Monthly Archives: June 2015

The International Criminal Court and the Responsibility to Protect: Is this Marriage to be Performed?

Introductory remarks

The International Criminal Court (hereinafter, the ICC or the Court) and Responsibility to Protect (hereinafter, the RtoP or the Doctrine) have a remarkable number of aspects in common. They share a parallel history, both having developed in the last decade; a common cultural background, privileging individual dignity over state sovereignty; and mutatis mutandis they both pursue the aim of preventing and putting an end to mass atrocities and international crimes. Many have separately examined different aspects of both the Doctrine and the Court, only a few have enquired of the relationship between them. One reason of this scholastic lacuna is that the RtoP and the ICC fall within different — and often incommunicable — fields of study. Using the effective metaphor of the three separate tribes of international law (internationalists, pénalists, droit de l’hommistes)[1], the RtoP has been researched mainly by internationalists, given its impact on the State sovereignty, the ius ad bellum and on the UN system. On the other hand, the studies related to the ICC generally have an international criminal law or transitional justice approach. As a result, the RtoP and the ICC are usually examined as separate areas of study, regardless of the potential dynamics and synergies between them.

From both a methodological and practical point of view a comparison between a judicial institution and a Doctrine can be controversial. Indeed, the ICC is a permanent Court established by an international treaty, that is the 1998 Rome Statute, which clearly defines the functioning of its organs. Conversely, the RtoP is a concept still in evolution. Various subjects (the UN Secretary General, the Security Council and single States) have been able to stretch the Doctrine according to different contexts and purposes (international cooperation, humanitarian intervention), creating what has been defined as a “Tower of Babel”. Thus, the Doctrine is to be considered as a tool for diplomacy, rather than for international criminal justice. This notwithstanding, under different perspectives, a strong synergy exists between the two.

After a decade of parallel evolution (from the comprehensive analysis of the International Commission on Intervention and State Sovereignty of 2001 and the entry into force of the Rome Statute in 2002), the 2009 UN Secretary General Report “Implementing the Responsibility to Protect” expressly marked the connection between the Doctrine and the Court. According to Ban Ki-Moon, indeed, [b]y seeking to end impunity, the International Criminal Court and the United Nations-assisted tribunals have added an essential tool for implementing the responsibility to protect, one that is already reinforcing efforts at dissuasion and deterrence. Two years later, the UN Security Council adopted Resolution 1970 of 2011 through which it referred the situation of Libya to the ICC. The Resolution recalled “the Libyan authorities’ responsibility to protect its population” and therefore made these parallel histories intersecting and affirmed the existence of a relationship between the Doctrine and the Court in facing a situation of crisis.

Still, it is unclear whether an effective interplay between the doctrine and the Court is in fact desirable. The paper will consequently present the arguments in favour and against the synergy between the ICC and the RtoP, identifying the current obstacles to the celebration of their marriage.

Adelante, con juicio: Reasons for a Synergy

The ICC and the RtoP share the same philosophical origin, namely, what has been defined as liberal cosmopolitanism. This school of thought, which dominated the UN discourse in the 1990s, considered universal democracy and criminal justice as the best ways to achieve global peace. The main differences between the Doctrine and the Court might indeed be interpreted as an opportunity to complement each other by fulfilling the aim of ending mass atrocities, while holding those responsible for the commission of international crimes accountable.

Since the moment its Statute was drafted, the ICC has been referred to as a “Giant without legs”. Such an expression emphasises the strength of the legal structure of the Court and, at the same time, its dependency on the cooperation of States when it comes to implement its decisions. Conversely, as a diplomatic tool, the RtoP can influence state policies, to the point of challenging their sovereignty, in order to protect their populations from mass atrocities. Yet, the Doctrine lacks a defined legal framework for its action, which exposes RtoP to the risk of being misused by political actors. In any case, theoretically, the RtoP might empower the ICC with the necessary State cooperation to effectively carry out investigations and prosecutions in a certain situation. At the same time, the Court may provide the Doctrine with an independent judicial scrutiny for its action.

More generally, the action of the ICC in certain situations could ideally have a deterrent effect in relation to the perpetration of mass atrocities, thus contributing to the purpose of the RtoP. However, the ICC’s deterrent effect is highly disputed. Many scholars affirm that it is too early to reach definitive conclusions about the possibility for the Court to deter international crimes. Some critics in fact accuse the ICC of causing the opposite effect, by jeopardising peace processes and, as it has been the case in the Darfur situation and on the occasion of the Court’s issuing of the arrest warrants for al-Bashir, provoking violent reactions by politically-influential individuals when charged with international crimes.

“This Marriage is not to be Performed”: Arguments Against a Synergy

The ICC and the RtoP also share the fact of experiencing a paradoxical contradiction. They were in fact both conceived to be independent from any political power in order to affirm the principle of rule of law. Only then it would have been possible to end impunity with regard to the perpetrators of international crimes and identify those appropriate cases that would need an intervention of the international community to end mass atrocities. Conversely, both the Court and the Doctrine have been subjected to criticisms for applying double standards and being influenced by political powers, including the permanent members of the Security Council.

The influence of the Security Council over the ICC is partially regulated by the Rome Statute. The Council is indeed empowered inter alia to trigger the jurisdiction of the Court and to temporarily suspend its proceedings. Most importantly, part of the influence is exerted through extra-legal pressures (most notably, the lack of support to obtain the necessary cooperation by relevant States), which are in fact difficult to contrast with any statutory countermeasures. In addition, the ICC is struggling to carry out its action in situations where it is expected to play a role in contrasting on-going atrocities. As for the Libya situation, for instance, the Security Council specifically mentioned the RtoP when it triggered the Court’s jurisdiction through Resolution 1970/2011. However, so far the ICC has not been able to prosecute the responsible persons. The Prosecutorial strategy privileged domestic proceedings over international prosecution, despite risks of grave violations of the due process rights of the accused.

At the same time, RtoP received similar criticisms for lack of impartiality. The Doctrine has been recalled by different actors with contradictory criteria. The opposite approaches of the international community towards the 2011 Libya and 2013 Syria crises are recalled as examples of double standards. The absence of a clear legal framework shows that the Doctrine has not reached a definitive shape. Even the core elements of the RtoP, such as the concept of “sovereignty as responsibility”, are challenged within diplomatic talks in order to obtain a wider support among States. Given the current situation, the Doctrine is not able to contribute to the implementation of international justice in a situation of crisis, nor can it benefit from a judicial scrutiny of the Court for assessing situations where intervention is worthwhile.

Conclusions

As in Manzoni’s novel “The Betrothed”, many obstacles occur in the celebration of the marriage between the ICC and the RtoP. Their common sources, their shared cultural origin, or DNA, might lead one to conclude that it would be even better not performing the union at all. However, given their recent creation, which is less than 15 years ago, it might be too early for an effective interplay between the two. Both the Court and the Doctrine are still in the process of developing their identity, by finding their place within the international law system and, most of all, struggling for their independence from the political power.

[1]Clapham A., ‘Concluding Remarks: Three Tribes Engage on the Future of International Criminal Law’, in Journal of International Criminal Justice, (2011), 9, 689.

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The African Court on Human and Peoples’ rights and its case law: towards a Supreme Court for Africa?

  1. Introduction

The African Court on Human and Peoples’ rights’ (hereinafter ‘the Court’) was established in 1998 with the aim to complement the protective mandate of the African Commission on Human and Peoples’ Rights (hereinafter ‘the Commission’).[1] The Court’s jurisdiction ratione materiae covers the interpretation and application of the African Charter on Human and Peoples’ Rights (hereinafter, ‘the Charter’), as well as that of its Protocols and of any other relevant Human Rights instrument ratified by the States concerned. [2] According to article 34 (6) of the 1998 Protocol, the Court can receive cases brought by individuals or NGOs having acquired the observing status before the Commission, but only if the interested states make a declaration accepting its competence. To date, seven African Union States allow individuals and NGOs to petition the Court directly, namely: Burkina Faso, Ghana, Malawi, Mali, Rwanda, Tanzania and Republic of Côte d’Ivoire.

Probably because of this relatively small number of states, so far, the protection of human rights has been largely performed by the Commission through its system of communications. The Court, for its part, has mainly decided on jurisdictional matters, concluding to have no competence because the complaints were brought by NGOs or citizens of states which had not made a declaration based on article 34. [3] Nevertheless, over the last years the Court has started developing its own jurisprudence and acting as if it had powers similar to those which, in a great number of national legal systems, pertain to Supreme courts. For instance, the Court has assessed the ‘constitutionality’ of national legislations and state Constitutions, by using the Charter as a parameter. Moreover, the Court has taken advantage of the generic wording of the 1998 Protocol to develop its powers with regard to reparations. In particular, article 27 of the Protocol provides that ‘if the Court finds that there has been violation of a human or peoples’ rights, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation’. This broad formulation has already led the Court to order states to amend their legislation, or resume the investigation of a criminal case. In the near future, it might also bring the Court to pronounce itself on the legal findings of a national Supreme Court. The present post focuses on the Court’s most recent case law and concludes that the Court could play a leading role in promoting the international rule of law, by granting a uniform application of the international law of human rights in Africa.

  1. The Court’s case law

In the consolidated case of Tanganyika Law Society and The Legal and Human Rights Centre v the United Republic of Tanzania and Reverend Christopher Mtikila v the United Republic of Tanzania, the Court assessed the compatibility with the Charter of certain national constitutional provisions. As the Court has subsequently affirmed in Peter Joseph Chacha v The United Republic of Tanzania, indeed, ‘[a]s long as the rights allegedly violated are protected by the Charter or any other human rights instrument ratified by the State concerned, the Court will have jurisdiction over the matter.’[4] Thus, the Court considers itself competent to assess whether and to what extent national constitutions comply with the African Charter and any other human rights instruments ratified by the state. This is particularly surprising in the light of the trend currently experienced by another regional court of human rights, i.e., the Strasbourg Court, in its dialogue with some ‘nationalistic’ constitutional courts.

In terms of reparations, in Peter Joseph Chacha v The United Republic of Tanzania, the Court has performed some of the functions generally associated with the power of judicial review, which is a prerogative of national constitutional courts.[5] In particular, it has held that ‘[t]he Respondent [State] is directed to take constitutional, legislative and all other necessary measures within a reasonable time to remedy the violations found by the Court and to inform the Court of the measures taken.’[6] More recently, it has gone even further and specifically ordered Burkina Faso how to amend its national legislation. Indeed, in the case of Lohé Issa Konaté v Burkina Faso it required ‘to amend its legislation on defamation by repealing custodial sentences for acts of defamation, and by adapting its legislation to ensure that other sanctions for defamation meet the test of necessity and proportionality.’[7]

Lastly, in December 2014 the Court has condemned Burkina Faso for violating article 7 of the Charter due to the lack of an effective investigation in relation to the death of Norbert Zongo, a journalist killed in 1998 while investigating the former president’s brother. Following this decision, on 5 June 2015, the Court has ordered Burkina Faso ‘to resume the investigations with a view to finding, charging and trying the perpetrators of the murders of Norbert Zongo and his three companions.’ In similar cases, the Strasbourg Court has never gone so far, considering it sufficient declaring the violation,[8] awarding the victims with non-pecuniary damage,[9] or, in case of systemic violations, affirming that is up to the interested State, together with the Committee of Ministers, ‘to identify appropriate general measures to prevent future similar violations.[10] The Strasbourg Court has never, in fact, ordered states to resume an investigation. Notably, other cases before the African Court might constitute an opportunity for the Court to further develop its powers.

One of the most important cases currently pending before the Court is Ingabire Victoire Umuhoza v The Republic of Rwanda. Due to the political implications which may arise from any Court’s decision, this is also a very sensitive case. The applicant, Ingabire Victoire Umuhoza, is a Rwandan leader of political opposition who has been in prison since 2010, when she run for the Rwandan General Elections. She was accused of having committed a number of serious crimes, including: spreading the ideology of genocide; aiding and abetting terrorism; sectarianism and divisionism; and undermining the internal security of a state, spreading rumours which may incite the population against political authorities and mount the citizens against one another; establishment of an armed branch of a rebel movement; attempted recourse to terrorism, armed force and any form of violence to destabilise established authority and violate constitutional principles. She was then condemned to a 15-year imprisonment by the Supreme Court of Rwanda.

Before the African Court, Ingabire Victoire Umuhoza alleges violations of three human rights instruments, namely: the Universal Declaration of Human Rights (UDHR), the African Charter on Human and Peoples’ Rights, and the International Covenant on Civil and Political Rights (ICCPR). Apart from the substantial aspects, this case might allow the Court to shape and stretch again the limits of its mandate. The applicant asks the Court to order Rwanda to: repeal with retroactive effect the two laws grounding her conviction,[11] review the case, annul all the decisions that had been taken since the preliminary investigation up till the pronouncement of the last judgment, release her on parole, and pay costs and reparations. The request relating to the review of the case and the annulment of all the decisions issued by any national courts, including the Supreme Court, might have a significant impact on the shaping of the limits of the Court’s mandate. Indeed, it will be on the Court to decide whether or not it would be appropriate to order the annulment of a definitive judgment by the Rwandan Supreme Court. If the Court upholds this pray, it will put itself in a much more advanced position than the other regional courts. As showed above, the Court has already deemed to be competent to ask states to repeal their national legislation. If, in the Ingabire Victoire case, the Court also orders the review of the case and the annulment of all decisions based on the law that the Applicant preys to be repealed, it will exercise new powers similar to those that are often associated with a national Supreme Court. Interestingly, Rwanda has not claimed that the Court lacks the competence in this regard. Rather, it has based its counterclaims on different grounds, somehow taking for granted that the Court would not act ultra vires.

3 Conclusion

Notwithstanding the very small number of decisions issued so far, over the last years, the Court has progressively become a key actor for the protection of fundamental rights in Africa. Taking advantage of the vague wording of article 27 of the Protocol, and with the general acceptance of all States, the Court has developed its competences and enlarged its mandate to the point of assuming functions similar to those often associated with national Supreme Courts. Therefore, thanks to its broad ratione materiae jurisdiction, which extends to all human rights’ instruments ratified by the respondent state, the Court can potentially end up by guaranteeing a uniform application of the international law of human rights in Africa. It remains to be seen whether and to what extent the Court will keep on enlarging its mandate, in spite of the political sensitiveness of certain cases. The Court’s most recent position in the Zongo case gives good reasons to believe that the Court will go on with its activism.

[1] See article 2 of the 1998 Protocol.

[2] Article 3 of the Protocol. See C. Zanghí, La Promozione Internazionale dei Diritti dell’Uomo (2006) 451.

[3] See Michelot Yogogombaye v The Republic of Senegal App. no 001/2008 (ACtHPR, 15 December 2009); Soufiane Ababou v People’s Democratic Republic of Alger App no 002/2011 (ACtHPR, 16 June 2011); Daniel Amare & Mulugeta Amare v Mozambique Airlines & Mozambique App no 005/201 (ACtHPR, 16 June 2011); Association Juristes d’Afrique pour la Bonne Gouvernance v La Côte d’Ivoire App no 006/2011 (ACtHPR, 16 June 2011); Ekollo Moundi Alexandre v Republic of Cameroon and the Federal Republic of Nigeria App no 008/2011 (ACtHPR, 23 September 2011); National Convention of Teachers Trade Union v The Republic of Gabon App no 012/2011 (ACtHPR, 15 December 2011); Delta International Investments v Republic of South Africa App no 002/2012 (ACtHPR, 30 March 2012); Emmanuel Joseph Uko and Others v Republic of South Africa App no 004/2012 (ACtHPR, 30 March 2012); Amir Adam Timan v Republic of the Sudan App no 005/2012 (ACtHPR, 30 March 2012); Baghdadi Ali Mahmoudi v Republic of Tunisia App no 007/2012 (ACtHPR, 26 June 2012).

[4] Peter Joseph Chacha v The United Republic of Tanzania, Application No. 003/2012 (ACtHPR, 28 March 2014 ) at 114. [5]          R. Rogowsky and T. Gawron, ‪Constitutional Courts in Comparison: The U.S. Supreme Court and the German Federal Constitutional Court (2002) 5-6.

[6] Tanganyika Law Society and The Legal and Human Rights Centre v the United Republic of Tanzania and Application 011/2011 Reverend Christopher Mtikila v the United Republic of Tanzania (Consolidated Applications) Applications No. 009/2011 and 011/2011 (ACtHPR, 14 June 2013) at 126. Similarly, Peter Joseph Chacha v The United Republic of Tanzania Application No 003/2012 (ACtHPR, 28 March 2014) at 82.

[7] Lohé Issa Konaté v Burkina Faso App. No. 004/2013 (ACtHPR, 5 December 2014).

[8]          See ,e.g., Husayn (Abu Zubaydah) v. Poland Application No. 7511/13 (ECtHR, 24 July 2014) at 568.

[9]          See, e.g., Identoba and others v. Georgia Application No. 73235/12(ECtHR, 12 May 2015) at 110.

[10]         See Vasil Hristov v. Bulgaria Application No. 81260/12   (ECtHR, 16 June 2015) at 49.

[11]         Sections 116 and 463 of Organic Law N° 01/2012 of 2 May 2012 relating to the Penal Code, as well as Law N° 84/2013 of 28 October 2013 to the punishment of the crimes of the ideology of the Genocide.African Court

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Grand Chamber judgment in Lambert v France. Personal autonomy within the right to life opens the door to the ‘right to die’

Introduction

On the 5th of June 2015, the Grand Chamber of the European Court of Human Rights (ECtHR) has released its judgment in the case of Lambert v France. The judgment’s core lies in the decision, taken by twelve votes to five, that the withdrawal of Mr Lambert’s artificial nutrition and hydration under the procedure prescribed by French law would not (if implemented) constitute a violation of Article 2 ECHR (right to life).

The facts of the Lambert case and the relevant domestic legislation have been described by this Author in this same blog. Therefore, the present contribution focuses only on the legal reasoning developed by the Grand Chamber. It is worth reminding that the judgment is a unicum in the panorama of the Strasbourg case law, being the first occasion in which the Court has been called to rule on the withdrawal of medical treatments from an adult patient unable to express his will.

The applicants’ standing before the ECtHR

The applicants were the parents and two siblings of Mr Lambert. They alleged that the domestic authorities’ decision to withdraw Mr Lambert’s nutrition and hydration would violate Article 2 (right to life), Article 3 (prohibition of torture) and Article 8 (right to private and family life) of the Convention. The applicants acted both on Mr Lambert’s behalf and on their own. As a general rule, applications can be brought to the ECtHR only by the victims of an alleged violation of the Convention rights.1 The Court’s case law allows exceptions in two cases: when the violation is ‘closely linked to a death or disappearance in circumstances allegedly engaging the responsibility of the State’, or when the victims are vulnerable subjects, unable to personally lodge a complaint. In this second case, the Court applies two criteria: the risk that, otherwise, the victim would be deprived of effective protection, and the absence of a conflict of interest between victim and applicant. Having verified that none of these exceptions applied to the case, the Grand Chamber did not admit the applicants’ standing to act in the name and on behalf of Mr Lambert. Conversely, it admitted the application they had made on their own behalf.

The legal reasoning

On the basis of a distinction between ‘euthanasia’ and ‘therapeutic abstention’, the Grand Chamber decided that the case of Mr Lambert involved only the positive obligations deriving from Article 2 ECHR. In other words, the issue at stake was declared to be whether the French State had taken the appropriate steps to safeguard Mr Lambert’s life (positive obligation), and not whether it had the intention of causing Mr Lambert’s death (negative obligation).

The Court recalled its previous case law on ‘related issues’, highlighting the evolution on the relationship between Articles 2 and 8 ECHR. It then referred to the only two previous cases involving the administering or withdrawal of medical treatments2, assessing that the factors taken into account on those occasions were: the existence in domestic law and practice of a regulatory framework compatible with the requirements of Article 2; whether account had been taken of the applicant’s previously expressed wishes and of those of the persons close to him, as well as the opinions of other medical personnel; the possibility to approach the courts in the events of doubts as to the best decision to take in the patient’s interest.

The Court acknowledged the absence of a consensus among the Council of Europe member States as to whether the withdrawal of ‘artificial life-sustaining treatment’ should be allowed (par 147). Accordingly, it declared that ‘in this sphere concerning the end of life (…) States must be afforded a margin of appreciation (…) as regards the means of striking a balance between the protection of patients’ right to life and the protection of their right to respect for their private life and their personal autonomy’ (par 148).

After having thus defined the context, the Grand Chamber analysed the applicants’ claims. In the first place, they argued that the domestic legislative framework lacked precision and clarity as to its scope of application, and as to the notions of ‘medical treatment’ and ‘unreasonable obstinacy’. The Court considered the relevant legislative provisions and the interpretation given to them by the Conseil d’État, coming to the conclusion that the legal framework thus defined ‘is sufficiently clear, for the purposes of Article 2 of the Convention, to regulate with precision the decision taken by doctors’. As for the decision itself, the applicants alleged that it was vitiated, because the doctors had not tried to compose the contrast between the different positions expressed by Mr Lambert’s family. The Court assessed that the organisation of the decision-making process (including the designation of the person who takes the final decision, and the arrangements for the final taking of the decision) falls within the margin of appreciation of the State (par 168). It pointed out that the process had taken into consideration all points of view (including the presumed wish of Mr Lambert’s himself), and that effective domestic remedies had been available to the applicants.

To conclude, the Grand Chamber assessed that the legislative framework laid down by French law, and the decision taken by the doctors of Mr Lambert on this basis, were compatible with the positive obligations flowing from Article 2 ECHR, in view of the margin of appreciation left to the State in this case (par 181). The complaint raised by the applicants with regard to Article 8 (right to respect for private life) was declared to be absorbed by the one under Article 2. The complaint raised under Article 6 (fair trial) was declared to be manifestly ill-founded.

Analysis

In previous posts on the Lambert case, this Author had anticipated the Grand Chamber’s focus on Article 2 ECHR and on the respect for legal certaintyA closer look at the final judgment reveals that, in addition to these, somehow predictable, choices, hides an interesting mix of parameters, apparently causing a contradiction in the Court’s reasoning, but actually pushing further than ever the ECtHR’s position on end-of-life situations.

In motivating the refusal to accept the applicants’ standing in the name and behalf of Mr Lambert, the Grand Chamber declared that it ‘does not consider it established that there is a convergence of interest between the applicants’ assertion and what Vincent Lambert would have wished’. In addition, it declared that there was no risk for Mr Lambert to be deprived of effective protection, because ‘it is open to the applicants (..) to invoke before the Court on their own behalf the right to life’. Such motivation oddly mixes arguments concerning Articles 2 and 8. If the focus were on Mr Lambert’s right to life, no argument could be brought to assess that he and his parents had different ‘interests’. As correctly pointed out by the partly dissenting opinion of Judges Hajiyev, Šikuta, Tsotsoria, De Gaetano and Gritco, obviously Mr Lambert and his parents had similar concerns as regard the protection of his physical integrity. A different conclusion can be reached only if the focus is on the right to private life (Art. 8), hence on Mr Lambert’s right to freely determine the extent of his own life. However, if this were the case, one cannot see how this right would be ‘effectively protected’ by allowing his parents to invoke a different right, namely the right to life (Art. 2). 

It is this Author’s belief that behind this apparent contradiction in the Court’s reasoning there is actually a conscious choice, grounded on the following assertion:

‘[I]n a case such as the present one reference should be made, in examining a possible violation of Article 2, to Article 8 of the Convention and to the right to respect for private life and the notion of personal autonomy which it encompasses (par 142).

The Court’s previous case law connected Article 8 to Article 2, in order to reach the conclusion that the right to private life entails the right to freely determine the extent of one’s own life.3 What is new in Lambert, is that this connection is reversed, allowing the Court to establish the extent and scope of Article 2 in the light of Article 8. In other words, the previous case law on end-of-life situations is used in Lambert to justify that the content of the right to life is partly determined by the right to private life and by personal autonomy. Even if not evident, this is a considerable opening by the Strasbourg Court to reverse its previous position, according to which the right to life ‘cannot entail, without a distortion of language, the right to die’.4

1 Article 34 ECHR

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Individual Criminal Responsibility for illegal use of force under international law. What role can International Criminal Law play before agression is criminalised under the Rome Statute

Introduction

This post explores the legal conditions that are required for the International Criminal Court (‘Court’) to investigate and prosecute the illegal use of armed forces between states, prior to the entry into force of the 2010 amendment to the crime of aggression. The amendment will enter into force if at least 30 States Parties ratify it and a decision is taken by two-thirds of States Parties to activate the jurisdiction at any time after 1 January 2017. When this happens, the Court will be empowered to investigate and prosecute the crime of aggression. The post proposes that in the meantime, an innovative judicial interpretation and application of Article 7 (k) of the Rome Statute of the Court may be a provisional measure that could be used to ensure that there is individual criminal responsibility for those who resort to the illegal use of force. Illegal use of force is a breach of both treaty law and international customary law.

The post is motivated by the fact that, although the Charter of the United Nations’ opening sentence expresses the determination of ‘the peoples of the United Nations to save succeeding generations from the scourge of the war’, those who have been responsible for the illegal use of armed force against other sovereign states have literally managed to get off ‘scot free’. The inclusion of the phrase ‘We the peoples of the United Nations’, instead of the traditional phrase ‘The High Contracting Parties’ in the Charter, was supposed to mark a paradigm shift towards the foundation of a new world order centred on safeguarding the welfare of peoples rather than that of states or formal authority of governments. It is, however, disconcerting that although the Nazi leadership was successfully prosecuted for, among other international crimes, the illegal use of force, what was then called crimes against peace, that precedent has not been upheld and, consequently, women and children continue to suffer the devastating effects of illegal use of armed force. There are numerous examples of illegal use of armed forces in contemporary global affairs whose architects have not been held to account. To cite but a few: Russia’s repeated violation of Georgian airspace and aerial bombardment that killed and wounded several civilians in 2002, the US-led invasion of Iraq in 2003, Uganda’s violation of Congolese territory in 2005, as recognised by the ICJ in DRC v. Uganda, and the North Korean shelling of Yeonpyeong Island in 2010.

Conditions under which the illegal legal use of force can be considered to fall under the category of ‘other inhumane acts’ of Crimes against Humanity

The individual acts that can be prosecuted by the Court under crimes against humanity are enumerated in Article 7 (1) (a) to (k) of the Rome Statute. Article 7 (k) refers to the category of ‘other inhumane acts’, and provides flexibility to cover violations of human rights that are not specifically enumerated as criminal acts.[1] The inclusion of this open-ended category of criminal acts is favoured by those who consider that an exhaustive categorisation of crimes would merely create opportunities for the evasion of the letter of the prohibition.[2]The approach goes along with the proposal to consider the illegal use of force as a criminal act that could be prosecuted under crimes against humanity.[3]

The Rome Statute combined with the Elements of Crimes provides the necessary threshold that must be satisfied for an act to be considered an ‘other inhumane act’. This implies that the act of the illegal use of force would have to meet the set threshold before being considered for either investigation to prosecution under the category of ‘other inhumane acts’. The conditions that the act will have to meet are a) the act has to inflict great suffering or serious injury to body or mental or physical health; b) be of similar character/gravity to the listed inhumane acts and c) the perpetrator must have been aware of the factual circumstances that established the character/gravity or the act.[4]

The case law of the two ad hoc international tribunals and the Court contains a list of diverse acts that were considered ‘other inhumane acts’.[5] In the situation in Kenya, the Pre-Trial Chamber II, confirmed that ‘other inhumane acts’ included forced circumcision and genital amputation inflicted upon members of the Luo community as well as acts of cutting and hacking that were committed in the post-election violence in 2008.[6] The variety of acts that both the ad hoc tribunals and the Court were prepared to consider under the category of ‘other inhumane acts’ supports the view that there should be no reason why the illegal use of force could not be included.

There are additional contextual conditions that have to be present in all criminal acts for the Court to have jurisdiction and exercise it. The contextual elements serve the purpose of elevating prohibited acts from being ordinary offences into to being considered as a concern for the international community.

The conditions or jurisdictional threshold for the crimes against humanity are set as follows;

For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack….[7]

This means that the key condition that the illegal use of force has to satisfy to be classified as a crime against humanity is that it has to be committed as part of a widespread or systematic attack. Widespread is understood as referring to the quantitative nature of the crime in terms of the number of victims and not necessarily the number of acts committed[8] whereas systematic is considered to refer to the level of organization of the crime and whether it follows a regular pattern based on a common policy involving substantial public or private resources.[9] Accordingly, any isolated or sporadic misbehaviour, irrespective of being heinous and horrendous, may not qualify as a crime against humanity.[10]

Conclusion

There are obviously challenges associated with the proposition put forward in this post. This is because the definition of crimes against humanity in the Rome Statute has some grey areas that still require clarification. Both the jurisdictional and material elements of crimes against humanity need to be calibrated before serious consideration is given to prosecuting the illegal use of force. This includes refining the requirement that the object of the attack has to be ‘any civilian population’. The definition of civilian in the context of the Rome Statute’ crimes against humanity is still a contentious issue. It is hoped that such clarity will be achieved if a current campaign by a group of academics, judges and practitioners to develop a Convention on Crimes against Humanity under the leadership of Professor Leila Nadya Sadat, proves to be successful.  Perhaps such a convention would put to rest some of the unsettled definitional challenges that crimes against humanity faces.

Still the post maintains that while the world awaits the entry into force of the aggression crime, there is a possibility to prosecute illegal use of force under the category of ‘other inhumane acts’ in Article 7 of the Rome Statute. There is obviously no authority to support such proposition although there seem to be no valid reason for not doing so. It does not seem that doing so would violate the principle of nullum crimen sine lege. This is because since the category was first included in Article 6 (c) of the Nuremburg Charter, then in the Control Council Law No 10, in the Statutes of the ad hoc tribunals and the Rome Statute, it appears to have been elevated to the status of customary international law.

[1]William A. Schabas, The International Criminal Court -A Commentary on the Rome Statute (Oxford University Press 2010) at p.119

[2]Kupreškic et al. (IT-95-16-T), Judgement, 14 January 2000, para 563

[3][3]Benjamin B. Ferencz, ‘A New Approach to Deterring Illegal Wars’ (Benjamin B Ferencz, 2011) <http://www.benferencz.org/index.php?id=4&article=106&gt; accessed 03 July

[4] See Margaret M. deGuzman, ‘Crimes Against Humanity ’ in William A Schabas and Nadia Bernaz (eds), Routledge Handbook of International Criminal Law (Routledge 2011) at p 134, Rome Statute Article 7 (1) (k) and Elements of Crimes Article (7) (1) (k) 1-5

[5] Some of the cases include Tadić(IT-94-1-T), Judgement,7 May 1997 para.728 (beatings and other acts of violence) Also: Akayesu (ICTR-96-4-T) Judgement, 2 September 1998 para (forced undressing and parading in public); Brima (SCSL-2004-16-A) Judgement, 22 February 2008, para 202 ( force marriage)

[6]Situation in Kenya (ICC-01/09), Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010 ,para 116

[7] Rome Statute Article 7 (1)

[8]Kai Ambos, ‘Crimes Against Humanity and the International Criminal Court ’ in Leila Nadya Sadat (ed), Forging A Convention for Crimes Against Humanity (Cambridge University Press 2011) at p.284, see also Al Bashir (ICC-02/05-01/09) , Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009, para 81

[9]Akayesu (ICTR-96-4-T) Judgement, 2 September 1998 , para 580

[10]Antonio Casesse, ‘ Crimes Against Humanity ’ in Antonio Casesse, Paola Gaeta and John R.W D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary vol 1A (Oxford University Press 2009) at p.357

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The Peace Process in Colombia: New Pathways for Transitional Justice

Elena Maculan
Post-doc Research Fellow, Instituto Universitario Gutiérrez Mellado, Madrid (Spain).
Formerly Visiting Fellow at Middlesex University (January-March 2015).

The Colombian peace process is probably one of the most complex, interesting and challenging currently taking place. It opens up new pathways for Transitional Justice by applying a traditional framework to a non-conventional situation, which might be described as “transitional justice without transition”.[1] The armed conflict in Colombia is extremely violent and protracted; since 1958 it has caused over 220,000 deaths and many other serious offences, mostly against civilians.[2] Additionally, it is highly complex due to the great number of armed actors involved. In this context, there is no clear-cut end of a former situation that marks the beginning of a transition, since no peace agreement has been signed by all the parties in the conflict. Moreover, violence has spread throughout the country under a democratic regime and, unlike the situation in other Latin-American countries, the harsh State repression has never turned into a dictatorship. Despite this, transitional justice principles and mechanisms have been widely used by the State to deal not with the violent past, but with the violent present. This experience demonstrates some original features, namely, the implementation of exceptional instruments for criminal prosecution based on a flexible approach, the “constitutionalisation” of transitional mechanisms, and a focus on victims’ recognition and their participation in the decision-making process. These might offer interesting suggestions for other transitional experiences.

1.     Exceptional measures in criminal law

In the Colombian system, criminal prosecution for the offences committed during the conflict encompasses two exceptional tools. First, Law 975(2005), known as the Justice and Peace Law, provides a reduction of the normal applicable criminal penalties as an incentive for participation in the peace process. Members of armed groups that agree to demobilise are admitted into a special procedure.[3] Here, they are asked to give a declaration (versión libre) about the crimes in which they played a role and to contribute to victims reparations. In exchange, they are granted a reduced prison sentence and, after a further period of probation, their sentence is extinguished.[4] A second exception to the normal criminal procedures was introduced by the 2012 constitutional reform law and allows the prosecutor to select and prioritise cases for investigation and trial. The Office of the General Prosecutor further developed this concept, by establishing a number of criteria that placed the focus on those who bear the greatest responsibility, the gravity of the crime, the feasibility of the trial and, most interestingly, the “representativity” of the case (its capacity to describe a criminal pattern). These criteria have been incorporated in the Justice and Peace process by means of Law 1592(2012). Obviously, the underlying assumption is that cases that do not fall within the scope of these criteria might not be prosecuted. Both the alternative sanctions and the selection and prioritisation criteria are grounded on the basic idea that any transitional process requires some compromise solutions. This can (and often does) imply limiting the application of ordinary criminal prosecution and sanctions. As the Colombian Constitutional Court rightly observed, any transitional process requires a balancing of countervailing values: the victims’ right to justice, truth and reparation on the one hand, and the core value of peace, as a right and duty of the State as a whole on the other.[5] This view apparently runs counter to the purported international duty to prosecute and punish gross human rights violations or, at least, a strict interpretation thereof.[6] However, the Constitutional Court maintains, correctly in my view, that this is not a strict rule, but a principle, which has to be balanced with other core values, such as the establishment of a lasting and sustainable peace.[7] The need to strike a balance may legitimate the application of exceptional measures, as long as they fulfil some minimum conditions, namely, the prosecution of international crimes, and the effective protection of the victims’ rights. It is also worth noting that the Prosecutor of the ICC has been monitoring the Colombian situation since 2006 under a preliminary investigation, but has not decided to open a situation yet. Indeed, the Colombian State has been found to comply, at least thus far, with the requirements, under Art. 17 ICC Statute, of capacity and willingness to undertake effective investigations and prosecutions.[8] This might suggest that the transitional mechanisms that have been implemented, including the exceptional measures for criminal prosecution, are not deemed to violate the international duty to prosecute and punish.[9]

2.     Constitutionalisation of the transitional process

A second central feature of the Colombian peace process is its “constitutionalisation”, introduced through the constitutional reform known as Marco Jurídico para la Paz. Temporary Articles 66 and 67 articulate the fundamental goals of the transitional process, namely, bringing an end to the armed conflict; building a sustainable and lasting peace; and granting “to the highest possible level” the victims’ rights to truth, justice and peace. The provisions also list the “exceptional mechanisms” that have been or shall be implemented to reach these goals: criteria for the selection and prioritisation of cases for criminal prosecution; the suspension of sentences; the application of alternative sanctions; the right to participate in politics and the creation of a Truth Commission. The constitutional provisions clarify that these mechanisms shall be applied as long as the beneficiaries comply with a set of conditions, such as disarmament, the recognition of their responsibility and their engagement in truth finding and reparation initiatives. In a nutshell, the reform grants constitutional recognition not only to some specific mechanisms applied in the peace process, but also to the very underlying idea that establishing a sustainable peace requires exceptional measures, albeit while safeguarding the victims’ rights as far as possible.[10] Although enshrining the transitional justice approach in the Constitution is not a novelty – one may recall the South African Constitution (Art. 22) – the difference is that Colombia has taken this step after the implementation of most of the transitional mechanisms, and at a crucial moment during which negotiations with the FARC[11] began. This suggests the willingness to build a comprehensive transitional project, by taking advantage of existent mechanisms and addressing further unresolved issues. In addition, it provides the peace process with increased legitimacy at both the legal and social levels.

3.     Victims’ recognition and participation

Another key feature of the Colombian transitional process is the increasing centrality of victims in the process. Formal recognition of their status and of their rights to justice, truth and reparation were envisaged in the Justice and Peace Law[12] and reiterated by the Constitutional Court in its Judgment C-370/2006. The same Law provided for the creation of a Commission (Comisión Nacional de Reparación y Reconciliación) with the main task of laying out guidelines and proposals for reparations.[13] Furthermore, under the Commission, a separate entity (Grupo de Memoria Histórica, later replaced by the Centro Nacional de Memoria Histórica) was created in order to build a full and impartial narrative about the conflict. However, a major step is probably the Law on Victims (1448/2011), which encompasses some ambitious and far-reaching measures to address victims’ rights and claims. One of its novel aspects is the creation of a mechanism for land restitution, to be implemented by way of a special procedure. The Law also envisages proceedings for house restitution, programs to foster employment and education, psycho-social assistance, a new administrative compensation measure, and a number of symbolic reparation initiatives. A second avenue for victims’ recognition are the peace talks between the Colombian Government and the FARC, currently taking place in La Habana, following a General Agreement signed in 2012. Here, victims are one of the six points on the agenda of the talks. Additionally, they have been given the opportunity to participate directly in the negotiations. The Negotiating Committee received victims’ delegations, selected to represent all the different victims, in five different hearings; they had the opportunity to tell their stories and make proposals for the transitional process. In my view, this falls within the broader trend in Transitional Justice, to consider victims not only as beneficiaries, but as active participants (albeit not the sole voice) in the decision-making process.

4.     Final remarks

The Colombian peace process has been applying transitional justice principles and mechanisms in a non-conventional transitional context, thereby developing a number of creative solutions. Although the peace process is still ongoing, and there still are many challenges ahead, these features might provide a good framework for its success. They might also serve as a useful example for other transitional experiences, even though there is no “one-fits-all” solution in this field.

[1] R. Uprimny Yepes et al. (2006). ¿Justicia transicional sin transición? Verdad, justicia y reparación para Colombia. Bogotá.

[2] Comisión Nacional de Memoria Histórica (2013), ¡Basta Ya! .

[3] Potential beneficiaries also need to be included on a Governmental list, provided that they fulfil certain requirements. This proceeding is complementary to Law 758(2002), which provides for pardons and other beneficial measures to members of illegal armed groups that committed political crimes and who are willing to be engaged in the peace process. [4] For a full analysis of this Law, see e.g.: K. Ambos (2010), “Procedimiento de la Ley de Justicia y Paz (Ley 975 de 2005) y Derecho Penal Internacional”. Bogotá: Temis (ProFis), 9-148.

[5] Constitutional Court, Judgment C-370/2006, wherein the Court confirmed the constitutionality of the Justice and Peace Law by applying this balancing test. Nonetheless, it also imposed some additional requirements to the special proceeding (that the defendant must give a full and truthful confession, and that they must contribute to reparation with all their assets) in order to better grant the effectiveness of victims’ rights.

[6] The Inter-American Court of Human Rights has been especially proactive in affirming this duty and enlarging its scope, by interpreting it almost as a duty to prosecute and punish all perpetrators and participants in any human rights violations; contra: E. Malarino (2012): “Judicial activism, punitivism and supranationalisation: Illiberal and antidemocratic tendencies of the Inter-American Court of Human Rights”. 12(4) International Criminal Law Review, 665-695.

[7] Constitutional Court, Judgment C-579/2013.

[8] See also the study by K. Ambos and F. Huber.

[9] Nevertheless, the OTP, in its 2012 Interim Report, has noted that some areas, like sexual crimes, the killings known as “false positives” and forced displacements, need to be more thoroughly addressed. The Office conducted a mission to Colombia earlier this year, at the end of which it reiterated its support for Colombia’s ongoing efforts to deal with the crimes and bring about peace.

[10] The Constitutional Court has confirmed the constitutionality of the selection and prioritisation of cases (Judgment C-579/2013) and the possibility for the former members of illegal groups to participate in politics, after serving their sentence (Judgment C-577/2014).

[11] Fuerzas Armadas Revolucionarias de Colombia: the most important guerrilla group still active in Colombia.

[12] Arts. 6-8. [13] Arts. 50-51.red_slide_paz

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