Monthly Archives: January 2015

Hibernating the Darfur Situation: the Security Council’s influence over the International Criminal Court

In her Report to the Security Council of 12 December 2014, the International Criminal Court Prosecutor Fatou Bensouda announced the decision to put investigations into the Darfur situation on hold[1]. The Prosecutor reiterated the impossibility of obtaining any meaningful result in the situation without a change of attitude from the Security Council, whose inaction was repeatedly criticised also in her previous reports. Bensouda blamed the Council for not supporting the Court in different issues: the development of a coordinated strategy, the achievement of cooperation from Sudan, and the enforcement of the arrest warrant by other State Parties.

The Prosecutor’s decision calls for a general reflection on the influence of the Security Council over the actions of the Court. Such an influence is partially foreseen by the Rome Statute, which regulates the relationship between the two bodies. Most of the influence however arises from the Council’s policies and goes beyond any legal provision. This suggests that during politically inconvenient situations the Council could jeopardize the Court’s actions through extralegal policies, without consulting the relevant statutory provisions.

The Darfur situation

As Fatou Bensouda remarked, in almost 10 years of action in Darfur none of the individuals subject to an arrest warrant have been brought to justice. Most notably, Omar al-Bashir, charged with crimes against humanity, war crimes and genocide, is the sitting President of Sudan; in power since 1989, Bashir will run for re-election next April. State Parties to the Rome Statute have an obligation to enforce the arrest warrant despite other international obligations providing the respect for chief of state immunities. Albeit with growing difficulties, Bashir carries out official missions in State Parties to the Rome Statute (Chad, Malawi, Kenya, Democratic Republic of Congo) without fear of arrest. As a result, every decision in the case since 2010 has only been concerned with the lack of cooperation from Sudan and other State Parties in enforcing the arrest warrant[2] .

Meanwhile, humanitarian conditions in Darfur are deteriorating. Sudan has denied access to a village, Tabit, where a mass rape of 200 women was allegedly perpetrated. The UNAMID (United Nations–African Union Mission in Darfur), one of the main sources for the Prosecutor’s investigations, was authorized to visit the village only days after the allegations at a time when the victims were still in control of the alleged perpetrators. Furthermore, UNAMID is accused of under-reporting crimes that involved pro-government forces, fearing reprisals from the Government[3].

The power of the Security Council to influence the Court in the Rome Statute

The relationship between the Council and the Court begins with the mechanism that triggers the ICC jurisdiction, detailed in Art. 13(b) of the Rome Statute. Indeed, the Security Council, acting under Chapter VII of the UN Charter can refer a situation in which one or more such crimes appears to have been committed to the Prosecutor, also extending the Court’s jurisdiction over States that have not ratified the Rome Statute. Accordingly, the Council referred the situation of Darfur to the ICC through Resolution 1593/2005 giving the Court jurisdiction over Sudan, a non-State Party to the Rome Statute.

The second statutory link between the Council and the Court is provided by Art. 16 of the Rome Statute. Still acting under Chapter VII of the UN Charter (in circumstances where the actions of the ICC lead to threats to peace, breaches of peace, or acts of aggression), the UN Security Council has the power to block the proceedings for a period of 12 months, which can be renewed by another resolution. Attempts to exercise this avenue were made in the Darfur situation, claiming to be acting in response to the destabilisation and worsening humanitarian conditions in Sudan following the issuance of the arrest warrant against Bashir. The proposal to defer the proceedings against Bashir was suggested by several States, including Permanent members Russian Federation and especially China. However, in that opportunity, the U.S. opposed the deferral of the Darfur cases.[4] Nevertheless, the Darfur investigations were ultimately suspended by the Prosecutor: without referring to the statutory provision, the Council denied the Court the necessary support to carry out its activity: the power to undertake investigations in the territory; to enforce its arrest warrants; and to cover its funding.

Extra legal influence of the Council over the Court: the lack of enforcement power

It is commonly affirmed that the ICC lacks a “police force” to implement its decisions. Even more so, in the case of referral relating to situation in a non-State Party like Sudan, the support of the Security Council is crucial to obtain cooperation for investigations within the territory. As confirmed by the events in Tabit, it is extremely difficult to collect evidence of crimes in Darfur villages controlled by the allegedly responsible Governmental forces.

Furthermore, the ICC has not been able to enforce the arrest warrants issued in the Darfur situation. In her statements to the Security Council, Fatou Bensouda regularly highlights non-cooperation from State Parties in arresting al-Bashir during his official visits in their territory. It was observed[5] that, in the last few years, Pre-Trial Chamber decisions involving non-cooperation did not include a specific request for action by the Security Council. However, replying to the Prosecutor’s report, UK representative Ms. Mulvein beseeched the Council to timely and effectively follow-up to reports of non-cooperation with the Court and to assist the Court in fulfilling the mandate established 10 years earlier.

Funding situations referred by the Security Council

In her December Report, The ICC Prosecutor mentioned that the cessation of investigations in Darfur was also due to the fact that the already limited resources for investigations were overstretched. This raises the issue of the Security Council’s funding for the Court.

In principle, as an independent international organization, the ICC is primarily financed through the contributions of the Assembly of States party to the Rome Statute. However, the Statute singles out the particular case of financing in a situation referred to the Court by the Council. Among other sources of funding, Art. 115 of the Rome Statute includes those “provided by the United Nations, subject to the approval of the General Assembly, and in particular in relation to the expenses incurred due to referral by the Security Council”. Article 13 of the Negotiated Relationship Agreement between the International Criminal Court and the United Nations states that: “The United Nations and the Court agree that the conditions under which any funds may be provided to the Court by a decision of the General Assembly of the United Nations pursuant to article 115 of the Statute shall be subject to separate arrangements”. Conversely, the Council covers the topic of funding the Court’s Darfur referral in Resolution 1593/2005, which recognizes that “none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily”.

The Rome Statute does not provide compulsory or automatic funding from the Security Council in case of referrals pursuant to Art. 13(b) of the Statute. Therefore, even if the mandate of the Statute seems to recommend a different attitude, no statutory norm is formally violated. In practice,  the Assembly of States is currently responsible for the entire budget of the Court, which has also increased because of the increasing number of situations, including those referred by the Security Council: Darfur and Libya.[6] As explained by the Prosecutor[7], the limited funding from the Council to the Court de facto jeopardizes the actions of the ICC. This constitutes a form of indirect control over the actions of the Court that goes beyond any provision of the Rome Statute, and it is possibly more effective in limiting investigations and prosecutions than the use of Art. 16 of the Rome Statute.

Conclusions

The limited funding sources available for the Court’s work together with the lack of enforcement power even towards State Parties undermine the independence of the Court. In case of future politically inconvenient investigations, not necessarily triggered by Art. 13(b), the Security Council appears to have several ways to hinder the regular development of ICC actions.

[1]                      Reports of the Secretary-General on Sudan and South Sudan, S/PV.7337,  12/12/2014

[2]                      McDermott, the ICC Prosecutor ‘shelves’ the Darfur situation: What is the Security Council supposed to do? http://humanrightsdoctorate.blogspot.it/2014/12/some-thoughts-on-shelving-of-darfur.html

[3]                      Lynch, U.N. Whistleblower Decries ‘Cover-Up of a Cover-Up’ Over Darfur Debacle, http://foreignpolicy.com/2014/10/29/u-n-whistleblower-decries-cover-up-of-a-cover-up-over-darfur-debacle

[4]                      Scheffer, The Security Council’s Struggle over Darfur and International Justice, http://jurist.law.pitt.edu/forum/2008/08/security-councils-struggle-over-darfur.php

[5]                      McDermott,  n.2

[6]                      Hamilton, When Should the ICC Call It Quits? , http://opiniojuris.org/2015/01/10/guest-post-icc-call-quits/

[7]              “Faced with an environment where my Office’s limited resources for investigations are already overstretched, and given this Council’s lack of foresight on what should happen in Darfur, I am left with no choice but to hibernate investigative activities in Darfur as I shift resources to other urgent cases, especially those in which trial is approaching.” Bensouda, n. 1

bensouda

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2015 ESIL Oslo Conference: Call for papers, agora proposals and posters – Deadline 31 January 2015

The 11th Annual Conference of the European Society of International Law will take place in Oslo, Norway, from 10 to 12 September 2015.  The conference will be hosted by the PluriCourts Center on the Legitimate Roles on the Judiciary in the Global Order, University of Oslo.

Entitled “The Judicialization of International Law – A Mixed Blessing ?”, the conference will address the international law aspects of the increased judicialization from an interdisciplinary perspective.

The conference will feature plenary sessions with invited speakers, and a number of agorae with speakers selected on the basis of a call for papers and agora proposals. The event will also offer poster sessions for early career scholars following a call for posters.  The deadline for the submission of abstracts and proposals is 31 January 2015.

For more information, please visit www.uio.no/esil2015

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Modern Slavery Bill: Cleaning up the mess of the UK government’s restrictive immigration regime for migrant domestic workers

A draft Modern Slavery Bill is currently going through the UK Houses of Parliament. One of the proposed provisions to be added to the Bill relates to the immigration regime for migrant domestic workers entering the UK with their foreign employers. This proposal is a result of the continual opposition raised by NGOs and academics to the current visa regime on the grounds that it excessively restricts domestic workers and exposes them to exploitation. This post examines the effects of this immigration regime, as well as the impact that a clause contained in the Bill would have on the situation of migrant domestic workers.

In April 2012, the UK passed a new immigration regime for domestic workers. Under the current visa, domestic workers, excluding those who had already been granted a visa prior to the 2012 immigration changes, can only enter the UK if accompanied by their overseas employer or the employer’s family. Workers are required to leave the UK when their employer leaves, and at most six months after their arrival. In contrast to the previous immigration regime introduced in 1998, the new rules prevent domestic workers from changing employers while in the UK.[1]

Despite the opposition raised against the new immigration regime, the government maintains that this change is necessary to ‘(…) ensure that Britain continues to attract the brightest and the best workers who will make a strong contribution to…[the] economy and society’.[2] Ironically, one of the stated intended effects of this visa has been the protection of workers from exploitation.[3] Nevertheless, both logic and an examination of reports on the situation of domestic workers contradict such an assertion and indicate that the current visa promotes an environment of exploitation. As domestic workers are not allowed to change employers, any attempt to leave and change employers will result in the worker becoming undocumented and exposed to the risk of detention and deportation. Hence, this regime ‘ties’ workers to a named employer.

While such a provision may prove inconsequential for domestic workers who enjoy good employment relationships where their rights are upheld and in which they are able to uphold their bargaining power, this proves problematic when one considers situations of exploitative employers. In such cases, this provision exacerbates the already vulnerable position in which migrant domestic workers find themselves, due to factors such as their hidden working environment and the atypical, often paternalistic, relationship created between them and their employers. This visa regime enables fears of arrest and deportation to emerge and hinders the workers’ ability to flee and report an abusive situation. Accordingly, if workers are exposed to labour and other violations, including conditions amounting to forced labour, servitude or slavery, they often stay and endure the abuse, in order to retain their legal status. If workers do choose to leave, then the risks of exploitation are heightened, as employers often exploit their undocumented, and thus precarious, status as an excuse for not respecting any of their labour rights.

Importantly, the provision of ‘tying’ the worker to a named employer can potentially give the latter a false sense of ownership over the domestic worker. Conscious of the powerful imbalance, employers often create unfavourable working conditions, including derisory wages, no days off, no freedom to leave the premises, and excessive working hours.[4] Therefore, such a provision can not only trap workers into a continuum of exploitation in the case of already exploitative employment relationships, but it may also facilitate employers’ failings to uphold the workers’ labour protections due to the latter’s lack of bargaining power.

The risks affiliated with this visa regime have been confirmed in Kalayaan’s 2014 report.[5] The report found that there were twice as many cases of physical abuse under the current visa, in comparison to those under the 1998 visa that allowed domestic workers to change employers (16% and 8%). Furthermore, while 43% of the workers under the old visa reported never being allowed to leave the house unaccompanied, under the current visa, that number was 71%. As to working hours, 53% of the workers under the current visa reported working more than 16 hours a day compared to 32% of those previously, and 60% of those on the tied visa reported being paid less than £50 a week, while previously the number was 36%.[6]

The effects of this visa are in clear contradiction with the principles and objectives enshrined in the ILO Convention on Decent Work for Domestic Workers.[7] This ground-breaking instrument attempts to eliminate the differential treatment evidenced in a great number of countries towards domestic workers, where this form of employment is placed in the informal economy and not protected by national labour laws. It thus extends provisions such as health and safety,[8] working hours[9] and payments[10] to domestic workers. Importantly, it obliges States to take measures to eliminate all forms of forced and compulsory labour[11] and to ensure that domestic workers have effective access to courts and tribunals.[12] Despite the importance of this instrument, the UK chose to abstain from voting in June 2011. This failing was exacerbated when the government introduced the current immigration regime for domestic workers. Not only has the UK refused to adopt an international instrument that would ensure and enhance the protections available to domestic workers but, through the new visa regime, made it almost impossible, due to the imbalance of power created, for the rights enshrined in the ILO Convention to be respected.

This restricted immigration regime can lead to situations more hazardous than labour law violations, amounting to forced labour, servitude or slavery. As the Joint Committee on the Draft Modern Slavery Bill has noted, these ‘(…) policy changes have unintentionally strengthened the hand of the slave master against the victim of slavery.’[13] These apprehensions, led to the proposal of adding a clause in the Modern Slavery Bill, addressing the immigration regime for domestic workers. The proposed clause aims at reinstating the right of domestic workers to change employers, as well as to renew their visa for a period of up to 12 months.[14] This clause partly reflects the immigration regime applicable to domestic workers prior to the 2012 changes,[15] described by the UN Human Rights Council as best practice.[16]

The fact that a proposal has been made for such a clause to be addressed under the Bill demonstrates the gravity of the situation. Nevertheless, at both the Committee and Report Stage of the HC, this clause was rejected. Frustratingly, at the Committee Stage, the vote for this clause resulted in a tie, and it was only the Chair’s casting vote that led to the clause’s withdrawal.[17] While the tie and submissions in favour of this clause gave hope of reconsideration at the House of Lords’ reading of the Bill, the clause was withdrawn at the Committee stage.[18] The Lords stated that this issue will be reconsidered at the Report Stage, thus it remains to be seen whether any positive steps will be taken to remove domestic workers from this vulnerable position.

Including such a clause in the Bill will undoubtedly have a positive impact both in principle and in practice. The mere acknowledgment that a restrictive immigration regime may generate conditions of exploitation amounting to, what is referred to in the Bill, as ‘modern slavery’ questions entrenched views that human trafficking, forced labour, servitude and slavery are practices relating only to undocumented individuals, and not economic migrants arriving under legal immigration routes. Importantly it will pass the message, posited by the Immigration Law Practitioners’ Association that ‘[t]he way to protect people against exploitation is to give them more choices, not fewer.’[19] Specifically, a State must not add to the already vulnerable position domestic workers find themselves in, through restrictive visa regimes. On the contrary, States should equip workers with rights and the freedom to seek better working conditions and to be protected from forced labour, servitude and slavery.

On a practical level, such a clause will revert the situation of migrant domestic workers to that prior to the 2012 immigration changes, allowing them once again to change employers while in the UK. The importance of this element cannot be overstated. Removing the dependency of workers for their legal status on employers could give them their voice back to speak up when their labour rights are being violated, as well as the courage to leave when being exploited. While it is accepted that this change will not eliminate all instances of exploitation, such a clause will at a minimum eliminate the institutionalisation of the abuse and exploitation occurring currently.[20]

While the inclusion of such a clause is vital, one must remember that these immigration rules need not be changed through the protracted process of the passage of a Bill. The government can reinstate the old regime almost automatically by laying the proposed changes before Parliament.[21] In fact, working concurrently on reversing the immigration regime independently to the Modern Slavery Bill is essential in order to demonstrate that abuse and exploitation that may not reach the level of forced labour, servitude or slavery, will not be tolerated.

It remains to be seen what will happen in the remaining stages of the passage of the Modern Slavery Bill. One can however hope that even if the clause on migrant domestic workers is rejected by both Houses, the calls to reinstate the old immigration regime will persuade the government, that the time has now come to amend a regime that facilitates and enhances exploitation, allowing the UK once again to declare itself a proponent of human rights.

[1] M. Gower, ‘Immigration: migrant domestic workers’, House of Commons Library, Home Affairs Section, SN/HA/4786, 20 March 2012, p.7

[2] Home Office, ‘Impact Assessment Changes to Tier 5 of the Points Based System and Overseas Domestic Worker routes of entry’, IAHO0053, 15 March 2012, pp. 29-30, p.7 retrieved 29/12/14 <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/117958/impact-assessment.pdf

[3] Ibid.

[4] Human Rights Watch, As If I Am Not Human: Abuses Against Asian Domestic Workers in Saudi Arabia (U.S.A. 2008) pp. 64-65

[5] Kalayaan is a UK-based NGO working to provide practical advice and support to migrant domestic workers in the UK.

[6] Kalayaan, ‘Still enslaved: The migrant domestic workers who are trapped by the immigration rules’ April 2014, retrieved 5/1/15 <http://www.kalayaan.org.uk/wp-content/uploads/2014/09/tied-visa-20141.pdf&gt;

[7] ILO C189- Domestic Workers Convention, 2011 (N. 189), Convention concerning decent work for domestic workers, 100th ILC Session, Geneva, 16 Jun 2011, (Entry into force: 05 Sep 2013)

[8] Ibid. Article 13

[9] Ibid. Article 10

[10] Ibid. Article 11, 12

[11] Ibid. Article 3

[12] Ibid. Article 16

[13] Draft Modern Slavery Bill Joint Committee, Draft Modern Slavery Bill, 2013-2014, HL 166, HC 1019, para 5

[14] Modern Slavery Bill Deb 14 October 2014, col. 498

[15] Immigration Rules, Part 5, HC 395 of 1993-4 as amended by CM 5597 of 22 August 2002

[16] UN Human Rights Council, Report of the Special Rapporteur on the human rights of migrants, Addendum: Mission to the United Kingdom of Great Britain and Northern Ireland, 16 March 2010, para 60, U.N Doc A/HRC/14/30/Add. 3

[17] Modern Slavery Bill Deb 14 October 2014, col.503; HC Deb 4 November 2014, Vol. 587 col. 780

[18] Modern Slavery Bill HL Deb 10 December 2014, col. 1872

[19] Immigration Law Practitioners’ Association, ‘Briefing for Modern Slavery Bill, House of Lords’ Committee Stage, for Amendment 94 on overseas domestic workers’, 7 December 2014

[20] Report of the Joint Committee on the Draft Modern Slavery Bill, Session 2013-2014, HL Paper 166, HC 1019, para 225

[21] See for example: Written Statement to Parliament, ‘Immigration (employment-related settlement, overseas domestic workers, Tier 5 of the points-based system and visitors)’ 29 February 2012, retrieved 23/11/14 <https://www.gov.uk/government/speeches/immigration-employment-related-settlement-overseas-domestic-workers-tier-5-of-the-points-based-system-and-visitors-wms>

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Shall the definition of aggression contained in the 2010 Kampala amendment to the International Criminal Court (ICC) Statute have an impact on the application of the Directive on minimum standards for the qualification and status of third-country nationals and stateless persons as refugees or as persons who otherwise need international protection (EU Directive 2004/83/EC)? Some preliminary remarks on the case Andre Lawrence Shepherd v Bundesrepublik Deutschland

On 11 November 2014 Eleanor V. E. Sharpston, Advocate General of the Court of Justice of the European Union, delivered her Opinion in the case Andre Lawrence Shepherd v Bundesrepublik Deutschland. This case follows a request for a preliminary ruling from the Bayerisches Verwaltungsgericht München and concerns a US national who sought asylum in Germany. Mr Shepherd was trained as a maintenance mechanic for Apache helicopters and transferred to Germany in 2003; then, in September 2004, he was deployed in Iraq for one year. Subsequently, when his unit was recalled in Iraq, he refused to perform his military services as he deemed that the conflict was illegal. Thus, he applied for asylum in Germany as he claimed he risked persecution in the US. Indeed, because he did not reject the use of war and force tout court, he did not make any request for not being deployed on grounds of conscientious objection; therefore, he was liable to punishment in the US for refusal to perform his military services. In his asylum application, Mr Shepherd relied on the 2004 Qualification Directive (EU Directive 2004/83/EC). In particular, article 9, paragraph 2 (e),considers an act of persecution the prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in article 12 (2) of the same directive. Article 12, paragraph 2 (a), which reproduces article 1 (F) (a) of the 1951 Geneva Convention relating to the Status of Refugees, provides that

[a] third country national or a stateless person is excluded from being a refugee where there are serious reasons for considering that: (a) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes (…).

This case shows how EU law and refugee law are intertwined with other branches of international law, such as international criminal law. In particular, while according to the Advocate General Mr Shepherd might be granted asylum on the basis of article 9, paragraph 2 (e), of the Qualification Directive, with reference to the possible commission of war crimes, some aspects of the notion of crimes against peace might be of relevance in the ECJ’s decision. With respect to crimes against peace, the only precedent the drafters of the Geneva Convention had in mind was article VI of the Charter of the International Military Tribunal. Nevertheless, the formula chosen for article 1 (F) (a), namely the reference to the international instruments drawn up to make provision in respect of such a crime, permits both the Refugee Convention and the qualification Directive that follows it to keep being updated with regard to any further developments of international law. In particular, the wording of article 1 (F) seems to include also those treaties which are not yet in force, such as the 2010 Kampala amendment to the ICC Statute. When defining the crime of aggression, this latter makes an explicit reference to the UN Charter.[1] Thus, the way the UN Charter, especially its provisions which regulate states’ use of force, has been implemented cannot be overlooked. Coming now to article 9, paragraph 2 (e) of the Directive, the Office of the United Nations High Commissioner for Refugees (UNHCR) has affirmed that

UNHCR welcomes the recognition that prosecution or punishment for refusing to perform military service can constitute persecution. UNHCR understands that the provision will also apply where the refusal to serve relates to a conflict that in and of itself is contrary to public international law, such as for example when it has been condemned by the Security Council.[2]

In this regard, the 2006 Canadian Federal Court decision in the Hizman case[3] has confirmed that refugee protection is available to individuals who breach domestic laws, if compliance with those laws would otherwise result in the violation of ‘accepted international norms’. However, it has also clarified that

 It is only those with the power to plan, prepare, initiate and wage a war of aggression who are culpable for crimes against peace; (…). The ordinary foot-soldier such as the applicant is not expected to make his own personal assessment as to the legality of a conflict in which he may be called upon to fight. Similarly, such an individual cannot be held criminally responsible merely for fighting in support of an illegal war, assuming that his own personal wartime conduct was otherwise proper.[4]

In Shepherd v Bundesrepublik Deutschland, the Advocate General has adopted the same line of reasoning. Indeed, she argued that ‘[s]uch a crime by its very nature can only be committed by personnel in a high position of authority representing a State or a State-like entity. Mr Shepherd was never in that position. It is therefore unlikely that he would have been at risk of committing such an act.’[5] Article 8bis, paragraph 1 approved in Kampala also provides that

[f]or the purpose of this Statute, ‘crime of aggression’ means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.[6]

In sum, the so-called leadership requirement of the crime of aggression is not particularly problematic. On the other hand, however, one cannot help noticing a significant discrepancy between the UNHCR Comments, the Qualification Directive as interpreted by the Advocate General, and the Kampala amendment, with respect to the UN Security Council (SC)’s role as to the legality of a conflict . While, according to the UNHCR, an explicit condemnation of a conflict by the Council would be a ground, although not the only one- of illegality of a war, Ms Sharpston stated as follows:

I am not sure that I understand precisely what is meant, as a matter of law, by the expression ‘sanctioned by the international community’. The UN Charter does not define what constitutes a legitimate war; nor am I aware of another international instrument that fills that lacuna (if lacuna it be). I cannot see that seeking to define the scope of Article 9(2)(e) of the Qualification Directive by reference to an undefined expression helps to take matters forward. Since the existence of a UNSC mandate is not a prerequisite to starting a war or defending against aggression, its presence or absence cannot be determinative of whether acts listed in Article 12(2) of the Qualification Directive occur.[7]

If it is true that a war fought on self-defence does not need any prior UNSC authorization, one should recall that article 39 of the UN Charter provides for the possibility for the Council to decide to use force whenever an act of aggression occurs. Thus, by making reference to the UN Charter in its threshold clause, article 8bis, paragraph 1, of the ICC Statute excludes any possible criminal responsibility every time the Council has adopted such a decision. At the same time, while any condemnation of the Council is supposed to be merely relevant for jurisdictional purposes, it might not impact on the substantive nature of the crime of aggression. In brief, in her Opinion the Advocate General has failed to consider that the Kampala amendment is the international instrument ‘drawn up to make provision in respect of such crimes’ par excellence. In this sense, the ECJ might depart from what has been argued by Ms Sharpston. This might be relevant in future cases involving military leaders of a State in the planning, preparation, initiation or execution of an act of aggression. In other words, since a prior UNSC authorization to use force makes a conflict legal under public international law, such a conflict would by no means constitute a manifest violation of the Charter of the United Nations. Thus, thanks to the Kampala amendment, a similar act could not be considered as an exclusion ground according to the Qualification Directive and, as a consequence, could not be relevant for the application of its article 9, paragraph 2 (e). Importantly, this might happen even before the Kampala amendment enters into force, no matter which state is going to ratify it, and regardless of the relevant state’s adherence to the ICC Statute.

[1] Resolution RC/Res.6, Annex I.

[2] UNHCR, Annotated Comments on the EC Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted (January 2005).

[3] Hinzman v. Canada (Minister of Citizenship and Immigration) (F.C.), 2006 FC 420, [2007] 1 F.C.R.).

[4] Hinzman v. Canada (Minister of Citizenship and Immigration) (F.C.), 2006 FC 420, [2007] 1 F.C.R. 561. See also D. Whetham, P. Robinson, A. Ellner, When Soldiers Say No: Selective Conscientious Objection in the Modern Military (Ashgate 2014).

[5] Opinion of Advocate General Sharpston, Andre Lawrence Shepherd v Bundesrepublik Deutschland, Case C‑472/13 [2014] E.C.R. __ (delivered on 11 November 2014) (not yet reported) § 42.

[6] Resolution RC/Res.6, Annex I.

[7] Opinion of Advocate General Sharpston, Andre Lawrence Shepherd v Bundesrepublik Deutschland, Case C‑472/13 [2014] E.C.R. __ (delivered on 11 November 2014) (not yet reported) § 70. ecj

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Amnesty Provisions in the Constitutions of the World: A Comparative Analysis

Introduction

At a time when it is increasingly asserted that the grant of amnesty for international crimes is prohibited by international law, it has been found interesting to explore what states’ constitutions say about amnesty.[1] The present contribution examines whether and in what manner states’ constitutions address the issue of amnesty. In particular, it assesses whether the claim that there is a crystallising norm of customary international law prohibiting the grant of amnesty for international crimes is supported by positive constitutional law.[2] This research has been made possible thanks to the World’s Constitutions database created by the Comparative Constitutions Project and available online.[3]

Terminology

For the purpose of this research, amnesty and pardon have been treated as equivalent notions since both mechanisms generally pursue the same objective, i.e. providing immunity from the penal consequences of a crime. The main difference between them is that whereas amnesty as a rule exonerates categories of offenders before conviction, pardon is usually granted on an individual basis after conviction.[4] A further reason for assimilating the two mechanisms is that national legal systems often use different terminology when it comes to referring to amnesty and pardon. In the first place, amnesty is sometimes designated by the term general pardon, as opposed to special or individual pardon. For example, the Hungarian constitution provides that while the National Assembly is competent to grant general pardons, the president has the right to issue individual pardons.[5] Conversely, the Japanese constitution refers to general amnesty and special amnesty, the latter term designating the mechanism that other legal systems characterise as pardon.[6]

On a broader level, as common law systems generally do not use the term amnesty, references to the power of pardon (or the mercy prerogative) within the constitutions of those countries usually include general or collective pardons – corresponding to the notion of amnesty as understood in Roman-law systems – as well as individual pardons.[7] For instance, the United States constitution’s provision empowering the president to grant ‘reprieves and pardons’ has been used on several occasions as the legal basis for declarations of amnesty.[8]

Constitutional references to amnesty

Of the 193 UN member states’ constitutions, 186 refer to amnesty and/or pardon, with 105 of them referring to both. The constitutions which refer to both amnesty and pardon include, for example, those of Argentina, Brazil, Egypt, France, Indonesia, Italy, Mauritania, Mongolia, the Netherlands, Peru, the Russian Federation, Switzerland, Tunisia, Turkey and Ukraine.

There are 77 constitutions which refer only to pardon. Noticeably, they include the constitutions of all the Commonwealth member states (53), with the exception of Australia and Canada, whose constitutions do not mention clemency at all, and Cameroon, Mozambique and South Africa, whose constitutions also refer to amnesty. Among the constitutions referring only to pardon, one can also find, for example, those of Afghanistan, Belgium, China, Germany, Iran, Nepal, Norway, Sudan, Thailand and the United Arab Emirates.

There are four constitutions which refer exclusively to amnesty, namely those of Cambodia, Guatemala, Laos and Montenegro.

Only seven constitutions do not mention either amnesty or pardon, i.e. those of Andorra, Australia, Bosnia and Herzegovina, Canada, the Syrian Arab Republic, Saudi Arabia and Yemen. Yet, according to the Amnesty Law Database developed by Dr Mallinder, amnesties have been passed in all of these countries except Andorra.[9]

REFERENCES TO AMNESTY AND/OR PARDON NUMBER OF CONSTITUTIONS (total: 193 UN member states)
Reference to amnesty or pardon 186
Reference to amnesty and pardon 105
Reference to pardon only 77
Reference to amnesty only 4
No reference to either amnesty or pardon 7

What constitutions say about amnesty

While most constitutional references to amnesty are limited to vesting the right in one or two of the state’s organs, as examined in the following section, other categories of amnesty references have been identified which will be examined in turn below.

Competence to grant amnesty

Historically, the power to grant pardons and amnesties was the exclusive prerogative of the Sovereign. In modern times, however, while the pardoning power usually remained in the hands of the head of state, the power to amnesty typically came to be vested in the legislature.[10] This postulate seems to be corroborated by the results of this research. Indeed, of the 105 constitutions referring to both amnesty and pardon, 79 entrust the right to amnesty with the legislative assembly and the pardoning power with the head of state. Of the remaining 26 constitutions, 13 vest both the amnesty and pardon prerogatives in the executive, namely those of Bhutan, Bolivia, the Czech Republic, Denmark, Eritrea, Iceland, Indonesia, Japan, Monaco, Myanmar, Slovakia, Spain and Turkmenistan. Conversely, the constitutions of Nicaragua, Switzerland and Uruguay confer both powers to the parliament. As to the remaining ten constitutions, while those of Colombia, the Republic of Korea, the Democratic People’s Republic of Korea, the Philippines and Serbia entrust pardon with the executive and amnesty with both the executive and legislative organs, those of Ethiopia, Georgia, Solomon Islands, Somalia and South Africa likewise confer the pardon prerogative to the executive but do not state which organ may grant amnesty, though they refer to the latter mechanism.

Of the four constitutions providing only for the amnesty prerogative, the Guatemalan instrument is alone in vesting the right exclusively in the parliament, those of Cambodia, Laos and Montenegro stating that both the legislative and executive organs are competent to grant amnesty. The picture is clearer as regards the 77 constitutions which only provide for the pardoning power as they all entrust it with the head of the executive.

LEGISLATIVE OR EXECUTIVE POWER NUMBER OF CONSTITUTIONS (total: 193 UN member states)
Reference to amnesty and pardon 105
Amnesty = legislative power / pardon = executive power 79
Amnesty and pardon = executive power 13
Amnesty and pardon = legislative power 3
Amnesty = legislative and executive power / pardon = executive power 5
Amnesty = no information / pardon = executive power 5
Reference to amnesty only 4
Amnesty = legislative power 1
Amnesty = legislative and executive power 3
Reference to pardon only 77
Pardon = executive power 77
No reference to either amnesty or pardon 7

Special majority requirement

Fourteen constitutions require that amnesty laws be approved by a special majority of the legislative assembly.[11] For example, the Greek constitution provides that amnesties may only be granted ‘by statute passed by the Plenum of the Parliament with a majority of three-fifths of the total number of members.’

Adoption or abrogation by plebiscite

Ten constitutions provide that issues related to amnesty, among other matters, may not be the subject of a referendum.[12] For instance, the Italian constitution prescribes that ‘[n]o referendum may be held on a law regulating taxes, the budget, amnesty or pardon, or a law ratifying an international treaty.’

Effects

As regards the effect of amnesty laws, two constitutions enshrine the principle that the legal effect of amnesties is irreversible, i.e. those of Angola and Peru.[13]

Constitutional ratification

Eight constitutions grant an amnesty in connection to a particular event or entrench a pre-existing amnesty law, namely those of Angola, Brazil, Burkina Faso, Colombia, Niger, Solomon Islands, Somalia and South Africa.[14] For example, the constitution of Niger provides that ‘[a]n amnesty is granted to the authors, co-authors and accomplices of the coup d’Etat of eighteen February 2010.’

Material scope of amnesty laws

Finally, twenty-one constitutions specify the crimes which may or may not be the subject of clemency measures. On the one hand, the constitutions of eight countries – Colombia, Costa Rica, the Dominican Republic, Greece, Guatemala, Haiti, Honduras and Panama – provide that amnesty may only be granted for political crimes or – as regards Guatemala and Honduras – related common crimes.[15] This seems consistent with the traditional acceptation of amnesty as primarily concerned with political offences.[16] However, the notion of political offences being rather loose, this constitutional specification is not of much help in the determination of the crimes which may benefit from the protection of amnesty.

On the other hand, the constitutions of thirteen countries precisely identify the crimes ineligible for clemency measures, i.e. those of Angola, Brazil, Chile, Ecuador, El Salvador, Ethiopia, Iraq, Niger, Spain, Tonga, Turkey, Costa Rica and Venezuela.[17] For example, while the Turkish constitution prohibits the grant of amnesty or pardon in relation to offences against the forest, the constitutions of Chile, Iraq and Brazil prescribe that terrorist offences are outside the permissible scope of clemency measures. As regards international crimes – which include genocide, crimes against humanity, war crimes and torture – seven constitutions exclude all or some of them from the reach of amnesty laws, namely those of Angola, Brazil, Ecuador, Ethiopia, Iraq, Niger and Venezuela.[18]

CATEGORIES OF AMNESTY REFERENCE CONSTITUTIONS REFERRING TO AMNESTY (total: 109)
Competence to grant amnesties 104
Special majority requirement 14
Amnesty may not be subjected to referendum 10
Effects of amnesty 2
Entrenched amnesty 8
Amnesty only for political crimes 9
Crimes ineligible for amnesty

=> international crimes ineligible

13

7

Relevance of some of these results for the international law debate on amnesty [19]

As stated by the European Court of Human Rights, ‘[g]ranting amnesty in respect of “international crimes” (…) is increasingly considered to be prohibited by international law.’[20] For instance, the Appeals Chamber of the Special Court for Sierra Leone declared in the Lomé Amnesty Accord case that a norm prohibiting the grant of amnesty to perpetrators of serious violations of international law is crystallising under international law.[21] Along the same line, a policy paper issued by the UN High Commissioner for Human Rights challenged the compatibility of amnesties covering serious violations of human rights and humanitarian law with customary law.[22]

Yet, it appears that the constitutions of a large majority of states enshrine the right to grant amnesties and do not restrict this right in respect of international crimes. This finding casts doubt upon the existence of a consensus among the subjects of international law as to the necessity to prohibit amnesties for international crimes at the domestic or international level. What is clear is that the results of this research cannot be used in support of the view that a norm prohibiting amnesties for international crimes has emerged or is emerging under customary international law.

[1] See Marguš v Croatia App no 4455/10 (ECtHR, Grand Chamber, 27 May 2014), para 130-138.

[2] Prosecutor v Morris Kallon and Brima Bazzi Kamara, Case No SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72(E), Appeals Chamber, Decision on Challenge to Jurisdiction: Lomé Accord Amnesty (13 March 2004), para 82.

[3] www.constituteproject.org.

[4] See Anja Seibert-Fohr, ‘Amnesties’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (OUP 2012).

[5] Constitution of Hungary 2011 (rev. 2013), art. 1(2)(j) and 9(3)(g).

[6] Constitution of Japan 1946, art. 7.

[7] See the US Supreme Court’s pronouncement in Knote v United States, 95 US 152- 153 (1877), quoted in W W Thornton, ‘Pardon and Amnesty’ (1885) 6(4) Criminal Law Magazine 457, 458-459; Leslie Sebba, ‘The Pardoning Power: A World’s Survey’ 68(1) The Journal of Criminal Law and Criminology 83, 118.

[8] Constitution of the United States of America 1789 (rev. 1992), art. 2(2); L.C.K. ‘The Power of the President to Grant a General Pardon or Amnesty for Offences against the United States’ (1869) 17(10) The American Law Register 577, 582-584; Jonathan Truman Dorris, Pardon and Amnesty under Lincoln and Johnson, The Restoration of the Confederates to their Rights and Privileges, 1861-1898 (University of North Carolina Press 1953).

[9] Available at http://incore.incore.ulst.ac.uk/Amnesty.

[10] Leslie Sebba, ‘The Pardoning Power: A World’s Survey’ 68(1) The Journal of Criminal Law and Criminology 83, 118.

[11] Constitutions of Albania 1998 (rev. 2008), art. 81(2)(h); Chile 1980 (rev. 2014), art. 63; Colombia 1991 (rev. 2013), art. 150(17); Costa Rica 1949 (rev. 2011), art. 121(21); Ecuador 2008 (rev. 2011), art. 120(13); Egypt 2014, art. 155; Greece 1975 (rev. 2008), art. 47(3); Italy 1947 (rev. 2012), art. 79; Moldova 1994 (rev. 2006), art. 72(3)(o); the Philippines 1987, art. 19; Romania 1991 (rev. 2003), art. 73(3)(i); Serbia 2006, art. 105; Turkey 1982 (rev. 2011), art. 87; Uruguay 1966 (reinst. 1985, rev. 2004), art. 85.

[12] Albania1998 (rev. 2008), art. 151(2); Azerbaijan1995 (rev. 2009), art. 1(III); Georgia1995 (rev. 2004), art. 74(2); Italy 1947 (rev. 2012), art. 75; Nicaragua 1987 (rev. 2005), art. 140(4); Romania 1991 (rev. 2003), art. 74(2); Serbia 2006, art. 108; Spain 1978 (rev. 2011), s 87(3); Ukraine 1996 (rev. 2014), art. 74; Venezuela1999 (rev. 2009), art. 74.

[13] Constitutions of Angola 2002, art. 62; Peru 1993 (rev. 2009), art. 139(13).

[14] Constitutions of Angola 2002, art. 244; Brazil 1988 (rev. 2014), art. 8; Burkina Faso 1991 (2012), art. 168(1); Colombia 1991 (rev. 2013), Transitional Article 30; Niger 2010, art. 185; Solomon Islands 1978 (rev. 2009), art. 91(4)(c); Somalia 1978 (rev. 2009), art. 111I(3); South Africa 1996 (rev. 2012), Sch. 6, art. 22.

[15] Constitutions of Colombia 1991 (rev. 2013), art. 150(17) and 201(2); Costa Rica 1949 (rev. 2011), art. 121(21); Dominican Republic 2010, art. 93(1)(p); Greece 1975 (rev. 2008), art. 47(3); Guatemala 1985 (rev. 1993), art. 171(g); Haiti 1987 (rev. 2012), art. 147; Honduras 1982 (rev. 2013), art. 205(16); and Panama 1972 (rev. 2004), art. 159(6).

[16] Bryan A Gardiner (ed), Black’s Law Dictionary (ninth ed, 2009); Oxford English Dictionary (seventh ed, OUP 2012); Sebba 118; Thornton 458.

[17] Constitutions of Angola 2002, art. 61; Brazil 1988 (rev. 2014), art. 5(XLIII); Chile 1980 (rev. 2014), art. 9; Costa Rica 1949 (rev. 2011), art. 121(21); Ecuador 2008 (rev. 2011), art. 80; El Salvador 1983 (rev. 2003), art. 244; Ethiopia 1994 , art. 28; Iraq 2005, art. 73; Niger 2010, art. 72; Spain 1978 (rev. 2011), art. 102; Tonga 1875 (rev. 1988), art. 37; Turkey 1982 (rev. 2011), art. 169; and Venezuela (Bolivarian Republic of) 1999 (rev. 2009), art. 29.

[18] Constitutions of Angola 2002, art. 61; Brazil 1988 (rev. 2014), art. 5(XLIII); Ecuador 2008 (rev. 2011), art. 80; Ethiopia 1994 , art. 28; Iraq 2005, art. 73; Niger 2010, art. 72; and Venezuela (Bolivarian Republic of) 1999 (rev. 2009), art. 29.

[19] For the international law debate on amnesty, see Louise Mallinder, Amnesty, Human Rights and Political Transitions, Bridging the Peace and Justice Divide (Hart Publishing 2008); Mark Freeman, Necessary Evils, Amnesties and the Search for Justice (CUP 2009); Francesca Lessa and Leigh A Payne, Amnesty in the Age of Human Rights Accountability, Comparative and International Perspectives (CUP 2012).

[20] Marguš v Croatia (2013) 56 EHRR 32, para 74.

[21] Special Court for Sierra Leone, Prosecutor v. Morris Kallon, case No. SCSL-2004-15-AR72(E), and Prosecutor v. Brima Bazzy Kamara, case No. SCSL-2004-16-AR72(E), Appeals Chamber, Decision on challenge to jurisdiction: Lomé Accord Amnesty (13 March 2004), para 82.

[22] Office of the United Nations High Commissioner for Human Rights, ‘Rule-of-Law Tools for Post-Conflict States, Amnesties’ (UN Publication 2009) 11.

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