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The Criminality of the Catalan Independence Referendum

Michelle Coleman, PhD Student in International Law at Middlesex University (London)

 

On 1 October 2017 a referendum vote in the Catalan region of Spain devolved into violence when police officers deployed by the national government attempted to prevent people from voting. According to some reports almost 900 people, including voters and potential voters, were injured. While recognising that there are disputed versions, this post follows the critics of the Spanish police’s actions, as described by the main NGOs and other academic bloggers.

 

This referendum asked the people of Catalonia whether they wanted the region to gain independence from Spain. This blog post explores the potential criminality that has arisen from participating in the referendum by organisers, voters and potential voters. Specifically, it will argue that participating in the referendum was not a per se criminal act. Participants could be investigated for crimes that occurred in the course of their participation, but not for the participation itself. Moreover, the police should not have targeted potential voters, using disproportionate force, because this violated the freedom of expression and did not fulfil the police’s duties of crime prevention or investigation.

 

Referendum’s Background and Constitutional Court Decision

 

Catalonia is an autonomous region in Northeastern Spain. The region’s quest for independence has a long history that has become more active in recent years. In January 2016, Carles Puigdemont was sworn in as the President of the Government of Catalonia. A staunch supporter of independence, he ran his campaign on the platform that he would hold a referendum on whether the region should become independent. The Spanish government has always opposed Catalan independence and the Constitutional Court found a previous move for Catalan independence to be unconstitutional in 2010.

 

On 19 September 2017 the Spanish Constitutional Court declared the proposed referendum unconstitutional on the grounds that there is no legal mechanism within Spanish law to allow a region to secede. They also held that the public prosecutor could investigate the leaders of the Catalan Parliament, as organisers of the referendum, for any potential crimes committed by organising the referendum.

 

Participating in an Unconstitutional Referendum is Not a Per Se Criminal Act

 

The Constitutional Court’s decision that the referendum was unconstitutional does not make participating in the referendum a criminal act. The decision merely means that the question that the referendum was asking was unconstitutional because there is no constitutional provision that allows for succession by referendum. As provided by the nullum crimen sine lege principle, an action is not a crime without a law criminally prohibiting that action at the time the action was committed. In Spain, there is no criminal law specifically prohibiting unconstitutional referendums, and because it is a civil law country, this law cannot be created by the Constitutional Court. Thus, the act of participating in the unconstitutional referendum is not a per se criminal act.

 

Just because there is no specific criminal law prohibiting unconstitutional referendums, does not mean that the act of holding or participating in such a referendum cannot result in a criminal charge. Holding or participating in the referendum may evidence a violation of an already existing criminal law. This is why the Constitutional Court stated that the public prosecutor could investigate the leaders of the Catalan Parliament; organising and holding the referendum may be evidence of treason, sedition, civil disobedience, misuse of public funds, and other crimes which already exist within Spanish criminal law. This is different however, from organising the referendum automatically becoming a criminal activity because the referendum’s topic has been held to be unconstitutional.

 

What About Voters or Potential Voters?

 

As explained above participating in the referendum itself is not a criminal offence. Further, while there is no fundamental right to vote in referendums, voting in a referendum is not in itself a criminal act, even if the referendum was held unconstitutional. Thus, voters and potential voters cannot be prosecuted for voting or attempting to vote in the referendum.

 

The situation for voters and potential voters is different from that of the organisers and Catalan leaders. Even without a right to vote in a referendum, voting itself is not a criminal act, it is merely an expression of opinion. Basically a referendum is someone is asking a question and someone else (a voter) providing their answer or opinion. This activity is protected under the right to freedom of expression. The fact that the referendum was declared unconstitutional does not change this; individual voters are still allowed to express their opinion on whether Catalonia should secede from Spain. Unlike organizing the referendum which could be evidence of crimes such as sedition, voting in the referendum does not have the same effect. Expressing an opinion against the Spanish government is not illiegal or criminal — people have been doing it for years. Thus, voters and potential voters merely participating in the referendum by stating their opinion are not committing a criminal act or providing evidence of a crime. They are exercising their right to express their opinions.

 

Of course, there can be some laws that were violated during the course of casting a vote. Among those crimes might be trespassing. Potential voters did not have proper permission to be on the property where the polling places were located. For example, many schools owned by the Spanish government. The Spanish government did not give permission for the public to use the school for holding an illegal referendum. Without proper permission, anyone entering the school for the referendum would be trespassing and could suffer criminal penalties. Whether trespassing occurred however was highly dependent on the situation. It would not occur in locations where the rightful owner of the property gave permission for the property to be opened to the public for the purpose of the referendum. Rightful owners have the ability to give permission for anyone to enter their property for any purpose they choose.

 

The Police Should Not Have Targeted Potential Voters

 

In an attempt to prevent the referendum from taking place, Spain’s paramilitary Civil Guard took charge of Mossos d’Esquadra (the Catalan police force). There were two ways for the police to prevent illegal elections from occurring: to focus on stopping the organisers and closing or preventing entry to any polling places or focus on potential voters and prevent them from entering a polling place or casting their vote. The first method focuses inward, on the referendum itself, while the second focuses outward on the general public. The police used both methods.

 

From the perspective of the Spanish government, closing or preventing entry to polling places may be a justified police action. The police are preventing crime by preventing an unconstitutional referendum, stopping individuals from trespassing in the polling locations, and perhaps even gathering evidence against organisers who may be liable. It is common to prevent property crime (such as trespassing) from occurring by protecting the property itself. This can be a legitimate method of suppressing an illegal action provided the police act within their normal powers. This can be done without focusing on potential voters outside of polling stations.

 

Police actions against voters and potential voters, who are not illegally inside polling locations, are not justified. Directing police actions toward potential voters wrongfully targets individuals who have not committed crimes. It punishes individuals by restraining them and restricting their movements and, at times, using violence against them. Essentially, targeting potential voters in the streets treats them in the same manner as those who are suspected of crimes. The result is not crime prevention or investigation but a stifling of freedom of expression. Yet, police officers may use force to restore public order. In that case, however, they should always comply with the necessity and proportionality requirements.

 

By focusing on the potential voters outside the occupied public buildings, the police acted as though they were the targets of crime prevention. The police took their crime prevention duties too far by targeting those whose actions were not criminal. In so doing the police exceeded the scope of their powers and reacted violently towards thousands of individuals who were merely expressing their fundamental right to freedom of expression. vote catalonia

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Time-Limitation Clause Against Private Litigants of the East African Court of Justice: A Call for a Purposive Interpretation of Article 30(2) of the East African Community

Dr. Ally Possi

Post-Doctoral Fellow, North-West University, South Africa; lecturer, the Law School of Tanzania

 

Introduction

This post exposes time-limitation obstacle facing private litigants in accessing one of the African regional economic community judiciaries: the East African Court of Justice (EACJ, or the Court). The EACJ is the judicial organ embedded to settle disputes in connection with the East African Community (EAC) integration activities. Comparatively, the EACJ is a replica of other regional economic community courts, currently in existence, such as the Court of Justice of the European Union.

Private litigants play a key role in modelling states’ behaviour to realise their integration ambitions. One of the operational principles of the EAC is the ‘people-centered’ co-operation form of integration (art 7(1)(a) of the EAC Treaty).[1] Therefore, it was not an oversight to permit individuals to account Member States before the EACJ, whenever there is an infringement of the EAC Treaty. However, article 30(2) of the Treaty restricts private litigants to lodge their complaints: within two months of the enactment, publication, directive, decision or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant.

Following a significant level of silence on the stringent rule, this post is important considering the nature of the subject it tackles. Judges have been narrowly and strictly interpreting article 30(2) of the EAC Treaty, preventing private litigants to lodge their complaints to the EACJ with ease. Eventually, individuals are being denied access to justice. This post, therefore, argues that EACJ judges need to broadly and purposely interpret article 30(2) of the EAC Treaty, while at the moment the extension of the two months’ time window is denied on grounds that are contrary to the spirit of the EAC Treaty. Thus, this post provides some legal evidence for EACJ judges to stretch this interpretation.

East African Court of Justice

The Court is established pursuant to article 9 of the EAC Treaty, as one of the EAC organs bestowed with a mandate of interpreting and applying the EAC Treaty (see art 23, 27(1)). The Court is composed of two Divisions – the First Instance Division (FID), which has jurisdiction over most matters, and the Appellate Division (AD), where matters initially dealt by the FID are considered for appeal, as well as applications for advisory opinions. Worth a mention, accessibility to the EACJ by private litigants, challenging the acts of EAC Member States, is one of the most modern features in the catalogue of international and regional courts.

It is now about sixteen years after EACJ’s official inauguration on 30 November 2001. In 2005 the EACJ received its first case concerning a power struggle for enacting EAC laws between the Council and the East African Legislative Assembly (EALA). The turning point to the Court’s fortune was in 2007, when EAC Treaty was hastily amended as a means of retaliation from Member States,[2] due to a judgment by the Court faulting the manner in which members of EALA from Kenya were elected (see Anyang’ Nyong’o v AG of Kenya).

The process of amending the Treaty was, however, nullified in EALS v AG of Kenya & Others, of which the Regional Bar Association successfully challenged the amendment process by contending that EAC citizens were not consulted over the proposed amendment; a process required by the Treaty.[3] Thus, the EACJ found the amendment process was contrary to the letter and spirit of the EAC Treaty, of which one of its founding norms requires a people-centered driven form of integration. Despite of the EACJ decision, the amended Treaty retained its legal force. Perhaps, the nature of the EACJ’s decision, which was in a declaratory form, had something to do with its weak implementation; which is a matter of another academic debate. Nevertheless, it is important to point out that EAC Member States, as most African states, have the tendency of not complying with the decisions of international bodies. Be it as it may, it was through that illegal-pronounced amendment that article 30(2) was inserted.

EACJ’s approach on article 30(2)

The stance of the EACJ over article 30(2) EAC Treaty is appreciatively conservative; the article is strictly interpreted within its generic context. Consequently, many fresh cases are on the verge of facing dismissal, as it is unrealistic for private litigants to have a full case ready for court registration within sixty days. Case preparation takes time and demands resources. The EACJ has jurisdiction over a region where the majority of the people are least advantaged and under resourced. By being uncompromised to the two-months’ time draconian rule, judges are therefore denying individuals access to justice.

However, in the early EACJ cases, where article 30(2) EAC Treaty was at the focal point of dispute, the FID used to condone it. In IMLU v AG of Kenya, for instance, the applicant accused Kenya of violating the EAC Treaty, for failing to prevent or punish the perpetrators of the violence occurred at Mount Elgon during the 2007 general election. Kenya refuted such allegations by objecting the time in which the applicant’s complaint was lodged. In its decision, the FID stated (at p. 10):

It is our considered view, that the matters complained of are failures in a whole continuous chain of events from when the alleged violations started until the Claimant decided that the Republic of Kenya had failed to provide any remedy for the alleged violations. We find that such action or omission of a Partner State cannot be limited by mathematical computation of time.

The above reasoning was the FID’s stance in the early few cases with time-limit concerns.[4] When those cases reached the AD, however, they all were overturned on the grounds that the EACJ does not have any mandate to stretch time limits; and that arguments on the application of the doctrine of continuing violation cannot be sustained since EACJ is not a human rights court, where the doctrine is relevant (see AG of Uganda v Omar Awadh). As it stands, no flexibility is seen from the EACJ yet to at least liberally interpreting article 30(2) EAC Treaty.

The AD’s position came at a time when minds of all those affiliated with the EACJ were fresh from the suspicious 2007 Treaty amendment, of which the AD was created. It was also the first batch of AD appointed judges who presided on the above appealed time-limit cases. While there is no evidence of the then AD judges lacking impartiality, speculations on the AD’s verification role over FID cannot be shrugged-off with ease.

A call for a purposive interpretation

Article 30(2) EAC Treaty should be interpreted in light of its object and maiden purpose.[5] The following are reasons for the call. First, before the faulted 2007 Treaty amendment, article 30(2) was not inserted purposely to allow private litigants to have their share in playing a role within EAC integration without restrictions. After inserting article 30(2), individuals are now not able to access the EACJ with comfort. In fact, the provision was inserted in a discriminatory manner, as it is only applicable to private litigants and not to other potential applicants, such as the EAC Secretary General.[6] Therefore, strictly interpreting article 30(2) of the EAC Treaty is against the maiden spirit of the Treaty of allowing EAC citizens to have a say in the activities of their economic bloc.[7]

Second, private litigants are key in spearheading integration goals through litigation on matters directly associated with integration. By strictly applying article 30(2) EAC Treaty, applicants will not easily access the EACJ, eventually denying them access to justice and hindering them from playing a crucial role in shaping the integration. A society such as that of the EAC where most indigents are illiterate and legal services are scarce, a time-window of sixty days is minute. One would take about six months and above to gather evidence, jotting-down pleadings, and seeking legal assistance; let alone the time to be aware of legal procedures or even the existence of a court such as the EACJ. Thus, there is a need of applying the time limit rule with more logic.

Third, looking at the nature of cases received by the EACJ since its inception, the Court has been failing to attract traders due to its remedial powers and other related pitfalls.[8] In having a two months’ time limit for lodging a complaint, traders in the region will keep-on boycotting the Court and find other more favourable avenues to solve their disputes. Thus, by harshly interpreting article 30(2) EAC Treaty, the Court does not help its course of making traders bring commercial-related disputes before it.

Fourth, Rule 4 of the EACJ Rules of Procedure allows the Court to extend time in all procedural matters. Time-limits are also matters of procedure that judges should take note of and apply the rule for the benefit of individual litigants. It is somewhat surprising to find EACJ judges not toiling enough to broadly interpret article 30(2).

Fifth, there is evidence that the doctrine of continuing violation is commonly used in other legal matters, including tort and environmental law.[9] It is unfound for the Court to declare that the doctrine of continuing violation is only relevant to courts with human rights jurisdiction. Looking at matters concerning contracts, clearly, their nature of violation can be continuous. Being a regional economic community court, it is expected that trade and contractual related matters will be handled to the Court. By strictly interpreting article 30(2) of the EAC Treaty, to the extent of not upholding the continuing violation doctrine, the Court might not receive many critical cases, and in this respect it might fail to attract traders.

Sixth, using the same thread of reasoning from EACJ judges that the EAC Treaty does not explicitly confer the Court with a mandate to extend the restrictive time-limit, one can advance an argument that the Treaty also does not prevent EACJ judges from extending time-limits. Even more so, another glance to article 30(2) finds a phrase ‘within the article’, meaning that the rule is only determined upon weighing all circumstances at present. Thus, the EACJ can extend time for lodging complaints depending on the situation at hand.

Conclusion

Article 30(2) EAC Treaty is a hurdle to private litigants before the EACJ. By maintaining and conservatively applying the provision, genuine intention of having direct individual access to the EACJ becomes meaningless. A more recent attempt disputing article 30(2) proved futile (Steven Dennis v AG of Burundi & Others), when FID held that article 30(2) EAC Treaty conforms established Community norms. Understandably so, the FID cannot rule contrary to the AD. This latest decision has dashed private litigants’ hopes of getting rid of the draconian time-limitation rule. Therefore, it is submitted that, in the future, the EACJ should provide an interpretation of article 30(2) EAC Treaty based on its object and purpose, as established in the Vienna Convention on the Law of Treaties (art 31(1)).

 

 

 

 

[1] For a general understanding of the EAC principles, see: KC Kamanga and A Possi, ‘General principles governing EAC integration’ in E Ugirashebuja et al (Eds), East African Community law: Institutional, substantive and comparative EU aspects (Brill-Nijhoff, Leiden 2017) at 202-216.

 

[2] Henry Onoria, ‘Botched-up Elections, Treaty Amendments and Judicial Independence in the East African Community’ (2010) J. Afr. L. 74-94.

[3] Art 150 read together with art 7(1)(a) of the EAC Treaty.

[4] IMLU v AG of Kenya Ref No. 3/2010 of (29 June 2011); Rugumba v AG of Rwanda Ref No. 8/2010 (30 November 2011).

[5] Art 31 of the Vienna Convention on the Law of Treaties, 1969.

[6] See arts 28,29 and 30 of the EAC Treaty.

[7] Art 7(1)(a) of the EAC Treaty.

[8] James Gathii, ‘Variation in the Use of Sub-Regional Integration Courts between Business and Human Rights Actors: The Case of the East African Court of Justice’ (2016) Law & Contemp. Probs. 37-62.

[9] AC Lin ‘Application of the Continuing Violations Doctrine to Environmental Law’ (1996) 23 Ecology Law Quarterly 713-777; Elad Peled 2004-2005 ‘Rethinking the Continuing Violation Doctrine: The Application of Statutes of Limitations to Continuing Tort Claims’ (2004-2005) 41 Ohio Northern University Law Review 343-388. Ally

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Trump’s Travel Bans and Extreme Vetting: How They Violate Basic Human Rights

Caleb Wheeler, PhD Student in International Law, Middlesex University, London

One of Donald Trump’s first actions as president of the United States was to issue an Executive Order banning the citizens of seven Muslim majority countries, Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for a period of 90 days. He justified the ban on the grounds that it would be detrimental to the United States if citizens of those states were permitted to enter the country while a review was being conducted of the existing screening and vetting procedures utilized to determine whether a person should be issued an entry visa. The implementation of the ban was halted by the issuance of temporary restraining orders by multiple federal district courts, and on 9 February, the Ninth Circuit Court of Appeals refused to stay enforcement of those temporary restraining orders. Unperturbed, President Trump issued a second executive order on 6 March in which he sought to ban citizens from six of the seven countries identified in the first ban (having removed Iraq from the original list) from entering the United States. That executive order was also challenged in Court, and federal district courts in Hawai’i and Maryland again prevented its implementation through the issuance of restraining orders. While much of the attention given to the travel bans focuses on the discriminatory effects they have on Muslims from certain countries, considerably less consideration has been given to the types of screening and vetting procedures the administration wishes to impose and the potential effects these new measures would have on the rights of all travelers to the United States. This blog post will demonstrate that policies requiring foreign travelers to reveal private electronic data are impermissible under United States’ domestic law and international law and should be avoided.

 

Both bans are titled ‘Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States’ and have the stated purpose of improving “the screening and vetting protocols and procedures associated with the visa-issuance process”. The goal of these improvements is to identify those individuals seeking to fraudulently enter the United States, and those that support terrorism, violent extremism, acts of violence towards any group of people within the United States or who prevent a risk of causing harm following entry. A number of specific techniques have been suggested to promote the proper identification of individuals falling into these categories, including: in-person interviews, the creation of a database of identity documents and amending application forms so as to better identify fraudulent answers. More general methods have also been proposed involving the development of mechanisms to determine whether applicants are not misrepresenting their identities, whether they may commit, aid or support violent terrorist acts after entering the United States and a catch-all category permitting the government to use “any other appropriate means for ensuring the proper collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility”.

 

It is these latter, more general, categories that cause consternation, particularly in light of recent media reports suggesting that the new screening and vetting requirements could require foreign visitors to reveal their mobile phone contacts, social media passwords and financial data before gaining entry to the country. According to a senior Department of Homeland Security official, the goal of collecting mobile phone contact information is to learn the identities of those individuals who potential visitors are communicating with. Additionally, the secretary of the Department of Homeland Security previously stated that the purpose of demanding that people reveal their passwords is to allow the United States government to “see what they do on the internet.”

 

These proposals raise significant national and international right to privacy concerns. Domestically, the Fourth Amendment of the United States Constitution prohibits the unreasonable search and seizure of a person’s property and requires that search warrants be supported by probable cause. In 2014, the United States Supreme Court held in Riley v California that the police need a warrant to search the information contained on a mobile phone confiscated during a lawful arrest. That decision was based on a finding that mobile phone owners have a privacy interest in the data contained therein that can only be intruded upon through a valid warrant. Recently introduced bills in the Senate and House of Representatives seek to extend the warrant requirement set out in Riley v. California to searches of “electronic equipment and online accounts” occurring at the United States’ borders. The bills specifically state that there is a reasonable expectation of privacy about a persons’ digital content of their electronic information and online accounts and that it is unreasonable under the Fourth Amendment to permit border agents to access electronic equipment without a warrant. The bills do explicitly limit that right to privacy to “United States Persons” as described in 50 U.S. Code § 1801, a designation which encompasses citizens of the United States, lawful aliens with permanent residence and corporations incorporated in the United States. Despite this limitation, the general proposition remains that the right to privacy limits access to information contained on mobile devices. Further, the Fourteenth Amendment of the Constitution entitles non-citizens to equal protection under the law and the Supreme Court has specifically granted non-citizens the right to challenge government actions infringing on rights delineated in the Constitution. Therefore, any measures requiring individuals to produce that information would be unlawful.

 

International law also invalidates any argument that the right to privacy only extends to American citizens and other lawful residents. Article 17 of the International Covenant on Civil and Political Rights (ICCPR, or ‘the Covenant’), which the United States ratified in 1992, explicitly forbids the arbitrary or unlawful interference with an individual’s privacy. When delineating what sort of information States Parties must put in their reports to the Human Rights Committee, interference was described as unlawful when it does not comply with the laws of the State seeking to interfere with an individual’s privacy, and it is arbitrary when it does comply with the State’s laws, but where those laws are not in accord with the provisions, aims and objectives of the Covenant. The Committee goes on to find that interference with the right to privacy must be reasonable under the particular circumstances and should only be authorised to the extent that it is essential to the interests of society that such information is disclosed. This is a high bar to clear, and requires a case-by-case inquiry into each situation. Therefore, even if it could be shown that the information sought is essential to the interests of the United States, that it is reasonable to infringe on the right to privacy and that the right to privacy as it is understood in the United States does not prevent access to the information, a blanket demand that all foreign visitors provide contact, password and financial information will fail as it will not comply with the required fact specific inquiry.

 

In a 2013 resolution, the General Assembly of the United Nations clarified the parameters of the right to privacy as it pertains to digital information. The General Assembly specifically indicated that it was “deeply concerned” about the collection of personal data and its impact on the exercise and enjoyment of civil rights and emphasised that the unlawful or arbitrary collection of personal information is a highly intrusive act that violates the right to privacy. It called upon all states to respect the right to privacy and to establish measures meant to implement their human rights obligations. Although non-binding, this resolution indicates a rejection by the world community of the sort of measures the Trump administration hopes to impose. The General Assembly resolution also requested that the United Nations Commissioner for Human Rights submit a report addressing the right to privacy in the digital age. Although the resulting report primarily focused on information accumulated through mass surveillance programmes, it did clarify that, in addition to the requirements set out by the Human Rights Committee, any limitation on the right to privacy has to comply with other human rights and must not render the right meaningless. Limitations failing to meet these criteria are considered unlawful and/or arbitrary.

 

Therefore, it is important to examine whether limitations to the right to privacy also impact other human rights. In this instance, the proposed new screening and vetting requirements could act as an infringement on the First Amendment right to free speech. The First Amendment prevents the government from abridging the freedom of speech and allows people to make political statements critical of the government without fear of punishment, unless such statements are meant to incite imminent lawless action or constitute a legitimate threat to the president’s life. Knowing that their private statements could be subject to scrutiny by the United States’ government, and possibly act as a barrier to their entry into the country, could prevent individuals from speaking freely out of fear of the possible repercussions. This is particularly true where, as here, a person can enter the United States is left to the discretion of an individual Customs and Border Protection officer, and entry can be denied even if the traveler possesses a valid visa.

 

The ICCPR also forbids the infringement of free speech, although it characterizes it as two rights: the freedom of expression and the freedom of opinion. The freedom of opinion, as set out in Article 19, is not subject to any exception or restriction, meaning the government is not permitted to infringe upon it in any way. By comparison, the freedom of expression, which includes any type of dissemination of ideas, can be limited for national security reasons. Therefore, the proposed screening and vetting cannot limit a person’s ability to hold an opinion but they can limit whether the person can express that opinion. However, the standard for implementing such a restriction is high and they will only be found lawful if they are necessary to protect national security and are not overbroad so as to exceed their protective function.

 

Screening and vetting procedures that require foreign visitors to disclose private digital information raise First Amendment and Fourth Amendment concerns and are of dubious constitutionality. Further, even if these significant Constitutional issues can be overcome, such measures are also impermissible under international law. That is unlikely to act as much of a impediment on President Trump’s attempts to implement these procedures as he has demonstrated hostility towards international human rights law during his presidency. The best hope to avoid this proposed widespread violation of the Constitution is for the Federal Courts to continue to play their important role in upholding the rights of individuals.

*Picture courtesy of usa.gov

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The International Criminal Court Summer School 2017 19 to 23 June 2017, NUI Galway, Ireland

The annual International Criminal Court Summer School at the Irish Centre for Human Rights is the premier summer school specialising on the International Criminal Court. The summer school allows participants the opportunity to attend a series of intensive lectures over five days. The lectures are given by leading academics on the subject as well as by legal professionals working at the International Criminal Court. The interactive and stimulating course is particularly suited to postgraduate students, legal professionals, scholars, and NGO workers. Participants are provided with a detailed working knowledge of the establishment of the Court, its structures and operations, and the applicable law. Lectures also speak to related issues in international criminal law, including: genocide, war crimes, crimes against humanity, the crime of aggression, jurisdiction, fair trial rights, and the rules of procedure and evidence.

This year’s ICC Summer School will include a topical special session on Corporate Crimes and the International Criminal Court.

The list of speakers at the 2017 ICC Summer School includes the following: Professor William Schabas (Irish Centre for Human Rights/Middlesex University); Professor James Stewart (University of British Columbia); Dr. Fabricio Guariglia (Office of the Prosecutor, International Criminal Court); Professor Megan A. Fairlie (Florida International University);  Professor Ray Murphy (Irish Centre for Human Rights); Dr. Rod Rastan (Office of the Prosecutor at the International Criminal Court); Dr. Mohamed M. El Zeidy (International Criminal Court); Professor Donald M. Ferencz (Middlesex University);  Dr. Noelle Quenivet (University of the West of England); Dr. Nadia Bernaz (Middlesex University); Dr. James Nyawo (INTERVICT, Tilburg University); Dr. Nadia Bernaz (Middlesex University); Mr. Richard J. Rodgers (Global Diligence LLP); Mr. John McManus (Crimes Against Humanity and War Crimes Section, Canadian Department of Justice); Dr. Noelle Higgins (Maynooth University); Dr. Shane Darcy (Irish Centre for Human Rights).

The registration fee of €450 includes all conference materials, all lunches and refreshments, a social activity and a closing dinner. The registration fee also includes a complimentary copy of Professor William Schabas’ book ‘An Introduction to the International Criminal Court‘. The closing date for registrations is 1 June 2017.

To register and for more information regarding the 2017 ICC Summer School, please visit their website  and follow them on Facebook or Twitter.

Should you have any queries, please email them.

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The ECB imposes a new strategy on the management of NPLs: a first analysis of the “Draft Guidance to Banks on Non-performing Loans”

Daria Sartori, PhD, Trainee Lawyer, Mercanti Dorio e Associati; Giulia Ferrari, PhD, Attorney-at-Law, Mercanti Dorio e Associati

Introduction

In general terms, non-performing loans (NPLs) are bank loans which are considered as unlikely to be paid back because of the debtor’s delay in paying the agreed instalments or interest for a certain amount of time.[1] When a loan is non-performing, banks must set aside capital on the assumption that the loan will not be paid back, thus reducing their capacity to provide new loans.[2] When banks are overburdened by NPLs, the entire economy suffers, one of the consequences being that privates will face difficulties in having access to credit.

Within the EU, the issue of NPLs has been a substantial one since the outbreak of the financial crisis of 2007-2008. At a macroeconomic level, the significant upward trend of NPLs has reflected the consequences of heightened unemployment, depreciated currency and tight financial conditions.[3] At bank level, the excessive amount of NPLs has been linked to poor loan underwriting, monitoring and control.[4]

NPLs are now specifically addressed by the “Draft guidance to banks on non-performing loans” (the Guide), drafted by the European Central Bank (ECB) and open to public consultation from 12 September to 15 November 2016. The Guide collects a number of best practices identified by the ECB in the course of its supervisory functions and relating to the issue of NPLs, defined as all exposures of banks which are held to be at risk of non-repayment according to EU standards.[5] While the Guide is not, technically speaking, a binding instrument, non-compliance with its standards may trigger the imposition of supervisory measures for credit institutions which, pursuant to Regulation n. 468/2014 of the European Central Bank of 16 April 2014, fall within the ECB’s scope of supervision (so-called “Significant Institutions”, or SIs).

The present contribution provides an overview of the Guide and highlights the main issues relating to the problem of NPLs at bank level.

Banking supervision within the EU

Following the financial crisis of 2007–2008, EU institutions have called for the creation of a “banking union”, ensuring the safety and soundness of the European banking system thorough increased financial integration and stability. The first step towards a banking union has been the creation of a Single Supervisory Mechanism (SSM), comprising the European Central Bank (ECB) and the national supervisory authorities of the participating countries. The SSM’s task is to ensure that EU policies and rules on the prudential supervision of credit institutions are implemented in a coherent and effective manner.

The ECB’s supervisory functions are exercised in accordance with the EU Capital Requirements framework, i.e. the Capital Requirements Regulation[6] and Capital Requirements Directive.[7] These instruments transpose into EU law the standards elaborated at international level by the Basel accords, and they confer on supervisory authorities the power of imposing measures.

With regard to the ECB, these measures range from less stringent (such as the power “to impose additional or more frequent reporting requirements”, pursuant to Article 16 of the Capital Requirements Regulation) to substantial ones (such as the power to impose pecuniary sanctions for non-compliance with ECB regulations or decisions, pursuant to Council Regulation (EC) No 2532/98 of 23 November 1998).

Whereas the Draft guidance to banks on non-performing loans is not an instrument allowing the ECB to impose sanctions, its standards represent the ECB’s supervisory expectation for the future and non-compliance may trigger supervisory measures,[8] such as those articulated by Article 16 of the Capital Requirements Regulation. Thus, the standards of the Guide can be considered as de facto binding for SIs, who should plan ahead interventions on their internal organization and policies in order to be able to meet the requirements by the time the Guide’s final version will be publicly available.

The ECB Draft guidance to banks on non-performing loans

On 12 September 2016 the ECB has launched public consultation on the “Draft guidance to banks on non-performing loans”. The consultation has been closed on 15 November 2016 but the comments received by the ECB have not been published yet, and the Guide itself is still in its draft version.

As mentioned above, the Guide collects a number of best practices relating to the issue of non-performing loans. It includes seven Annexes, providing samples of criteria and practices relating to every phase of the NPL life cycle.

The term “non-performing loans”, as used by the Guide, refers to non-performing exposures (NPE), as defined by the European Banking Authority (i.e., exposures satisfying either or both the “90 days-past-due” and “unlikely-to-pay” criteria),[9] as well as to foreclosed assets and performing exposures with an elevated risk of turning non-performing.[10]

According to the Guide, SIs must develop a specific NPL strategy, on the basis of a comprehensive assessment of the operating environment, i.e. of internal capabilities (self-assessment) and external conditions. The strategy thus elaborated must include targets relating to the development of operational capabilities and projected NPL reductions over the short (indicative 1 year), medium (indicative 3 years) and long-term line horizons. An operational plan must be developed accordingly, approved by the management body and reviewed at least annually. Credit institutions with high levels of NPLs are expected to report their NPL strategy and operational plan to the banking authority in the first quarter of each calendar year.

The strategy and plan must be embedded in processes at all levels of organization, and human resources must be organized accordingly. Thus, for instance, the NPL Guide requires the creation of separate NPL workouts units (WUs), dealing with NPLs along their life cycle and composed by staff members with dedicated NPL expertise and experience. Technical resources must be also implemented, including automated monitoring processes of the loan status, with early warning signals and reporting.

Credit institutions must implement effective and efficient control processes for the NPL workout framework, involving three lines of defence. The first line of defence comprises control mechanisms within the NPL workout units, ensuring that the NPL policy is adequately embedded in daily processes. The second line must ensure that the first line of defence operates effectively: it comprises risk management and compliance functions and requires continuous monitoring and reviewing of NPL operating model’s performance. The third line comprises the internal audit function, which must conduct regular (i.e., at least annual) assessments to verify adherence of the NPL framework to the NPL policy. Annex 5 to the Guide provides key elements of NPL framework-related policies (such as arrears management policy, forbearance policy, debt recovery/enforcement policy) that should be implemented by high NPL banks.

An entire chapter of the Guide is dedicated to NPLs secured by immovable property held as collateral.[11] In the past, delays in assessing the decline of real estate value have proved to affect substantially credit institutions’ balance sheets. In fact, a high number of NPLs is secured by immovable property, and the value of the latter may significantly change over time. The Guide requires regular monitoring and reviewing of the valuations for collaterals, carried out by independent and qualified appraisers in accordance with the requirements set forth by Article 208(3) of the Capital Regulation Directive. It emphasizes the importance of maintaining the valuations for collaterals in line with market changes: thus, while establishing a minimum regular interval for updates (one year for commercial immovable property, three years for residential), it also requires credit institutions to carry out more frequent valuations where the market is subject to substantial negative changes and/or where there are signs of significant decline in the value of the individual collateral. In this last regard, banks are also required to establish their own criteria for determining whether a “significant decline” has taken place.

With regard to NPL impairment measures and write-offs, the Guide encourages credit institutions to align consistently with the standards set out by the Capital Requirements Regulation and Capital Requirements Directive, even when the institution is part of a group and some units of the group are not located in the EU.

Internal organization and timely intervention on NPLs

The Guide stresses the importance of adequate internal organization and coherent NPL policies, allowing timely intervention on NPLs. These aspects are particularly significant when it comes to dealing with high value NPLs, whereby the sums involved are significant (usually, because the loan is granted to enterprises/corporations). In this case, a good management of NPLs can affect both the bank’s capacity to conduct businesses profitably and the good functioning of the overall economy.

With regard to high value NPLs, measures aiming to restructuring are more appropriate than enforcement measures. However, in order to be effective, restructuring must be timely and conducted by staff with adequate expertise and experience. Restructuring is a process to which banks frequently turn too late (when the exposure has significantly worsened, making it more difficult for the borrower to repay the entire debt). For this reason, the Guide’s focus on the organization of human resources and on the timely recognition of NPLs should be appreciated: an increased attention by credit institutions to these aspects can positively affect the economic growth.

Conclusion

In the light of the best practices collected by the ECB in the Draft guidance to banks on non-performing loans, credit institutions subject to the Single Supervisory Mechanism must tackle NPLs by assessing the operating environment, developing and implementing a specific NPL strategy and an operational plan.

The Guide’s focus on internal organization and timely intervention on NPLs is particularly appreciated, as it favours solutions to the main issues contributing relating to the problem of NPLs at the bank level.

Whereas the Guide is not a binding instrument, compliance with its standards may trigger the imposition of supervisory measures by the ECB on Significant Institutions. For this reason, SIs should plan ahead interventions on their internal organization and policies in such a way as to be compliant with the Guide’s standards by the time its final version will be publicly available.

[1] For a technical definition of NPLs, infra sub n. 7 and 8

[2] For a general overview of the topic, see the ECB’s explanation at: https://www.ecb.europa.eu/explainers/tell-me/html/npl.en.html

[3] IMF Working Paper of the European Department Non-Performing Loans in CESEE: Determinants and Macroeconomic Performance, by Nir Klein, March 2013, p. 3 (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2247224)

[4] ibid., p. 5

[5] Draft guidance to banks on non-performing loans, sub par 1.3

[6] Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012, OJL 176, 27.6.2013, p. 1–33

[7] Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC, OJL 176, 27.6.2013, p. 338–436

[8] Draft guidance to banks on non-performing loans, sub par 1.2

[9] See paragraph 145 of Annex V to the “Implementing Technical Standards on Supervisory Reporting” (ITS)

[10] Draft guidance to banks on non-performing loans, sub par. 1.3

[11] Draft guidance to banks on non-performing loans, sub par 7, “Collateral valuation for immovable property”

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Trump, torture and the United States’ obligations under international law

Caleb Wheeler, PhD Student in International Law, Middlesex University, London

Introduction

            Donald Trump’s election as the next president of the United States has cast doubt on whether the United States will continue to comply with a variety of its different international human rights obligations. One issue in particular, Trump’s attitude towards the use of torture, could significantly diminish the United States’ compliance with its international treaty obligations.  This blog post examines the United States’ international obligations with regard to torture, and whether Trump’s policies as proposed through his campaign statements conform to those obligations.  It concludes that they do not and that if the United States reauthorises the use of torture it will be in violation of its international commitments.

Trump’s statements on torture

Donald Trump’s election as the next president of the United States has cast doubt on whether the United States will continue to comply with a variety of its different international human rights obligations. While significant post-election attention has been paid to how Trump’s proposed policies comport with domestic human rights law, it is also important to analyse whether his positions comply with international law.  One issue in particular, Trump’s position on the use of torture, could significantly diminish the United States’ compliance with its international (treaty) obligations.

Trump’s campaign rhetoric was fraught with contradictory and troubling statements regarding the use of torture. His initial statement on torture came on 25 November 2015, when, at a campaign rally he stated “[w]ould I approve waterboarding? You bet your ass I would. In a heartbeat. I would approve more than that.”On 17 February 2016, Trump asserted that “torture works”, that he believed in the efficacy of waterboarding and that the United States should employ “much stronger” types of torture than waterboarding when questioning suspected terrorists. On 4 March, Trump appeared to back away from that statement when he told the Wall Street Journal that, if elected, he would not order members of the military to violate international law. He almost immediately changed course again indicating on 6 March 2016 that the United States should expand its laws to authorise the use of greater forms of torture. Trump returned to the topic of torture at the end of June when he reaffirmed his affection for waterboarding as an interrogation technique and suggested that he “[doesn’t] think it is tough enough.”

Trump’s declaration that as president he would not ask American troops to violate international law appears anomalous when placed in the context of his other assertions on the issue of torture.  This is particularly true when one considers that he repeatedly advocated in favour of changing domestic law so as to permit a more expansive use of torture as an interrogation technique. However, United States’ law comprehensively bans the use of torture and it would be difficult for Trump to unilaterally alter those provisions.

The United States’ obligations

The prohibition against torture has its roots in the Eighth Amendment of the United States Constitution, which bans the use of cruel and unusual punishment, although there is an ongoing debate as to whether the Eighth Amendment is applicable in all situations involving torture. United States’ law also contains several different explicit prohibitions against torture. 18 U.S.C. §2340A forbids torture if it occurs outside of the United States and the perpetrator is either an American national or can be found in the United States following the alleged criminal act. Additionally, one of Barack Obama’s first acts after becoming president was to issue an executive order in which he specified that individuals detained in an armed conflict were to be treated humanely, were not to be subjected to torture and restricted all interrogation techniques to those discussed in the Army Field Manual 2-22.3. That executive order was reinforced by the McCain-Feinstein Amendment to the National Defense Authorization Act for FY 2016 which made the Army Field Manual 2-22.3 the single and standard guide for all interrogations conducted by American personnel or at American facilities of individuals detained during armed combat. The passage of this Amendment is significant as it eliminates the possibility of Trump unilaterally overruling President Obama’s Executive Order, necessitating Congressional action before torture could be authorised. These protections, together with the 2005 Detainee Treatment Act, which forbids the use of cruel, inhumane or degrading treatment or punishment against detainees, but stops short of banning torture outright, will make it difficult for Trump to permit the renewed use torture.

If Trump were to somehow re-authorise the use of torture under domestic law, those actions would violate the United States’ international obligations under the International Covenant on Civil and Political Rights and the Convention Against Torture.  Article 7 of 1966 the International Covenant, which the United States ratified in 1992, unequivocally states “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” This prohibition against torture was strengthened and made specific through the 1984 Convention Against Torture.  Signed by the United States in 1988 and ratified in 1994, the Convention Against Torture was introduced to combat the use of torture and inhuman or degrading treatment in recognition of the inherent dignity of human beings and the obligation to promote universal respect for human rights found in Article 55 of the Charter of the United Nations.

If taken at face value, always a danger when considering Trump’s statements, his policy regarding the use of torture would conflict with all three subsections of Article 2 of the Convention Against Torture.  Article 2(1) requires each State Party to the Convention to enact effective legislation, laws and administrative rules to prevent acts of torture from occurring in territory under its control. Trump’s statements propose just the opposite as he advocates in favour of laws designed to accommodate and encourage harsher forms of torture. Therefore, not only would Trump’s suggested policies not comply with Article 2(1), they would be directly contradictory to it as they would involve enacting laws and legislation designed to facilitate acts of torture.

Article 2(2) does not allow assertions of exceptional circumstances, including war, threat of war, public emergency or domestic political instability, to justify the use of torture. Trump’s statements make clear that he believes that expanding the laws relating to torture are justified to the extent that doing so is necessary in the context of the United States’ conflict with Islamic State. This is akin to invoking exceptional circumstances based on a state of war as Trump has essentially argued that the vicious tactics employed by Islamic State justify similar brutality on the part of the United States.  Therefore, his position does not comply with Article 2(2).

Article 2(3) of the Convention Against Torture forbids the invocation of orders from a superior officer as a justification for committing acts of torture. If Trump were to enact his stated policies regarding torture, the laws of the United States would not correspond to international law and the United States would find itself in breach of Article 2(3). That is because American service members are subject to the United States’ Uniform Code of Military Justice, Article 90 of which makes it a crime, sometimes punishable by death, to disobey the lawful command of a superior officer. If torture were legal under the laws of the United States, an order to commit torture would be a lawful command as it would be an order that is consistent with the law.  By making torture legal the United States will also legitimise superior orders as a justification for committing torture as the a member of the military will be required to carry out the commanded act as part of his her obligation under Article 90 of the Uniform Code of Military Justice.

To the extent that the United States is engaged in an armed conflict with Islamic State, any change to the United States’ practices regarding torture would also result in the violation of numerous provisions of the Geneva Conventions. The Geneva Conventions and their Additional Protocols outlaw torture in most instances involving armed combat.  Further, acts of torture as described in the Geneva Conventions and the Additional Protocols are considered grave breaches of each convention and, under Article 85 of the First Additional Protocol, those grave breaches can become war crimes. As a result, the decision to commit torture under any of these circumstances would violate the respective convention and might also be considered a war crime.

Above and beyond the United States’ treaty obligations is the fact that the prohibition against torture is considered jus cogens. As such, it is non-derogable and assumes a rank above treaty law and rules of ordinary customary international law. The classification of the prohibition against torture would have a two-fold effect on the United States.  First, it would serve to delegitimise any judicial, legislative or administrative act authorising torture on a national level. Second, those engaging in torture under relevant domestic laws would be exposed to prosecution in international jurisdictions or by a subsequent regime in the United States. This could result in potential repercussions against citizens of the United States that authorise or commit acts of torture, even if done under the pretext of positive national law.

Conclusions

Any change to American policy expanding the use of torture would be in direct contravention of jus cogens and its international treaty obligations.  Unfortunately, Trump has signaled a willingness to modify or opt out of treaty commitments that he believes do not directly benefit the United States and it is unlikely that he would allow the jus cogens nature of the prohibition against torture to constrain his actions as president. Although Trump has stated that he would not direct American troops to violate international law if elected president, his oft-repeated desire to expand the use of torture under domestic law weakens any argument suggesting that he might comply with international law on this issue.  Hopefully, Congress will resist any attempt by Trump to re-authorise the use of torture and the United States will continue to comply with the applicable international human rights standards.

Khalid Sheik Mohammed

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Reforms of the Individual complaint mechanisms in the UN treaty bodies and the European Court of Human Rights: Symptoms and Prescriptions – Mutual Lessons?

The concluding conference of the MultiRights project will take place at the University of Oslo on February 29 and 1 March 2016. The conference will focus on analyzing and comparing the reform processes of the UN treaty bodies and of the European Court of Human Rights (ECtHR) aiming at finding mutual learning experiences.  A particular focus will be given to the following issues:

  • Procedure of selection of members and judges
  • Case load situation
  • Quality of reasoning
  • Margin of appreciation and subsidiarity

For more information and to register for the event, please visit the conference website.

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Geneva Academy Master of Advanced Studies in Transitional Justice, Human Rights and the Rule of Law

The Geneva Academy of International Humanitarian Law and Human Rights is launching a new Master of Advanced Studies on Transitional Justice, Human Rights and the Rule of Law (September 2016–August 2017).

 

Based in the heart of international Geneva, this one-year programme combines in-depth theoretical knowledge with ‘real world’ perspectives. The Faculty comprises leading scholars and practitioners working in the area of transitional justice, human rights and the rule of law – including Professor William Schabas, Dr. Rama Mani and Professor Christof Heyns, UN Special Rapporteur extrajudicial, summary or arbitrary executions.

 

One of the special features of the programme is a concern to link academic teaching and research with practical work and professionalizing activities. The programme offers students access to work experience in leading international agencies dedicated to transitional justice, human rights and rule of law concerns. Throughout the year, a transitional justice clinic will be held to serve as a platform for students to share their practical experiences and to facilitate dialogue and critical reflection on specific cases and situations.

 

The programme adopts a highly personalized approach to teaching and academic life by providing individualized guidance and one-to-one counseling for students, namely via personalized academic mentoring, career coaching and the coordination of internships.

 

For further information on the Master programme, see our new website: http://www.master-transitionaljustice.ch

 

Application deadlines:

31st March 2016 (applications without scholarship request)

29th February 2016 (applications with scholarship request)

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Thank you for visiting An International Law Blog. We are currently on summer break and, while we will publish occasional posts over the summer, we will be back with regular posts from Monday 16 November. In the meantime please feel free to explore past posts in our archives and to follow us on facebook and twitter.

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The Peace Process in Colombia: New Pathways for Transitional Justice

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

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

1.     Exceptional measures in criminal law

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

2.     Constitutionalisation of the transitional process

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

3.     Victims’ recognition and participation

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

4.     Final remarks

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

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

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

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

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

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

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

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

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

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

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

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

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