Monthly Archives: February 2015

Effective reparation for breaches of fair trial (Article 6 ECHR): The Italian experience

Res iudicata and effective reparation

 The system of protection set for by the European Convention on Human Rights (ECHR) is based on subsidiarity.[1] Domestic authorities have the primary responsibility for guaranteeing the rights and freedoms enshrined in the Convention, while the European Court of Human Rights (ECtHR) is meant to exercise a ‘supplementary and subsidiary’ role. [2] Accordingly, when a breach of the Convention is found, it is primarily for the State concerned to choose how to repair for the violation.[3] However, subsidiarity cannot justify a diminished protection for the Convention rights and freedoms: therefore, the State must ‘put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before’.[4]

The duty thus imposed on State Parties can generates issues, particularly when the breach derives from a violation of fair trial (Article 6 ECHR). Indeed, appeals to the European Court of Human Rights are admissible only when all domestic remedies have been exhausted.[5] This usually means that the domestic proceedings are over, and the principle of res iudicata (a feature of legal certainty) prevents their reopening.[6] However, such a reopening might be the only way to grant reparation for a violation of fair trial.

The Committee of Ministers of the Council of Europe has called upon States Parties to introduce mechanisms for re-examining a case following the finding of a violation of the Convention by the Court.[7] Some of the States have introduced specific legislative provisions to this purpose: [8] Ukraine, for instance, has modified its Code of Civil Procedure so as to allow appeals of final decisions when ‘a finding by an international judicial authority’ determines that the decision ‘violated the international commitments of Ukraine’.[9] Other countries have not modified their legislation: Italy, for instance, has been stigmatized twice by the Committee of Ministers for not providing a legislative answer.[10]

It is this Author’s belief that the effectiveness of reparation should not be measured on the presence or absence of a legislative provision allowing to overcome res iudicata, but on the concrete will of domestic courts to grant a new and fair trial. Notwithstanding the presence of a legislative provision, Ukraine has recently been held responsible for a violation of the Convention, due to the fact that its Supreme Court has refused to conform to a judgment released by the ECtHR (Bochan v Ukraine).[11] On the other hand, in those States lacking a legislative solution (such as Italy) domestic courts have sometimes developed and applied effective remedies for reopening the domestic proceedings.[12]

 The Italian experience

The Italian Code of Civil Procedure allows a final judgment to be ‘revoked’ only in exceptional circumstances, not including the finding of a violation by the Strasbourg Court.[13] Article 630 of the Italian Code of Criminal Procedure (C.P.P.) allows the ‘review’ of final judgments only in four cases, not including a decision by the European Court of Human Rights.[14] With regard to criminal proceedings, however, the situation has now evolved.

Between 2005 and 2006, the criminal sections of the Italian Corte di Cassazione started to be confronted with final domestic judgments released in violation of the Convention rights, and particularly in violation of the right to fair trial.[15] In the absence of any action by the legislative body, the Corte di Cassazione tried to solve the problem by using other procedural remedies by analogy.[16] The solutions thus found, however, did not have general application.[17] The problem was then referred to the Italian Constitutional Court, in connection with the case of Dorigo v Italy.[18]

Mr Dorigo had been the victim of a violation of Article 6 ECHR, assessed by the European Commission of Human Rights.[19] He had asked to the Corte di Appello of Bologna to review his (final) conviction in accordance with the international decision. The Corte di Appello, lacking any remedies, raised two constitutionality claims before the Italian Constitutional Court, both focusing on Article 630 C.P.P.[20] The Constitutional Court agreed with the reasoning developed in the second claim, according to which the provision at issue violates the international obligations undertaken by Italy to which Article 117, par. 1, of the Constitution makes reference. Accordingly, the Court declared the partial unconstitutionality of Article 630 C.P.P.[21]

This decision, a typical case of ‘manipulative’ judgment, has voided Article 630 C.P.P. insofar as it does not include Strasbourg decisions assessing human right violations among the exceptional circumstances allowing the review of a final conviction.[22] While it is unclear how the remedy will work,[23] according to the Italian Constitution, the void of legislative provisions by the Constitutional Court has erga omnes effects.[24] Thus, Article 630 C.P.P. should now be read as including Strasbourg decisions assessing the violation of a Convention right among the exceptional cases for review.

 Conclusive remarks

In the absence of a legislative intervention, Italian courts have been looking for a way to grant the reopening of domestic proceedings when a decision of the ECtHR ascertains that a violation of fair trial has occurred. This is not an isolated case: in other State Parties to the Convention, domestic courts have created effective remedies of the same kind.[25] On the other hand, the presence of an express legislative provision allowing the reopening does not always imply an effective remedy, as demonstrated by the case of Bocham v Ukraine. A legislative provision is not, in itself, sufficient to repair for breaches of Article 6 ECHR, whereas the will of domestic courts to provide a new and fair trial is essential.

 

 

[1] Subsidiarity is not an express principle of the ECHR: however, it is commonly acknowledged as a principle informing the Convention. E.g.: LR Helfer, ‘Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime’ (2008) 19 EJIL 128, 129

[2] Y Arai-Takahashi, ‘The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR’ (2001) Intersentia, 236

[3] Assanidze v Georgia, ECHR 2004-II

[4] Scoppola v Italy (No 2) App n 10249/03 (ECtHR, 17 September 2009); Assanidze v Georgia, ECHR 2004-II

[5] Article 35 par 1 ECHR

[6] Res iudicata is a principle informing both common law and civil law jurisdictions. E.g.:  Y Sinai, ‘Reconsidering Res Judicata: A Comparative Perspective’ (2011) 21 Duke Journal of International and Comparative Law 352, 353 ff

[7] Recommendation No R (2000) 2 of the Committee of Ministers to member states on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights

[8] Cfr. the comparative survey of national legislation and practice in thirty-eight of the Member States of the Council of Europe cited in Bochan v. Ukraine (no. 2) [GC], no. 22251/08, 5 February 2015, par 46

[9] Ukrainian Code of Civil Procedure, Artt 353-354, as amended by Law 16.03.2006, N 3570-IV

[10] ResDH (2005) 82; CM/ResDH (2007) 83

[11] Bochan v Ukraine (no. 2) [GC], no 22251/08, 5 February 2015

[12] V Sciarabba, ‘La riapertura del giudicato a seguito di sentenze della Corte di Strasburgo: il ruolo della comparazione’ (2014) Europeanrights Newsletter – europeanrights.eu

[13] Italian Code of Civil Procedure, Artt 395, 396, 391 bis

[14] Italian Code of Criminal Procedure, Artt 629-647

[15] Cass, Sez I, 22 settembre 2005 n.35616, Cat Berro; Cass, Sez I, 12 luglio 2006 n 32678, Somogyi

[16] Eg: Cass sez I, 1 dicembre 2006, Dorigo (2007) Cass Pen 1447; Cass sez VI, 12 novembre 2008, Drassich (2009) Cass Pen 1457

[17] On the various attempts made by the Italian judiciary to give effects to the Strasbourg judgments, see: MG Aimonetto, ‘Condanna “europea” e soluzioni interne al sistema processuale penale: alcune riflessioni e spunti de iure condendo’ (2009) Riv It Dir Proc Pen 1510; E Aprile, ‘I “meccanismi di adeguamento alle sentenze della Corte Europea dei Diritti dell’Uomo nella giurisprudenza penale di legittimità’ (2011) Cass Pen 321 M Gialuz, ‘Il riesame del processo a seguito di condanna della Corte di Strasburgo’(2009) Riv It Dir Proc Pen 1845; D Negri, ‘Corte europea e iniquità del giudicato penale’ (2007) Dir Pen Proc 1229; A Tamietti, ‘Un ulteriore passo verso una piena esecuzione delle sentenze  della Corte europea dei diritti dell’uomo in tema di equo processo: il giudicato nazionale non è di ostacolo alla riapertura dei processi’ (2007) Cass Pen 1015

[18] Dorigo v Italy, App n 33286/96 (ECtHR, 20 May 1998)

[19] n 18

[20] Ord 22 March 2006 Ord 23 December 2008 of the Corte di appello of Bologna, cited in; C Cost, sent 129/2008; C Cost, sent 113/2011

[21] C Cost, sent n 113/2011 (2011) Giur Cost 1523. Commentaries to the decision: L Parlato, ‘Revisione del processo iniquo: la Corte Costituzionale “getta il cuore oltre l’ostacolo”’ (2011) Dir Pen Proc 833; G Ubertis, ‘La revisione successiva a condanne della Corte di Strasburgo’ (2011) Giur Cost 1542; G Repetto, ‘Corte Costituzionale e CEDU al tempo dei conflitti sistemic’ (2011) Giur Cost 1548; S Lonati, ‘La Corte Costituzionale individua lo strumento per adempiere all’obbligo di conformarsi alle condanne europee: l’inserimento delle sentenze della Corte Europea tra i casi di revisione’ (2011) Giur Cost 1557

[22] C Cost, sent n 113/2011 (2011) Giur Cost 1523

[23] S Quattrocolo, ‘La vicenda Drassich si ripropone come crocevia di questioni irrisolte’ (2013) Diritto Penale Contemporaneo: <www.penalecontemporaneo.it> accessed 12 December 2013

[24] Costituzione della Repubblica Italiana, Art 136

[25] Cfr V Sciarabba , ‘Il Giudicato e la CEDU. Profili di diritto costituzionale, internazionale e comparato’ (2013) CEDAM 88 ff

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The Framework of Analysis for Atrocity Crimes and the Harmonisation of the UN Actions to Protect Civilians

Over the last years, the protection of civilians from mass atrocities has become a priority for the United Nations. The doctrine of the Responsibility to Protect and the Human Rights up Front initiatives constitute the main outcome of the international community’s focus on civilian protection. However, the two measures have not yet achieved the expected results, and they seem to require a comprehensive harmonisation strategy to improve their effectiveness.

The most recent initiative, drafted by the Special Adviser on the Prevention of Genocide and the Special Adviser on the Responsibility to Protect, is the Framework of Analysis for Atrocity crimes (hereinafter, the Framework or the document) which defines sensitive concepts and proposes a structured action plan to prevent atrocity crimes. In so doing, the Framework may represent a first step towards coordinated UN action in the protection of civilians.

The Framework of Analysis for Atrocity Crimes

In 2005, the General Assembly endorsed the doctrine of the Responsibility to Protect as a reply to the international community’s inadequate response to the atrocities of the ‘90s, in particular, the genocides in Rwanda and Srebrenica. According to the doctrine, every State is responsible for the protection of its population from atrocity crimes. Additionally, the international community has a responsibility to help states to build the capacity to provide this protection, and is also required to step in to act directly to protect populations affected by mass atrocities where a State manifestly fails to protect them.

In spite of the development of this doctrine, in 2012 the Report of the Secretary General’s Internal Review Panel on UN action in Sri Lanka denounced the “systemic failure” of the UN reaction to the 2009 Sri Lanka armed conflict. As a result, the UN Secretary General Ban Ki Moon responded, in late 2013, with a new initiative: Human Rights Up Front. The initiative provides for a series of 6 actions,[1] in the spirit of the UN Charter,[2] to ensure that the UN system takes early and effective action to prevent or respond to large-scale violations of human rights or international humanitarian law.

Still, in 2014 the international community and, in particular, the Security Council demonstrated again that it was incapable of undertaking coordinated and effective action in response to mass atrocities committed, among others, in Iraq, Syria, the Central African Republic, and South Sudan. The approach established in the Responsibility to Protect and in Rights Up Front did not provide for sufficient coordination between the UN initiatives or for an effective action procedure.

In an attempt to strengthen the protection mechanism through harmonising the approach to UN action, the Special Adviser on the Prevention of Genocide and the Special Adviser on the Responsibility to Protect have developed a Framework of Analysis for the Prevention of Atrocity Crimes. Launched in December 2014, the Framework was conceived as a guide for assessing the risk of genocide, crimes against humanity and war crimes. Most of the document comprises an early warning analysis mechanism that should assist in the identification of a sensitive situation before it escalates into a crisis involving mass atrocities.

The Framework also covers other crucial aspects which deserve some attention since they have a bearing on the overall UN approach to the protection of civilians. Moreover, in the foreword of the document, Secretary General Ban Ki Moon recalls both the Responsibility to Protect doctrine and the Rights Up Front initiative; thus, the document can become a useful tool in the development, interpretation and application of both measures. First, it provides a common language by defining concepts, such as “atrocity crimes”, which were previously used without a specific definition under international criminal law. The document replaces the previous “Framework of Analysis” drafted in 2009 by the Special Adviser on the Prevention of Genocide and which dealt exclusively with the crime of genocide. With the inclusion of the Special Adviser on the Responsibility to Protect, the new Framework covers the broader, less clearly defined concept of “atrocity crimes”. Second, it focuses on the role of the international community in prevention, a clear common point between Rights Up Front (with the informative role of the UN Secretary-General) and the Responsibility to Protect (with the second pillar, assisting States in protecting populations). This also affirms the existence of a customary international obligation to prevent atrocity crimes and proposes a tool to identify situations of crisis before atrocity crimes are committed.

Definition of crimes and delimitation of parameters

The Framework first defines “atrocity crimes”. According to the document, the expression includes three legally defined international crimes: genocide, crimes against humanity and war crimes. In addition to these, ethnic cleansing is mentioned as a crime that is not defined under international law, but “includes acts that are serious violations of international human rights and humanitarian law that may themselves amount to one of the recognized atrocity crimes, in particular crimes against humanity”. However, for the purpose of the examination of the risk factors of atrocity crimes, ethnic cleansing is integrated into the analysis of crimes against humanity.

It is also noteworthy that the Framework is limited, in its application, only to those war crimes that have an impact on the protection of human life. In addition, the document includes a further requirement, that the mechanism is only triggered in respect of war crimes that “assume a more systematic or widespread pattern of conduct”, using the same language which defines the threshold of crimes against humanity.

Prevention

The Framework expressly focuses on the prevention of atrocity crimes and the breakdown of a situation into one where widespread mass atrocities are committed. In so doing, the document lays out not only the intention to protect civilians, but also the broader aim to preserve regional, international peace and stability.

In its support for the commitment to prevent atrocity crimes, the Document affirms the existence of a customary obligation to prevent genocide, crimes against humanity and war crimes. The customary nature of the prevention obligation is supported by the Framework’s reiteration of the main international treaties dealing with international crimes and violations of international humanitarian law: art. 1 of the 1948 Genocide Convention,[3] art. 2 of the 1984 Convention against Torture,[4] and common art. 1 of the 1949 Geneva Conventions, which can be interpreted as including an obligation to prevent violations of international humanitarian law, including war crimes. Interestingly for the collective action of the international community in protecting civilians, the Framework further mentions the development of the concepts through international tribunals’ jurisprudence and specifies that the obligation to prevent genocide is not territorially limited. This reflects the position taken by the International Court of Justice, in the 2007 Bosnia v. Serbia case, that every State with a “capacity to influence effectively the action of persons likely to commit, or already committing genocide”, even if outside its own borders, is under the obligation “to employ all means reasonably available to them, so as to prevent genocide so far as possible”.[5]

Conclusions

Over the past decade, despite the different measures taken within the UN, the international community’s capacity to address atrocity crimes has not improved. The UN Secretary General and his Special Advisers on Genocide and on the Responsibility to Protect do not have the hard power to undertake direct action against mass atrocities. Member States, starting from the Permanent members of the Security Council, are those empowered to respond to ongoing crises, by providing coordinated action and consistent resources.

The political will of States is a necessary precondition for guaranteeing human protection. Still, UN institutions can influence member States and their public opinion by providing information and directing attention to the most urgent situations. By proposing a common language, a common focus and a standard procedure, the Framework of Analysis for the Prevention of Atrocity Crimes has the potential to become a helpful tool to improve the the effectiveness and consistency of the action of the UN bodies.


[1]              Action 1: Integrating human rights into the lifeblood of the UN so all staff understand their own and the Organization’s human rights obligations. Action 2: Providing Member States with candid information with respect to peoples at risk of, or subject to, serious violations of human rights or humanitarian law. Action 3: Ensuring coherent strategies of action on the ground and leveraging the UN System’s capacities to respond in a concerted manner. Action 4: Clarifying and streamlining procedures at Headquarters to enhance communication with the field and facilitate early, coordinated action. Action 5: Strengthening the UN’s human rights capacity, particularly through better coordination of its human rights entities. Action 6: Developing a common UN system for information management on serious violations of human rights and humanitarian law

[2]              BOON, Assessing the UN’s new “Rights Up Front” Action Plan, http://opiniojuris.org/2014/02/27/assessing-uns-new-rights-front-action-plan/

[3]             Article I The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish. Convention on the Prevention and Punishment of the Crime of Genocide, Adopted by the General Assembly of the United Nations on 9 December 1948.

[4]             1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Adopted by the General Assembly of the United Nations on 10 December 1984.

[5]    Par. 430.

ban ki moonban_ki_moon_bomoon2

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Grand Chamber hearing in Lambert v France: the debate on passive euthanasia before the European Court of Human Rights

Introduction[*]

On the 7th of January 2015, the Grand Chamber of the European Court of Human Rights (ECtHR) held a hearing in the case of Lambert v France.[1] The case concerns the withdrawal of artificial nutrition and hydration of a man in a vegetative state; thus, it relates to the so-called passive euthanasia. This can be defined as the withdrawal of ‘medical treatments that will keep a dying patient alive for a time’.[2] It is currently a disputed issue in the debate on end-of-life situations.[3]

The ECtHR has already pronounced on assisted suicide (i.e., the suicide of a patient facilitated by means or information provided by a physician who is aware of how the patient intends to use such means or information).[5] I have already dealt with this issue in my previous post in An International Law Blog.

The present contribution wishes to discuss the main legal issues regarding the so-called passive euthanasia, which have been raised in the Lambert hearing.[6]

Procedure

The case Lambert v France originates from an application lodged by the parents and two siblings of Vincent Lambert.[7] The applicants challenge a judgment in which the French Conseil d’Etat upheld the medical decision of withdrawing Vincent Lambert’s artificial nutrition and hydration. They submit that the withdrawal of Vincent Lambert’s artificial nutrition and hydration would be contrary to the State’s obligations to protect life under Article 2 ECHR and to the prohibition of torture set for by Article 3 ECHR. They allege that the French law authorizing the withdrawal lacks clarity and precision, thus violating the conditions under which Article 8 ECHR allows the State to interfere with private and family life. Finally, they submit that the process leading to the decision of the French court have not been impartial, thus violating the right to a fair trial under Article 6 ECHR. The applicant’s complaint under Article 6 ECHR relates to factual findings that are not of interest here. The arguments under Articles 2, 3 and 8 ECHR, instead, are relevant for understanding the European Court of Human Rights’ position towards passive euthanasia.[9] In October 2014, the Chamber of the ECtHR to which the application had been assigned announced its intention to relinquish jurisdiction in favour of the Grand Chamber.[8]

The applicants

At the Grand Chamber hearing held on the 7th of January 2015, Mr Jean Paillot and Mr Jérôme Triomphe spoke for the applicants, Mr François Alabrune represented the French Government, and the positions of the third parties interveners were described by Mr Laurent Pettiti and Ms Madelaine Munier-Apaire.

 The law

At the hearing, the third-parties interveners and the French Government stressed the link established by the ECtHR case law between Article 2 ECHR, protecting the right to life, and Article 8 ECHR, protecting private and family life. Mr Pettiti underlined that in the Haas and Gross judgments,[10] the Court has connected the obligation to protect life with the need to preserve personal autonomy, and that in Pretty[11] it has assessed a ‘right to decline the consent to a treatment, which might have the effect of prolonging life’. Ms Munier-Apaire declared that the right to life must be read in conjunction with Article 8 ECHR, protecting the right to freely decide how to live. She also connected Articles 2 and 8 with Article 3 ECHR (prohibition of torture), adding that the right to freely decide how to live includes a right to decide when your own life amounts to degrading and inhuman conditions, and it is not worth to be lead anymore. On the other hand, Mr Alabrune underlined that the procedure established by French law requires doctors to set in motion a sedative and pain-killing treatment, thus protecting the patient against a violation of article 3 ECHR.

The representatives of the applicants did not elaborate on the topic during the hearing: Indeed, there is little doubt that Articles 2 and 8 ECHR should be read in connection, as the Court’s case law is pretty clear on this.[12] What is doubtful is rather to which conclusions such a connection might lead. In its case law on assisted suicide, the ECtHR has avoided pronouncing on the balance between Articles 2 and 8 of the ECHR, and limited itself to test the quality of the legal framework surrounding this balance at the national level, and the protections set for the respect of the patient’s will. [13]

Mr Paillot and Mr Pettiti were probably having this case law in mind when they prepared their interventions for the Lambert hearing of the last 7th of January. On that occasion, Mr Pettiti declared that the conventional right to life requires Member States to establish a procedure capable of ‘ensuring that a decision to end life is corresponding to the free will’ of the person whose life is at stake. Also, he argued that the ECtHR adjudicates on the manners in which States safeguard the rights of individuals. Mr Paillot, on his part, stressed the uncertainty surrounding the distinction between medical treatments and form of ordinary care. The distinction is relevant in this case because French law allows the withdrawal of medical acts, and the notion does not include forms of ordinary care.[14] Notwithstanding the absence of a consensus in Europe as to whether artificial nutrition and hydration is a form of treatment or care, the fact that the French law does not take a stance in this regard could be a relevant element in the Court’s evaluation. Indeed, legal certainty is one of the supreme values enshrined in the ECHR.[15] Thus, any procedure determining the legality of an otherwise unlawful behaviour (as the Court has already claimed in the case of a physician-assisted suicide) must comply with the standards of certainty set for by the European Convention.

Conclusion[16]

In its previous case law on end-of-life situations, the European Court of Human Rights has been focusing on the quality of the domestic legal framework, and on the protections set for the respect of the patient’s will, avoiding to pronounce on the substance of the issue at stake (i.e., the balance between life and dignity). There are reasons to believe that this will be the attitude adopted in the Lambert case, as envisaged by the representative of the applicants and of the third-parties interveners at the hearing.

The French legal system allows passive euthanasia when the medical decision has been grounded on a ‘collective procedure’ set for by the law.[17] Thus, French law ‘proceduralises’ passive euthanasia, leaving to doctors and patients the task to decide on the correct balance between life and dignity. The Strasbourg Court, on its side, has shown its interest in legal certainty and the procedural guarantees surrounding the assessment of the patient’s will. Thus, it is likely that in the Lambert case the Court will focus on the French law and procedure leading to passive euthanasia, rather than on the substance of the medical and legal decisions concerning Vincent Lambert.[18] If this will be the case, the doctors and relatives of Mr Lambert will face a curious situation, in which neither the ECHR nor the domestic law provide substantial guidelines as to the balance between life and dignity. Whether this is the best way to respect the essence of individual autonomy, or just a way to avoid taking a stance on debated and controversial issues, is an aspect central to the debate on end-of-life decisions.

[1] Lambert v France, App no. 46043/14

[2] Passive euthanasia. (n.d.). Collins English Dictionary – Complete & Unabridged 10th Edition. Retrieved January 30, 2015, from Dictionary.com website: http://dictionary.reference.com/browse/passive euthanasia

[3] CoE, Guide on the decision-making process regarding medical treatment in end-of-life situations,  http://csc.ceceurope.org/fileadmin/filer/csc/Ethics_Biotechnology/CoE_FDV_Guide_Web_e.pdf. The guide was “drawn up by the Committee on Bioethics (DH‑BIO) of the Council of Europe in the course of its work on patients’ rights and with the intention of facilitating the implementation of the principles enshrined in the Convention on Human Rights and Biomedicine (Oviedo Convention, ETS No. 164, 1997)”

[4] Active euthanasia. (n.d.) Mosby’s Medical Dictionary, 8th edition. (2009). Retrieved January 30 2015 from http://medical-dictionary.thefreedictionary.com/active+euthanasia. Cfr Pretty v UK, ECHR 2002-III

[5] Assisted suicide (n.d.)., Merriam-Webster Dictionary, Retrieved January 30, 2015, from Merriam-Webster.com website:  http://www.merriam-webster.com/medical/physician-assisted+suicide. Cfr Haas v Switzerland (2011) 53 EHRR 33

[6] Records of the hearing are available online, at: http://www.echr.coe.int/Pages/home.aspx?p=hearings&w=4604314_07012015&language=en&c=&py=2015 .

[7] For a summary of the facts of this case, see the Press Releases issued by the Registrar of the Court: ECHR 290 (2014), 7.10.2014 and ECHR 2 (2015) 07.01.2015

[8] Press Release issued by the Registrar of the Court, ECHR 290 (2014), 7.10.2014

[9] Grégor Puppinck and Claire de la Hogue, ‘The “Right” to Assisted Suicide in the case law of the ECtHR’, IntJHR, 2014

[10] Haas v Switzerland (2011) 53 EHRR 33; Gross v Switzerland , App no 67810/10 (ECtHR [GC] 30 September 2014)

[11] Pretty v UK, ECHR 2002-III

[12] Pretty v UK, ECHR 2002-III; Haas v Switzerland (2011) 53 EHRR 33; Gross v Switzerland , App no 67810/10 (ECtHR [GC] 30 September 2014)

[13] Cfr Gross v Switzerland , App no 67810/10 (ECtHR [GC] 30 September 2014) and Koch v Germany, App 497/09, Judgment of 19 July 2012

[14] English translation by the Author. See Article L1105 of the French Public Health Code – Code de la Santé publique : ‘Ces actes ne doivent pas être poursuivis par une obstination déraisonnable. Lorsqu’ils apparaissent inutiles, disproportionnés ou n’ayant d’autre effet que le seul maintien artificiel de la vie, ils peuvent être suspendus ou ne pas être entrepris’.

[15] Sunday Times v UK, Appl. 6538/74, judgm 26/04/1979.

[16] Conclusion will be updated following the developments of the Lambert proceedings before the ECtHR

[17] Cfr Loi 22 avril 2005, so called Leonetti Act

[18] Particularly, the lack of clarity with regard to whether artificial nutrition and hydration is a form of treatment or care might be relevant to this case, as it might constitute an infringement of the supreme value of legal certainty

[*] The Author of the present post has been grounding her report of the hearing on the press releases and webcast accessible on the European Court of Human Rights’ official website, echr.coe.int: http://www.echr.coe.int/Pages/home.aspx?p=hearings&w=4604314_07012015&language=lang&c=&py=2015.

The webcasting project is funded by the Irish Department of Foreign Affairs and Trade, which the Author would like to thank

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Prof. William Schabas resigns from the UN Commission of Inquiry on the Gaza Conflict

Here is the link to Professor William Schabas’ letter of resignation, which he published on his blog last Tuesday.

May you live your life as if the maxim of your actions were to become universal law. (E. Kant)

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The empire strikes back – The International Criminal Court (ICC) Prosecutor’s decisions on Kenyatta and The Situation in Darfur

December 2014 is likely to go down in the annals of international criminal justice as the month when the International Criminal Court (‘’ICC’’) faced its own ‘Bay of Pigs’. In the space of less than 10 days in December, Fatou Bensouda, the Prosecutor of the ICC, made two critical decisions in the work of the Office of the Prosecutor (‘’OTP’’). On 5 December 2014, the Prosecutor gave notice of the withdrawal of charges against the Kenyan President, Uhuru Muigai Kenyatta.[1] In accordance with the Rome Statute, the Prosecutor can withdraw charges at trial stage but this has to be approved by the Trial Chamber.[2] However in this case the Prosecutor did not require the Trial Chamber’s permission since the case was not yet at trial stage and her notice was in compliance with the Trial Chamber V (B)’s decision in which the Prosecutor was ordered to either withdraw the charges against President Kenyatta or demonstrate that she had sufficient evidence for the case to proceed to trial.[3] The Prosecutor preferred the first option, emphasising that her office had not gathered enough evidence to prove President Kenyatta’s alleged criminal responsibility. Seven days later, on 12 December 2014, and during the 7337th United Nations Security Council (‘’UNSC’’) meeting, the Prosecutor stated that she was ‘left with no choice but to put investigative activities in Darfur on hold’.[4] As noted by one blogger, Yvonne McDermott, the ICC’s statutory framework does not envisage a situation where the Prosecutor would suspend investigations on his/her own accord. Deferral of proceedings or stay of proceedings can only be done by the UNSC and the Chambers respectively.[5] In her address to the UNSC, the Prosecutor pointed out that the decision was based on two factors: the limited resources and the Council’s lack of foresight on what should happen in Darfur.[6] This post interprets the Prosecutor’s decisions in these two situations as a reflection of the fragility of the emerging machinery of international criminal law when states cooperation is not forthcoming. The decisions confirm the dangers associated with the ICC and the international criminal justice system’s ‘excessive reliance on state cooperation as primary means of achieving the mandated objectives of prosecuting persons for violations of international humanitarian law.’[7] In the situation in Kenya, it is hard to categorically say that the state failed to cooperate with the Court, considering that President Uhuru Kenyatta defied all odds including the advice from the African Union (‘’AU’’) and attended the status conference in October 2014. In 2013, the AU had decided, ‘’that President Uhuru Kenyatta will not appear before the ICC until such time as the concerns raised by the AU and its Member States have been adequately addressed by the UN Security Council and the ICC’’.[8] President Kenyatta, however, made a courageous and unprecedented move when he temporarily relinquished his powers and attended the status conference at the ICC in The Hague. It is possible that had President Kenyatta failed to attend the status conference he could have been issued with a warrant of arrest. Such a step could have prolonged a case even though the OTP had admitted that it had insufficient evidence to proceed to trial. Following this logic, President Kenyatta acted wisely when he decided to attend the status conference. Still, what remains a mystery is what happened to some of the key witnesses in President Kenyatta’s case. It is bizarre that key witnesses recanted their crucial evidence. Such developments tremendously weakened the case against President Kenyatta. On the one hand, it is possible that some witnesses developed cold feet after realising that the accused person had become the Head of the State, the President of Kenya. On the other hand, some witnesses were alleged to have lied to the Court, their credibility hence becoming open to challenge. Witness 4 illustrates this. After the confirmation of charges against President Kenyatta, the OTP had to drop Witness 4, who had placed President Kenyatta at the ‘’planning meeting’ held on 26 November 2007, for two reasons: ‘he stated that he had lied in his earlier statements regarding the 26 November 2007’ and ‘he had been offered, and accepted, money from individuals holding themselves out as representatives of the Accused to withdraw his testimony regarding the PEV, and provided emails and bank records that confirmed the bribery scheme.’[9] In Kenya, a coalition of NGOs, the Kenyans for Peace with Truth and Justice (KPTJ), makes serious allegations that the executive branch of the Kenyan government was actively involved in obstructing the International Criminal Court’s work. Similar observations of individual or collective states’ lack of meaningful cooperation with the Court could be made in the situation in Darfur, which was also discussed in the previous post by Stefano Marinelli. The situation in Darfur is even more complex considering that Sudan is not a state party to the Rome Statute. Sudan’s obligation to cooperate with the Court was imposed on it through a UNSC resolution. However, Sudan has refused to cooperate with the Court, maintaining that it is a non-party State. However, it has to be said that at an early stage of the investigations Sudanese authorities were cooperative with the ICC. Sudan was even willing to cooperate with the ICC in the arrest and surrender of the Lord’s Resistance Army suspects. The tables turned when the Prosecutor submitted an application for the arrest warrant of President Omar Bashir in 2008. All forms of cooperation ceased. One would have thought that at this stage the UNSC could have taken measures to solve the impasse between the ICC, Sudan and the AU but that did not happen. The UNSC could have at least invoked article 16 and deferred the situation as per the AU request. The Security Council’s indecisiveness on this situation complicated matters further considering that Sudan is a host to one of the largest United Nations Missions in the region and has a considerably large diplomatic community that is expected to work closely with the Sudanese authorities including President Omar Bashir. Since the indictments and issuance of arrest warrants, the United Nations and the diplomatic community are expected to have limited contact with President Bashir and some of his government officials wanted by the Court. This has proved to be a political and humanitarian minefield for those heading different United Nations agencies that are in Sudan. For instance, in 2014, Herve Ladsous, the head of the United Nations peacekeeping operations, met President Omar Bashir, attracting widespread criticisms from human rights activists. Incidents such as these and the general lack of the Security Council’s leadership in resolving the impasse between the Court and Sudan, as well as Sudan and other states’ lack of cooperation with the Court, added to the frustration that lead to the shelving of investigations. What is of significance, and probably the inconvenient truth from the Prosecutor’s decisions, is that the international system and the principle of state sovereignty seems to be reclaiming its lost ground from international criminal law. There is no doubt that the establishment of the ICC imposed some limits on the principle of state sovereignty. The developments in Kenya and Darfur have put doubts in the idealist approach to the enforcement of international criminal law that considers state cooperation as a given. As long as state sovereignty remains the organising principle of the modern international system, it is hard to envisage the enforcement of international criminal law against sitting heads of states and those in power as they can frustrate the work of the Court by not cooperating. They can easily turn to their states’ financial, logistic and diplomatic machinery to frustrate the enforcement of international criminal law. The UNSC’s ability to act in this regard is so compromised by the interests of individual permanent members that it cannot be a reliable partner for the ICC. More so, the majority of the permanent members of the Security Council are non-party States to the Rome Statute. This raises genuine questions about the legitimacy of the UNSC’s engagement with the Court. That way, the enforcement of international criminal law by the ICC is likely to be limited to either rebel leaders who lack access to state apparatus or those who would have lost control of states apparatus. Conclusively, Prosecutor Bensouda’s courage and wisdom deserve to be commended. Her two decisions threw the ball in the states’ court, which are the ‘arms and limbs’ of the ICC. Her realist approach is likely to shift some of the unwarranted criticisms from the ICC and place them with the states and the UNSC. That said, it is clear that timing and patience are crucial in the enforcement of international criminal law. Perhaps the Prosecutor should not have gone for sitting heads of states in the first place. In the first decade of the ICC’s existence, the OTP appears to have had bitten off more than it could chew. This could be because there were too many idealists within its own rank and file. These two situations demonstrate that states have the ability to strike back against the ICC by controlling when or not to cooperate. It is now time for the fledgling international criminal justice system, centred on the ICC, to do some soul searching on how to ensure states cooperation in the global struggle against impunity.


[1] Kenyatta (ICC-01/09-02/11), Notice of withdrawal of the charges against Uhuru Muigai Kenyatta, 5 December 2014.
[2] Rome Statute Art.61 (9)
[3] Kenyatta, (ICC-01/09-02/11) Decision on Prosecutor’s application for a further adjournment, 3 December 2014 p.26
[4] UN Doc. S/PV.73337, 12 December 2014, p.2
[5] See Rome Statute Article 16
[6] Supra 4.
[7]Cassese A., ’On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’ (9) European Journal of International Law at p. 9
[8] Decision on Africa’s Relationship with the International Criminal Court, Ext/Assembly/AU/Dec.1(Oct.2013) Extraordinary Session of the Assembly of the African Union, 12 October 2013, Addis Ababa, Ethiopia.
[9] Kenyatta and Muthaura (ICC-01/09-02/11), Public redacted version of the 25 February 2013 Consolidated Prosecution response to the Defence applications under Article64 of the Statue to refer the confirmation decision back to the Pre-Trial Chamber, 25 February 2013 para 17imrs.php

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