Author Archives: Giulia Pecorella

The Government’s European Union (Withdrawal) Bill: How the exception relating to the Charter of Fundamental Rights of the European Union will impact on the protection of Human Rights in UK

Introduction

 

On 13 July 2017 the Government of the UK published the long-awaited European Union (Withdrawal) Bill, a single legislative measure which is planned to enter into force in March 2019, when the two-year Brexit negotiation process comes to an end. In brief, the bill will revoke the European Communities Act of 1972 and transpose European Union (EU) law, ‘wherever practical’, into UK law. Any European Court of Justice’s case law issued until March 2019 will also acquire the legal strength and authority of a UK Supreme Court’s decision.

Although Parliament will be able to vote on it no sooner than next autumn, the publication of the Bill has already resulted in a great amount of criticisms, above all, on the exclusion of the Charter of Fundamental Rights of the EU (hereafter, ‘the Charter’) from the application of the Bill, pursuant to its section 5 (4). This post first argues that the Charter, as many EU laws, is currently part of UK domestic law, thanks to section 2(1) of the European Communities Act 1972; which contradicts the Government’s stance in this respect; then, it argues that after Brexit, and with regard to those cases currently governed by EU law, the exclusion of the Charter would diminish the level of protection of human rights in the UK. This notwithstanding the European Convention of Human Rights (ECHR), incorporated in UK law via the 1998 Human Rights Act will still be enforced, but it argues that the ECHR will not grant the same human rights protection.

 

The Charter of Fundamental Rights of the European Union and the European Convention of Human Rights

 

In 2000, at the Nice European Council, the EU Members States adopted the Charter of Fundamental Rights of the EU, which in some respects is broader than the ECHR in that it enlists, in addition to civil and political rights, economic and social and societal rights. In 2009, the Charter became binding pursuant to article 6(1) of the Treaty of Lisbon, which assigned to the Charter ‘the same legal value as the Treaties.’ EU Member States have a duty to observe it only in application of the EU law, namely: when a national legislation transposes an EU directive; 
a public authority applies EU law; or a national court applies or interprets EU law.

 

The Treaty of Lisbon, under article 6 (2), provides that the EU “shall accede” to the ECHR. While the accession has not taken place yet, all EU institutions and Member States are in any case obliged to interpret the Charter in light of existing jurisprudence of the ECtHR. Under Article 52(3) of the Charter, States have a legal obligation to give the same meaning and scope to the rights of the two instruments, insofar as they correspond.

 

On the applicability of the Charter to the UK

 

In Lisbon, Protocol 30 to the treaty related to the application of the Charter of fundamental rights of the European Union to Poland and to the United Kingdom was adopted. This Protocol generated a significant confusion with respect to the legal effects on the UK. Some have argued that this implied a sort of opting out, so that the Charter has no legal value in the UK. Others embraced an opposite view, so that the Charter could have created new justiciable rights. To sort out this controversy, in 2014 the European Scrutiny Committee of the House of Commons published a report with the evocative title of ‘The application of the EU Charter of Fundamental Rights in the UK: a state of confusion’. The Committee concluded that the Protocol had reaffirmed that the Charter has legal strength in so far as all national authorities had to apply and interpret EU law, but it did not create new independent rights. In this respect, the Charter is directly effective in the UK, by virtue of Section 2(1) of the European Communities Act 1972 which in its relevant parts reads as follows:

 

‘All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly'[emphasis added].

 

The Committee indeed recommended that, in order to disapply the Charter from the UK, ‘primary legislation be introduced by way of an amendment to the European Communities Act 1972’. Therefore, since the Charter has the same legal value as the Treaties, with respect of any EU law, it is automatically part of the UK domestic law, pursuant to the 1972 Act of Parliament. In fact UK Courts have often made reference to the Charter and checked its compatibility with the EU law as implemented in UK.[1] Furthermore, in 2013 the Grand Chamber of the Court of Justice of the EU held:

 

‘where a court of a Member State is called upon to review whether fundamental rights are complied with by a national provision or measure which, in a situation where action of the Member States is not entirely determined by European Union law, implements the latter for the purposes of Article 51(1) of the Charter, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of European Union law are not thereby compromised’ [emphasis added].

 

Consequently, it is surprising that under Section 5(4) of the European Union (Withdrawal) Bill, ‘[t]he Charter of Fundamental Rights is not part of domestic law on or after exit’ [emphasis added].

 

On the protection of fundamental rights provided by the Charter and the ECHR

 

After Brexit, as provided by the European Union (Withdrawal) Bill, any public authority or national court in the UK could keep on applying or interpreting what was originally EU law, as this would become, ‘wherever practical’, UK law. However, so far, the relevant EU law has been interpreted in the case law of the Court of Justice of the EU in light of the Charter. If the Charter were not applicable to the UK any more, this might result in then-former EU law being significantly different from its ‘original’ version at the moment of its transposition; furthermore, its interpretation would be left to decisions to be taken on a case-by-case basis. These two factors taken together might have serious consequences in respect to the certainty of the law.

Concerning the application of the law, as far as the rights overlapping with the ECHR are concerned, this would result in a different kind of protection. Indeed, those civil and political rights provided by the Charter, in compliance with one of the most fundamental principles of the EU law, have a direct effect in the UK as many EU laws do. But if the Charter had no effect in the UK after Brexit, victims of human rights violations could only rely on the ECHR. Yet, under section 6 of the Human Rights Act 1998, while ‘[i]t is unlawful for a public authority to act in a way which is incompatible with a Convention right’, this does not apply to an act if

 

—(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

 

Thus, the kind of protection provided by the ECHR is not comparable to what people in the UK currently have in the application of EU law, thanks to the Charter and the European Communities Act 1972.

The same kind of reasoning would a fortiori apply to all those rights that are not protected by the Human Rights Act, including many economic and social rights, when they already are justiciable rights in the UK and in the application of EU law. Indeed, while it is true that the Charter did not add any new justiciable right, it is currently relevant when it comes to verify whether any EU law is compatible with it; to the contrary, domestic law (as all former EU legislation will become after the European Union (Withdrawal) Bill is adopted) granting the same rights will not prevail over conflicting statutes.

 

Conclusion

 

On 13 July 2017 the Government of the UK published the European Union (Withdrawal) Bill, which is going to be discussed in Parliament no sooner than next autumn. Section 5(2) of the Bill, which is meant to enter into force when the UK actually leaves the EU, provides for the Charter of Fundamental Rights of the EU not to be considered domestic law in the UK at the moment of Brexit, nor after it. This post has shown how the Charter is currently part of UK domestic law, thanks to Section 2(1) of the European Communities Act 1972. It has also been argued that, should the Bill enter into force as it stands at the moment, there may arise a problem in terms of the certainty of the law because, lacking the possibility of making reference to the Charter when interpreting and applying it, former EU law would already miss something at the moment of its transposition and national authorities would be left with the burden of filling the gaps it would leave. As for the protection of fundamental rights in the UK, this might be subjected to a considerable change too. Indeed, concerning those civil and political rights that are also provided by the ECHR, national authorities are bound not to give priority to the Human Rights Act, incorporating the ECHR in the UK system, when this is in conflict with national legislation. Thus, the protection of these rights, when violated in application of a norm incorporated by the then former EU law, will be left to a different, less incisive, kind of remedy than that offered by the Charter (and many EU laws!) at present. This would be a fortiori true with regard to those rights, including economic and social rights, which are not protected by the Human Rights Act.

[1] See, for instance, [2017] EWCA Civ 431, [2017] EWCA Civ 397 at 74; [2017] EWHC 1174 (Admin) at 100-101; [2017] EWHC 931 (Admin) at 59; [2017] EWHC 577 (Admin) at 38; [2017] EWCA Civ 35; [2017] EWCA Civ 41 at 136; [2017] EWCA Civ 243 at 1; [2017] EWHC 331 (Admin) at 17; [2017] EWHC 827 (Admin) at 30; [2016] QB 1003 at [99]; [2017] CAT 9 at 80; [2017] UKUT 125 (IAC) at 34; [2017] UKFTT 167 (TC) at 435; on the Charter not conferring new rights nor expanding those rights stemming from EU law, see, e.g., [2017] EWHC 695 (QB) at 13-16; on the disapplication of a national measures conflicting with the Charter see, e.g., [2017] EWCA Civ 121 at 60; [2015] EWCA Civ 311, [2015] 3 WLR 409. Interestingly, the First Section of the ECtHR has recently reaffirmed the legally binding nature of the Charter in a case against the UK.May

 

 

 

 

 

 

 

 

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The relationship between Russia and the ICC and the US precedent: Do ‘great’ states act alike?

Introduction

On 16th November 2016 several media outlets announced Russia’s intention to withdraw from the Rome Statute establishing the International Criminal Court (ICC, the Court). Since Russia is not a party to this treaty, the withdrawal they referred to might rather be defined as an attempt to remove the Russian representative’s signature from the ICC Statute. Still, from an international law standpoint, what consequences can arise? A precedent regarding another Permanent Member of the UN Security Council (SC), the US, which has ‘unsigned’ the Statute, could be relevant.[1] This post aims at examining the US precedent and will conclude that all considerations made years ago about it can, mutatis mutandis, be applicable to Russia today. It will be also argued that taking into account the unique object and purpose of the ICC Statute, states’ practice to ‘unsign’ it might not free them from the obligation not to defeat the object and purpose of the Statute.

Russia and the ICC

Russia signed the ICC Statute in 2000, but never ratified it. Some have viewed the withdrawal of the signature as a new signal of a growing aversion of states towards the ICC.[2] Not only have South Africa, Burundi and Gambia stated their intention to withdraw from the ICC Statute earlier this year, but the Philippines has also declared it might do the same. Others have linked such an event to another moment of friction between Russia and the ICC, namely the decision by the Court authorizing an investigation into war crimes and crimes against humanity allegedly committed during the 2008 Russia-Georgia conflict in South Ossetia. Even more importantly, on 14th November 2016 the ICC Prosecutor, Fatou Bensouda, released her 2016 Report on Preliminary Examination Activities, which states as follows.

The information available suggests that the situation within the territory of Crimea and Sevastopol amounts to an international armed conflict between Ukraine and the Russian Federation. This international armed conflict began at the latest on 26 February when the Russian Federation deployed members of its armed forces to gain control over parts of the Ukrainian territory without the consent of the Ukrainian Government. The law of international armed conflict would continue to apply after 18 March 2014 to the extent that the situation within the territory of Crimea and Sevastopol factually amounts to an on-going state of occupation. A determination of whether or not the initial intervention which led to the occupation is considered lawful or not is not required.[3]

Coming just two days after the Office of Ms Bensouda released this report, the Russian decision to ‘unsign’ the Rome Statute therefore acquires significant political importance.

 

The US precedent

At the 1998 UN Diplomatic conference in Rome, the US asked for an unrecorded vote and voted against the adoption of the ICC Statute.[4] Subsequently, on 31 December 2000, President Clinton decided to sign it. It was, however never ratified by the US Congress. On the contrary, in 2002 the US Under Secretary of State for Arms Control and International Security, Bolton, notified the UN Secretary General of President Bush’s intention to ‘unsign’ the Statute. At the time, the US Administration relied on article 18 of the 1969 Vienna Convention on the Law of Treaties (VCLT), which, in its relevant parts, reads as follows.

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:

(a) It has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; (…)

In other words, Bolton’s letter was meant to make the US intention not to become a party to the ICC Statute clear. However, since then, the ICC has been treating the US as a signatory state. In 2010, for example, the US participated in the Kampala Review Conference as an ‘observer state’ and the ICC has reserved this status only to those states that have signed the Statute.[5] Many commentators furthermore argued that, while it was possible for a state to free itself from any obligations arising from a treaty to which it was not a party, according to the VCLT there was not such a thing as the possibility for a state to ‘unsign’ a treaty.

Thus, it seems here unreasonable to depart from such conclusions when it comes to Russia: although in the future they might declare themselves to have ‘unsigned’ the Statute, the signature will still be there. Yet, it might not produce any obligation to cooperate with the Court anymore. But what are the object and purpose of the Rome Statute? Can any state really claim to be free from any obligation to refrain from acts that would defeat such object and purpose?

The object and purpose of the ICC Statute

In April 2016, in its Decision on Defence Applications for Judgments of Acquittal in the case of Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Trial Chamber (V) recalled that ‘[i]n the specific context of the Rome Statute, the Appeals Chamber has held that the purposes of a treaty “may be gathered from its preamble and general tenor of the treaty.” Therefore, the preamble to the Rome Statute must be consulted for the object and purpose of the Statute.’[6]

Thus, it seems here important to recall that in the Preamble, States Parties to the ICC have affirmed ‘that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation.’[7] One of the purposes of the ICC Statute, according to paragraph 5 of the Preamble, is in fact to ‘put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.’

Unlike other states,[8] since the US and Russia are two of the UN SC Permanent Members, it is unlikely that they will ever adopt any resolutions requiring them to cooperate with the Court (for instance, in those cases involving their nationals) on the basis of a SC Resolution adopted under Chapter VII of the UN Charter. Indeed, in relation to those cases that have so far been referred to by the UN Security Council, the Court has made clear that no obligation vis-à-vis the Court arise for States not Parties that are not expressly mentioned in the relevant Resolution. This, of course, would regard also those States that have signed the Statute but for a reason or another but have never ratified it. Thus, once they notify their intention not to become a State Party, US and Russia might be considered free from any obligations to cooperate with the Court,[9]including, for instance, the obligation to surrender their nationals who are accused of having committed one of the ‘most serious crimes of concern to the international community as a whole’ to which the Preamble refers and that, therefore, constitute the object of the treaty.

However, States Parties to the ICC do have a duty to cooperate with the Court, so that if Russian nationals happen to be on their territory, they might be arrested and surrendered to the Court.[10] This might turn out to be particularly relevant in the situation relating to Georgia, as well as with respect to Ukraine, should the Prosecutor decide to open an investigation and be authorized in this sense by the Court. Although Ukraine is not a party to the Statute, on 17 April 2014 and on 8 September 2015 it made two declarations under article 12(3) ICC Statute and, therefore, became equal to any State Party when it comes to its obligations to cooperate with the Court in respect of crimes committed during the periods covered by the two declarations read in conjunction (i.e., since 21 November 2013 on the stipulated territory).

Moreover, looking at the Preamble, and therefore at the object and purpose of the Statute, it is difficult to claim that Russia (as well as the US or any other State not Party) could consider itself free to leave unpunished those among its nationals or, alternatively, who find themselves in Russian territory, allegedly responsible for the commission of at least some of the ‘most serious crimes of concern to the international community as a whole’. This seems to find confirmation in the obligation to prevent Genocide (under article I Convention on the Prevention and Punishment of the Crime of Genocide) and punish those responsible for the commission of the acts provided for by article III of the same Convention, which took place within their territory; to punish war crimes, including those committed by states’ own nationals, and crimes against humanity.[11]

Conclusion

Russia’s recent initiative to ‘unsign’ the ICC Statute might have a strong political significance. When it comes to its legal implications, this might be a Russian attempt to free itself from any obligations to cooperate with the Court in the future, especially with regard to the situation in Georgia and, possibly, in Ukraine. However, first, looking at the US precedent, it appears that the ICC may keep considering Russia a signatory state; second, States Parties will still have their own obligation to cooperate with the Court which may result in the arrest and surrender Russian nationals if abroad; third, even if Russia might be free not to cooperate with the Court, this will not be equal to a right to act and defeat the object and purpose of the Rome Statute. On the contrary, Russia might well be considered obliged to punish those having committed genocide, war crimes and/or crimes against humanity in any case.

[1] Along with the US, Israel and Sudan have also notified to the UN Secretary General their willingness not to become a Party to the Statute. Yet, Israel has been treated as an ‘observer state’ within the meaning of Rule 1 of the ICC ASP Rules of Procedure (see infra fn 5). Since 2005 the UN SC has triggered the ICC jurisdiction on crimes committed in Sudan, which therefore cannot provide a relevant precedent for the purposes of this post.

[2] BBC, ‘Russia withdraws from International Criminal Court treaty’ (16 November 2016) <http://www.bbc.co.uk/news/world-europe-38005282> (accessed 18 November 2016).

[3]The Office of the Prosecutor of the ICC, Report on Preliminary Examination Activities 2016 (14 November 2016) at 158 [emphasis added].

[4]William A. Schabas, ‘United States Hostility to the International Criminal Court: It’s All About the Security Council’ 15 (2003) EJIL 701, 708.

[5] See, Rule 1 of the ICC Draft Rule of Procedure of the Review Conferences (May 2010), or Rule 1 of the Rules of Procedure of the Assembly of States Parties.

[6]Prosecutor v. William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11, Decision on Defence Applications for Judgments of Acquittal, 5 April 2016, at 438.

[7]ICC Statute, Preamble, paragraph 4 [emphasis added].

[8]See UN Doc. S/RES/1593 (2005) and S/RES/1970 (2011).

[9]See articles 86, 87, 89, and 93 ICC Statute.

[10]Ibid.

[11] Nicholas Michel and Katherine Del Mar, ‘Transitional Justice’ in A. Clapham and P. Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (OUP 2014) 864-865.screen-shot-2016-12-02-at-10-42-31

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The European Court’s Grand Chamber decision in Biao v. Denmark: A case of indirect discrimination against nationals of non-Danish ethnic origins

Introduction

Within the context of the on-going EU migration crisis, Denmark has been subjected to huge criticisms with regard to a recent bill that is considered to violate asylum seekers’ fundamental rights. More recently, on 24 May 2016 the Grand Chamber of the European Court of Human Rights (ECtHR) issued its decision in the case Biao v. Denmark, regarding matters of family reunification and held that Denmark had unjustifiably violated the prohibition of non-discrimination towards some of its nationals.[1] The Court found, by twelve votes to five, that there has been a violation of Article 14 of the European Convention of Human Rights (ECHR) read in conjunction with Article 8 of the Convention.[2] The Government had indeed failed to show that there were compelling or very weighty reasons unrelated to ethnic origin to justify the indirect discrimination to which the applicants had been subjected arising from the relevant national legislation.[3] Notably, this decision came after the Chamber, in 2014, had found that the Danish authorities had struck ‘a fair balance between the public interest in ensuring effective immigration control and the applicants’ need to be granted family reunion in Denmark and concluded that there had been no violation of Article 8 taken alone.[4]

In order to reach its conclusions, and consistently with its practice, the Grand Chamber considered ‘instructive’ to interpret the Danish legislation on family reunification in the light of the relevant EU law, including the Court of Justice of the European Union’s case law in the matter.[5] This post aims at examining the Grand Chamber’s decision in light of the recent developments in the relationship between the Courts of Strasbourg and Luxembourg. It will be concluded that the decision in Biao v. Denmark is perfectly consistent with the ECtHR’s practice of not only making reference to EU law and the case law of the Court of Luxembourg, but also verifying the compatibility of national legislations or practice with the ECHR, trying to look at the former through the lens of the relevant EU law or case law. Some comments on the political value of this decision when it comes to Denmark and migration issues are also included among the conclusions.

 

The facts

 

The case of Biao v. Denmark concerns the applicants’ complaint about the Danish authorities’ refusal to grant them family reunification in Denmark. Mr Biao is a Danish national of Togolese origin who is married to Asia Adamo Biao, a Ghanaian national. They live in Sweden and have a son who got Danish citizenship due to his father’s nationality. Their application for residence permit in Denmark and, therefore, their family reunification got refused in 2003 and 2004. The Danish Supreme Court upheld such a refusal in January 2010.

Before the ECtHR the applicants claimed to have been subjected to indirect discrimination in the application of the attachment requirement provided by the Danish Aliens Act as amended in December 2003, which introduced the so-called 28-year rule.[6] Pursuant to such a rule, in order for a Danish national, who has not acquired his/her nationality from the moment he/she was born and that is married to a third country national, to enjoy the privileges associated to citizenship in matters regarding family reunification, he/she needs to prove that he/she has got stronger ties with Denmark than with any other country by residing in Denmark for at least 28 consecutive years. The 28-year rule thus resulted in a differential treatment between Danish-born citizens and other nationals, as Danish nationals who had acquired nationality from the moment they were born were exempted from such a requirement.[7] This treatment was also an indirect discrimination on the basis of race or ethnic origin because persons acquiring Danish nationality later in life ‘would overwhelmingly be of different ethnic origins, that is other than Danish’.[8]

The conclusions of the Court

Having recalled that ‘a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group’,[9] and that indirect discrimination does not necessarily require a discriminatory intent,[10] the Grand Chamber considered it to be a reasonable assumption that people, who have acquired a Danish nationality later in life, would be more likely to be of non-Danish ethnic origins and that, to the contrary, Danish-born people were more likely to belong to the Danish ethnic group.[11]

According to the Court, the burden of proof was then on the Government to show that the difference in the impact of the legislation pursued a legitimate aim and was the result of objective factors unrelated to ethnic origin. Indeed,

‘no difference in treatment based exclusively or to a decisive extent on a person’s ethnic origin is capable of being justified in a contemporary democratic society and a difference in treatment based exclusively on the ground of nationality is allowed only on the basis of compelling or very weighty reasons.’[12]

Although the Court noted that Article 8 ECHR when taken alone ‘cannot be considered to impose on a State a general obligation to respect a married couple’s choice of country for their matrimonial residence or to authorise family reunification on its territory’,[13] it also held that it could apply to the present case what had been concluded in Konstantin Markin v. Russia with regard to difference in treatment on the ground of sex. That is, that ‘general biased assumptions or prevailing social prejudice in a particular country do not provide sufficient justification’.[14] The Court found that similar reasoning should apply to discrimination against naturalised nationals and therefore excluded that the problems relating to integration could be sufficient justification for the 28-year rule.

The Court also affirmed that thanks to Article 5 (2) of the European Convention on Nationality, which has been ratified by 20 states, including Denmark, there was a trend towards a European standard aiming to eliminate the discriminatory application of rules in matters of nationality between nationals from birth and other nationals.[15]

Hence, it concluded that, ‘having regard to the very narrow margin of appreciation in the present case’,[16] the Government had ‘failed to show that there were compelling or very weighty reasons unrelated to ethnic origin to justify the indirect discriminatory effect of the 28-year rule’.[17]This rule indeed has ‘a disproportionately prejudicial effect on persons who acquired Danish nationality later in life and who were of ethnic origins other than Danish.’[18]

EU Law and the ECtHR

It is well known that the two legal regimes pertaining to the EU and the ECHR are quite different when it comes to the principle of non-discrimination.[19] Moreover, although the Treaty of Lisbon, under article 6 (2), provides for the possibility for the EU to accede to the ECHR, in December 2014 the Court of Justice of the European Union (CJEU) issued a negative opinion in this respect. Furthermore, in its recent practice the Court of Luxembourg has increasingly avoided making explicit reference to the ECtHR’s case law.[20] As for the European Convention, according to the CJEU,

‘[i]t must be borne in mind that, in accordance with Article 6(3) TEU, fundamental rights, as guaranteed by the ECHR, constitute general principles of the EU’s law. However, as the EU has not acceded to the ECHR, the latter does not constitute a legal instrument which has been formally incorporated into the legal order of the EU.’[21]

The Strasbourg Court, on its side, has been constantly referring to both EU law and the case law of the CJEU. For instance, in its recent case Arlewin v. Sweden,[22] the Court has pronounced itself on the compatibility of the Swedish courts’ practice in application of Brussels I Regulation (44/2001) with the ECHR. In this respect, it has been observed that:

‘[t]he Court of Strasbourg relies upon the findings of the Luxembourg Court and reaffirms the existence of a direct dialogue between the two jurisdictions, with the first affirming the findings of the second in a noteworthy manifestation of its endeavour to choose –whenever possible- an interpretation of the ECHR that facilitates the proper application of EU law by national authorities.’

Consistently with this view, in Biao v. Denmark the Grand Chamber also took into consideration the relevant EU law and CJEU’s case law. Indeed, although, ‘[t]he rules for family reunification under EU law did not apply to the applicants’ case in August 2004’, the ECtHR noted that:

‘it is instructive to view the contested Danish legislation in the light of relevant EU law. Given that the first applicant has moved to Sweden, by virtue of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the member States, and in the light of the CJEU’s judgment of 25 July 2008 in Metock v. Minister for Justice, Equality and Law Reform (…), the applicants and their child now have a prospect of success in applying from Sweden for a residence permit in Denmark.’[23]

Conclusions

Different legal issues arise from migration, as it is a multifaceted and complex phenomenon. Apart from the current EU migration crisis, which mostly relates to non-EU nationals, some national policies regulating issues concerning migrants can have an impact on the rights of EU nationals. If it is true that the non-discrimination prohibition contained in Article 14 ECHR has not acquired a perfectly overlapping application with the EU non-discrimination legislation, it is also worth noticing that the Strasbourg Court has examined the relevant Danish legislation in the light of the relevant EU law and affirmed that the applicants’ new applications could now possibly have ‘a prospect of success in applying from Sweden for a residence permit in Denmark’.

This decision will probably lead Danish authorities to amend their Aliens Act and abolish the 28-year rule. It is however striking that at a time when ‘no difference in treatment based exclusively or to a decisive extent on a person’s ethnic origin is capable of being justified in a contemporary democratic society’, a national legislation of both an EU member and CoE state has been considered to have indirect discriminatory effects on the sole ground of race/ethnicity.

[1]Case of Biao v. DenmarkApp no. 38590/10 (ECHR, 24 May 2016).

[2]Ibid. at 154.

[3]Ibid. at 138 [emphasis added].

[4]Ibid. at 64.

[5]Ibid. at 135.

[6]Ibid. at 35.

[7]Case of Biao v. DenmarkApp no. 38590/10 (ECHR, 24 May 2016) at 25.

[8]Ibid. at 102.

[9]Ibid. at 103.

[10]Ibid.

[11]Ibid. at 112.

[12]Ibid. at 114 [emphasis added].

[13]Ibid. at 117.

[14]Ibid. at 126.

[15]Ibid. at 132.

[16]Ibid. at 138.

[17]Ibid.

[18]Ibid.

[19] See, e.g., See also European Union Agency for Fundamental Rights, Handbook on European non-discrimination law (Publication Office of the European Union 2011).

[20]OddnýMjöllArnardóttir and Antoine Buyse, Shifting Centres of Gravity in Human Rights Protection: Rethinking Relations Between the ECHR, EU, and National Legal Orders(Routledge 2016) 19-24.

[21] Opinion 2/13, Delivered on 18 December 2014 (full court), at 179.

[22]Case of Arlewin v. Sweden App no 22302/10 (ECHR, 1 March 2016).

[23]Ibid. at 135 [emphasis added]. See also European Union Agency for Fundamental Rights, Handbook on European non-discrimination law (Publication Office of the European Union 2011) 58-59.European-Court-of-Human-Rights.jpg

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The US and Information and Telecommunications in the Context of International Security: Which implications for the ius ad bellum?

INTRODUCTION

The issue of information security has been the subject of study of the First Committee of the UN General Assembly since 1998. This study originated in a proposal submitted to the General Assembly by the Russian Federation , which later became the consensus Resolution 53/70, inviting all States to inform the Secretary-General of their views about, inter alia, the ‘[a]dvisability of developing international principles that would enhance the security of global information and telecommunications systems and help to combat information terrorism and criminality’.[1] Since then, four Groups of Governmental Experts (GGEs) have been established and submitted the result of their work to the UN Secretary General, who is asked to report to the General Assembly. A fifth group has been established in December 2015, being expected to meet for the first time in August 2016 and submit its report in 2017.

In October 2014 the US submitted before the fourth GEEs a position paper, which was not, however, completely embraced by the other experts in their 2015 final report. This paper is in any case relevant as it is possible to derive from it important conclusions regarding the US opinio iuris on some aspects of the ius ad bellum, in particular the law of self-defence. This post aims at highlighting such implications and is structured as follows. First, I will analyse the issue of Information and Telecommunications in the Context of International Security as it has been dealt with within the UN; then, I will focus on the US position paper. I will conclude that, when it comes to the notion of ‘armed attack,’ the US Administration might have a broader understanding than the international community as a whole, to such an extent as to include any violation of article 2(4) UN Charter.

 

Information and Telecommunications in the Context of International Security at the UN

In line with its predecessors’ mandate, the fifth GGEs is supposed ‘to continue to study, with a view to promoting common understandings, existing and potential threats in the sphere of information security and possible cooperative measures to address them and how international law applies to the use of information and communications technologies by States’.[2] Since both the 2013 and 2015 reports consistently affirmed that international law, in particular the UN Charter, is applicable to the cyber-sphere, and that the latter applies ‘in its entirety’,[3] it is unclear why it could still remain to be seen how the Charter would apply. In fact, the UN Charter and all relevant UN instruments should provide sufficient guidance in this respect.

The reasons behind this uncertainty seems to be connected with a political tension within the GEEs. Russia, China, Pakistan, Malaysia and Belarus have in fact strongly opposed to the US proposal of making an express reference to article 51 UN Charter, namely, the provision regulating states’ inherent right to use force on the grounds of self-defence to repel or prevent an actual or imminent attack.[4] They argued that the acceptance of this proposal would permit the US to affirm its supremacy in the cyberspace, which would then become another militarized area.

The report finally adopted does not mention article 51 UN Charter, but identifies

‘as of central importance the commitments of States to the following principles of the Charter and other international law: sovereign equality; the settlement of international disputes by peaceful means in such a manner that international peace and security and justice are not endangered; refraining in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations; respect for human rights and fundamental freedoms; and non-intervention in the internal affairs of other States.’[5]

Moreover, while recognizing the need for further study in this respect, the report notes ‘the inherent right of States to take measures consistent with international law and as recognized in the Charter.’ [6] The reference here is clearly to the right to use force in self-defence, without explicitly mentioning it.

The US and the notion of armed attack

Leaving aside any consideration with regard to what the next GGEs could further establish, what is interesting here is the US legal position on the matter. Indeed, it might help clarifying the Administration’s stand on some aspects of the ius ad bellum as they are provided by the UN Charter, the corresponding norms of customary law, and all other relevant instruments adopted within the UN, including the UN GA Res 3314 (1974).

This Resolution, adopted by consensus by the General Assembly in 1974, provided a definition of aggression, which -at least in some of its parts- has been considered reflective of customary law by the International Court of Justice.[7] Its Article 3 also provides a non-exhaustive list of acts that constitute aggression. At the 2010 Kampala Review Conference, States Parties to the International Criminal Court adopted a consensus definition of the crime of aggression which makes an explicit reference to the Resolution and incorporates its article 3. The US has since then kept consistently opposing the Kampala amendment for a number of reasons, including its reference to Resolution 3314.

While not all acts of aggression would also constitute an ‘armed attack’ within the meaning of article 51 of UN Charter, the latter is no doubt both an act of aggression and a serious violation of article 2(4) UN Charter, which requires states to refrain ‘in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations’.[8] The force to which the provision makes reference has been originally conceived so as to encompass only military episodes.[9]

The US position paper submitted in 2014 broadens the range of situations in which a state may legally resort to force in self-defence. First, the paper expands the definition of armed attack, and therefore indirectly enlarged the list of acts of aggression, by including some cyber activities. In particular,

‘States should consider the nature and extent of injury or death to persons and the destruction of, or damage to, property. Although this is necessarily a case-by-case, fact-specific inquiry, cyber activities that proximately result in death, injury, or significant destruction, or represent an imminent threat thereof, would likely be viewed as a use of force / armed attack.’[10]

Such a ‘threat of an imminent armed attack in or through cyberspace is not [always] associated with a corresponding threat of imminent armed attack through kinetic means’,[11] and, consistently with what the US has been affirming since the 9/11 terrorist attacks,[12] can be committed by states or non-state actors.

Second, the position paper equated an armed attack to a generic ‘use of force’ (borrowing this language from article 2(4) UN Charter), without specifying the gravity or seriousness thereof. This means, therefore, that every single violation of article 2(4) UN Charter would constitute an armed attack and, as a consequence, an act of aggression.

Last but not least, in relation to those cases of self-defence fought against non-state actors and without the consent of the so-called territorial state, the US position paper reaffirmed what has been claimed over the last decades with regard to the US war against different terrorist organizations, namely, that an alleged victim State may resort to force when the territorial state is unwilling or unable to stop or prevent the actual or imminent armed attack.[13] This would also apply to the case of an ‘armed’ attack launched in or through cyberspace. However, it was added,

‘[i]f the territorial State does not consent to the use of force on its territory because it proposes to take a reasonable alternative course of action to respond to the actual or imminent armed attack or to allow others to do so, it generally should not be treated as “unwilling”.’[14]

This statement constitutes further clarification with respect to previous practice and could no doubt apply within the context of any US pre-emptive use of force against terrorist groups based in a state considered to be unwilling because it is ‘publicly silent’ when facing the risk of a military intervention justified on such grounds.

CONCLUSION

Although not wholly embraced by the fourth UN GEEs’s report adopted, the US position paper submitted to the Group in 2014 might reflect the Administration’s opinio iuris in relation to some spheres of the law of self-defence. On the one hand, as consistently claimed by the US since the 9/11 terrorist attacks, an armed attack within the meaning of article 51 UN Charter may be committed by either state or non-state actors. Moreover, an alleged victim state could act in self-defence also against a non-state actor, and even in the absence of the territorial state’s express consent.

On the other hand, the US position paper suggested that the US Administration could consider as armed attack (which, by its nature, is also an act of aggression) any violation of article 2(4) UN Charter. It furthermore provided a broader definition of armed attack so as to include cyber activities that do not imply any kinetic force. These two aspects, if upheld by the group, might well contribute to the modification of both the relevant provisions of the UN Charter and the correspondent customary norms.

[1] UNGA Res 53/70 (4 January 1999) UN Doc A/RES/53/70, para 2(c) [emphasis added].

[2] UNGA Res 70/237 (23 December 2015) UN Doc A/RES/70/2376, para. 5 [emphasis added].

[3] See UNGA 70/174 (22 July 2015) UN Doc A/70/174 paras. 24 and 28 (c). Cf UNGA 68/98 (24 June 2013) UN Doc A/68/98 para. 19.

[4] US Secretary of States, Daniel Webster, Letter to the British Envoy Extraordinary and Minister

Plenipotentiary in Washington on 24 April 1841 (as cited in Eric Heinze, Malgosia Fitzmaurice,

Landmark Cases in Public International Law (Martinus Nijhoff Publishers 1998) 1247-1255.

[5] See UNGA 70/174 (22 July 2015) UN Doc A/70/174 para. 26 [emphasis added].

[6] ibid. para. 28 (c) [emphasis added].

[7] Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits) General List No 70 [1986] ICJ at 195.

[8] Article 2 (4) UN Charter [emphasis added].

[9] See, e.g., US Representative to the Sixth Committee of the UN General Assembly, John S Cooper,

Statement on 25 November 1968 (1080th meeting) in OR of the UN General Assembly (Twentythird

session). Sixth Committee. Legal questions. Summary records of meeting (1968).

[10] Ibid.

[11] Ibid.

[12] See US Permanent Representative to the UN, John D Negroponte, Letter to the President of the UN Security Council on 7 October 2001 UN Doc S/2001/946.

[13] See Yoram Dinstein, War, Aggression and Self -Defence (5th ed., Cambridge University Press 2011) 275.

[14] United States paper submitted to the 2014–15 Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security (October 2014).

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The Comoros situation, the Pre-Trial Chamber and the Prosecutor: the Rome Statute’s system of checks and balances is in good health

On 6 November 2015 the Appeals Chamber of the International Criminal Court (ICC) wrote a new chapter in the saga on the situation ‘with respect to the 31 May 2010 Israeli raid on the Humanitarian Aid Flotilla bound for Gaza Strip’. The Chamber, by 3 votes to 2, dismissed the Prosecutor’s appeal against the Pre-Trial Chamber’s “Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation”. [1]

From a procedural point of view, it all began in May 2013, when a State Party to the ICC, namely, the Union of the Comoros, referred the Israeli raid on the aid flotilla consisting of vessels registered in Greece, Comoros and Cambodia to the Court. Then, on 6 November 2014, the ICC Prosecutor, Fatou Bensouda, announced her decision under article 53(1) ICC Statute not to proceed with an investigation. She argued that, pursuant to article 17(1) (d) ICC Statute, none of the cases that could potentially arise from this situation would have been of sufficient gravity as to require further action by the Court. In July 2015, following an application filed by the Union of the Comoros, Pre-Trial Chamber I, for the first time since the Court’s establishment, asked the ICC Prosecutor to reconsider her decision. Judge Kovács issued a partly dissenting opinion.

Some criticised the pronouncement of the Pre-Trial Chamber and described it as ‘a deeply problematic and extremely dangerous decision — nothing less than a frontal assault on the OTP’s prosecutorial discretion’. What is certain is that the whole procedural history, including the Appeals Chamber’s most recent decision, shows how delicate the issues at stake are; they might have significant implications in terms of both international, and ICC internal, politics. However, one could look at all these decisions as the lens through which to measure the state of ICC system’s health.

First, the Rome Statute provides for a well-balanced system of relations between the diverse institutional actors involved, including the Prosecutor and the Pre-Trial Chamber.[2] The Appeals Chamber’s decision, along with its procedural background, has simply proved how all actors played their statutory role and contributed to keeping the ICC as a living, but well-balanced, system.

Second, despite the fact that the drafters of the ICC Statute are usually deemed to have successfully created a statute that complies with the certainty of law – as required by the principle of legality,[3] this procedural querelle stems from a lack of clarity in the relevant statutory provisions, namely, articles 53(3)(a) and 82(1)(a) ICC Statute. This is also reflected in the Appeals Chamber’s narrow majority which last 6 November adopted the decision in question. However, the Appeals Chamber’s judges have contributed to the maintenance of the ICC system, being called upon to decide on an issue which the ICC Statute does not regulate expressis verbis. This shows how, despite the drafters’ efforts to draft a comprehensive Statute, the ICC judges nevertheless exercise quite a significant interpretative function which, in certain cases, might be such as to be considered a creative interpretation.[4]

In particular, before the Appeals Chamber, the Prosecutor argued that, pursuant to article 82(1)(a) ICC Statute, she could appeal the Pre-Trial Chamber’s decision because, from a substantive perspective, the Pre-Trial Chamber’s decision constituted a decision on admissibility, even if it did not fulfil the formalities of an admissibility decision.[5] The Prosecutor had, in fact, based her decision not to proceed with an investigation exclusively on the absence of the required gravity under article 17 (1)(d) ICC Statute. As a consequence, Pre-Trial Chamber I, in its decision, had focused on admissibility as well.[6]

On the other hand, the Union of Comoros and the victims’ representatives considered that the Pre-Trial Chamber’s decision was not a decision on admissibility and, therefore, it could not be appealed by the Prosecutor. Indeed, since according to article 82 (1)(a) ICC Statute, the Prosecutor is only allowed to appeal against decisions on jurisdiction and admissibility, the possibility for the prosecutor’s appeal to be considered at all depended on the very nature of the Pre-Trial Chamber’s decision. Should this have been considered a decision on admissibility, it would also have been regarded as a ‘final’ decision (subject to appeal) whose legal nature would have then turned out to be a review decision binding on the prosecutor. Put otherwise, the statutory lacuna consisting of the absence in article 82(1)(a) ICC Statute of an express provision for an appeal of any Pre-Trial Chamber’s decision pursuant to article 53(3)(a) [7] could have opened a breach in the system of checks and balances regulating the relations between the Prosecutor and the Trial Chamber. This would have attributed more power to the Trial Chamber.

The Appeals Chamber however affirmed as follows:

In the Appeals Chamber’s assessment, the distinction between the powers of the Pre-Trial Chamber under article 53 (3)(a) and (b) reflects a conscious decision on the part of the drafters to preserve a higher degree of prosecutorial discretion regarding decisions not to investigate based on the considerations set out in article 53 (1)(a) and (b) of the Statute. Indeed, under article 53 (3)(a) of the Statute, the Prosecutor is obliged to reconsider her decision not to investigate, but retains ultimate discretion over how to proceed. [8]

As a result, the majority dismissed the Prosecutor’s appeal against the Pre-Trial Chamber’s decision, having considered the latter as not being a decision on admissibility. In this regard, it is interesting to note that the two dissenting judges, Judge Silvia Fernández De Gurmendi and Judge Christine Van Den Wyngaert, have instead underlined how the Court’s previous ‘jurisprudence does not address the novel circumstances at hand in which the Prosecutor decides not to open an investigation in a situation on grounds of inadmissibility of potential cases within that situation.’ [9] They thus concluded that ‘[a] novel question […] arises in relation to which neither article 18 nor article 19 is applicable’. [10] Accordingly, they concluded that ‘[t]his novel approach requires the focus to be on the subject-matter of the impugned decision in order to determine whether the essence of the decision pertains to admissibility.’ [11]

Therefore, by filing an appeal relying on article 82 (1)(a) ICC Statute, Bensouda successfully led the Appeals Chamber to clarify an aspect which, so far, has been considered to be ‘completely unclear’. [12] In so doing, the Court has provided an answer to the two underlying questions on the legal nature and the consequences, vis-à-vis the Prosecutor, of a decision issued by the Pre-Trial Chamber pursuant to article 53(3)(a) ICC Statute. In other words, with the Appeals Chamber’s decision to dismiss the Prosecutor’s appeal, the Prosecutor obtained the express recognition that, under article 53(3)(a), the Prosecutor retains the ultimate discretionary power to decide whether or not to proceed with an investigation of a situation referred to the Court by either a state party or the UN Security Council; the Pre-Trial Chamber cannot impose a duty upon the Prosecutor to re-open an investigation.

It remains to be seen whether, following her reconsideration, the Prosecutor will decide to open an investigation over the facts at issue or whether she will reach the very same conclusions that she came to in November 2014. With respect to the latter scenario, Spain might provide Bensouda with a new ground to support her decision. Indeed, in relation to the very same facts of the Comoros situation, Spanish judge Jose de la Mata asked to the relevant national authorities to be notified if ever Netanyahu and six other Israeli officers are  going to be present within the Spanish territory. Under the new Spanish ley de justicia universal, judge de la Mata cannot proceed with the investigations until the relevant people find themselves in Spain. In future, should the circumstances arise that would trigger the proceedings in Spain, the ICC Prosecutor might rely on article 17(1)(a) and consider that a State which has jurisdiction over cases that could possibly arise from the situation has already been conducting investigations or prosecutions.[13]

In conclusion, the complex procedural history relating to the Comoros situation shows that the system of checks and balances provided by the ICC Statute does work correctly. Indeed, one should see the tension between the Prosecutor and the Pre-Trial Chamber as a signal of the ICC being in good health, and not vice versa. In the present case such a tension has led the judges from the Appeals Chamber to interpret the Statute so as to fill a legislative lacuna. After all, the function of a judge, especially at the international level, still requires quite a significant creative effort.

[1] ICC-01/13-1-Anx1. See also ICC-01/13-1-Anx2, p. 2.

[2] See, e.g., Antonio Cassese, The Human Dimension of International Law: Selected Papers of Antonio Cassese (OUP 2008) 517-8; Cassese (ed), The Oxford Companion to International Criminal Justice (OUP 2009) 459.

[3] See, e.g., Flavia Lattanzi and William Schabas (eds), Essays on the Rome Statute of the International Criminal Court (Vol. I, Editrice Il Sirente 1999) 215.

[4] See, e.g., the Pre-trial interpretation of ‘self-referrals’ and their compatibility with article 14 ICC Statute. William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Cambridge University Press 2010) 311.

[5] Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, (Decision on the admissibility of the Prosecutor’s appeal against the “Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation”) ICC-01/13 OA, Appeals Chamber (6 November 2016) at 17.

[6] cf Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, (Joint Dissenting Opinion of Judge Silvia Fernández De Gurmendi and Judge Christine Van Den Wyngaert attached to the Decision on the admissibility of the Prosecutor’s appeal against the “Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation”) ICC-01/13-51-Anx, Appeals Chamber (6 November 2016) at 12.

[7] Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia (n 5) at 55.

[8] ibid at 59.

[9] Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia (n 6) at 24.

[10] ibid.

[11] ibid at 26.

[12] William Schabas, An Introduction to the International Criminal Court (4th Edition, Cambridge University Press 2011) 258.

[13] See, Schabas (n 4) 340.

[14] None of the victims was in fact a Spanish citizen.

[15] Stephen Macedo, ‪Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law (University of Pennsylvania Press 2006) 73.bensouda

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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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Italy and the Crime of Torture: a story of impunity

On 7 April 2015 the Fourth Chamber of the European Court of Human Rights (ECtHR) issued its decision in Cestaro v. Italy, which condemned Italy for violating article 3 of the European Convention of Human Rights (ECHR), both in its procedural and substantial aspects. In particular, the Court found that the ill treatment perpetrated by the Italian police in the night between 21 and 22 July 2001 within the School ‘Diaz-Pertini’ (Genoa, Italy) are to be considered as acts of torture.[1] This post focuses on the main reasons that brought the Court to this conclusion and aims to provide some preliminary remarks on the draft law, which is currently under the examination of the Italian Parliament. It is argued that such a draft law might not adequately comply with the procedural obligations deriving from article 3 ECHR.

The judgment at issue stems from the disorder that took place in Genoa during the no-global summit organised by the Genoa Social Forum (GSF), which aimed to discuss the issues on the agenda at the G8 summit. Subsequent to the tragic events which had culminated, a few days before, with the death of Carlo Giuliani, and following the closure of the works of the G8 summit, around 500 officers were involved in a police operation on the night of 21 July. On that occasion, 93 people, who had come to Genoa for the Social Forum and were legitimately using the School as sleeping space, were attacked and arrested.[2] Significantly, 78 out the 93 people arrested were injured to the point of needing hospital care.[3] Moreover, any ex post facto attempt to justify these events turned out to be fallacious and intentionally misleading.[4]

The European Court’s findings

The Court concluded that a procedural and substantial violation of Article 3 ECHR had thus arisen. On the substantive violation, the Court declared that les tensions qui, comme le prétend le Gouvernement, auraient présidé à l’irruption de la police dans l’école Diaz- Pertini peuvent s’expliquer moins par des raisons objectives que par la décision de procéder à des arrestations médiatisées et par l’adoption de modalités opérationnelles non conformes aux exigences de la protection des valeurs qui découlent de l’article 3 de la Convention ainsi que du droit international pertinent.[5]

As for the procedural violation, the conclusions reached by the Court are particularly interesting. The main reason for the Court to conclude in favour of a procedural violation of article 3 ECHR is that, in spite of its ratification of both the ECHR (in 1955) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (in 1988), Italy still needs to adjust its legal order by introducing a crime (delitto) of torture in its Penal Code. On the one hand, most of the conduct relevant for the case at issue might have, at least in theory, been punished by being ascribed within other categories of crimes. On the other hand, the international crime of torture constitutes an unicum, especially in terms of its authors, the applicability of a statute of limitations, and the possibility to grant measures such as amnesties and pardons when torture is concerned.

It is worth noting that none of the accused for the conduct discussed in the present case has been condemned by the Italian Courts for the crimes they were accused of in the absence of a crime of torture, namely, the crimes of simple and aggravated assault.[6] All the accused, in fact, benefitted from the expiration of the time limit for prescription, whereas those accused of perjury, calumny, and abuse of authority could also enjoy the benefits deriving from the 2006 statute (i.e., legge n. 241 del 29 luglio 2006), which provided for a general reduction of 3 years of the period of imprisonment (or pardon). In this regard, the Court has recalled as follows.

[E]n matière de torture ou de mauvais traitements infligés par des agents de l’Etat, l’action pénale ne devrait pas s’éteindre par l’effet de la prescription, de même que l’amnistie et la grâce ne devraient pas être tolérées dans ce domaine. Au demeurant, l’application de la prescription devrait être compatible avec les exigences de la Convention. Il est dès lors difficile d’accepter des délais de prescriptions inflexibles ne souffrant aucune exception (…). Il en va de meme du sursis à l’exécution de la peine (…) et d’une remise de peine.[7]   Therefore, [l]a Cour considère dès lors que c’est la législation pénale italienne appliquée en l’espèce (…) qui s’est révélée à la fois inadéquate par rapport à l’exigence de sanction des actes de torture en question et dépourvue de l’effet dissuasif nécessaire pour prévenir d’autres violations similaires de l’article 3 à l’avenir.[8]

The Italian draft law introducing the crime of torture in the Italian Penal Code

The Strasbourg Court has noted that on 5 March 2014 the Italian Senate has finally approved a draft law (i.e., disegno di legge N. 10), aiming at ‘introducing the crime of torture’, which, since 14 April 2015, has been officially registered on the agenda of the Italian Camera dei Deputati. Needless to say, this might be an important and positive step towards the end of impunity when it comes to torture. However, in order to see whether or not this provision would substantially allow Italy to comply with its international obligations, an analysis of the draft law seems here necessary.

First, according to some of the Senators who originally submitted this draft law, ‘il reato qui configurato è di natura comune in quanto il reato può essere commesso da chiunque’. Hence, the Senators claimed they aimed at providing an ‘even broader definition’ of the crime of torture than the correspondent international crime, as the draft law does not incorporate the element of the participation of a state agent. As Antonio Cassese pointed out, however, [l]a necessaria partecipazione di un organo (rappresentante) – de jure o de facto – dello Stato alla realizzazione della condotta tipica, discende dal fatto che in questo caso la tortura è considerata punibile, dalle norme di diritto internazionale, anche quando essa costituisce un episodio singolo o sporadico.[9]

Therefore, according to Cassese, for determining the international crime of torture, one single episode might be deemed sufficient, and this because a state agent commits or permits, or even tolerates such a conduct. On the contrary, the draft law currently under the examination of the Italian Parliament makes reference to ‘violenze o minacce gravi, ovvero (…) trattamenti inumani o degradanti la dignità umana’, that is, to several episodes. In other words, what had been conceived to be ‘an even broader’ crime with respect to the international one, might in fact turn out to be a narrower one.

Moreover, it is exactly the (active or passive) role of the State throughout its agent(s) that determines, inter alia, the gravity of such a crime. On the contrary, the draft law approved by the Senate regrettably considers as a mere aggravating factor the fact that the crime is committed by a de iure state agent, and it punishes the incitement to commit torture, even if an inchoate one, only when this comes from such a state officer. All cases concerning acts of torture committed by any de facto agent, or with the state officer(s) omitting to act to prevent or punish the commission of such an act by his subordinates, are therefore not included within the meaning of the provision under consideration. In this respect, the doctrine of the command responsibility[10] might not find an adequate recognition.Having regard to the circumstances that led to the condemnation of Italy in Cestaro v. Italy, this is particularly unfortunate.

Also, this draft law does not provide for any differences with regard to the statute of limitations. As a consequence, the ‘ordinary’ statute of limitations will apply to torture, with the only exception, pursuant to article 157 of the Italian Penal Code, of the case in which torture results in the death of the victim(s), an event which is in fact punished with the so-called ‘ergastolo’, namely, an imprisonment lasting for 30 years. Finally, according to what the Court ‘recalled’ in the present case,[11] a provision incorporating the international crime of torture should provide for the inapplicability of measures such as a general reduction of punishment (indulto).

It follows that despite the efforts of the Italian Parliament aimed at putting an end to such an embarrassing condition of impunity when it comes to torture,[12] Italy might still incur in international responsibility, as the draft law currently under examination of the Italian Parliament presents significant flaws and departs from the relevant international obligations.

[1] Cestaro v. Italy App no 6884/11 (ECtHR, 7 April 2015) at 190.

[2] Corte di Cassazione, Judgment no 38085 of 5 July 2012.

[3] ibid.

[4] The Italian Corte di Cassazione called it ‘una complessa opera di mistificazione’. See Corte di Cassazione, supra note 2 as cited in Cestaro v. Italy, supra note 1, at 184.

[5] Cestaro v. Italy, supra note 1, at 189.

[6] ibid., at 221.

[7] ibid., at 208.

[8] ibid., at 225.

[9] Antonio Cassese, Lineamenti di diritto internazionale penale. I Diritto sostanziale (2005) 159.

[10] William Schabas, An Introduction to the International Criminal Court (2009) 233-235.

[11] Cestaro v. Italy, supra note 7.

[12] ibid., at 73.Palazzo madama

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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A missing piece in the European Court of Human Rights’ judgment Georgia v. Russia (I)

On 3 July 2014 the Grand Chamber of the European Court of Human Rights delivered its judgment in the first of the three cases brought by Georgia against Russia.[1] This inter-state case originated from facts which took place between September 2006 and January 2007, when a considerable number of Georgians were arrested, detained, and expelled from Russian territory.

The Strasbourg Court found a violation of a number of fundamental rights by the respondent State. For instance, the Court ascertained the existence of an “administrative practice” in breach of article 4 of Protocol IV (which prohibits the collective expulsions of aliens), and articles 5(1) and 5(4) ECHR (which concern the right not to be subjected to unlawful detention and the right to an effective remedy against a judicial decision in this regard). However, the Court considered it unnecessary to determine whether the respondent State also violated article 14 ECHR (prohibition of discrimination) taken in conjunction with article 4 Protocol IV and articles 5 (1) and 5 (4) ECHR. Indeed, it held that the complaints lodged by the applicant Government were the same – although submitted under a different angle – as those that had already examined with reference to those provisions taken alone.

The Court’s arguments to justify its refusal to pronounce itself on article 14 appear to be particularly weak, especially if one considers that both the witnesses and the reports of International organisations which the Court had greatly relied upon underlined the discriminatory behaviour of Russian authorities.[2] Moreover, in its case law the Court has constantly held that article 14 complements the other substantive provisions of the Convention and the Protocols.[3] This means that the complaints lodged by the applicant in relation to the provisions at issue must be the same – although submitted under the different angle of discrimination– as the ones lodged with reference to their violation tout court. Hence, as the Georgian Judge Tsotsoria pointed out in her Separate Opinion,

[t]he violation of the rights of Georgians based on their nationality and ethnic origin was deeply rooted in discrimination, which is the fundamental aspect of the present case. Accordingly, failure to examine Article 14 artificially reduces the scope of the non-discrimination provision of the Convention and disregards the very core feature of this inter-State application, especially considering that the Court’s practice regarding Article 14 has already been the subject of criticism.

By refusing to pronounce itself on article 14 ECHR, the Court has not only failed to consider the crucial element of discrimination in itself, but has also missed the opportunity for its decision to have an impact on other branches of international law. Indeed, the recognition by the Strasbourg Court of the existence of a discriminatory “administrative practice” by Russian authorities against Georgian nationals could be used for the purpose of national criminal proceedings based upon customary international criminal law. In particular, such a pronouncement by the Court could have been relevant for the crime against humanity of persecution.

While article 7(1)(h) of the Rome Statute limits the substantive acts capable to amount to persecution to other acts specifically contemplated by article 7 or crimes within the jurisdiction of the International Criminal Court, under customary international law, persecution extends beyond this. Indeed, any grave violation of fundamental human rights, which is part of a widespread and systematic practice, and is committed with discriminatory intent, can constitute persecution.[4]

In this respect, it is noteworthy that in the present case the Court has reiterated what had been previously established in its case law; that is, that an administrative practice comprises two elements, ‘the repetition of acts’ and ‘official tolerance’. With regard to the former, in Ireland vs the United Kingdom and Cyprus vs Turkey the Court described ‘the repetition of acts’ as ‘an accumulation of identical or analogous breaches which are sufficiently numerous and inter-connected not to amount to merely isolated incidents or exceptions but to a pattern or system’. [5] As far as ‘official tolerance’ is concerned, the Commission in France, Norway, Denmark, Sweden and the Netherlands v. Turkey held that

illegal acts are tolerated in that the superiors of those immediately responsible, though cognisant of such acts, take no action to punish them or to prevent their repetition; or that a higher authority, in face of numerous allegations, manifests indifference by refusing any adequate investigation of their truth or falsity, or that in judicial proceedings a fair hearing of such complaints is denied. [6]

It also determined that to constitute a preventative or punitive act, the ‘action taken by the higher authority must be on a scale which is sufficient to put an end to the repetition of acts or to interrupt the pattern or system’. [7]

Therefore, in the current case, having ascertained the existence of a systematic violation of fundamental rights, the discrimination of the victims on the ground that they belong to a certain national group might have been particularly relevant to any future triggering of criminal proceedings concerning the crime of persecution under customary international law.

This is not of course, automatic. Indeed, one should not underestimate the fact that the standard of evidence upon which the Court has relied in the case at issue might not be comparable with those standards which are required in a criminal case. In such cases, the accused is notably entitled to the right to remain silent and, since the burden of proof rests on the prosecution, negative inferences cannot be drawn from the defendant’s failure to provide evidence. The Court itself has indeed specified that although in assessing evidence it has adopted the standard of proof “beyond reasonable doubt”, ‘it has never been its purpose to borrow the approach of the national legal systems that use that standard in criminal cases.’ [8]

That being said, the Court’s reluctance to consider article 14 might be seen as an implicit acknowledgement that any pronouncement on its part might have had some sort of relevance with regard to crimes against humanity. In particular, apart from the possibility of triggering a criminal proceeding, any ruling by the Court would have had huge repercussions on the already troublesome international relations of the countries involved.

Thus, if it is true that the different judicial systems dealing with violations of human rights are increasingly intertwined and integrated, in this case the Strasbourg Court has a priori renounced to the possibility to have a say on issues which might pertain to the sphere of international criminal law.

[1] Georgia v Russia (I) App no 13255/07 (ECtHR, 3 July 2014).

[2] Ibid Annex. See also Russia Targets Georgians for Expulsion, Human Rights Watch, 1 October 2007, available at: http://www.hrw.org/news/2007/09/30/russia-targets-georgians-expulsion accessed on 26 October 2014.

[3] See e.g. Case of Karlheinz Schmidt v. Germany App no 13580/88 (ECtHR, 18 July 1994) para 22.

[4] A. Cassese, Lineamenti di diritto internazionale penale – I diritto sostanziale (Il Mulino 2005) 118.

[5] Ireland v the United Kingdom App no 5310/71 (ECtHR, 18 January 1978) para 159 and Cyprus v Turkey App no 25781/94 (ECtHR, 10 May 2001) para 115 (as cited in Georgia v Russia (I) App no 13255/07 (ECtHR, 3 July 2014) para 123).

[6] Georgia v Russia (I) App no 13255/07 (ECtHR, 3 July 2014) para 124.

[7] Ibid para 94.

[8] Ibid para 124.

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