Monthly Archives: September 2016

CRIMINAL PUNISHMENT AND PEACE PROCESS. Some thoughts on the “alternative penalties” envisaged in the Colombian Special Jurisdiction for Peace

On past 24th August the Colombian Government and Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo (FARC-EP) announced a long-awaited final agreement that puts an end to the armed conflict that has lasted for more than 60 years. The agreement is going to be signed today (26th September) in an official act and submitted to referendum on 2nd October. If the outcome of the referendum is favourable, legislative and constitutional reforms shall be passed in order to implement the agreement. Therefore, what they call final agreement is somehow only the beginning of a broader and more complex transitional process.

Despite all these uncertainties and open issues, the content of the agreement confirms that Colombia is leading a new trend in a comparative perspective. Actually, it encompasses a number of innovative solutions that may challenge the dominant view about State obligations when it comes to prosecution and punishment of gross human rights violations in transitional contexts.[1]

One of these novelties are the sanctions provided by the Special Jurisdiction for Peace, which, as mentioned in a previous post of mine, is aimed at dealing, in combination with non-judicial mechanisms, with the serious crimes committed during the conflict.[2]  The sanctions provided under these mechanisms vary depending on whether or not those allegedly responsible for the commission of such crimes plead guilty. If this happens before a formal process is opened against them, these people may be sentenced to “alternative penalties” of 5 to 8 years.

Whilst the former provisional agreement left the category of “alternative penalties” undefined, the final agreement sets out a list thereof. This list distinguishes among the sanctions to be served in rural areas (for example, programs for reparation for displaced peasants, environmental protection, substitution of illicit crops), those to be served in urban areas (for example, programs to build infrastructures or to grant access to potable water) and those related to demining and the disposal of the remains of other arms.

The applicants may submit to the attention of the competent Section of the Special Jurisdiction an individual or collective project to realize an activity or a deed within one of the listed fields. This project has to specify duties, duration, timetable and place of execution, and must provide for consultation with victims that live in the place of execution. The Chamber shall decide the place where the applicant shall live during the serving of this sentence. The agreement clarifies that this restriction in no case can imply imprisonment or detention.

There are many interesting issues at stake regarding this system of penalties. Firstly, their rationale is to combine a limited restriction on fundamental freedoms with a restorative justice perspective.[3] Instead of temporarily isolating perpetrators from society by putting them into jail, these sanctions involve them in reparation mechanisms, thereby satisfying some of the victims’ claims and fostering reintegration and reconciliation.

Secondly, the procedure by which the applicant may propose a project allows the development of more specific and targeted activities, which should pay the due attention to local needs. Furthermore, the fact that perpetrators have a say in the definition of the project encourages their personal commitment.

Thirdly, this type of penalties clearly departs from prison sentences that are ordinarily applied to serious crimes, both at the national and international level. This original feature raises some questions as to the international duty to prosecute and punish gross Human Rights violations.

This duty has emerged in the past years mainly as a result of judicial and scholarly interpretation of international instruments.[4] Beyond the unclear scope of this duty (i.e., does it require both prosecution and punishment? Does it allow for flexible application in transitional contexts?), what matters here is that it does not impose a unique type of penalty. International and hybrid criminal tribunals, including the International Criminal Court, have clearly opted for detention,[5] and the majority of domestic tribunals, when confronted with serious crimes have done the same. Yet, none of the relevant international legal instruments expressly rule out the possibility to apply different sanctions.

By contrast, a number of studies have cast into doubt the capability of prison sentences to serve the fundamental purposes of criminal punishment when dealing with extraordinary massive criminality.[6] Although it is impossible to dwell into the endless debate about the purposes of punishment,[7] it suffices here to recall that the main difference lies between retributivists (in whose view punishment is a way to compensate the evil caused by the offence and, in modern theories, encompasses the idea of proportionality between the offence and the penalty) and consequentialists (according to whom punishment is needed since it prevents the commission of further crimes in the future). Some others focus on the communicative or expressive function of punishment, that is, on its ability to send a message of reprobation and condemnation of the crime to both the offender and society as a whole.[8]

When dealing with massive and heinous crimes, it may be argued that retribution considered as proportionality is frustrated by the seriousness of the crimes itself,[9] as well as by selectivity in prosecution and the inconsistent judicial sentencing practice, at both domestic and international level.[10]

Furthermore, the massive and systematic nature of the crimes committed in Colombia cast some doubts as to the effectiveness of deterrence. Since offenders normally perpetrate the crimes either because they feel gratified to belong to violent groups or because they consider it necessary for their own survival,[11] deterrence, being based on their rational estimate of advantages and drawbacks of crime, falls short of operating. This purpose seems better served, therefore, by other mechanisms, such as institutional reforms that dismantle the violent groups.

 In a similar vein, general deterrence has proved to be a failure, in terms of preventing the commission of further atrocities in the same or other areas. Despite the proliferation of international and internationalised criminal tribunals after the Nuremberg experience, massive atrocities are still committed in many countries.

When facing this kind of crimes, by contrast, there is still room for expressivism.[12]  Yet, in my view, this communicative function is furthered more by a fair process and judgment than by the prison sentence itself:[13] what matters is the acknowledgement of the facts and the charges and the declaration of responsibility made in the judgment.[14]

Furthermore, this communicative purpose is better served by sanctions that, instead of excluding the offenders from the society (as imprisonment does), create a venue for their recognition as members of the polity, although under the condition of them fulfilling some burdensome task.[15]

Besides, one should also take into account the additional and competing goals at which every transitional process aims, namely, social reconciliation, consolidation of the new regime or, as it happens in Colombia, the end of an armed conflict and the building of a sustainable peace. These priorities often require flexibility in the exercise of criminal prosecution and/or in the imposition of criminal punishment, such as the selection of those who are the most responsible ones, the reduction of sentences, or even the controversial provision for conditional amnesties and pardons.[16]

The Colombian Special Jurisdiction does envisage a criminal prosecution, a conviction and the imposition of a punishment. Yet, it amounts to a different kind of sanction, in which the convicted person’s active participation in restorative projects and limited restriction of freedom is preferred to the classic prison sentence. There is no doubt that these penalties fulfil the aim of reintegration of the offenders even better than detention, since they already insert them in the society and give them a task for the benefit of a specific local community. As for deterrence, the alternative penalties probably fall short of achieving it, but the same does, as we have seen, imprisonment as a traditional penalty.

Furthermore, alternative penalties perfectly serve the expressive or communicative purpose of punishment in that they impose a burdensome duty on perpetrators and thereby blame them before victims and the whole society. By actively participating in the recovery of the damages caused by the crimes, the criminals may be more effectively persuaded of the wrongfulness of their acts and of the validity of the norms and the underlying social values infringed by the crimes.

As regards their compatibility with other transitional justice goals, by granting them a more favourable treatment than what they would face under ordinary Criminal Law, these sanctions provide a strong incentive for the perpetrators’ participation in the peace process. This contributes to the consolidation of the new socio-political scenario and to the inclusiveness of the transition. In addition, by requiring the offenders to perform a deed in local communities, they also foster social reconciliation.

Therefore, alternative penalties strike a good balance between retributive considerations, restorative justice, and all the other goals of the transitional process. Instead of predicating that this mechanism is at odds with the so-called fight against impunity (as some NGOs have recently done), one should remind that this fight is not an end in itself, but is instrumental in achieving a number of aims that are admittedly served by criminal punishment. If a penalty other than imprisonment is found to serve those purposes equally well or even better and, in addition to this, allows combining retribution with restoration and other transitional goals, why should it be rejected?

[1] For a thorough analysis of the legal sources and content of this international duty, see: A. Seibert-Fohr, Prosecuting Serious Human Rights Violations (OUP 2009), arguing for a more strict approach; see: J. Chinchón Álvarez, Derecho Internacional y transiciones a la democracia y a la paz, Sevilla (Parthenos 2007), 235 ff. See also the classic work by D. Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’ (1991) 100 Yale Law Journal (8), 2537-2615, and her more recent ‘Settling Accounts Revisited: Reconciling Global Norms with Local Agency’ (2007) 1 International Journal of Transitional Justice, 10-22.

[2] Since its bursting in 1958, the armed conflict has caused over 220,000 deaths and resulted in many other serious offences, such as forced displacement, torture, sexual violence, mostly against civilians. For further details about these abuses, see the report: Comisión Nacional de Memoria Histórica, Informe ¡Basta Ya! (2013).

[3] See para. 60 of the agreement.

[4] The Inter-American Court of Human Rights has played a pivotal role in the affirmation of this duty and has interpreted it in a very strict way, as opposed to the more nuanced interpretation given by the European Court of Human Rights. See: A. Seibert-Fohr, Prosecuting serious Human Rights Violations (OUP 2009); for a critical view, see: E. Malarino, ‘Judicial activism, punitivism and supranationalisation: Illiberal and antidemocratic tendencies of the Inter-American Court of Human Rights’ (2012) 12 International Criminal Law Review, 665-695.

[5] Article 77 of the Rome Statute for the International Criminal Court envisages imprisonment for a term up to 30 years and life imprisonment (under certain circumstances); articles 24 of the ICTY Statute and 23 of the ICTR Statute also establishes imprisonment as the applicable sanction, albeit without a fixed maximum term. Imprisonment is affirmed as the applicable sanction also by the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia (arts. 38-39), by the Statute of the Special Court for Sierra Leone (art. 19), and so on.

[6] See for instance the brilliant study by M. Drumbl, Atrocity, Punishment, and International Law (CUP 2007) 15-18 and 149 ff.

[7] For a clear overview about the main theories surrounding the rationale of punishment, see for instance: S. Cohen, ‘An Introduction to the Theory, Justifications and Modern Manifestations of Criminal Punishment’ (1981-2) 27 McGill Law Journal, 73 ff.; R. Card, Card, Cross & Jones Criminal Law, (21st ed., OUP 2014) 414 ff. and, for a focus on the status of the debate in International Criminal Law, see: R. Cryer, ‘Aims, Objective, Justifications of International Criminal Law’, in R. Cryer et al., An Introduction to International Criminal Law and Procedure (CUP 2014) 28 ff.

[8] A. Duff, Punishment, Communication and Community (OUP 2001).

[9] According to the title of a book by Antoine Garapon, named after the famous sentence by Hannah Arendt, these are “crimes that cannot be punished nor forgiven”: A. Garapon, Des crimes qu’on ne peut ni punir ni pardonner (Odile Jacob 2002).

[10] Inconsistencies emerge regarding the application of sentencing criteria and in the total amount of penalties imposed by international criminal tribunals and domestic courts: see the examples provided by M. Drumbl, Atrocity, Punishment, and International Law (CUP 2007) 46-122. Inconsistency in sentencing is also a typical feature of the case law of both the ICTY and the ICTR: see B. Hola, A. Smeulers, C. Bijleveld, ‘International Sentencing Fact and Figures: Sentencing Practice at the ICTY and ICTR’ (2011) 9 Journal of International Criminal Justice, 411-439.

[11] M. Drumbl, Atrocity, Punishment, and International Law (CUP 2007) 171-3.

[12] D. Luban, ‘Fairness to Rightness: Jurisdiction, Leaglity and the Legitimacy of International Criminal Law’ in Georgetown Public Law Research Paper NO. 1154117 (2008), at 9.

[13] In a similar vein, ibidem, at 7-9.

[14] See A. Duff, Punishment, Communication and Community (OUP 2001); A. von Hirsch, Censure and Sanctions (OUP 1993).

[15] Similarly, A. Duff, Punishment, Communication and Community (OUP 2001), 101 ff.

[16] On the need to strike a balance between these competing goals, see for instance: K. Ambos, ‘The legal framework of Transitional Justice: A Systematic Study with a Special Focus on the Role of the ICC’ in K. Ambos et al. (eds.), Building a Future on Peace and Justice: Studies on Transitional Justice, Peace and Development (Springer 2009) 19 ff.

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The EU Commission’s Fifth Report on relocation and resettlement of migrants: a(nother) proposal.

  • Introduction

On the 13th of July (2016) the European Commission issued the fifth report on relocation and resettlement of migrants  from the external EU’s borders, addressed to the European Parliament, the European Council and the Council.  The report provides an updated state of the situation of relocation and resettlement of migrants eligible to obtain international protection in EU countries in the light of the urgent migration crisis that Italy and Greece especially have been facing since 2015. The considerable increase in the number of migrants – many of whom are entitled to apply for relocation/resettlement – has imposed to the Commission to update its last report (i.e., the one issued in June 2016) with the aim of keeping the institutions fully informed about the situation at the “external borders” of Europe.  After a brief introduction about the relevant legislative framework, this post aims to underline some critical issues emerging from the relocation and resettlement policies of the European Union as set out in the official documents published so far.

  • The Council’s decisions establishing provisional measures in the area of international protection for the benefit of Italy and Greece.

The relocation and resettlement policies of the EU have been framed, firstly, by the Council Decision 2015/1523 of 14 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece. This was followed, just a few days later, by the Council Decision 2015/1601 of 22 September 2015 (hereafter the Decision), which provided for a few changes regarding the number of migrants needing a relocation plan. With regard to the latter instrument, it was adopted in accordance with Article 78, para 3, of the Treaty on the Functioning of the European Union, which authorises the Council to adopt provisional measures when one or more Member States are faced with an emergency situation involving a massive inflow of third countries’ nationals, in order to relieve those Member States. This provision regulates the main points that the European Union should respect in order to establish a common policy of asylum, subsidiary protection and temporary international protection for eligible third country nationals. The principle of mutual solidarity and the rule of fair sharing of responsibility between Member States in the management of the refugee crisis at the external borders have been recognised as the two keystones of the Decision. In addition, the individual rights granted by the Charter of Fundamental Rights of the European Union (hereinafter the Charter), along with the rights of vulnerable groups, act on the background of the Decision, balancing the needs of both public order and national security, these two becoming an inevitable paradigm of the management of every humanitarian crisis by the EU.[1]

The 23rd introductory paragraph of the Decision permits a temporary derogation from the Dublin’s Regulations System. This system provides that the Member State in which third countries’ nationals enter is responsible for their international protection. In recognition of the emergency situation in Greece and Italy, those countries have been relieved of this ‘entry and stay’ rule set out in article 13 of Reg. 604/2013.[2]

However, the Decision has let several shadows and grey areas subsist, together with the necessity to solve some critical issues. Some of these have been faced by the new report and the draft proposal for a European Union regulation establishing a Union Resettlement Framework – which has been attached to the report – while some others have been left unsolved/unresolved?. As for the latter, one could consider, for instance, the unclear legal force of the relocation and resettlement rules as regards the Member States.

  • The content of the report.

The goal of the Fifth Report[3] is to accelerate the implementation of the relocation and resettlement schemes by the Member States. It is articulated in two sections, dedicated to the relocation (1) and the resettlement (2) schemes, respectively, and containing different highlights which emerged during the reporting period, from 14th of June to 11th of July. In particular, the report warns against the bad situation of Italy in comparison to Greece. While relocation transfers from Greece have increased during the reporting period as compared to the previous one (from 594 to 710), those from Italy have decreased and remain at an unsatisfactory level (66 compared to 186). In this connection, major concerns have been expressed by the Commission regarding the relocation of vulnerable groups, especially unaccompanied minors. [4]

On the one hand, the report requires Italy to provide clearer information on the number of arrival, to develop a special procedure for the relocation of unaccompanied minors, which is at this time extremely slow, to open additional hotspots as planned and to improve its cooperation with the other Member States. On the other hand, it was difficult for the Commission to ignore that so far several Member States have not complied with their obligations as established by the Council Decision of 22nd September 2015. Despite the deployment of many experts to Greece and Italy by the European Asylum Support Office, the data provided by the fifth report show an increasing level of (humanitarian) emergency and a worrisome deterioration of the refugee crisis. It unfortunately appears that the efforts made by and the means available to the countries at the external borders are not yet sufficient to face the ongoing inflow of migrants seeking international protection.

Regarding the resettlement scheme (sub 2 of the Decision), it has resulted in the resettlement of about 8000 people (mostly Syrian nationals from Jordan, Lebanon and Turkey) to twenty different countries. The Commission has also made reference to the EU–Turkey statement of 18 March 2016, which foresees the activation of the Voluntary Humanitarian Admission Scheme with Turkey, currently still at the negotiation stage. This scheme is part of the general political agreement between EU and Turkey concluded last March with the aim of stopping the unconditional flow of migrants from the eastern route to Greece.[5]

The report’s conclusion is twofold. On the one hand, the Commission has urged Italy to quickly step up its processing capacity and to cooperate more closely with Member States in implementing the relocation scheme, especially regarding the situation of the vulnerable group of unaccompanied minors.  On the other hand, the Commission has exhorted all Member States to urgently provide an adequate response to the crisis and to build up support of Italy and Greece by increasing the number of pledges. The Commission has also expressed its concern by ‘reserving the right to take action against those Member States not complying with their obligation’.[6] This statement – which could play a role in terms of political effectiveness – compels the EU institutions to ask themselves about the kind of actions that could be taken in order to induce Member States to comply with the Council’s Decision.

  • The proposal

The problem highlighted by the Commission’s report has not been solved by the proposal attached thereto, establishing a Union Resettlement Framework and amending Regulation (EU) n. 516/2014.[7] The explanatory memorandum of the proposal underlines the ’voluntary basis’ of the resettlement commitments of all Member States, as established by the framework regulation. The effort required might be considered ‘binding’ given the principles of fair sharing of responsibility and solidarity, which are crucial to the aim of building a Common European Asylum System and consistent with the policy on better migration management adopted by the European Agenda on Migration.[8]

In this sense, the proposal acknowledges several core principles and good practices in the field, namely: a) reducing divergences between Members States and creating common rules for resettlement; b) discouraging second movements of the resettled people in the EU; c) distinguishing the policy of resettlement from the so-called Dublin’s regulation system; d) increasing the already central role of the United Nation High Commissioner for Refugees (hereinafter UNCHR), European Asylum Support Office (hereinafter EASO) and stakeholders in general to support Member States in managing the crisis; e) protecting fundamental rights linked to asylum and international protection, in accordance with Articles 18 and 19 of the Charter and with the principle of non discrimination;[9] f) offering priority protection to vulnerable groups;[10] g) arranging two different procedural pathways, namely, an ordinary one and an expedited one, depending on the grade of  urgency.

  • Conclusions

The publication by the Commission of the Fifth Report on relocation and resettlement has created some momentum for EU institutions and Members States to consider the status of the common European system in the field of asylum and international protection. While certain satisfactory steps have been made at the external borders of Greece, the Italian situation remains critical and very few chances to sort out the problems generated by the massive inflow of migrants there are in sight. The main issue at stake is still the lack of synergy and mutual cooperation among Member States when it comes to relocation and resettlement. Notwithstanding the political pressure exerted by the Commission, the invocation of the supreme principles of solidarity and fair sharing of responsibility in migration crisis has failed to induce Member States to comply with their commitments. Together with the absence of a mechanism of sanctions in cases of non-implementation of the Council Decision by Member States, this is liable to lead to the failure of the relocation and resettlement policy.

One day, the strength of common principles might be sufficient to induce Member States to implement the obligations arising from any decisional act of the European Union, especially in such a delicate political field as the management of a migration crisis. For now, the European Union is unable to compel Members States (regardless of the proximity to the external border) to implement its plans on relocation and, indeed, to respect the fair sharing of responsibility. Therefore it cannot manage this huge crisis in a proper way and, considering the proportions of the emergency, this might result in the collapse of the whole system.

[1] On this point see, for example, the creation and the update of the EURODAC system, starting from the COUNCIL REGULATION (EC) No 2725/2000 of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention; another example could be the attention paid to the defence of external borders and the fight against irregular immigration which are central to the migration crisis management of the EU, as provided by the EU- Turkey statement of 18th March 2016 and within the new proposal itself of 13th of July 2016.

[2] The so-called Dublin’s Regulation System establishes which Member State is responsible for the examination of the asylum application. See Regulation (EC) No 1560/2003 and Regulation (EU) No 604/2013.

[3] Fifth Report on relocation and resettlement from the Commission to the European Parliament, the European Council and the Council, Brussels 13.7.2016, COM(2016) 480 final.

[4] Fifth Report, COM(2016) 480 final, 8 – 9.

[5] On this issue see, among others, G. Goalwin, The EU-Turkey Agreement on Refugees: Echo of a Tragic Past, available online at http://religionandpolitics.org/2016/05/03/the-eu-turkey-agreement-on-refugees-echo-of-a-tragic-past/ accessed 30th August 2016.

[6] Fifth Report on relocation and resettlement, COM (2016) 480 final, Brussels 13.07.2016, p. 11.

[7] Regulation (EU) No 516/2014 of the European Parliament and of the Council of 16 April 2014 establishing the Asylum, Migration and Integration Fund, amending Council Decision 2008/381/EC and repealing Decisions No 573/2007/EC and No 575/2007/EC of the European Parliament and of the Council and Council Decision 2007/435/EC.

[8] The European Commission set out the long-term policy on better migration in the European Agenda on Migration, which developed President Juncker’s Political Guidelines. Proposal for a Regulation COM (2016) 468 final, 2016/0225 (COD), p.5.

[9] The principle of non discrimination is granted by several Universal and Regional legal provisions on human rights, namely: Article 1, 2 and 7 of the Universal Declaration of Human Rights; Article 2 and 26 of the International Covenant on Civil and Political Rights; Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination; Article 1, 8 and 24 of the American Convention on Human Rights; Article 14 of the European Convention of Human Rights.

[10] To individuate the vulnerable groups, the Commission also refers to other international tools such as the United Nations Conventions and the Conventions of the Council of Europe.

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