documents demonstrated that in 1978 it was already clear that the effects of the five techniques could be substantial, severe and long-lasting, thus justifying their legal qualification as ‘torture’.[13]

The UK contested the revision request, alleging, inter alia, that it was not grounded on new facts but aimed at acquiring new evidence, and that, even assuming it was grounded on new facts, these did not have a decisive influence.[14]

The 2018 revision judgment

The 2018 judgment is grounded on two premises.

The first premise is the need to apply a restrictive interpretation. The Court recalls that revision is an exception to the rule of finality of judgments, which is not provided for by the Convention but by Rule 80 of the Rules of Court.[15] In order to protect legal certainty (essential element of the rule of law) revision can only be allowed in exceptional circumstances, which must be subject to strict interpretation: accordingly, where doubts remain as to whether or not a new fact actually could have a decisive influence on the original judgment, legal certainty must prevail and the final judgment must stand.[16]

The second premise is the need to take into account the temporal aspect of the revision request. The Court underlines that the new facts grounding the request occurred almost 40 years after the original judgment. Since then, the Court’s case law on the notion of torture has considerably evolved; the long-term effects of a treatment when distinguishing between torture and inhuman treatment are now particularly relevant.[17]

On the basis of these premises, the Court concludes that there is no certainty that the alleged new fact (‘namely that Dr L. misled the Commission regarding the effects of the five techniques)[18] could have a ‘decisive influence’ on the original judgment. Indeed, there is no certainty that, had the Court been aware of the fact that the five techniques could have severe long-term psychiatric effects, in the light of the case‑law on Article 3 of the Convention as it stood at the time, this would have led to a qualification of the techniques as torture. [19]

Analysis

As underlined by Judge O’Leary in her dissenting opinion, the judgment has undeniably some flaws. For instance, it reduces the ground for revision relating to the discovery of new documents to the fact that ‘Dr L. misled the Commission regarding the effects of the five techniques’.[20] However, the Irish Government had relied on various documents, not limited to those demonstrating Dr L.’s allegedly misleading statements.

Furthermore, the reasoning given for the assessment of non-relevance of the new facts is inter alia grounded on the assertion that ‘the original judgment does not mention the issue of possible long-term effects of the use of the five techniques in its legal assessment’.[21] While it is true that the 1978 Court’s judgment made no reference the possible long-term effects of the five techniques, the Commission had clearly taken into account the issue when making its own assessment. Thus, it cannot be said that the topic was completely unknown to the European judges.

These flaws, although regrettable (for they expose the judgment to potential criticism), are not substantial, and they certainly do not render the judgment a rejection of the opinion according to which the techniques amount to torture. What needs to be borne in mind is the double premise on which the judgment was grounded: the need to apply a restrictive interpretation to revision requests, and the temporal dimension of the Ireland v UK request for revision.

The ECtHR conceives the Convention as a ‘living instrument’, which must be interpreted in the light of present-day conditions.[22] For this reason, it applies extensively the rights and freedoms guaranteed by the Convention, often demonstrating a certain activism.[23] For instance, its case law as to the rights of post-operative transsexuals has considerably evolved during time, shifting from non-recognition to recognition in a lapse of less than 20 years.

In this context, the Court’s dismissal of Ireland’s revision request is equivalent to admitting that it is impossible to evaluate with sufficient certainty how evidence discovered today on the long-lasting effects of ill-treatments would impact on a judgment issued well before the establishment of a clear case law under which long-lasting effects determine the difference between ‘inhuman treatments’ and ‘torture’.

Conclusion

The 2018 judgment by which the ECtHR dismissed the revision request in the case of Ireland v UK is clearly not a rejection of the opinion according to which the brutal interrogation techniques which were at the origin of the case amount to torture.

On the opposite, one could argue that the Court knew that the five techniques would amount to torture under the current case law on Article 3 ECHR: however, it also knew that this case law has developed considerably over the last forty years, and for this reason it acknowledged the impossibility of reaching an impartial and sufficient certain conclusion for a period in which such case law was not yet available.

By this judgment, the Court has demonstrated a willing restraint in the exercise of its powers, motivated by the extraordinary nature of the request, that is, the revision of a final judgment issued 40 years ago. Conclusively, the judgment should be welcomed as a proof of the Court’s consciousness of the need to handle with due care the powerful interpretative tools at its disposal.

 

 

 

 

* The views in this post represent the personal opinion of the author in her private capacity.

[1] Ireland v. the United Kingdom, no. 5310/71, Judgment (revision) 20 March 2018.

[2] Ireland v. the United Kingdom, § 167.

[3] Ireland v. the United Kingdom, §§ 21-27.

[4] For other commentaries to the decision see: Iulia Padeanu, Why the ECHR Decided not to Revise its Judgment in the Ireland v. The United Kingdom Case, and Michael O’Boyle, Revising the verdict in Ireland v UK: time for a reality check? both on http://www.ejiltalk.org.

[5] The respondent Government had ‘conceded.. that the use of the five techniques was authorised at ‘high level’’, see § 97 of the judgment.

[6] See, among other authorities: Selmouni v. France [GC] no. 25803/94, ECHR 1999‑V Gäfgen v. Germany [GC], no. 22978/05, ECHR 2010

[7] As recalled by the Court at paragraph 167 of the 1978 judgment, Article 1 in fine of Resolution 3452 (XXX) adopted by the General Assembly of the United Nations on 9 December 1975 declares: ‘Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment’.

[8] At that time the European Commission of Human Rights shared adjudicatory functions with the ‘old’ Court.

[9] Particularly, Resolution 3452 (XXX) adopted by the General Assembly of the United Nations on 9 December 1975: see § 167 of the judgment.

[10] Ireland v. the United Kingdom § 167.

[11] Ibidem.

[12] Ireland v. the United Kingdom, §§ 19-44.

[13] Ireland v. the United Kingdom, §§ 61-67.

[14] Ireland v. the United Kingdom, §§ 46-60.

[15] Ireland v. the United Kingdom §§ 93, 122.

[16] Ireland v. the United Kingdom § 122.

[17] Ireland v. the United Kingdom § 124.

[18] Ireland v. the United Kingdom § 96.

[19] Ireland v. the United Kingdom §§ 125-135.

[20] Ireland v. the United Kingdom § 96.

[21] Ireland v. the United Kingdom §§ 134.

[22] Tyrer v United Kingdom  (1978) Series A no 26, par 31; Marckx v Belgium (1979) Series A no 31, par 41.

[23] For references on this topic, see D. Sartori, Gap-Filling and Judicial Activism in the Case Law of the European Court of Human Rights, Tulane European and Civil Law Forum, 29, 2014.

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The Use of Force of Turkey in Rojava after the Capture of Afrin. Consequences for International Law and for the Syrian Conflict.

On 20 January 2018 Turkey initiated a military operation in the territory of Northern Syria, also known as Rojava: an area under Kurdish administration which is increasingly gaining international legitimacy as a result of both its struggle against the Daesh and its model of a system of governance based upon respect for human rights and multicultural coexistence . To date, the main attacks have targeted the Region of Afrin (one of the three cantons of Rojava – the other two being Jazira and Kobane) which was captured by Turkey on the 18 March of this year. However, Turkey has expressed its intention to expand the attacks in the rest of Northern Syria and possibly in the territory of Iraq. The military operation was given the Orwellian name of Operation Olive Branch

The present analysis argues that Operation Olive Branch constitutes a violation of ius ad bellum and amounts to a crime of aggression. Furthermore, the continuation of attacks violates the 30-day ceasefire established by the Security Council in Resolution 22401 of 24 February 2018. Furthermore, reports from the field indicate a pattern of war crimes.

The strategic importance of Turkey in the maintenance of the equilibrium of the region has silenced the reaction of most actors in the area, as well as of the international community. The acquiescence towards the violations committed by Turkey in Northern Syria risks undermining the current interpretation of the fundamental tenets of self-defence as a legitimate basis for use of force, and, from a political perspective, risks jeopardising the Syrian peace process.

The Olive Branch Operation as a War of Aggression

Since 20 January 2018, Turkey has been carrying out military operations in Rojava, and on 24 March, it declared itself to have established full control over the region of Afrin. The area is controlled by the Democratic Federation of Northern Syria, also known as Rojava or Syrian Kurdistan. Turkey argued for the legality of the intervention in a letter to the Security Council sent on 22 January of the same year.

Turkey bases the legitimacy of its actions on art. 51 of the UN Charter, thereby invoking the principle of self-defence, against a “threat of terrorism”. According to the document, this threat undermines Turkish national security, as well as the territorial integrity of Syria, and regional and international security.

However, there are fundamental flaws in Turkey’s argument that its actions were legal under international law. The Turkish justification falls within the evolving legal regime of self-defence against imminent terrorist attacks in territories which are not under the control of any State. Notwithstanding the complexity and fluidity of the legal issues at stake, it seems uncontroversial that, in the present case, the use of force of Turkey is blatantly illegal. First, Turkey is required to clearly substantiate its allegation that an armed attack took place (ICJ, Armed Activities in the Territory of the Congo (2005), para. 146). In this case, however, Turkey merely mentions general “threats of terrorism”, not even imminent, occurring at its Syrian border. In addition, self-defence against a non-state actor, such as Rojava, would, arguably, only be legitimate only in presence of large scale attacks (ICJ Congo v. Uganda 2005, para. 147): a circumstance which does not arise in the present case. The argument that the operation was intended to safeguard the territorial integrity of Syria is also problematic, in that the Government of Damascus has denounced it as an act of aggression, in a letter to the UN Security Council.

Furthermore, the Kurdish institutions controlling the region of Afrin, and other groups active in the area, are not designated as ‘terrorist’. Turkey defines the Kurdish administration in Northern Syria as the PKK/KCK/PYD/YPG terrorist organisation. In so doing, Turkey equates the Turkish Kurds organization, the PKK, (Kurdistan Workers’ Party Partiya Karkerên Kurdistanê) to the Kurdish administration of Northern Syria (PYD,  Partiya Yekîtiya Demokrat, Democratic Union Party) and its militia (YPG, Yekîneyên Parastina Gel, People Protection Units). While the PKK is considered to be a terrorist organization by several states, including the US and the EU (but not other states or entities, inter alia, the United Nations), the Syrian institutions are not listed as terrorist organisations. On the contrary, they receive military support in the fight against Daesh from the international coalition Combined Joint Task Force – Operation Inherent Resolve.

In its declaration to the Security Council, furthermore, Turkey affirms that it targets Daesh activity in the region of Afrin. The Syrian army, however, has denied that ISIS has a presence in the area.

With the attack in Northern Syria, Turkey invoked the principle of self-defence against a potential threat of terrorism, in the absence of an armed attack, and against a group which is not largely acknowledged as being terrorist. In so doing, Turkey violated the prohibition to use force, in blatant violation of the fundamental tenets of self-defence as a legitimate basis for use of force.

The tacit acceptance of the abuse of the self-defence principle to carry out military operations may contribute, under certain conditions, to a normative change in the prohibition to use force. An extensive interpretation of self-defence, and the tolerance of non-authorised military operations, may extend the possibility to use force beyond the current limits established under international law, and allow States to justify acts of aggression with arguments of self-defence against threats of terrorism.

The violation of Resolution 22401 and Reports of War Crimes

On 24 February 2018, the UN Security Council unanimously adopted Resolution 22401, which demands “a durable humanitarian pause for at least 30 consecutive days throughout Syria”. The Resolution was adopted following the increase in violence by the Syrian army in Ghouta and Idlib, which are specifically mentioned in the document. Conversely, because Afrin is not mentioned in the document, Turkey has argued that its military operation in Afrin is not covered by the Resolution, and that the Resolution does not prohibit the use of force against the Kurdish targets.

While specifically referring to Ghouta and Idlib in the context of humanitarian crises and the escalation of violence in the territory of Syria, the Resolution clearly states that the only exception to the ceasefire, imposed “throughout Syria” relates to the operations against Daesh and Al Qaeda. The humanitarian pause, therefore, is fully applicable in relation to Northern Syria and the Turkish attacks against Kurdish militia, therefore, fall squarely within the scope of the Resolution.

During the military operation, Turkish forces are reported to have perpetrated a pattern of serious violations of international humanitarian law. The UN High Commissioner for Human Rights has denounced deliberate attacks against civilian populations. The Syrian Observatory for Human rights reports the mutilation of female fighters, the use of gas weapons, the execution of refugees, and the bombing of an hospital, all of which constitute a pervasive pattern of war crimes.

The silence of the international community

From January 2018, Turkey has been perpetrating grave violations of international law including: a violation of the ius ad bellum regime; failure to adhere to a UN Security Council Resolution; and a pattern of violations of humanitarian law.

The Syrian Government immediately denounced the aggression against its territorial integrity, but the strategic importance of Turkey as a key regional power and as a NATO member, has hindered a strong international reaction against the aggression. The United States, the European Union and most of the international community have only expressed concern for the humanitarian situation.

This is regrettable due to the fact that, on a political level, the armed conflict between Turkey and the Kurdish area of Northern Syria jeopardises the possibility of an end the Syrian conflict. The Kurdish administration of Northern Syria manages an important part of the territory of the country. The Kurds are currently establishing an extremely progressive regime based on democratic confederalism, feminism, social ecology and human rights. Additionally, Syrian Kurds have renounced to the struggle for statehood and have indicated that would accept to constitute a federation under the control of Damascus.

The federal proposal of Kurdish Syria could, in principle, obtain the support of the different actors involved in the conflict, and inspire a possible path to reach the end of hostilities as well as towards rebuilding a post-conflict Syria. First, the acceptance of an autonomous region within the Syrian State could lead to an agreement with the central Government of Damascus. Second, the US are militarily supporting the Kurdish administration in the fight against Daesh, obtaining the liberation of the “capital” Raqqa in October 2017. Third, Russia, a federation itself, and a supporter of the current Syrian Government, does not exclude federalism as a possible model of administration for the post-conflict country. The consistent opposition of Turkey, however, has excluded the Syrian Kurdish representation from the international talks in Geneva and Astana.

The main challenge to this potential solution is indeed the exclusion of the PYD from the Peace talks, which is due to the opposition of Turkey as well as of other Syrian rebel groups, including other Kurdish groups. Its participation in this 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 and in particular for Syria, to administer a multicultural society.

Conclusion

Turkey is perpetrating grave international crimes, within the territory of Syria, against Kurds. Given the key role of Turkey in the region, the international community does not appear to be able to condemn the violations. In so doing, however, international law loses its effectiveness and risks allowing further abuses in the legal regime governing the use of force. This could contribute to a normative change in the definition of legitimate self-defence. Furthermore, the Rojava administration, which has been labelled by Turkey as a terrorist organisation, is among the main actors in the fight against Daesh. Finally, it is the only democratic model of governance in the Syrian territory, promoting the respect of human rights and multicultural coexistence. With its military campaign in Northern Syria, Turkey seriously weakens position of one of most relevant actors in the peace process for the region and one of the few players representing democracy, human rights and multicultural coexistence in the post-conflict Syria.

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The Italian legislation on foreign and unaccompanied minors between international principles and EU good practices: is a new de iure condendo perspective needed?

  1. Introduction

Over the past few years, the European Union has adopted a number of Directives relating to migrant rights. In particular, European Union Directive 2013/33/EU, laid down standards for the reception of applicants seeking international protection, while Directive 2013/32/EU established common procedures for the granting and withdrawal of international protection. In Italy, these Directives were implemented by means of legislative decree n. 142 of 2015 (hereinafter dlgs n. 142/2015)Law n. 47, of 7 April 2017, (hereinafter Lg. n. 47/2017), and legislative decree n. 220, of 22 December 2017 (hereinafter dlgs. N. 220/2017).

This post will focus on the recent Italian legislative developments in relation to unaccompanied minors. Following an overview of the legislation and the guidelines issued by the European Union, the post will highlight some outstanding issues relating to the existing body of legislation in the field and will seek to address whether a new legislative perspective is needed.

  1. The international principles and EU guidelines.

On 19th September 2016, the General Assembly of United Nations, adopted the ‘New York Declaration for Refugees and Migrants’ (hereinafter the NY Declaration), through resolution 71/1. In Section I, para 3, the Declaration states that ‘We are witnessing in today’s world an unprecedented level of human mobility. More people than ever before live in a country other than the one in which they were born. Migrants are present in all countries in the world. Most of them move without incident. In 2015, their number surpassed 244 million, growing at a rate faster than the world’s population. However, there are roughly 65 million forcibly displaced persons, including over 21 million refugees, 3 million asylum seekers and over 40 million internally displaced persons’ (NY Declaration, Section I, para 3).

One of the main concerns for the United Nations, as well as for other supranational non-State actors, such as the European Union, is that, as has been demonstrated, a high degree of human mobility increases the number of unaccompanied children among migrants. The NY Declaration sets out a number of commitments towards migrant and unaccompanied children. One of these is the ‘equality’ clause at paras 5 and 6, which affirms the equality between migrants and refugees in terms of entitlement to international human rights protection. It includes this among the priorities of the international community, recalling established principles like the ‘best interests of the child’ and the special status of children as ‘vulnerable’ (paras 58 – 59 NY Declaration). In relation to the procedure granting international protection to third country nationals and migrants, the declaration affirms States’ commitment to ensuring “access for children to child-appropriate procedures” (para 70, NY Declaration).

The European Union, which is currently facing huge inflows of migrants through the European-African route, has shared the same concern for guaranteeing the adequate protection of third country national minors, especially unaccompanied children, in accordance with the principle of the best interests of the child. The ‘EU Guidelines for the Promotion and Protection of the Rights of the Child (2017) – Leave no child behind’, issued on the 7th of March 2017, recalled, established and pointed out some examples of good practice. The tool is general in nature and is, therefore, applicable to all the sensitive situations which could require the safeguarding of the rights of children: the management of migration certainly falls within its scope.

On this specific point, on the 12th of April 2017, the European Commission, recalling the NY Declaration itself, addressed the ‘Communication on The protection of children in migration’ (COM(2017) 211 final) to the EU Parliament and the Council, highlighting the best practices applicable to migrant and unaccompanied minors. In this document the Commission highlights several improvements requested of EU Member States with the aim of complying with EU standards relating to the identification procedure, the (adequate) standard of reception and the effective access to status determination procedures. All of these matters should be addressed by the EU Member States, in the Commission’s view, in accordance with the Council proposal for a Common European Asylum system (COM(2016) 467 final), the Council of Europe Guidelines on child-friendly justice and the EASO (European Asylum Support Office) recommendation and practices on age assessment procedure in Europe.

  1. The Italian legislation on foreign and unaccompanied minors.

At the same time that the European Commission issued its communication, Italy began its own reform process of the legislation on unaccompanied children, with the aim of complying with the new obligations established. It also issued its response to alleged violations which gave rise to Infringement proceedings opened against Italy in 2014 by the European Commission about the matter at stake. The allegations, made in a letter issued on the 11th of July 2014, listed several violations of Directive 2003/95/EU and Directive 2003/9/EU committed by Italy. In particular, it was stated that the Italian asylum system failed to grant both an expeditious and adequate procedure for the minors seeking international protection, and a high standard of conditions for their reception in the territory.

Lg n. 47/2017 aimed to integrate the already existent discipline of reception, international protection and the asylum procedure, as well as introducing regulations on unaccompanied children, regardless of their status as refugees, asylum seekers or any other status.

The law focuses on some key points, grounded on the principle of the best interests of the child, namely: the definition of the unaccompanied minor as a vulnerable subject; the principle of non-refoulement and the special return policy; the creation of a national database aimed at collecting and sharing data on unaccompanied and foreign minors at both the national and European level; and the introduction and the reaffirmation of some significant procedural guarantees in the identification and determination of the age of minors. Regarding the latter point, the law introduced a significant modification to dlgs 142/2015, by adding a new art. 19-bis. The provision establishes some mandatory steps to be followed in the reception of a foreign minor, regardless of the status of the child. These include: the medical procedures needed to determine the age of the child (which should be as non invasive as possible); an informative interview, conducted by qualified personnel; the judicial appointment of a legal guardian; an investigation on the family situation and conditions of family life; and the duty to fully inform the minor about his/her own right to apply for any form of international protection. Also particularly significant are the provisions of Art. 15 (the right of the minor to be heard in any judicial proceedings on their own interests) and Art. 16 (the right to legal representation in any proceedings and the assistance of a lawyer of their own choice).

These two specific guarantees comply with the universal principle of the effective participation of minors in proceedings involving their own interests, which, in the case of unaccompanied minors and asylum-seekers, needs to be protected even further, due to the special vulnerability of the applicants involved.

Dlgs 220/2017 builds upon Lg. n. 47: in particular, Art. 2 significantly modifies the procedure to appoint a guardian. In line with the request by the EU to grant an adequate and expeditious procedure in a specialized and streamlined system, the competence for this is assigned to the Youth Court, instead of the Civil Litigation Section of the Ordinary Tribunal.

As regards the procedure to apply for international protection, dlgs. 220 significantly modifies the clause included in Art. 19 bis of the Law Decree n. 13/2017 (converted into Law n. 46/2017 – hereinafter the Decreto Minniti). The latter, which significantly reformed the regulation of reception and asylum/international protection procedures, provided for a ‘clause of non applicability’ of the regulation to unaccompanied minors. This aimed to exclude sensitive and vulnerable minors from the general regulation.

Notwithstanding the several recent reforms, the Italian immigration system does not yet provide for a special regulation and procedure for unaccompanied minors seeking international protection. Furthermore, in excluding unaccompanied minors from its scope, the Decreto Minniti de facto created a normative vacuum. The dlgs 220/2017 solves the issues by referring, even in the case of unaccompanied minors, to the applicability of Decreto Minniti in the part relating to the international protection and asylum seeking procedure and to any other related administrative procedure.

The modification of the non applicability clause of the Decreto Minniti by the dlgs. 220 suggests a proposal de iure condendo. The total absence of a comprehensive code of procedural and substantial provisions specifically for the protection of the foreign and unaccompanied minors seeking international protection would suggest to intervene to fill the gap.

Italian legislation currently in force encompasses a significant number of different regulations: the comprehensive code of immigration law (Decreto legislativo, testo coordinato, 25/07/1998 n° 286, G.U. 18/08/1998), as integrated and amended; dlgs 145/2015, implementing directives 2013/33/EU and 2013/32/EU; the most recent so-called Decreto Minniti, converted into Law n. 46/2017; Law n. 47/2017 on unaccompanied children; and, lastly, dlgs n. 220/2017. The last three tools supposedly amended the Code of immigration law. This situation creates an uncomfortable patchwork of regulations.

  1. Final remarks

The current legislative framework is so fragmented and convoluted that it would appear to run counter to the fundamental principles as well as objectives set out by supranational bodies and with which the Italian system is trying to comply.

From a strictly legislative point of view, the recent reforms in Italian legislation deserve to be acknowledged as being formally consistent with European Union regulations and guidelines, as well as with the international principle of the best interests of the child.

However, the fragmentation in the relevant legislative tools creates a confused framework that makes it difficult to really cater for the most vulnerable category of migrants (children), who deserve to be prioritized. In this sense, the adoption of a comprehensive code of regulation in the field could probably help Italian interpreters and front line operators to intervene as best as they can to ensure the highest standard of substantial and procedural guarantees for accompanied and unaccompanied minors seeking international protection.Berlin

 

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

1. Introduction

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

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

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

2. Issues of legitimacy, hidden motives and reasoning

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

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

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

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

3.1. Strict vs. flexible interpretation of the duty

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

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

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

3.2. The legal qualification of the facts

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

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

3.3. Does a partial pardon entail impunity?

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

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

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

4. Conclusion

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

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

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

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

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

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

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

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

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

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

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

[9] Ibidem.

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

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

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

 

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