Author Archives: Josepha Close

The Universal Declaration of Human Rights at 70: Reflecting on the Human Right to Peace


Seventy years on since the adoption of the Universal Declaration of Human Rights (UDHR) on 10 December 1948, this post examines the evolution of a right that was not included in the Declaration but is often seen as a precondition for the enjoyment of other human rights: the right to peace. It reviews UN declarations adopted over the last half-century for the purpose of recognising the right to peace and the extent to which the latest one issued in December 2016 adds to or detracts from these efforts.

The right to peace in international law

Two founding instruments of the modern international order refer to peace as an overriding objective. On the one hand, the UN Charter declares in its first article that the primary purpose of the UN is ‘[t]o maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace’.[1] On the other hand, the preamble of the UDHR proclaims that the advent of a world in which human beings enjoy freedom from fear, alongside other fundamental rights, is ‘the highest aspiration of the common people’.[2] In its article 28, it also states that ‘[e]veryone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.’[3]

In 1978, the UN General Assembly (UNGA) adopted the Declaration on the Preparation of Societies for Life in Peace calling on states to recognise that:

Every nation and every human being, regardless of race, conscience, language or sex, has the inherent right to life in peace. Respect for that right, as well as for the other human rights, is in the common interest of all mankind and an indispensable condition of advancement of all nations, large and small, in all fields.[4]

The linkage between peace and human rights was made more explicit in the 1984 UNGA Declaration on the Right of Peoples to Peace which stresses that ‘life without war serves as the primary international prerequisite for the material well-being, development and progress of countries, and for the full implementation of the rights and fundamental human freedoms proclaimed by the United Nations’.[5]

Although peace is widely recognised as a paramount objective of the contemporary world order, intrinsically linked to the realisation of human rights, efforts to recognise a right to peace at the global level have encountered a number of difficulties.[6] In the first place, there is no consensus on the way in which this right should be conceived, whether as an individual human right, a collective right of peoples, or both. While the 1978 Declaration affirms ‘the right of individuals, States and all mankind to life in peace’, the 1984 Declaration ‘proclaims that the peoples of our planet have a sacred right to peace’.[7]

Moreover, there is some uncertainty regarding the duty-holders of the right, the type and intensity of the obligations that its implementation would entail. The 1978 Declaration cautiously invites states to observe some principles with a view to ‘establishing, maintaining and strengthening a just and durable peace’.[8] The 1984 Declaration goes further by affirming that the preservation of the right to peace and its implementation ‘constitute a fundamental obligation of each State’.[9] However, showing the indeterminacy of this obligation, it calls on states and international organisations to ‘do their utmost to assist in implementing the right of peoples to peace through the adoption of appropriate measures at both the national and the international level’.[10]

As regards the elements forming part of the right to peace, international instruments recognising this right generally reaffirm the prohibition on aggressive wars and the principles of the renunciation to the use of force and the pacific settlement of disputes enshrined in the UN Charter. Relatedly, the 1978 Declaration states that ‘[a] basic instrument of the maintenance of peace is the elimination of the threat inherent in the arms race, as well as efforts towards general and complete disarmament, under effective international control’.[11] The 1984 Declaration similarly emphasises that ‘ensuring the exercise of the right of peoples to peace demands that the policies of States be directed towards the elimination of the threat of war, particularly nuclear war’.[12]

The right to peace has also been linked to the right to socio-economic development, disarmament having been identified as a goal instrumental to the realisation of both rights. The 1986 UNGA Declaration on the Right to Development thus provides that international peace and security are ‘essential elements for the realization of the right to development’.[13]  With a view to promote international peace and security, it calls on states to ‘do their utmost to achieve general and complete disarmament under effective international control, as well as to ensure that the resources released by effective disarmament measures are used for comprehensive development, in particular that of the developing countries’.[14]

In a declaration of 1997 aiming to revive discussions on the human right to peace, the Director-General of the UN Educational, Scientific and Cultural Organization (UNESCO) emphasised that ‘[l]asting peace is a prerequisite for the exercise of all human rights and duties’ and that peace, development and democracy are mutually reinforcing.[15] He observed that new human rights have been recognised since the adoption of the UDHR and called for the addition of ‘the right which underlies them all: the right to peace’.[16] Along the same line, the UNGA issued a Declaration in 1999 aiming to promote a culture of peace through, inter alia, education, sustainable economic and social development, democratic participation, respect for human rights, and disarmament.[17]

The 2016 Declaration on the Right to Peace

In June 2009, the UN Human Rights Council requested the High Commissioner for Human Rights to convene an expert workshop on the right to peace.[18]  In the course of this workshop, several participants observed that there were serious challenges in clarifying the scope and content of the right to peace due to a lack of consensus among states.[19] The issue of disarmament was particularly controversial owing to national security concerns.[20] Some experts noted that previous initiatives to recognise the right to peace at the international level had been resisted by a number states, mostly Western developed ones.[21] Indeed, this group of states has generally voted against UN declarations and resolutions bearing on the right to peace.[22]

The following year, the Human Rights Council requested its Advisory Committee to prepare a draft declaration on the right to peace in consultation with member states, civil society and relevant stakeholders.[23] This draft built on previous declarations and developed the definition and elements of the right to peace.[24] Its first article established that ‘[i]ndividuals and peoples have a right to peace’ which is ‘universal, indivisible, interdependent and interrelated’. It identified states, ‘severally and jointly, or as part of multilateral organizations’, as the principal duty-holders of this right. Article 2 provided that the right to peace forms part of the right to human security including freedom from fear and want, thus recognising the close connection between peace, development and other social and economic rights. Article 3 urged states to work towards disarmament and ‘consider reducing military spending to the minimum level necessary to guarantee human security’. It further called on states to ‘urgently eliminate all weapons of mass destruction or of indiscriminate effect’. This comprehensive draft also included provisions on, inter alia, peace education, the right to conscientious objection to military service, peacekeeping and the right to development.[25]

In 2012, the Human Rights Council set up an intergovernmental working group to negotiate a declaration on the right to peace on the basis of the Advisory Committee’s draft.[26] During the first session of the working group in 2013, several delegations stressed that there was no international consensus on a right to peace which, whether conceived as a right of peoples or individuals, had no legal basis in international law.[27] Some states criticised elements of the draft on the ground that they were too vague or controversial to figure in the declaration, including the right to human security.[28] Other delegations emphasised that many aspects of the draft were already being addressed by existing mechanisms or UN agencies such as the Conference on Disarmament, the working group on the right to development and UNESCO.[29] Several states also highlighted the importance of the principle of national sovereignty and territorial integrity as well as the right to self-defence set out in the UN Charter.[30]

In May 2014, the Chair-Rapporteur of the working group proposed a new draft voided of most elements perceived as controversial.[31] Composed of only 4 articles, this draft was considerably weaker than previous declarations. It did not refer explicitly to the right to peace but to the right to life ‘in a context in which all human rights, peace and development are fully implemented’.[32] Whereas the operative part was significantly shorter than in the original draft, a number of preambular paragraphs were added, in effect diluting the text. In the second and third sessions of the working group, non-governmental organisations deplored the deletion of all references to the right to human security, disarmament, the reduction of military spending and the right to conscientious objection to military service.[33]

The final version of the first article of the 2016 Declaration provides that ‘[e]veryone has the right to enjoy peace such that all human rights are promoted and protected and development is fully realized.’[34] As denounced by civil society organisations, this formulation falls short of a human right to peace and is less strong than wordings used in previous UN declarations. The final draft also broadens the range of duty-holders by referring, alongside states, to the UN, specialised agencies, international, regional, national and local organisations as well as civil society.[35] It does not mention disarmament, human security or other elements included in recent declarations on the human right to peace drafted by independent experts and civil society organisations.[36] Despite the purging of the language in the revised text, the Declaration was not adopted by consensus in the Human Right Council or the General Assembly.[37] In the latter, 34 states voted against it and 19 abstained, most of them Western developed states, including all members of the European Union.[38]


The right to peace is difficult to conceive in legal terms as it has several dimensions, aspects and implications for different branches of international law. Partly because it is linked to sensitive issues such as disarmament and socio-economic rights, it is controversial among states, especially the most developed ones. While the 2016 Declaration is more regressive than previous UN declarations on the subject, it adds to a substantial body of international instruments showing the importance of the right in the development of international law. As emphasised in most of these instruments, including the latest Declaration, peace is a fundamental requirement for the realisation of all human rights. Hence, there is hope that the right to peace will continue to be promoted, studied and negotiated by relevant actors of the international community.

[1] Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS 16.

[2] Universal Declaration of Human Rights (adopted 10 December 1948 by UN General Assembly resolution 217A (III)) UN Doc A/RES/3/217 A. The preamble of the UDHR draws on the four freedoms referred to by Franklin D Roosevelt in his State of the Union Address in January 1941. Freedom from fear, an early expression of the right to peace, was conceived as entailing ‘a world-wide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbour – anywhere in the world.’

[3] UDHR (n 2).

[4] UNGA, Declaration on the Preparation of Societies for Life in Peace (15 December 1978) UN Doc A/RES/33/73, para I (1).

[5] UNGA, Declaration on the Right of Peoples to Peace (12 November 1984) UN Doc A/RES/39/11, preambular para 4.

[6] Two regional human rights instruments explicitly recognise the right to peace: the African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217, article 23; the Association of Southeast Asian Nations (ASEAN) Human Rights Declaration (adopted 18 November 2012) article 38.

[7] Declaration on the Preparation of Societies for Life in Peace (n 4) preambular para 3; Declaration on the Right of Peoples to Peace (n 5) para 1.

[8] Declaration on the Preparation of Societies for Life in Peace (n 4) I.

[9] Declaration on the Right of Peoples to Peace (n 5) para 2.

[10] Ibid, para 4.

[11] Declaration on the Preparation of Societies for Life in Peace (n 4) (I) para 6.

[12] Declaration on the Right of Peoples to Peace (n 5) para 3.

[13] UNGA, Declaration on the Right to Development (4 December 1986) UN Doc A/RES/41/128, preambular para 11.

[14] Ibid, article 7.

[15] ‘The Human Rights to Peace’ Declaration by Federico Mayor, Director-General of UNESCO (January 1997) 5.

[16] Ibid, 13.

[17] UNGA, Declaration and Programme of Action on a Culture of Peace (13 September 1999) UN Doc A/RES/53/243.

[18] UN Human Rights Council (HRC) resolution 11/4 on the promotion of the right of peoples to peace (17 June 2009) UN Doc A/HRC/RES/11/4.

[19] UNHRC, Report of the Office of the High Commissioner on the outcome of the expert workshop on the right of peoples to peace (17 March 2010) UN Doc A/HRC/14/38, paras 10, 14, 15, 22, 24, 32, 34, 39, 56.

[20] Ibid, paras 22-24.

[21] Ibid, paras 39, 49.

[22] See UNGAOR, 39th session, 57th plenary meeting, agenda item 138 (12 November 1984) UN Doc A/39/PV.37; UNHRC, res 11/4 (n 18); UNHRC, resolution 14/3 on the promotion of the right of peoples to peace (17 June 2010) UN Doc A/HRC/RES/14/3; UNHRC, resolution 20/15 on the promotion of the right to peace (17 July 2012) UN Doc A/HRC/RES/20/15; UNHRC, resolution 32/28 adopted on 1 July 2016, Declaration on the Right to Peace (18 July 2016) UN Doc A/HRC/RES/32/28.

[23] UNHRC res 14/3 (n 22) para 15.

[24] UNHRC, Draft declaration on the right to peace, annex to the Report of the Human Rights Council Advisory Committee on the right of peoples to peace (16 April 2012) UN Doc A/HRC/20/31.

[25] Ibid, articles 4, 5, 8 and 9.

[26] UNHRC, resolution 20/15 (n 22) para 1.

[27] UNHRC, Report of the Open-ended Inter-Governmental Working Group on the Draft United Nations Declaration on the Right to Peace (26 April 2013) UN Doc A/HRC/WG.13/1/2, paras 21, 23, 40.

[28] Ibid, para 24.

[29] Ibid, paras 25, 43, 47.

[30] Ibid, paras 37, 44.

[31] UNHRC, Report of the open-ended intergovernmental working group on a draft United Nations declaration on the right to peace (8 August 2014) UN Doc A/HRC/27/63, Annex II.

[32] Ibid, Annex II, article 1.

[33] Report of the open-ended intergovernmental working group (n 31) paras 25, 44, 49, 75, 78, 89; UNHRC, Report of the open-ended intergovernmental working group on a draft United Nations declaration on the right to peace on its third session (26 May 2015) UN Doc A/HRC/29/45, paras 29, 30, 73, 74.

[34] UNGA, Declaration on the Right to Peace (2 February 2017) UN Doc A/RES/71/189.

[35] Ibid, article 3.

[36] See e.g. Santiago Declaration on the Human Right to Peace (10 December 2010) articles 3 and 7; Luarca Declaration on the Human Right to Peace (30 October 2006) articles 3 and 11.

[37] UNHRC, Declaration on the Right to Peace (n 22); UNGAOR, 71st session, 52nd meeting, agenda item 68 (12 January 2017) UN Doc A/C.3/71/SR.52, 4-7.

[38] UNGAOR, 52nd meeting (n 37) 5.790562


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Forced marriage as an independent crime against humanity in the ICC decision confirming the charges against Dominic Ongwen

International human rights law prescribes that marriage shall only be entered into with the free and full consent of both spouses.[1] Forced marriage thus constitutes a human rights violation and is also a criminal offence in the domestic law of some countries.[2] Additionally, international criminal courts have recently determined that forced marriage may amount to a crime against humanity when forming part of a systematic or widespread attack against a civilian population. The present post analyses the evolution of this new crime against humanity, from its conceptualisation as a form of sexual slavery to its recognition as a separate crime against humanity falling under the category of ‘other inhumane acts’. The latest stage in this evolutionary process was reached by the Pre-Trial Chamber II of the International Criminal Court (‘ICC’) in its decision of 23 March 2016 confirming the charges against Dominic Ongwen.[3] By acknowledging the particular features of forced marriage and distinguishing it from sexual slavery, this decision critically enables the prosecution of the crime in situations as prima facie different as the phenomenon of ‘bush wives’ in African armed conflicts and the state policy of ‘group marriages’ enforced in Cambodia under the Khmer Rouge.

Forced marriage as subsumed by the crime of sexual slavery

The practice of forced marriage in conflict situations has been prevalent in countries including Sierra Leone, the Democratic Republic of the Congo and Uganda. Within these contexts, it has generally involved the abduction of young women ‘taken as wives’ by rebel soldiers and thereafter exposed to enslavement, rape, forced labour and forced pregnancy. Forced marriage was charged as a crime against humanity for the first time before the Special Court for Sierra Leone (‘SCSL’) in the case of Prosecutor v. Brima, Kamara and Kanu (‘the AFRC case’).[4] The main point of contention regarding this charge in the SCSL Trial Chamber’s decision was whether to characterise forced marriage as a separate crime against humanity, under the category of ‘other inhumane acts’ in article 2(i) of the SCSL Statute, or as a predominantly sexual crime amounting to a form of sexual slavery.

The Prosecution argued that acts of forced marriage are ‘distinct from sexual acts, because they force a person into the appearance of marriage by threat or other coercion.’[5] Accordingly, it alleged that forced marriage qualified as the crime against humanity of an ‘other inhumane act’, the key element for its characterisation as such being that the conduct is of similar gravity to other listed crimes against humanity.[6] The Trial Chamber, however, rejected this view on the basis that the evidence was not capable of establishing a crime of forced marriage distinct from sexual slavery. It determined that the relationship between the perpetrators and the victims of forced marriage was one of ownership – a constituent element of the crime of sexual slavery – and that the use of the term ‘wife’ merely indicated the intent of the perpetrator to exercise said ownership.[7] The Trial Chamber held that the victims of forced marriage within the armed conflict in Sierra Leone did not endure particular trauma from the mere use of the label ‘wife’, over and above the harm ensuing from the ‘sexual slavery’ element of the crime. It went so far as considering that, even if there had been evidence of such additional trauma, the crime would not be of similar gravity to the other listed crimes against humanity, a condition for being characterised as an ‘other inhumane act’.[8] The majority of the Trial Chamber, Justice Doherty dissenting, concluded that forced marriage is completely subsumed by the crime of sexual slavery and that ‘there is no lacuna in the law which would necessitate a separate crime of ‘forced marriage’ as an ‘other inhumane act.’[9]

Forced marriage as a separate crime against humanity

The SCSL Appeals Chamber overturned this decision on the basis that forced marriage as practised in Sierra Leone amounted to more than sexual slavery both in terms of the conduct itself and of the ensuing harm.[10] In the first place, it considered that ‘the perpetrators of forced marriages intended to impose a forced conjugal association upon the victims rather than exercise an ownership interest and that forced marriage is not predominantly a sexual crime.’[11] The Appeals chamber emphasised that this marital relationship entailed mutual obligations for both parties, the ‘wives’ being coerced into performing various duties, including sexual intercourse, domestic labour and forced pregnancy, while the ‘husbands’ provided food, clothing and protection, notably against rape by other men. It underlined the exclusive character of the relationship, at least on the part of the victim, as an element distinguishing forced marriage from sexual slavery and giving a different dimension to the crime.[12]

Contrary to the Trial Chamber, the Appeals Chamber also considered that the imposition of marriage on the victims resulted in suffering of similar gravity to that caused by the other listed crimes against humanity and that forced marriage was thereby capable of qualifying as an ‘other inhumane act’. It stressed that, in addition to the harm ensuing from the ‘sexual slavery’ element of the crime, ‘bush wives’ and their children born from the forced marriage ‘suffered long-term social stigmatisation’ by their association with the perpetrators and faced difficulties in reintegrating their community after the war.[13] The Appeals Chamber defined forced marriage as ‘a situation in which the perpetrator through his words or conduct, or those of someone for whose actions he is responsible, compels a person by force, threat of force, or coercion to serve as a conjugal partner resulting in severe suffering, or physical, mental or psychological injury to the victim.’[14] It found that, when forming part of a systematic or widespread attack against a civilian population, this practice amounts to the crime against humanity of an ‘other inhumane act’.

The phenomenon of ‘bush wives’ differs in several respects from forced marriage as practised in Cambodia under the Khmer Rouge. In the latter context, forced marriage was one element of a state policy aiming to assert complete control over every aspect of the lives of individuals, including their sexuality. It involved the selection of spouses by the regime leadership on the basis of their membership to a same category of people. Their marriage in ‘group weddings’ were solemnized by the swearing of an oath of loyalty to the Khmer Rouge.[15] Forced marriage in Cambodia pursued the primary aims of severing pre-existing family ties, in order to guarantee complete loyalty to the regime, and controlling the procreation of individuals, rather than subjecting the victims to sexual slavery.

In the closing order of case 002, the Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia (‘ECCC’) qualified forced marriage as the crime against humanity of an ‘other inhumane act’, following the definition set out by the SCSL Appeals Chamber.[16] They determined that acts of forced marriage practised under the Khmer Rouge satisfied the elements of this definition since they were part of a widespread attack against the civilian population and entailed the forced imposition of a marital status on the victims, which resulted in severe physical or mental suffering of a degree of gravity comparable to the other listed crimes against humanity.[17] The applicability of the SCSL Appeals Chamber definition to situations as different as the ‘bush wives’ phenomenon in African armed conflicts and the Khmer Rouge policy of forced marriage seems to confirm the viability of this crime as a separate crime against humanity distinct from sexual slavery.

The evolving position of the ICC

In the decision on the confirmation of charges against Katanga and Ngudjolo, the ICC’s Pre-Trial Chamber I seemed to agree with the SCSL Trial Chamber that forced marriage is a form of slavery. Indeed, when considering a charge of sexual slavery, it held that this crime ‘also encompasses situations where women and girls are forced into “marriage”, domestic servitude or other forced labour involving compulsory sexual activity, including rape, by their captors.’[18]

However, in the more recent decision on the confirmation of charges against Ongwen, the ICC’s Pre-Trial Chamber II took note of the evolution of the definition of forced marriage in the case-law of the SCSL and of the ECCC. It confirmed that forced marriage ‘constitutes the crime of an other inhumane act within the meaning of article 7(1)(k) of the [Rome] Statute’, warranting a charge distinct from sexual slavery.[19] The ICC Chamber concurred with the SCSL Appeals Chamber in finding that ‘the central element of forced marriage is the imposition of “marriage” on the victim, i.e. the imposition, regardless of the will of the victim, of duties that are associated with marriage, as well as of a social status of the perpetrator’s “wife”’.[20] It also underlined the exclusivity of this conjugal relationship as ‘the characteristic aspect of forced marriage’, an element distinguishing the crime from sexual slavery and other crimes against humanity.[21] With regard to the ensuing harm, the ICC Chamber held that the social stigma resulting from the imposition of marriage entails ‘that the victims of forced marriage suffer separate and additional harm to those of the crime of sexual slavery, or other crimes under the Statute.’[22] Indeed, it determined that the interest protected by the characterisation of forced marriage as an ‘other inhumane act’ is ‘the basic right to consensually marry and establish a family’, as enshrined in international human rights instruments, which differ from the values underlying the crime of sexual slavery, i.e. physical and sexual integrity.[23]


International criminal courts appear to have settled on the view that forced marriage, when forming part of a widespread or systematic attack against a civilian population, may amount to the crime against humanity of an ‘other inhumane act’ if the conduct satisfies two elements, irrespective of whether it also amounts to sexual slavery. The first is the imposition of marriage on the victims without their consent. The second requires that this forced conjugal association inflicts severe physical or mental suffering on the victims. This definition has proved to be, on the one hand, wide enough to adequately capture the main features of the crime as committed in very different contexts and, on the other hand, narrow enough to distinguish it from the often analogous crime of sexual slavery. It will be interesting to see if the constituent elements of the crime will be confirmed by the Trial Chambers of the ICC and of the ECCC in the two cases involving a charge of forced marriage that are currently pending before those courts, thereby completing the decade-long process of elaboration of a new crime against humanity.

[1] Universal Declaration of Human Rights (10 December 1948) UN Doc A/810 91, art 16(2); International Covenant on Civil and Political Rights (16 December 1966) 999 UNTS 191, art 23(3); Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (10 December 1962) 521 UNTS 231, art 1; Convention on the Elimination of All Forms of Discrimination against Women (18 December 1979) 1249 UNTS 13, art 16(1)(b).

[2] For example, English law has recently been amended to make forced marriage a criminal offence liable to a maximum sentence of 7 years’ imprisonment, see section 121 of the 2014 Anti-social Behaviour, Crime and Policing Act, entered into force 16 June 2014.

[3] Situation in Uganda, Prosecutor v Ongwen, Decision on the confirmation of charges, Case no ICC-02/04-01/15, 23 March 2016.

[4] Prosecutor v Brima, Kamara and Kanu, Trial Judgment, Case no SCSL-04-16-T, 20 June 2007.

[5] Ibid, para 701.

[6] On the elements of the crime of other inhumane acts, see ibid, para 698.

[7] Ibid, para 711.

[8] Ibid, para 710.

[9] Ibid, para 713.

[10] Prosecutor v Brima, Kamara and Kanu, Appeals Judgment, Case no SCSL-04-16-A, 22 February 2008.

[11] Ibid, para 190.

[12] Ibid, para 191.

[13] Ibid, para 199.

[14] Ibid, para 196. See also Prosecutor v. Sesay, Kallon and Gbao, Appeals Judgment, Case no SCSL-04-15-A, 26 October 2009, para. 736.

[15] See Neha Jain, ‘Forced Marriage as a Crime against Humanity: Problems of Definition and Prosecution’ (2008) 6 Journal of International Criminal Justice 1013, 1024-1025. See also Extraordinary Chambers in the Courts of Cambodia, Case 002 Closing Order, 15 September 2010, paras 841-861.

[16] Extraordinary Chambers in the Courts of Cambodia, Case 002 Closing Order, 15 September 2010, paras 1442-1445.

[17] Ibid.

[18] Situation in the Democratic Republic of the Congo, Prosecutor v Katanga and Ngudjolo, Decision on the confirmation of charges, Case no ICC-01/04-01/07, 30 September 2008, para 431.

[19] Prosecutor v Ongwen, Decision on the confirmation of charges (n 3), para 95.

[20] Ibid, para 93.

[21] Ibid, para 93.

[22] Ibid, para 94.

[23] Ibid.

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Human rights outcasts: seriously-ill migrants as beyond the reach of European protective legal regimes

Illegal aliens suffering from a life-threatening illness have been excluded from the protection of article 3 (right to personal integrity) of the European Convention of Human Rights (ECHR) and of the European Council Directive 2004/83/EC.[1] This post examines the European Court of Human Rights (ECtHR)’s and the European Court of Justice (ECJ)’s positions regarding medical asylum seekers and some of the contradictions emerging from the ECtHR case-law.

The case of S.J. v. Belgium originated in the Belgian Alien Office’s decision to expel Ms S.J., a Nigerian young mother of three, in 2010.[2] Upon her arrival in Belgium in 2007, Ms S.J. was diagnosed with a serious immune system deficiency requiring antiretroviral treatment. She was closely monitored for the following years and as a result her state of health was stabilised. As she had no realistic prospect of obtaining access to the appropriate medical treatment in Nigeria, Ms S.J. requested the ECtHR to declare that her deportation would violate article 3 of the ECHR since it would expose her to a premature death in conditions of acute physical and mental suffering. On 27 February 2014, relying on the principle established in N. v. UK, the ECtHR Chamber ruled that Ms S.J.’s expulsion would not breach article 3.[3] Nonetheless, the Belgian government eventually decided to grant her indefinite leave to remain in Belgium on account of the strong humanitarian considerations characterising her situation.[4] Accordingly, the Grand Chamber struck the case out on 19 March 2015, without departing from the Chamber’s finding of non-violation of article 3.[5]

In his dissent to the Grand Chamber decision, Judge Pinto de Albuquerque strongly criticised the ECtHR’s approach in medical asylum cases and called upon the Court to revisit the ‘unfortunate principle’ laid down in N. v. UK (2008).[6] This case concerned an HIV-infected young Ugandan woman threatened with expulsion from the UK.[7] The Grand Chamber found that her removal to Uganda would not breach article 3 on the basis of the following considerations:

Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling.[8]

The only case where the ECtHR found the circumstances sufficiently exceptional to conclude that the applicant’s removal would be contrary to article 3 was D. v. UK (1997).[9] The applicant was in an advanced stage of Aids and his short life expectancy was contingent on the continuation of the medical treatment available to him in the UK. He was close to death and had formed a bond with the carers who supported him through the end of his life. As he did not have any familial, social or other support in his country of origin, St Kitts, where the adequate medical treatment for his illness was not available, the ECtHR held that his deportation would violate article 3.[10] This case contrasts with subsequent medical asylum cases where the ECtHR found that the circumstances of the applicants were not sufficiently distressing for an issue under article 3 to arise if they were expelled.[11] Their situations were distinguished from D. v. UK on the basis that their illness had not reached a critical stage or that family members could take care of them in their country of origin.[12]

It appears from this case-law that the expulsion of seriously-ill aliens may only raise an issue under article 3 where their illness is so advanced that their death is imminent. As long as their health condition is stable at the time of the proposed removal and they are fit to travel, the ECtHR does not consider as a relevant factor the impossibility in fact of accessing adequate medical treatment in the receiving state, even though this circumstance would most likely cause the applicant’s premature and painful death. In N. v. UK, for instance, N. contended that she would not be able to afford the necessary treatment in Uganda and the Court recognised that without such treatment her state of health would rapidly deteriorate, causing her intense suffering.[13] Yet, her circumstances were not found sufficiently compelling to prevent her expulsion and she died within a few months of her return to Uganda.[14]

The ECtHR has established that article 3 requires Convention states not to remove persons under their jurisdiction to countries where they would be at risk of being exposed to inhuman or degrading treatment.[15] However, the Court has distinguished between situations where the prohibited treatment would emanate from the intentional acts or omissions of public authorities and those where the serious harm would stem from a naturally-occurring disease and the lack of resources to treat it in the receiving country.[16] This distinction is difficult to reconcile with the absolute nature of the prohibition contained in article 3.[17] It seems that it should not matter whether the suffering of an individual arises from an intentional act or a natural condition as long as it reaches a certain degree of gravity and can be prevented by the act of a Convention state. Indeed, even if a state’s responsibility is not engaged on the basis of the deficiencies of its health system, the actions subject to scrutiny under the ECHR are not those of the receiving state but of the expelling state. As pointed out by Judge Power-Forde in her dissent to S.J. v. Belgium (2014), the ‘crucial fact’ that will precipitate the suffering and death of the applicant is not the failure of the receiving country’s health system but the implementation of the removal decision by the expelling state.[18] Pursuant to the rationale of article 3 in removal cases, i.e. protecting individuals from exposure to inhuman or degrading treatment outside the Convention system, the expulsion of aliens to a country where they run a real risk of suffering such treatment should engage the responsibility of the expelling state even though the serious harm is not strictly imputable to the receiving state.

The distinction made by the ECtHR on the basis of the source of the prohibited harm has brought it to adopt contradictory approaches in cases concerning the extradition of prisoners and in medical asylum cases.[19] This difference of treatment is apparent when comparing Aswat v. UK (2013) and S.J. v. Belgium (2014)[20]. In the former, a mentally-ill suspected terrorist whose extradition was requested by the United States claimed that his transfer would expose him to a more hostile prison environment which could result in the deterioration of his mental and physical health. The Court agreed and held that his extradition would engage the responsibility of the UK under article 3.[21] By contrast, in the latter, although it was established that the medical treatment upon which the applicant’s life and personal integrity depended would only be available in her home country at considerable costs, which she could not afford, the Court did not find that her removal would violate article 3.[22]

Migrants suffering from life-threatening conditions are not only excluded from the protection of article 3 ECHR but also from the protective regime granted to refugees and persons otherwise in need of international protection by the EC Directive 2004/83/EC.[23] In M’Bodj v. État belge (2014), the Belgian Constitutional Court requested a preliminary ruling by the ECJ on the question whether aliens suffering from a serious health condition should be included in the category of persons protected by this Directive.[24] The ECJ ruled that, for the Directive to apply, the serious harm to which an alien would be exposed upon removal to his home country ‘must take the form of conduct on the part of a third party and that it cannot therefore simply be the result of general shortcomings in the health system of the country of origin.’[25] Accordingly, it was held that Directive 2004/83/EC does not protect seriously-ill aliens whose state of health is in risk of deteriorating if they are expelled, unless they are intentionally deprived of treatment in the receiving state.[26]

The situation of illegal migrants suffering from a life-threatening condition in countries in which they have been refused asylum is very precarious. However, rather than extending the protective scope of human rights and EU law to afford a minimum level of protection to those vulnerable people, the ECtHR and the ECJ have accepted that European member states have the right to deport them even where such a course of action would in all likelihood bring about their death in dire conditions. It is to be hoped that the ECtHR will align its medical asylum case-law with the protective standard of article 3 as elaborated in other removal cases. The lowering of the very high gravity threshold required for article 3 to be engaged in medical asylum cases could have an impact on the ECJ’s interpretation of serious harm under Directive 2004/83/EC and on the domestic law of Convention states. Such a step is needed to prevent persons like N. being sent to their death with the sanction of European human rights law.

[1] 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 OJ L 304/12.

[2] S.J. v. Belgium App no 70055/10 (ECtHR, 19 March 2015).

[3] S.J. c. Belgique App no 70055/10 (ECtHR, 27 February 2014).

[4] S.J. (n 2) para 56.

[5] ibid para 61.

[6] ibid para 1.

[7] N. v. the United Kingdom (2008) 47 EHRR 39.

[8] ibid para 42.

[9] D. v. the United Kingdom (1997) 24 EHRR 423; see also B.B. v France App no 47/1998/950/1165 (ECtHR, 7 September 1998) where the European Commission of Human Rights had found that the expulsion of the applicant would violate article 3.

[10] ibid para 51-53.

[11] S.C.C. v. Sweden App no 46553/99 (ECtHR, 15 February 2000); Bensaid v. the United Kingdom (2001) 33 EHRR 10; Arcila Henao v. the Netherlands App no 13669/03 (ECtHR, 24 June 2003); Ndangoya v. Sweden App no 17868/03 (ECtHR, 22 June 2004); Amegnigan v. the Netherlands App no 25629/04 (ECtHR, 25 November 2004); N (n 6); Yoh-Ekale Mwanje c. Belgique (2013) 56 EHRR 35; S.J. (n 3).

[12] See N. (n 7) paras 32-41.

[13] N. (n 7) paras 47-48.

[14] ibid para 50-51; see S.J. (n 3), Opinion dissidente de la Juge Power-Forde p 39 and S.J. (n 2), Dissenting Opinion of Judge Pinto De Albuquerque para 2.

[15] Soering v. UK (1989) 11 EHRR 439 paras 90-91; Vilvarajah and Others v. UK (1991) 14 EHRR 248 para 103; Chahal v. UK (1996) 23 EHRR 413 para 79-81; Ahmed v. Austria (1997) 24 EHRR 278 para 39; H.L.R. v. France (1998) 26 EHRR 29 para 34; Salah Sheekh v. the Netherlands (2007) 45 EHRR 50 para 135; Hirsi Jamaa and Others v. Italy (2012) 55 EHRR 21 para 114.

[16] D. (n 9) para 49; N. (n 7) para 43.

[17] See Pretty v. the United Kingdom (2002) 35 EHRR 1 paras 49-52.

[18] S.J. (n 3) p 40-41.

[19] See previous post discussing Trabelsi v Belgium.

[20] Aswat v the United Kingdom (2013) 58 EHRR 1; S.J. (n 3), see Opinion dissidente de la Juge Power-Forde p 41-42..

[21] Aswat (n 19) para 57.

[22] S. J. (n 2) paras 123 and 126.

[23] 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 OJ L 304/12.

[24] C‑542/13 Mohamed M’Bodj v. État belge (ECJ, 18 December 2014).

[25] ibid para 35.

[26] ibid para 41.

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Amnesty Provisions in the Constitutions of the World: A Comparative Analysis


At a time when it is increasingly asserted that the grant of amnesty for international crimes is prohibited by international law, it has been found interesting to explore what states’ constitutions say about amnesty.[1] The present contribution examines whether and in what manner states’ constitutions address the issue of amnesty. In particular, it assesses whether the claim that there is a crystallising norm of customary international law prohibiting the grant of amnesty for international crimes is supported by positive constitutional law.[2] This research has been made possible thanks to the World’s Constitutions database created by the Comparative Constitutions Project and available online.[3]


For the purpose of this research, amnesty and pardon have been treated as equivalent notions since both mechanisms generally pursue the same objective, i.e. providing immunity from the penal consequences of a crime. The main difference between them is that whereas amnesty as a rule exonerates categories of offenders before conviction, pardon is usually granted on an individual basis after conviction.[4] A further reason for assimilating the two mechanisms is that national legal systems often use different terminology when it comes to referring to amnesty and pardon. In the first place, amnesty is sometimes designated by the term general pardon, as opposed to special or individual pardon. For example, the Hungarian constitution provides that while the National Assembly is competent to grant general pardons, the president has the right to issue individual pardons.[5] Conversely, the Japanese constitution refers to general amnesty and special amnesty, the latter term designating the mechanism that other legal systems characterise as pardon.[6]

On a broader level, as common law systems generally do not use the term amnesty, references to the power of pardon (or the mercy prerogative) within the constitutions of those countries usually include general or collective pardons – corresponding to the notion of amnesty as understood in Roman-law systems – as well as individual pardons.[7] For instance, the United States constitution’s provision empowering the president to grant ‘reprieves and pardons’ has been used on several occasions as the legal basis for declarations of amnesty.[8]

Constitutional references to amnesty

Of the 193 UN member states’ constitutions, 186 refer to amnesty and/or pardon, with 105 of them referring to both. The constitutions which refer to both amnesty and pardon include, for example, those of Argentina, Brazil, Egypt, France, Indonesia, Italy, Mauritania, Mongolia, the Netherlands, Peru, the Russian Federation, Switzerland, Tunisia, Turkey and Ukraine.

There are 77 constitutions which refer only to pardon. Noticeably, they include the constitutions of all the Commonwealth member states (53), with the exception of Australia and Canada, whose constitutions do not mention clemency at all, and Cameroon, Mozambique and South Africa, whose constitutions also refer to amnesty. Among the constitutions referring only to pardon, one can also find, for example, those of Afghanistan, Belgium, China, Germany, Iran, Nepal, Norway, Sudan, Thailand and the United Arab Emirates.

There are four constitutions which refer exclusively to amnesty, namely those of Cambodia, Guatemala, Laos and Montenegro.

Only seven constitutions do not mention either amnesty or pardon, i.e. those of Andorra, Australia, Bosnia and Herzegovina, Canada, the Syrian Arab Republic, Saudi Arabia and Yemen. Yet, according to the Amnesty Law Database developed by Dr Mallinder, amnesties have been passed in all of these countries except Andorra.[9]

Reference to amnesty or pardon 186
Reference to amnesty and pardon 105
Reference to pardon only 77
Reference to amnesty only 4
No reference to either amnesty or pardon 7

What constitutions say about amnesty

While most constitutional references to amnesty are limited to vesting the right in one or two of the state’s organs, as examined in the following section, other categories of amnesty references have been identified which will be examined in turn below.

Competence to grant amnesty

Historically, the power to grant pardons and amnesties was the exclusive prerogative of the Sovereign. In modern times, however, while the pardoning power usually remained in the hands of the head of state, the power to amnesty typically came to be vested in the legislature.[10] This postulate seems to be corroborated by the results of this research. Indeed, of the 105 constitutions referring to both amnesty and pardon, 79 entrust the right to amnesty with the legislative assembly and the pardoning power with the head of state. Of the remaining 26 constitutions, 13 vest both the amnesty and pardon prerogatives in the executive, namely those of Bhutan, Bolivia, the Czech Republic, Denmark, Eritrea, Iceland, Indonesia, Japan, Monaco, Myanmar, Slovakia, Spain and Turkmenistan. Conversely, the constitutions of Nicaragua, Switzerland and Uruguay confer both powers to the parliament. As to the remaining ten constitutions, while those of Colombia, the Republic of Korea, the Democratic People’s Republic of Korea, the Philippines and Serbia entrust pardon with the executive and amnesty with both the executive and legislative organs, those of Ethiopia, Georgia, Solomon Islands, Somalia and South Africa likewise confer the pardon prerogative to the executive but do not state which organ may grant amnesty, though they refer to the latter mechanism.

Of the four constitutions providing only for the amnesty prerogative, the Guatemalan instrument is alone in vesting the right exclusively in the parliament, those of Cambodia, Laos and Montenegro stating that both the legislative and executive organs are competent to grant amnesty. The picture is clearer as regards the 77 constitutions which only provide for the pardoning power as they all entrust it with the head of the executive.

Reference to amnesty and pardon 105
Amnesty = legislative power / pardon = executive power 79
Amnesty and pardon = executive power 13
Amnesty and pardon = legislative power 3
Amnesty = legislative and executive power / pardon = executive power 5
Amnesty = no information / pardon = executive power 5
Reference to amnesty only 4
Amnesty = legislative power 1
Amnesty = legislative and executive power 3
Reference to pardon only 77
Pardon = executive power 77
No reference to either amnesty or pardon 7

Special majority requirement

Fourteen constitutions require that amnesty laws be approved by a special majority of the legislative assembly.[11] For example, the Greek constitution provides that amnesties may only be granted ‘by statute passed by the Plenum of the Parliament with a majority of three-fifths of the total number of members.’

Adoption or abrogation by plebiscite

Ten constitutions provide that issues related to amnesty, among other matters, may not be the subject of a referendum.[12] For instance, the Italian constitution prescribes that ‘[n]o referendum may be held on a law regulating taxes, the budget, amnesty or pardon, or a law ratifying an international treaty.’


As regards the effect of amnesty laws, two constitutions enshrine the principle that the legal effect of amnesties is irreversible, i.e. those of Angola and Peru.[13]

Constitutional ratification

Eight constitutions grant an amnesty in connection to a particular event or entrench a pre-existing amnesty law, namely those of Angola, Brazil, Burkina Faso, Colombia, Niger, Solomon Islands, Somalia and South Africa.[14] For example, the constitution of Niger provides that ‘[a]n amnesty is granted to the authors, co-authors and accomplices of the coup d’Etat of eighteen February 2010.’

Material scope of amnesty laws

Finally, twenty-one constitutions specify the crimes which may or may not be the subject of clemency measures. On the one hand, the constitutions of eight countries – Colombia, Costa Rica, the Dominican Republic, Greece, Guatemala, Haiti, Honduras and Panama – provide that amnesty may only be granted for political crimes or – as regards Guatemala and Honduras – related common crimes.[15] This seems consistent with the traditional acceptation of amnesty as primarily concerned with political offences.[16] However, the notion of political offences being rather loose, this constitutional specification is not of much help in the determination of the crimes which may benefit from the protection of amnesty.

On the other hand, the constitutions of thirteen countries precisely identify the crimes ineligible for clemency measures, i.e. those of Angola, Brazil, Chile, Ecuador, El Salvador, Ethiopia, Iraq, Niger, Spain, Tonga, Turkey, Costa Rica and Venezuela.[17] For example, while the Turkish constitution prohibits the grant of amnesty or pardon in relation to offences against the forest, the constitutions of Chile, Iraq and Brazil prescribe that terrorist offences are outside the permissible scope of clemency measures. As regards international crimes – which include genocide, crimes against humanity, war crimes and torture – seven constitutions exclude all or some of them from the reach of amnesty laws, namely those of Angola, Brazil, Ecuador, Ethiopia, Iraq, Niger and Venezuela.[18]

Competence to grant amnesties 104
Special majority requirement 14
Amnesty may not be subjected to referendum 10
Effects of amnesty 2
Entrenched amnesty 8
Amnesty only for political crimes 9
Crimes ineligible for amnesty

=> international crimes ineligible



Relevance of some of these results for the international law debate on amnesty [19]

As stated by the European Court of Human Rights, ‘[g]ranting amnesty in respect of “international crimes” (…) is increasingly considered to be prohibited by international law.’[20] For instance, the Appeals Chamber of the Special Court for Sierra Leone declared in the Lomé Amnesty Accord case that a norm prohibiting the grant of amnesty to perpetrators of serious violations of international law is crystallising under international law.[21] Along the same line, a policy paper issued by the UN High Commissioner for Human Rights challenged the compatibility of amnesties covering serious violations of human rights and humanitarian law with customary law.[22]

Yet, it appears that the constitutions of a large majority of states enshrine the right to grant amnesties and do not restrict this right in respect of international crimes. This finding casts doubt upon the existence of a consensus among the subjects of international law as to the necessity to prohibit amnesties for international crimes at the domestic or international level. What is clear is that the results of this research cannot be used in support of the view that a norm prohibiting amnesties for international crimes has emerged or is emerging under customary international law.

[1] See Marguš v Croatia App no 4455/10 (ECtHR, Grand Chamber, 27 May 2014), para 130-138.

[2] Prosecutor v Morris Kallon and Brima Bazzi Kamara, Case No SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72(E), Appeals Chamber, Decision on Challenge to Jurisdiction: Lomé Accord Amnesty (13 March 2004), para 82.


[4] See Anja Seibert-Fohr, ‘Amnesties’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (OUP 2012).

[5] Constitution of Hungary 2011 (rev. 2013), art. 1(2)(j) and 9(3)(g).

[6] Constitution of Japan 1946, art. 7.

[7] See the US Supreme Court’s pronouncement in Knote v United States, 95 US 152- 153 (1877), quoted in W W Thornton, ‘Pardon and Amnesty’ (1885) 6(4) Criminal Law Magazine 457, 458-459; Leslie Sebba, ‘The Pardoning Power: A World’s Survey’ 68(1) The Journal of Criminal Law and Criminology 83, 118.

[8] Constitution of the United States of America 1789 (rev. 1992), art. 2(2); L.C.K. ‘The Power of the President to Grant a General Pardon or Amnesty for Offences against the United States’ (1869) 17(10) The American Law Register 577, 582-584; Jonathan Truman Dorris, Pardon and Amnesty under Lincoln and Johnson, The Restoration of the Confederates to their Rights and Privileges, 1861-1898 (University of North Carolina Press 1953).

[9] Available at

[10] Leslie Sebba, ‘The Pardoning Power: A World’s Survey’ 68(1) The Journal of Criminal Law and Criminology 83, 118.

[11] Constitutions of Albania 1998 (rev. 2008), art. 81(2)(h); Chile 1980 (rev. 2014), art. 63; Colombia 1991 (rev. 2013), art. 150(17); Costa Rica 1949 (rev. 2011), art. 121(21); Ecuador 2008 (rev. 2011), art. 120(13); Egypt 2014, art. 155; Greece 1975 (rev. 2008), art. 47(3); Italy 1947 (rev. 2012), art. 79; Moldova 1994 (rev. 2006), art. 72(3)(o); the Philippines 1987, art. 19; Romania 1991 (rev. 2003), art. 73(3)(i); Serbia 2006, art. 105; Turkey 1982 (rev. 2011), art. 87; Uruguay 1966 (reinst. 1985, rev. 2004), art. 85.

[12] Albania1998 (rev. 2008), art. 151(2); Azerbaijan1995 (rev. 2009), art. 1(III); Georgia1995 (rev. 2004), art. 74(2); Italy 1947 (rev. 2012), art. 75; Nicaragua 1987 (rev. 2005), art. 140(4); Romania 1991 (rev. 2003), art. 74(2); Serbia 2006, art. 108; Spain 1978 (rev. 2011), s 87(3); Ukraine 1996 (rev. 2014), art. 74; Venezuela1999 (rev. 2009), art. 74.

[13] Constitutions of Angola 2002, art. 62; Peru 1993 (rev. 2009), art. 139(13).

[14] Constitutions of Angola 2002, art. 244; Brazil 1988 (rev. 2014), art. 8; Burkina Faso 1991 (2012), art. 168(1); Colombia 1991 (rev. 2013), Transitional Article 30; Niger 2010, art. 185; Solomon Islands 1978 (rev. 2009), art. 91(4)(c); Somalia 1978 (rev. 2009), art. 111I(3); South Africa 1996 (rev. 2012), Sch. 6, art. 22.

[15] Constitutions of Colombia 1991 (rev. 2013), art. 150(17) and 201(2); Costa Rica 1949 (rev. 2011), art. 121(21); Dominican Republic 2010, art. 93(1)(p); Greece 1975 (rev. 2008), art. 47(3); Guatemala 1985 (rev. 1993), art. 171(g); Haiti 1987 (rev. 2012), art. 147; Honduras 1982 (rev. 2013), art. 205(16); and Panama 1972 (rev. 2004), art. 159(6).

[16] Bryan A Gardiner (ed), Black’s Law Dictionary (ninth ed, 2009); Oxford English Dictionary (seventh ed, OUP 2012); Sebba 118; Thornton 458.

[17] Constitutions of Angola 2002, art. 61; Brazil 1988 (rev. 2014), art. 5(XLIII); Chile 1980 (rev. 2014), art. 9; Costa Rica 1949 (rev. 2011), art. 121(21); Ecuador 2008 (rev. 2011), art. 80; El Salvador 1983 (rev. 2003), art. 244; Ethiopia 1994 , art. 28; Iraq 2005, art. 73; Niger 2010, art. 72; Spain 1978 (rev. 2011), art. 102; Tonga 1875 (rev. 1988), art. 37; Turkey 1982 (rev. 2011), art. 169; and Venezuela (Bolivarian Republic of) 1999 (rev. 2009), art. 29.

[18] Constitutions of Angola 2002, art. 61; Brazil 1988 (rev. 2014), art. 5(XLIII); Ecuador 2008 (rev. 2011), art. 80; Ethiopia 1994 , art. 28; Iraq 2005, art. 73; Niger 2010, art. 72; and Venezuela (Bolivarian Republic of) 1999 (rev. 2009), art. 29.

[19] For the international law debate on amnesty, see Louise Mallinder, Amnesty, Human Rights and Political Transitions, Bridging the Peace and Justice Divide (Hart Publishing 2008); Mark Freeman, Necessary Evils, Amnesties and the Search for Justice (CUP 2009); Francesca Lessa and Leigh A Payne, Amnesty in the Age of Human Rights Accountability, Comparative and International Perspectives (CUP 2012).

[20] Marguš v Croatia (2013) 56 EHRR 32, para 74.

[21] Special Court for Sierra Leone, Prosecutor v. Morris Kallon, case No. SCSL-2004-15-AR72(E), and Prosecutor v. Brima Bazzy Kamara, case No. SCSL-2004-16-AR72(E), Appeals Chamber, Decision on challenge to jurisdiction: Lomé Accord Amnesty (13 March 2004), para 82.

[22] Office of the United Nations High Commissioner for Human Rights, ‘Rule-of-Law Tools for Post-Conflict States, Amnesties’ (UN Publication 2009) 11.

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The European Court of Human Rights’ Decision in Trabelsi v Belgium: One Step Further in the Protection of Prisoners’ Human Rights


On 4 September 2014 the European Court of Human Rights (ECtHR) ruled in Trabelsi v Belgium that Article 3 of the European Convention on Human Rights requires Council of Europe member states not to extradite persons within their jurisdiction to states where they are liable to be sentenced to life imprisonment and where the legal system does not provide for any objective mechanism of review of the whole-life sentence.[1]

This decision concerned a Tunisian national, Nizar Trabelsi, who had been sentenced in 2004 by a Brussels court to ten-year imprisonment for terrorist offences. Whilst he was serving his sentence in Belgium, his extradition was requested by the US authorities in connection with terrorist offences distinct from those for which he had already been convicted. Despite an interim measure issued by the ECtHR requiring Belgium to suspend the extradition until the conclusion of the ECtHR proceedings, the Belgian government authorised Mr Trabelsi’s extradition to the US, where he is liable to face life imprisonment. The ECtHR found that Belgium had breached the prohibition of torture and degrading or inhuman treatment enshrined in Article 3 by extraditing Mr Trabelsi to the US as there was a real risk that he would be condemned to an irreducible life sentence, that is, a life sentence not reducible through a dedicated review mechanism. Although this decision is unlikely to alter the situation of Mr Trabelsi in any significant way, it could constitute an important precedent in strengthening the judicial protection of prisoners’ human rights.

Case law developments

The Trabelsi ruling is the product of a long process of jurisprudential evolution as regards prisoners’ human rights under Article 3. This evolutionary process may be divided into three stages.

The first major development was brought about by the ECtHR’s pronouncement in Soering v UK (1989) to the effect that:

[T]he decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3 (…) where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country.[2]

In that landmark decision, the Court considered that exposure to the ‘death row phenomenon’ amounts to ill-treatment prohibited by Article 3. Therefore, since a real risk had been established that the applicant would face the death row if extradited to the US, the Court held that the UK would engage its responsibility under Article 3 if it authorised the extradition. This principle of non-removal of persons within European jurisdiction to states where they are likely to be subjected to treatment contrary to Article 3 was reaffirmed in a number of subsequent cases.[3]

The second stage of this evolutionary process involved the elaboration by the Court of a test determining in which circumstances a whole-life sentence would cross the Article 3 threshold. In Kafkaris v Cyprus (2008), the Court stated that, in order to be compatible with Article 3, life sentences must be reducible de jure and de facto, i.e. in law and in fact.[4] This test was held to be satisfied in that case by a provision of Cypriot law empowering the president to commute or remit life sentences and evidence that this power had actually been exercised in the recent past to release life prisoners. In Harkins and Edwards v UK (2012), the Court added that, for an issue under Article 3 to arise, it must be shown that the applicant’s detention is no longer justified on any legitimate penological grounds such as retribution, deterrence or rehabilitation.[5] The applicants in that case had been indicted for murder in the US and their extradition was requested by the states of Florida and Maryland. As the life sentence they were liable to face could be commuted by those states’ governors, the Court held that they were reducible. Moreover, it had not been shown that upon extradition the applicants’ incarceration would not serve any penological purpose. In Babar Ahmad and Others v UK (2012), the Court likewise did not find that the extradition of several alleged terrorists to the US would violate Article 3.[6] The life sentences they were likely to be condemned to were held to be reducible on account of the presidential pardoning power and the point at which their incarceration would no longer be justified was considered not to have been reached since they had not yet started serving their sentence. The Court stressed that ‘treatment which might violate Article 3 because of an act or omission of a Contracting State might not attain the minimum level of severity which is required for there to be a violation of Article 3 in an expulsion or extradition case’.[7] This set a higher standard for an issue with Article 3 to even arise in removal cases, particularly where the requesting state ‘had a long history of respect of democracy, human rights and the rule of law’.[8]

The third stage of this development was reached in Vinter and Others v UK (2013).[9] That seminal case concerned convicted murderers serving mandatory life sentences in the UK. At first instance, the Chamber doubted that the Secretary of State’s power to release life prisoners on compassionate grounds could amount to a genuine prospect of release. Nonetheless, pursuant to Harkins, it held that an issue under Article 3 had not yet arisen since the applicants’ incarceration was still justified on penological grounds. The Grand Chamber, however, reversed that decision and stressed that:

A whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. Consequently, where domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration.[10]

The Grand Chamber furthermore stated that the possibility of release of life prisoners on humanitarian grounds such as terminal illness does not amount to a mechanism of review permitting to evaluate whether the life prisoner has made such progress towards rehabilitation that his detention no longer serve penological purposes.[11] The Court emphasised the importance of the rehabilitative aim of imprisonment in a system founded on the value of human dignity. It further pointed to an emerging consensus within Council of Europe member states as to the necessity to provide life prisoners with a chance to show their progress towards rehabilitation and a possibility of release if such rehabilitation is achieved.[12] As UK law did not recognise such a possibility, it was found to violate Article 3 of the Convention.

Trabelsi v Belgium

In Trabelsi, the Court brought the law one step further by holding that, in extradition cases, the assessment of the reducibility of the life sentence liable to be served by the applicant in the requesting state must be made before his removal. This conclusion was explicitly derived from the Soering principle and its aim to prevent persons within European jurisdiction from being exposed to treatment contrary to Article 3. It marks a welcome departure from Harkins and Babar in line with Vinter. The Court also departed from pre-Vinter case law as regards the compatibility with Article 3 of US legal provisions on early release of life prisoner. It stated that the presidential pardoning power fell short of the prospect of release standard established in Vinter. The Court elaborated on this standard by holding that the necessary review mechanism must enable

the national authorities to ascertain, on the basis of objective, pre-established criteria of which the prisoner had precise cognisance at the time of imposition of the life sentence, whether, while serving his sentence, the prisoner has changed and progressed to such an extent that continued detention can no longer be justified on legitimate penological grounds[13].

The Court seems to have in Trabelsi completed the process of creation of a new human right started in Vinter. This so-called ‘right to hope’ of life prisoners must now not only be recognised in member states’ legal systems in order for life sentences to comply with Article 3 but it will also prevent extradition to non-member states where life prisoners are not legally entitled to a genuine prospect of release, such as the US.[14] In removal cases, this human right applies irrespective of the gravity of the offence for which the applicant’s extradition is sought and regardless of the requesting state’s human rights record.[15] As in Soering and Vinter, the Court has in Trabelsi expanded the reach of Article 3 to reinforce prisoners’ human rights. One hopes that in the event that Belgium appeals the decision to the Grand Chamber, the latter would uphold this commendable decision.

[1] Trabelsi v Belgium App no 140/10 (ECtHR, 4 September 2014).

[2] Soering v UK (1989) 11 EHRR 439 para 91.

[3] Cruz Varas and Others v Sweden (1991) 14 EHRR 1; Vilvarajah and Others v UK (1991) 14 EHRR 248; Chahal v UK (1996) 23 EHRR 413; Said v The Netherlands (2005) 43 EHRR 248;             Saadi v Italy (2008) 49 EHRR 730.

[4] Kafkaris v Cyprus (2008) 49 EHHR 35 para 98.

[5] Harkins and Edwards v UK (2012) 55 EHRR 19 para 140.

[6] Babar Ahmad and Others v UK (2012) 56 EHRR 1.

[7] Ibid para 177.

[8] Ibid para 179.

[9] Vinter and Others v UK [2013] ECHR 645.

[10] Ibid para 122.

[11] Ibid para 119.

[12] Ibid paras 110-118.

[13] Trabelsi v Belgium App no 140/10 (ECtHR, 4 September 2014) para 137.

[14] On the right to hope, see Vinter and Others v UK, concurring opinion of Judge Power-Forde.

[15] See Chahal v UK (1996) 23 EHRR 413 paras 80-81 and, a contrario, Babar Ahmad and Others v UK para 179.ECtHR

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