Monthly Archives: March 2015

‘Taking no prisoners’: The UK’s stance on ECtHR judgments in relation to prisoners’ voting rights

On 10th February 2015, the European Court of Human Rights (ECtHR) delivered yet another judgment against the UK’s ban on prisoner voting. McHugh[1] comes three months before the UK general elections on 7th May 2015. The latest judgment is conspicuously brief and restates what has been proclaimed in numerous previous cases. Yet, it serves as a reminder of the precarious relationship between the ECtHR and the UK. This post revisits the landmark decisions against the UK on the issue of prisoners’ voting rights; examines the current position adopted by the UK government on this issue; and looks ahead to the uncertainty of prisoners’ voting rights under this government and the next.

McHugh originated in 1,015 applications against the UK lodged by prisoners. They alleged that section 3 (1) of the Representation of People Act 1983 (RPA 1983), that prevents convicted prisoners from voting in parliamentary and local elections, violated their rights under Article 3, Protocol 1 ECHR. In particular, they claimed that they were prevented from voting in a number of elections including: the European Parliamentary Elections; the UK Parliamentary elections; and elections to the Scottish Parliament, the Welsh Assembly or the Northern Irish Assembly.[2]

The Court notably refrains from delving into detailed analysis of the merits and simply states that since the impugned legislation remains unchanged, it cannot but conclude, once again, that there has been a violation of Article 3 Protocol No.1.[3] The brevity of this judgment can be read as evidence of the Court’s frustration with the UK government’s continuous disregard of its judgments on the issue.

The Court adjudicated on the UK prisoners’ voting ban for the first time in Hirst (No.2)[4] where, while acknowledging that States have a wide margin of appreciation when it comes to organising and running their electoral systems,[5] it stated that the conditions imposed by States ‘…must not thwart the free expression of the people in the choice of the legislature…’[6] While the Court accepted the UK’s claim that the ban pursued the legitimate aim of preventing crime, by sanctioning the conduct of convicted prisoners and enhancing civil responsibility and respect for the rule of law,[7] it held that the measure was not proportionate to this aim. Specifically:

‘The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation… and as being incompatible with Article 3 of Protocol No. 1.’[8]

This position was restated five years later in Greens and MT where the Court found a violation of Article 3 Protocol 1 as the UK had failed to amend its electoral law.[9] What is noteworthy in this case is that the ECtHR went a step further and stated that a timetable for introducing the amendments to the electoral law was required. Accordingly, it imposed a six-month deadline for the UK.[10]

The Court reiterated its declaration of the illegality of the absolute and indiscriminate ban on prisoner voting in Scoppola (No.3).[11] The Court held that the Italian ban did not have the general, automatic and indiscriminate character of the UK ban as:

‘…there is no disenfranchisement in connection with minor offences or those which, although more serious in principle, do not attract sentences of three years’ imprisonment or more, regard being had to the circumstances in which they were committed and to the offender’s personal situation…’[12]

Although proclamations by the ECtHR that the UK electoral law breaches Article 3 Protocol 1 have been made loud and clear in the past 10 years, an examination of the actual steps taken so far by the UK casts aspersions on the government’s intentions to conform and amend its legislation.

While it may be hard to surpass the Prime Minister’s comment in 2011 that the thought of giving prisoners the right to vote made him ‘physically ill’,[13] one must examine any positive steps taken by the government so far towards amending its electoral law. Following Hirst, two public consultations on prisoners’ voting rights were held, yet no amending legislation was introduced.[14] Prisoners were accordingly prevented from voting in a number of elections, including the 2010 general elections. Additionally, the House of Commons overwhelmingly adopted a cross-party motion supporting the preservation of the current ban on prisoner voting.[15]

Following further pressure by the Court and the Committee of Ministers (CoM), on 22nd November 2012 the UK published the Voting Eligibility (Prisoners) Draft Bill. This bill set out three options for prisoners’ voting, namely: a ban for prisoners sentenced to four years or more; a ban for those sentenced to more than six months; and the retention of the current ban applying to all convicted prisoners.[16] While the two first options can be seen, at least in theory, as amending the absolute ban on prisoner voting, the last option can be interpreted as the government’s way of asserting its sovereignty and its independence by explicitly legislating contrary to ECtHR jurisprudence.[17] As noted by the Joint Select Committee appointed to conduct pre-legislative scrutiny of the Bill, the option of retaining the current ban, ‘would not only undermine the international standing of the UK; it would also give succour to those states in the Council of Europe who have a poor record of protecting human rights and who may draw on such actions as setting a precedent…’[18]

Despite the drafting of this Bill, the UK has yet to take any steps towards its implementation. This inactivity emphasises the continued conflict in the relationship between the ECtHR and the UK. The relationship between the two continues to be fractious, reflected not only in the case law of prisoner voting, but also in myriad other areas.[19] Yet, what marks the prisoner-voting situation as separate from other conflicts between the UK and the ECtHR is the confrontational stance adopted by them both. Here, the UK has pugnaciously defied the Court by proposing a version of the Bill that retains the current indiscriminate ban on prisoner voting, moving beyond its usual ‘declaration of incompatibility’.[20] At the same time, the Court has chosen to adopt a more proactive stance, and rather than leaving it to the CoM alone to supervise the execution of these judgments, set, for the first time in relation to the UK, a time-limit within which the UK had to introduce amendments to its electoral law. Therefore, the image broadcasted is one of brinkmanship, with neither the Court, nor the UK backing down.

The Court has been criticised as overstepping its role in these cases. According to the dissenting judges in Hirst, ‘the Court is not a legislator and should be careful not to assume legislative functions.’[21] The UK government shared this view, asserting that the decision as to whether legislation should be passed allowing prisoners to vote is one for Parliament to take and not the ECtHR.[22]

An examination of both Hirst and Greens and M.T. contradicts this view that the Court has overstepped its role. While it determined that the current ban is absolute and indiscriminate, violating Article 3 Protocol 1, it explicitly acknowledged the wide margin of appreciation afforded to States under this right; noting that it is left to the national authorities to decide how to comply with these obligations. Importantly, in Greens and M.T., even though it set the deadline of six months for the UK, it explicitly recognised that it does not have the power to direct the State as to the specific content of this legislative reform.

The Court has therefore simply upheld its role of safeguarding human rights, reiterating the principle that blanket bans and restrictions on human rights are not proportionate. It has not tried to give the right to vote to all prisoners; it merely stated that what violates Article 3 Protocol 1 is the absolute and indiscriminate nature of section 3(1) RPA 1983. Importantly, even if one opines that the Court’s judgments went too far, this alone does not excuse the UK’s disregard of them, especially not such a brazen defiance. As Letsas noted, ‘the United Kingdom cannot pick and choose which judgments of the Court to comply with, without undermining the long and painful process of establishing a Europe of rights, democracy and the Rule of Law.’[23]

Bearing in mind the current situation, the question remains: where does the UK’s inertia on the issue of prisoner voting leave prisoners who wish to vote in the coming elections? The government’s stance is clear, stating that further discussion of the issue is deferred until September 2015, four months after the elections. Yet, what becomes apparent is that proponents of an amendment to the current indiscriminate ban on voting will struggle to find a supportive party to break the cycle of disobedience and comply with the Court’s judgments. The Conservatives have declared that they are prepared to leave the ECHR if Strasbourg does not accept their demand of making the Court’s judgments merely advisory.[24] At the same time, while the Labour party has pledged to keep the country in the ECHR,[25] when in power, failed to take any action to amend the electoral law and subsequently voted in favour of retaining the current ban.[26] Therefore, whether the issue will indeed be addressed in September remains to be seen.

[1] McHugh and Others v United Kingdom App no 51987/08 and 1,014 others (ECtHR, 10 February 2010).

[2] Ibid., para 5.

[3] Ibid., para 11.

[4] Hirst v United Kingdom (No.2) App no 74025/01 (ECtHR, 6 October 2005).

[5] Ibid., para 61.

[6] Ibid., para 62.

[7] Ibid., para 75.

[8] Ibid., para 82.

[9] Greens and M.T. v United Kingdom App nos 60041/08 and 60054/08 (ECtHR, 23 November 2010)

[10] Ibid., para 115.

[11] Scoppola v Italy (No.3) App no 126/05 (ECtHR, 22 May 2012).

[12] Ibid., para 108.

[13] Guardian, ‘UK may be forced to give prisoners the vote in time for May elections’, retrieved 20/3/15 <http://www.theguardian.com/society/2011/feb/01/prisoners-vote-may-elections-compensation-claims&gt;

[14] Alexander Horne and Isobel White, ‘Prisoners’ Voting Rights’ House of Commons Library, SN/PC/01764, pp13-17, retrieved 18/3/15 < http://www.parliament.uk/business/publications/research/briefing-papers/SN01764/prisoners-voting-rights>

[15] HC Deb 10 February 2011 c584.

[16] The Voting Eligibility (Prisoners) Draft Bill, Cm 8499, November 2012.

[17] Decision of the Committee of Ministers, 1157th Meeting (DH), 4-6 December 2012.

[18] Draft Voting Eligibility (Prisoners) Bill, Session 2013–14, 18 December 2013 (HL Paper 103; HC 924) para 113.

[19] See for example the case of Othman (Abu Qatada) v United Kingdom ECHR 2012 dealing with the deportation of suspected terrorists. See also the case of Vinter and Others v United Kingdom dealing with Article 3 and prisoners’ right to hope.

[20] Human Rights Act 1998, section 4.

[21] Hirst v United Kingdom (No.2), Joint Dissenting Opinion of Judges Wildhaber, Costa, Lorenzen, Kovler and Jebens, para 6.

[22] HC Deb 10 February 2011, c493.

[23] George Letsas, ‘ In defence of the European Court of Human Rights’ retrieved 19/3/15 <https://www.ucl.ac.uk/human-rights/news/documents/prisoners-vote.pdf>

[24] Protecting human rights in the UK: The Conservatives Proposals for changing Britain’s human rights laws, retrieved 20/3/15 <https://www.conservatives.com/~/media/files/downloadable%20Files/human_rights.pdf>

[25] Labour List, ‘Miliband makes stirring defence of Human Rights Act’ 10 December 2014, retrieved 17/3/15 <http://labourlist.org/2014/12/miliband-makes-stirring-defence-of-human-rights-act/>

[26] HC Deb 10 February 2011 c584.

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Corporate Social Responsibility & Human Rights. A critical review of the Guiding Principles on Business and Human Rights for implementing the UN “Protect, Respect and Remedy” Framework

Introduction

Over the recent decades, corporations have impressively increased their potential. Their exponential growth and enlarged powers, due to a privatization process, has impacted economic, political and social affairs around the globe. While the primary responsibility for the fulfilment, protection and respect of international human rights standards is still in the hands of sovereign states, there is a growing acceptance that corporations hold some level of responsibility as well. Accordingly, the emerged concept of Corporate Social Responsibility (CSR) [1]streamlines their responsibilities and duties on environment and social welfare. Nevertheless, their impact on human rights can be analysed in how corporations manage their human resources[2], especially within developed countries where often their production is relocated. In fact, “human resource systems affect corporate performance through the management and control of employee behaviours”.[3] As a consequence, international development goals such as poverty alleviation and health improvements[4]  can be related both to a positive management of employees (directly) and workers of suppliers (indirectly).  In addition to meet CSR objectives, managers exercise their discretion on intra-organizational stakeholder relationships, and in producing effective social outcomes involving extra-organizational stakeholders. Then, appropriate international regulations in defence of human rights appear even more meaningful in respect to such decisional power.

Guiding Principles on Business and Human Rights for implementing the UN “Protect, Respect and Remedy” Framework

In 2005, the UN Secretary-General Kofi Annan appointed Professor John Ruggie as UN Special Representative on business and human rights. Secretary General Ban Ki Moon has confirmed the assignment. One of Professor Ruggie’s main tasks is to “identify and clarify standards of corporate responsibility and accountability for transnational corporations and other business enterprises with regard to human rights”.[5] Accordingly, in June 2008 Professor Ruggie presented the UN “Protect, Respect and Remedy” Framework to the Human Rights Council. His intention was to enhance the following three points: first the state obligation to protect against human rights abuses by third parties, including business, through appropriate policies, regulation, and adjudication; second the corporate responsibility to respect human rights, i.e. to act with due diligence to avoid infringing on the rights of others and to address adverse impacts that occur; and third greater access by victims to effective remedy both judicial and non-judicial. On 16 June 2011, the Human Rights Council adopted resolution 17/4 endorsing the Guiding Principles on Business and Human Rights for implementing the UN ‘Protect, Respect and Remedy’ (hereinafter the Guiding Principles). The principles represent the first and unique global standards for preventing and addressing the risk of adverse impacts on human rights linked to business activity. Their overall aim is to combat human rights violations in those countries where corporations usually relocate their production and in states where there is a combination of weak governance and little respect for human rights. However, they were not aimed at creating new regulations or filling any legal gaps, being an interpretation of existing international human rights instruments, codes of conduct and best practices.

The Guiding Principles make explicit reference to a “duty to protect” which means that states have legal obligation to protect their own population from human right abuses. In international law this concept has been broadly used in other contexts, such as the crime of genocide[6].  It is therefore meaningful to observe how this precautionary effect is now directed also to enterprises activities.

The core of the doctrinal discussion is whether companies are subject to any direct international legal obligation to respect human rights. Some authors convincingly provide a positive answer[7] while others sustain the opposite. The Guiding Principles prescribe that states (where the company is headquartered) should force companies to report on their social impacts and on those of their subsidiaries abroad.[8]However, while strongly encouraged, corporations cannot be compelled as the Principles are not legally binding. Authoritative doctrine argues that, as a consequence, a way to prevent and redress violations of human rights committed by companies outside their registration country is to adopt measures with extraterritorial implications or to assert direct extraterritorial jurisdiction in specific instances[9]. To some extent, it can be critically argued that the Guiding Principles open to series of alternative approaches instead of addressing the problem by themselves.

Corporate and human rights:  implications from the Bhopal case

Involvements of multinational corporations in human rights abuses obtains an international echo as they often reveal dramatic workers’ conditions (e.g. Nike in Asia, Shell in Nigeria, Union Carbide in India and Yahoo! in China). These cases are a testimony of how large multinational corporations (MNCs) are responsible for gross violations of human rights occurring within countries characterised by weak legal systems.[10] The issue is linked to a legal scenario which consequently underlines a lack of international law remedies, while criminal law is subsequently recalled to assess corporate’s responsibility. The Bhopal case (1984) has been the worst industrial accident in history. In December 1984 at the Union Carbide plant (an American corporation) in the city of Bhopal (India) 27 tonnes of methyl isocyanate (a deadly gas) was released, spreading throughout the city. As a result, it have been estimated 2,000 deaths and more than 200,000 people with injuries. The environmental consequences persisted over the years after the Union Carbide negligence, continuing causing respiratory problems, disabilities and unhealthy living conditions for the population. The case predates the Guideline Principles, but it is of great significant as it highlights both the problems in assessing the causes/responsibilities of such disaster and the procedural problems that occurred during the prosecution. The cause of the disaster remains under debate, thus the responsibility has changed over the years. On one side the Indian government and local activists argue that a lack of adequate management and deferred maintenance caused a backflow of water into a methyl isocyanate tank resulting in the disaster. On the other side, Union Carbide Corporation states that this was an act of sabotage, and not in any way related to its bad management. In establishing the guilt in such as corporate manslaughter case further difficulties were emerged. They included: the required mens rea of senior officers of the company involved; the access to internal corporate documents; extradition; debates on the doctrine of the forum non convenience[11]; class action lawsuits; the required political will from the country’s government to go after big companies despite the fear of investment backlash.[12] However, it should to be questioned if the dangerousness of Union Carbide’s plant would have been limited by following the Guiding Principle. Would they have been a strong enough determent[13] or the prospective of a lawsuit against a weak government like India would still have played an important role for respecting human rights?

Conclusions: respect of human rights as an investment?

Generally, companies recognise the importance of the rule of law in the context of their investments and operations around the world. The importance of a transparent, well-functioning and just legal system has been taken in consideration for attracting investments. The Guiding Principles are certainly a necessary legal resource in the International law scenario. States and companies are asked to operationalise their responsibility for human rights. Nevertheless, the lack of direct enforceability plus the wide decisional autonomy left to the states raise doubts on their effectiveness. Nowadays, several provisions of the Constitution of India are horizontally applicable against companies, for preventing abuses by business enterprises. However, the degree of fault required for a company’s responsibility could just as easily be a negligence or strict liability standard. Compare to that, the due diligence required by the Guiding Principle is still a vague concept. Certainly, it would not be enough to fix corporates’ misbehaviours. On contrary, ‘due diligence’ from the perspective of human rights could became a parameter for attracting investors and consumers towards more responsible realities of corporate managements.

[1] CSR is thought of as ‘‘corporate choices and behaviours that go beyond firm-specific economic benefit or focus’’ Berry, G. R. (2010). Improving organisational decision-making: Reframing social, moral and political stakeholder concerns. The Journal of Corporate Citizenship, 38, 33–48.

[2] Fisher, S. L., M. E. Graham, S. Vachon and A. Vereecke (2010). “Don’t miss the boat: Research on HRM and supply chains.” Human Resource Mangement 49(5): 813-828.

[3] Jackson, S. E., Schuler, R. S., & Rivero, J. C. (1989). Organizational characteristics as predictors of personnel practices. Personnel Psychology, 42, 727–786.

[4] Human Rights Watch (2002), The Enron Corporation: Corporate Complicity in Human Rights Violation , 23 January, available at: http://www.hrw.org/reports/1999/enron/

[5] The UN Commission on Human Rights adopted resolution E/CN.4/RES/2005/69 requesting “Secretary-General to appoint a special representative on the issue of human rights and transnational corporations and other business enterprises”

[6] See, for example, Articles 1, 5 and 6 of the Convention on the Prevention and Punishment of the Crime of Genocide, GA Res 260 A (III), 9 December 1948; Articles 2 and 9 of the International Covenant on Civil and Political Rights, GA Res 2200A (XXI), 16 December 1966, 999 UNTS 171; and Articles 1, 2 and 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, 213 UNTS 222; ETS 5.

[7] Clapham, A. (2006). Human rights obligations of non-state actors. Oxford: Oxford University Press

[8] Article 1 (obligation to respect human rights) of the European Convention on Human Rights (ECHR):

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”.

[9] Bernaz, N. (2013), “Enhancing Corporate Accountability for Human Rights Violations: Is Extraterritoriality the Magic Potion?” Journal of Business Ethics, 117(3), pp. 493-511.

[10] Grear, A. (2007), “Challenging corporate ‘humanity’: legal disembodiment, embodiment and human rights”, Human Rights Law Review, Vol. 7 No. 3, pp. 511-543

[11] Janis M.W. (1987). The Doctrine of Forum Non Conveniens and the Bhopal Case. Netherlands International Law Review, 34, pp 192-204.

[12] International Commission of Jurists (2011), Access to Justice: Human Rights Abuses Involving Corporations: India: A Project of the International Commission of Jurists, p. 48, available at: http://www.icj.org/dwn/database/AccesstoJustice-India-ElecDist-July2011.pdf

[13] Fasterling, B., Demuijnck G. (2013), “Human Rights in the Void? Due Diligence in the UN Guiding Principles on Business and Human Rights”

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Rape and the notion of ‘serious harm’ in the ICJ’s decision Croatia v. Serbia: a step back or a step forward?

On 3 February 2015, the International Court of Justice (ICJ) released its judgment on the case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide, which saw as contending parties the states of Croatia and Serbia. The outcome of the decision seems to have come as no surprise, as the Court found that none of the two sides are responsible for any Convention violations. Nonetheless, some have criticised it for having missed the opportunity to deal with some important issues, including state succession in matters of international responsibility, especially in light of the particular values protected by the Convention. This post examines the approach followed by the Court in relation to rape and sexual violence as acts of genocide under article II (b) of the Convention.

Generally, the Court has kept itself in line with what it held in its 2007 decision in the case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro). However, it seems that the Court has departed from this precedent in relation to its interpretation of what constitutes ‘serious bodily or mental harm to members of the group’ under article II (b) of the Genocide Convention. Indeed, in 2007 the Court noted that ‘rapes and sexual violence could constitute acts of genocide, if [only] accompanied by a specific intent to destroy the protected group’. [1] This followed the historical precedent set out in 1998 by the International Criminal Tribunal for Rwanda (ICTR) in Akayesu, where it established that ‘rape and sexual violence certainly constitute infliction of serious bodily and mental harm on the victims and are even, according to the Chamber, one of the worst ways of inflicting harm on the victim as he or she suffers both bodily and mental harm’.[2] In particular, it was noted that ‘[s]exual violence was a step in the process of destruction of the tutsi (sic!) group – destruction of the spirit, of the will to live, and of life itself.’[3]

This inclusion of rape and sexual violence in the genocidal acts referred to by article II (b) was re-affirmed in subsequent case law and in the ICC Elements of Crimes.[4] Also, the Prosecution did not need to prove any kind of cause-effect relationship between the acts of violence and the destruction of the group. Such an interpretation enjoyed the support of most of the literature of that time[5] and was the argument Croatia relied on in the present case.[6]

Nevertheless, the ICJ upheld Serbia’s arguments when, relying inter alia on the Commentary of the 1996 International Law Commission’s (ILC) Draft Articles,[7] concluded that ‘the serious bodily or mental harm within the meaning of Article II (b) of the Convention must be such as to contribute to the physical or biological destruction of the group, in whole or in part’. [8] However, according to the ILC, ‘[t]he bodily or the mental harm inflicted on members of a group must be of such a serious nature as to threaten [emphasis added] its destruction in whole or in part’. [9] In other words, the Commission considered that the Prosecution had no duty to show the existence of a result of any kind.

Thus, in the case at issue, it seems likely that the Court was attempting to show its deference to the ad hoc Tribunals, by following the recent changes in their case law.[10] In particular, the Court cites the Krajišnik case, decided by Trial Chamber I of the International Criminal Tribunal for the Former Yugoslavia (ICTY), which established that a serious harm must be such ‘as to contribute, or tend to contribute [emphasis added], to the destruction of the group or part thereof’.[11] While, according to some, such an approach was an ‘excessively narrow interpretation’, it ‘finds some support in the travaux préparatoires’ of the Convention. [12] In any case, ‘[h]arm amounting to “a grave and long-term disadvantage to a person’s ability to lead a normal and constructive life” has been said to be sufficient for this purpose.’[13] Yet, while, borrowing the words of ICTY Trial Chamber II in Tolimir, ‘it is necessary pursuant to Article 4(2)(b) to prove a result,’ [14] the ‘tend to contribute’ option has disappeared in the conclusions reached by the ICJ. Therefore, the Court seems to have unjustifiably adopted an even narrower approach to that previously adopted by the ICTY in this respect.

In addition to this, when assessing the existence of the actus reus of genocide according to article II (b), the Court has regrettably not shown how rape and sexual violence, as well as the other acts of torture, and cruel and inhuman treatment considered altogether, have contributed to the destruction of the group, or part of it. [15] Rather, it has limited itself to ascertain that certain acts were in fact committed. Furthermore, the very fact that rape and sexual violence are taken into consideration along with other acts- as it has also been the case in 2007- implies some sort of systematicity of such acts, and this appears to generate quite a significant confusion that could have been avoided, for instance, by taking into account the ICC Elements of Crimes.

First, footnote 3 to the first element enlisted in relation to article 6 (b) of the ICC Statute, which in turn uses the very same language of article II (b) of the Genocide Convention, reads as follows: ‘[t]his conduct may [emphasis added] include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment.’ This means that rape is not per se a genocidal conduct. In fact, according to the fourth element concerning article 6 (b), in order for such a conduct to be included among those acts which cause serious bodily of mental harm to a member of the targeted group, it must be shown that ‘[t]he conduct took place in the context of a manifest pattern of similar conduct directed against that group or [emphasis added] was conduct that could itself effect such destruction.’

It follows that the Court could have either established the existence of such a pattern, without having to argue in favour of this ‘new’ interpretation of ‘serious harm’ and the destruction element that it supposedly contains, or focus on and elaborate this latter aspect. The half-way approach that the Court has chosen to follow instead seems to weaken its reasoning and maintains a high degree of uncertainty around the elements constituting the actus reus of what has been defined as ‘the crime of crimes’.[16] Moreover, through the introduction of the expression ‘as to contribute to the physical or biological destruction of the group, in whole or in part’, which has narrowed down the interpretation given by the ad hoc tribunals to what constitutes ‘serious harm’, the Court has also diminished, at least in theory, the standing of rape as ‘one of the worst ways of inflicting harm on the victim as he or she suffers both bodily and mental harm’.[17]International_Court_of_Justice

[1] Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia And Herzegovina v. Serbia And Montenegro), 26 February 2007, ICJ Judgment, General List 91, at 300.

[2] The Prosecutor v. Akayesu (case No. ICTR- 96-4-T), Trial Chamber Judgment, 2 September 1998, at 731 (as quoted in Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia And Herzegovina v. Serbia And Montenegro), 26 February 2007, ICJ Judgment, General List 91, at 300). See also The Prosecutor v. Stakić (Case No. IT-97-24-T), Trial Chamber Judgment, 31 July 2003, at 516.

[3] Prosecutor v. Akayesu (Case No. ICTR-96-4-T), Judgment, 2 September 1999, para. 732.

[4] The Prosecutor v. Kayshema and Ruzindana (Case No. ICTR-95-1-T), Trial Chamber II, Judgment, 21 May 1999, at 108-109; The Prosecutor v. Krstić (Case No. IT-98-33), Trial Chamber, Judgment, 2 August 2001, at 513; The Prosecutor v. Bagilishema, (Case No. ICTR-95-1A-T), Trial Chamber, Judgment, 7 June 2001, at 59. See also footnotes to the Elements of Crime to Article 6(b) of the ICC Statute.

[5] See, e.g., Florian Jessberger, ‘The Definition and the Elements of the Crime of Genocide’ in Paola Gaeta (ed.), The UN Genocide Convention. A Commentary (OUP 2009) 87, 99; William A. Schabas, Genocide in International Law (2nd ed Cambridge University Press 2009) 188.

[6] Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), 3 February 2015, ICJ Judgment < http://www.icj-cij.org/docket/files/118/18422.pdf> accessed 5 March 2015, at 157.

[7] ILC, Report on the work of its Forty-eighth Session, Yearbook of the ILC, 1996, Vol. II, Part Two, p. 46, at 14.

[8] Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), 3 February 2015, ICJ Judgment < http://www.icj-cij.org/docket/files/118/18422.pdf> accessed 5 March 2015, at 157. cf The Prosecutor v. MomčIlo KrajišNik (Case No. IT-00-39-T), ICJ Judgment of 27 September 2006, at 862.

[9] ILC, Report on the work of its Forty-eighth Session, Yearbook of the ILC, 1996, Vol. II, Part Two, p. 46, at 14.

[10] Prosecutor v. Momčilo Krajišnik (Case No. IT-00-39-T), Judgment, Trial Chamber I, 27 September 2006, at 862; See also The Prosecutor v. Athanase Seromba (Case No. ICTR-2001-66-A), Appeals Chamber, Judgment, 12 March 2008, at 46.

[11] Prosecutor v. Momčilo Krajišnik (Case No. IT-00-39-T), Judgment, Trial Chamber I, 27 September 2006, at 862.

[12] Lars Berster, ‘Article II’ in Christian J Tams, Lars Berster and Björn Schiffbauer (eds), Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary (C.H. Beck, Hart, Nomos 2014) 79, 118-119.

[13] The Prosecutor v. Momčilo Krajišnik (Case No. IT-00-39-T), Judgment, Trial Chamber I, 27 September 2006, 862. The Chamber relied on what had been established in The Prosecutor v. Krstić (Case No. IT-98-33), Trial Chamber, Judgment, 2 August 2001, para. 513. See also Prosecutor v. Zdravko Tolimir (Case No. ICTY IT-05-88/2-T), Trial Chamber II, Judgment, 12 December 2012, 755.

[14] The Prosecutor v. Zdravko Tolimir (Case No. ICTY IT-05-88/2-T), Trial Chamber II, Judgment, 12 December 2012, 755.

[15] Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), 3 February 2015, ICJ Judgment < http://www.icj-cij.org/docket/files/118/18422.pdf> accessed 5 March 2015, at 360.

[16] The Prosecutor v. Kambanda (Case no. ICTR 97-23-S), Trial Chamber, Judgment and Sentence, 4 September 1998, at 16.

[17] The Prosecutor v. Akayesu (case No. ICTR- 96-4-T), Trial Chamber Judgment, 2 September 1998, at 731 (as quoted in Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia And Herzegovina v. Serbia And Montenegro), 26 February 2007, ICJ Judgment, General List 91, at 300). See also The Prosecutor v. Stakić (Case No. IT-97-24-T), Trial Chamber Judgment, 31 July 2003, at 516.

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The Arms Trade Treaty: the role of legal interpretation and State policy in giving effect to the human rights-based provisions

Between 23rd and 25th February, Trinidad and Tobago hosted the initial preparatory meeting ahead of the first Conference of States Parties to the Arms Trade Treaty which will be held in Mexico later in 2015. Following 20 years of campaigns and negotiations and the failure to reach an agreement at the Final UN Diplomatic Conference, the Arms Trade Treaty  (ATT) was adopted by an overwhelming majority at the UN General Assembly on 2nd April 2013. It entered into force on 24th December 2014, 90 days after ratification by the 50th State. To date, the Treaty has been signed by 130 States and ratified by 63.

As the first treaty to regulate the trading in conventional weapons, the Arms Trade Treaty was not only ground-breaking but long overdue. The most recent impetus towards an internationally binding instrument started to gain traction following the gulf war when it was discovered that Iraq was “awash with arms supplied by all five Permanent Members of the United Nations Security Council”. In December 1991, the UN General Assembly called for increased openness and transparency in the field. Since then, numerous reports by UN bodies, NGOs and IGOs have documented the extent and consequences of weapon proliferation and stockpiling. For instance, a 1999 International Committee of the Red Cross (ICRC) study on arms availability and civilians in armed conflict highlighted the fact that “a vast number of actors have increasingly easy access to lethal weaponry”; the UNDP has documented over 8 million illicit weapons in West Africa alone, and has noted that the weaponisation of societies has contributed to the emergence of child soldiers and non-state armed fighters. It is against this background that the Arms Trade Treaty was negotiated and finally adopted.

Following its adoption, UN Secretary-General Ban Ki-moon noted that the Treaty “will be a powerful new tool in our efforts to prevent grave human rights abuses or violations of international humanitarian law”. In reality, however, it could be a powerful tool, depending on how States choose to interpret and apply its provisions. Undoubtedly, the purpose of the Treaty to contribute not only to the maintenance of international peace and security but also to the furtherance of human rights and humanitarian law bears testament to the remarkable role played by organisations, including Amnesty International, the ICRC and Oxfam in spearheading and campaigning for its introduction. Unsurprisingly, however, the attempt to regulate the multi-billion pound arms industry was a struggle and the underlying principles of the Treaty can only be upheld through continued political commitment.

The Treaty operates a three-tier system to regulate arms export. Primarily, Article 6 contains an absolute prohibition on the authorisation of the transfer of arms: (1) in violation of  States’ obligations stemming from  UN Security Council measures adopted under Chapter VII of the UN Charter, “in particular arms embargoes”; (2) in violation of obligations under international agreements to which States are Party, in particular those relating to the transfer of, or illicit trafficking in, conventional arms; (3) where a State “has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party”.

While all States are bound, under the UN Charter, to implement UN Security Council Chapter VII measures, therefore, the stipulation that arms cannot be transferred in violation of arms embargoes is not particularly remarkable, the provisions relating to genocide, war crimes and crimes against humanity represent “potentially one of the most important provisions in the ATT”. However, regrettably, the requirement that a State explicitly “has knowledge” that arms will be used in a particular manner arguably leaves a fair degree of wiggle room in the authorisation assessment.

The second tier of protection is established under Article 7, sub-Articles 1 – 3 which provide that, in considering whether to authorise an export that is not expressly prohibited under Article 6, a State is required to assess whether the export or transfer: (a) would contribute to or undermine peace and security; or (b) could be used to commit or facilitate: (i) a serious violation of international humanitarian law; (ii) a serious violation of international human rights law; (iii) a terrorism offence (under international conventions or protocols to which the exporting State is a Party); or (iv) an offence under international conventions or protocols relating to transnational organized crime to which the exporting State is a Party.

Where the risks cannot be mitigated and if the exporting State determines that there is an “overriding risk” of the consequences actually occurring, Article 7(3) provides that the State “shall not authorize the export”. The substantial interpretative latitude allowed by these provisions may ultimately significantly affect its effectiveness. Primarily, a State will need to interpret what would qualify as: “undermining the peace”; violations of IHL (that are not already covered under Article 6); serious violations of international human rights law (on which the Geneva Academy of International Humanitarian Law and Human Rights has produced an excellent, detailed legal analysis); and transnational organized crime. Moreover, under Article 7(2) States will need to make a value judgement on whether the risks can be mitigated and whether or not there is an “overriding risk”, a term that is also subject to various, conflicting, interpretations.

This complexity is further compounded by the tensions stemming from economic considerations, particularly in major exporting States. For instance, following an extensive review of the UK’s policies on arms export control, the UK Parliamentary Committees on Arms Export Control (CAEC) observed that

“whilst the promotion of arms exports and the upholding of human rights are both legitimate Government policies, the Government would do well to acknowledge that there is an inherent conflict between strongly promoting arms exports to authoritarian regimes whilst strongly criticising their lack of human rights at the same time rather than claiming, as the Government continues to do, that these two policies “are mutually reinforcing”.

A third tier of protection is introduced in Article 7(4) which provides that, in making their assessment under Article 7(3), State Parties are “to take into account the risk of […] (arms) being used to commit or facilitate serious acts of gender-based violence or serious acts of violence against women”. While it was hoped that the gender-based violence criteria would be placed at par with violations of human rights and international law and States were called upon to prohibit the transfer of arms where there was a substantial risk that they would be use used to perpetrate or facilitate gender-based violence,  the Treaty provision is notably less forceful;  unlike Article 7(1) which, read together with Article 7(3), is proscriptive in nature, Article 7(4) only requires that States take the risks of serious gender-based violence into account. Moreover, the provision is, again, subject to significant interpretation.

However, even if it is not as robust as it could have been, the introduction of the provision is significant. While UN Security Council Resolution 1325(2000) acknowledged the gendered effects of conflicts fifteen years ago, this is the first international treaty that “explicitly links gender-based violence with [the] international arms trade” and, notably, it also applies to non-conflict-related violence.   It comes following various studies that have highlighted the relationship between guns, expressions of masculinity, power and the resultant normalisation of violence against women in conflict, non-conflict and post-conflict situations.   Studies have shown that arms facilitate the commission of gender-based violence, for instance, because “it would not be possible to rape women, in front of their communities and families, on such a large scale […] if there weren’t such a wide availability of small arms”.  Moreover, it has been noted that while the number of men who have died from gun violence significantly outweighs the number of women killed, the fact that a smaller proportion of women own guns means that they are “disproportionately the victims of gun violence, including non-lethal violence”. Of course this does not imply that women are affected in a uniform manner, or that they universally lack agency (for an interesting discussion on the complex, multi-faceted relationship between women, armed violence and the small arms trade see  The Small Arms Survey 2014 Yearbook that focuses on Women and Guns). However, it is significant that by the time that the Arms Trade Treaty was being finalised, the importance of representing the gendered implications of the arms trade, not just as a matter of policy but also as a legal obligation, was considered essential. Indeed, the link between the arms trade and gender based-violence was not only recognised by NGOs and leading academics, but by various UN bodies including the Security Council, the Committee on the Elimination of Discrimination against Women  and the Commission on the Status of Women.

This recognition is crucial; despite increasing legal and political efforts to curb violence against women, the scale of violence, both within conflict zones and outside them remains extraordinarily high. In January this year, the Security Council received reports about “alarming […] unacceptable armed violence committed against women around the world”.

The negotiations leading up to the Arms Trade Treaty have revolutionised the discourse surrounding the relationship between the multi-billion pound arms industry and immense human suffering. It has also put into place a strong legal foundation for its regulation. Nevertheless, the Treaty’s effectiveness in protecting human life is highly dependent on the willingness of States to give the human rights and humanitarian law-based provisions their full effect in the face of immeasurable pressure from the industry. States will need to react quickly and effectively to rapidly-changing crises. Moreover, a uniform application of the Treaty is necessary if the provisions are to have any effect. Disregard for the Treaty’s principles by some States might lead to a race to the bottom; States may be unwilling and politically dissuaded from applying the provisions to their full potential because of pressure from the industry, especially where the regulated items can easily be procured through another State Party.

Non-Violence

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The long walk of Turkey to the protection of fundamental rights of detainees: some comments on the latest report of the CoE.

1. Introduction

On 15th January 2015 the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) published a report issued after its last visit to Turkey between the 9th and the 21st June 2013, that coincided with the “Gezi Park” protests. The publication of the report was requested by the Turkish Government which also issued a subsequent reply.

The work of the Committee arose out of the need to observe and report upon the conditions of detainees in Turkey, particularly the treatment of the inmates in police custody or serving a custodial sentence. This analysis  highlights some parts of the complex document –  including the observations and recommendations of the CPT – concerning allegations of ill-treatment suffered by detainees in general, as well as by national and foreign protesters, journalists and lawyers (among others) in Police custody during the Gezi Park protests. This post aims, in particular, to review some aspects of the report and the Turkish authorities’ response in the light of the events at Gezi Park, as well as the current state of fundamental rights protection in Turkey.

2. The content of the Report of CPT.

The CPT visited different establishments, such as the Ankara, Istanbul and Diyarbakir Police Headquarters and various national prisons. It also heard depositions of detainees and consulted various institutions and organisations (e.g. Representatives of Ministry of Justice, Interior, Health and National Defence, the Turkish Bar Association, the Human rights Association and the Human Rights Foundation of Turkey). The Committee expressed its appreciation for the Turkish authorities’ cooperation in allowing it to perform its investigative duties. The Turkish government’s intention to cooperate has also been demonstrated in the issuing of its response.

The data which emerged from the CPT report highlights some crucial aspects of the conditions of police custody and the ill-treatment suffered both in general and in the particular context of the Gezi Park demonstrations.

A. General Observations

The Committee documented a massive number of allegations, by detained persons, of physical and verbal ill-treatment by police officers, especially the disproportionate use force at the time of apprehension: these reports came, largely, from the south eastern part of Turkey and related to delays in the exercise of the right of notification of custody to relatives, and the denial of the rights to promptly contact and meet a lawyer in private and the presence of a lawyer during questioning.

The CPT also underlined “that it has serious misgivings about certain amendments which were made in 2006 to the 1991 Law on the Prevention of Terrorism” (report p. 15, para. 27) in relation to suspects of terrorism-related offences: these amendments introduced the possibility to deny the right of access to a lawyer in the initial 24 hours of custody and, upon the request of Prosecutor, granted by a judge, to require an officer to be present at the meeting between the suspect and his/her lawyer, where it is suspected that the latter might be a valid connection between the detainee and the terrorist organisation.

In the light of several allegations it received, the Committee strongly recommended the respect for the right of suspects and detainees to be clearly informed of their fundamental rights orally and, subsequently, in writing through the Suspects Right Form, without delay, as provided by the Detention Regulation. The binding right to a medical examination and to have access to a doctor in private were also stressed.

The CPT repeatedly reiterates the recommendation for all departments (not only those related to terrorism) to monitor and record the interviews of detained person by law enforcement officials as a key additional safeguard against ill-treatment.

B. Observations in the context of Gezi Park protests

The delegation visited different prisons with the aim of investigating police crowd control operations in relation to the demonstrations that were ongoing at that time: it interviewed persons deprived of their liberty and estimated how many protesters were detained in ordinary, juvenile and anti-terror departments.

The delegation was informed by the authorities that a substantial number of demonstrators were not held in detention in Ankara and Istanbul for more than 24 h. Despite that, several demonstrators who had been detained made allegations of: the disproportionate use of force during apprehension; different forms of violence and abuse (including verbal abuse); and the use of arms, such as the tear gas, in enclosed and confined spaces.

Some detainees also complained that police officers had intervened in demonstrations without, or concealing, their identification number. Several others reported that officers had been present during medical examinations that were carried out on them while they were in custody.

Despite the violations cited above, in point A, in the context of the Gezi Park protests, the delegation favourably noted the generally positive implementation of fundamental safeguards against ill-treatment following police operations; people in custody were informed of their rights and also had the opportunity to inform relatives about their condition and usually, if requested, to access a lawyer within a reasonable time. This was positive, especially when compared to the general situation in the rest of Turkey, for example, the departments in South Turkey. Nevertheless, the delegation still requested information about the stage of investigations against the officers suspected of committing the abuse.

3.  Legal Analysis

The CPT submitted a considerable number of recommendations. Despite the complexity and insightfulness of the report in most respects, in the section regarding ill-treatment in police custody, the Committee applied an interpretation of the “effective right to access a lawyer” that is unconventional, particularly in relation to the contemporary interpretation of the guarantee.[1] It specified that the objective of guaranteeing effectiveness “is not linked to issues of due process or the right to a defence; it is aimed at preventing ill-treatment.” Undoubtedly the clear intention of the Committee was to highlight the binding duty to prevent the risk of intimidation and ill-treatment “following the deprivation of liberty”, before the affirmation of any other guarantees. However, under the most recent interpretation of Article 6 of the European Convention of Human Rights, the right to an effective defence includes the whole gamut of guarantees linked to a suspect’s status, from the beginning of the investigation or the first application of a measure depriving liberty. The specification of by the Committee is, therefore, probably unnecessary.

The Turkish response

In its response to the report, the Turkish Government expressed its intention to implement the recommendations. It also answered several requests for information and clarified certain points. Its carefully drafted, detailed document seemingly aimed to answer all the questions raised by the CPT, in the same spirit of cooperation shown during the visit of the delegation. Despite this, the document did not properly address all concerns. For example, it did not give sufficient information about the stage of its investigations, prosecutions or disciplinary measures against those responsible. Neither did the Government indicate its willingness to condemn the numerous cases of abuse, suffered both in police custody, in general, and during the demonstrations of Gezi Park, in particular.

On the basis of the allegations in the Report, as well as the Response, it would appear that two of the areas in which there is a high incidence of police abuse are the Diyarbakir and Sanliurfa areas in south eastern Turkey. It is notable that a large part of the Kurdish minority still lives in these areas, particularly in Dyarbakir. This is probably relevant to the evaluation of the general Turkish situation in the field of protection of fundamental rights, above all in the matter of the historical controversial relationship between Turkey and Kurdish ethnic minorities.

The importance of the Report and the comprehensive Response of the Turkish Government on such a sensitive topic is linked to the necessity for full transparency about the policy of binding fundamental rights of individuals. Despite the notable improvements and positive cooperation shown by Turkey to the CPT, the current state of fundamental rights protection still appears to be extremely critical. Furthermore, as noted by Human Rights Watch last December, it appears the Turkish Government has proposed the adoption of several measures aimed at expanding police powers of search and detention and, at the same time, circumventing the prosecutor and judicial control).

Moreover, on 15th January 2015, the European Parliament adopted a resolution on freedom of expression in Turkey, after having “virtually” observed the recent arrests of journalists and media executives and stressing that the operations must respect the rule of law and freedom of media.

4. Conclusion

Over the last few years, the European Union has repeatedly discussed Turkey’s admission into the EU. Despite the extraordinary history of this country since the new-birth under Mustafa Kemal Ataturk, unfortunately the continuing violation of human rights continues to act as one of the factors that prevents the E.U. from considering the opportunity to welcome Turkey in the Union. The current tensions in the social and political fields, as well as the human rights problems reflected in the report, represent the enduring clash between the will to move forward and the repeated, continuing violations, which Turkey has not yet succeeded in overcoming.

[1] Report of the CPT, p. 16.

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