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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

*Picture courtesy of usa.gov

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

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

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

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

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

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

Should you have any queries, please email them.

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

 

Introduction

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

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

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

The deterrent effect of international justice: the main issues

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

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

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

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

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

Deterrence in the practice of the International Criminal Court

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

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

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

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

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

Conclusions

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

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

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

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

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

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

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

[6] David Wippman n. 1

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

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

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

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

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

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

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

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

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

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

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

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

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

  1. Introduction

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

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

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

2. The relationship with external partners and the EU agenda

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

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

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

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

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

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

3. The Italy – Libya Memorandum

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

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

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

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

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

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

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

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

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

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

Introduction

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

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

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

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

Banking supervision within the EU

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

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

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

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

The ECB Draft guidance to banks on non-performing loans

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

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

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

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

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

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

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

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

Internal organization and timely intervention on NPLs

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

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

Conclusion

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

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

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

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

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

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

[4] ibid., p. 5

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

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

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

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

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

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

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

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

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

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

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

Selectivity – on the impossibility to reach impartiality through objective criteria

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

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

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

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

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

 Efficiency – Lowering Ambitions to Meet Expectations?

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

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

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

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

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

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

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

Conclusions

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

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

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

 

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

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

Introduction

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

Trump’s statements on torture

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

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

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

The United States’ obligations

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

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

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

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

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

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

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

Conclusions

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

Khalid Sheik Mohammed

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

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

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

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

1) The creation of a special jurisdiction

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

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

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

2) Amnesty, pardon and political crimes

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

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

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

3) Beneficial measures as an incentive

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

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

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

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

4) Alternative sanctions with a restorative content

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

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

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

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

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

5) Final remarks

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

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

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

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

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

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

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

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

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

[9] See the following Section of the post.

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

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

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

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

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

Introduction

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

Russia and the ICC

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

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

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

 

The US precedent

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

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

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

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

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

The object and purpose of the ICC Statute

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

[10]Ibid.

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

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

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

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

The Self-Proclaimed Autonomous Federation of Northern Syria – Rojava

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

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

The Social Contract of Rojava – Northern Syria Democratic Federal System

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

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

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

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

Cultural Origins of the Rojava Social Contract

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

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

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

Potential Broader Impact of the Political Experiment

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

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

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

Conclusions

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

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

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

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