Category Archives: Human Rights

A commentary on the African Court’s decision in the case APDF and IHRDA v Republic of Mali: why socio-cultural endemic factors of a society could never support arguments based on force majeure

Introduction

 

On 11 May 2018, the African Court on Human and Peoples’ Rights(ACtHPR, or ‘the Court’) has issued its judgement in the case of Association Pour le Progrès et la Défense des Droits des Femmes Maliennes (APDF) and the Institute For Human Rights and Development in Africa (IHRDA) v Republic of Mali.Mali, the respondent state, had submitted before the Court that they could not promulgate the 2009 Family Code which would have ended many discriminations between boys and girls under the age of 18 because of a ‘force majeure’, namely, ‘a mass protest movement against the Family Code [that] halted the process’. The Republic of Mali also claimed that ‘the State was faced with a huge threat of social disruption, disintegration of the nation and upsurge of violence, the consequence of which could have been detrimental to peace, harmonious living and social cohesion; that the mobilisation of religious forces attained such a level that no amount of resistance action could contain it’.[1]

This post focuses on the notion of force majeure under international law and argues that while the Court got it right in not recognising the events listed by Mali as constituting force majeure, they should have addressed the arguments based on this latter. Moreover, by definition, the notion of force majeure can never encompass socio-cultural factors that are endemic to the state and that already existed at the moment of the signature and ratification of a treaty.

 

The case

The applicants had submitted inter alia that Article 281 of the Malian law establishing the Family Code currently into force sets the minimum age for contracting marriage at eighteen for boys and sixteen for girls, while Article 6(b) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (also known as the Maputo protocol), which was ratified by Mali in 2005, sets that age at 18 for both. They further pointed out that the same law allows for special exemption for marriage as from fifteen years, with the father’s or mother’s consent for the boy, and only the father’s consent, for the girlThey also lamented that the Republic of Mali had not done enough to align itself other international treaty obligations, which included Article 1(3) of the African Charter on the Rights and Welfare of the Child,(also known as the Children’s Charter) according to which, ‘[a]ny custom, tradition, cultural or religious practice that is inconsistent with the rights, duties and obligations contained in the present Charter shall to the extent of such inconsistency, be discouraged’; and Article 21 of the same Charter which provides that ‘[s]tate Parties to the present Charter shall take all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child and in particular those customs and practices prejudicial to the health or life of the child; and those customs and practices discriminatory to the child on the grounds of sex or other status’ [emphasis added]. This notwithstanding the alarming data provided by the World Bank concerning child marriage (i.e., more than 59% of women between 18 and 22 got married under the age of 18),

Mali had submitted that they could not promulgate a new Family Code because of a mass protest movement and an irresistible resistance from religious forces in the country, which could justify their force majeure arguments before the Court.[2] While the Court held that Mali violated Articles 2 (2) and 6 of the Maputo Protocol, Articles 1 (3) and 21 of the Children’s Charter and Articles 5 (a), 6 and 10 of the Convention on the Elimination of all forms of Discrimination Against Women(CEDAW), they fully overlooked the argument about force majeure.

 

The reasons behind the Malian argument on force majeure

 

The arguments put forward by the respondent state could adequately be met by a typical derogation clause, such as that contained in article 15 of the European Convention of Human Rights.[3]While article 15 itself provides that this clause can only be invoked in time of war or other public emergencies threatening the life of the nation, the European Court of Human Rights has consistently recognised the existence of a wide margin of appreciation upon states. However, the Court has also held clearly that state parties do not enjoy unlimited power. In particular, the measures undertaken by the state should be strictly required by the situation and cannot be inconsistent with other obligations under international law. In the case at issue, these could for instance be those stemming from the CEDAW or the Children’s Charter.  However, the African Charter and, as a consequence, its Protocols, do not contain any clause of such a kind.  The same applies to the Children’s Charter and CEDAW. Hence, arguably, the respondent state’s attempt to rely on force majeure.

 

Force majeureunder Public International Law

 

The International Law Commission (ILC)’s 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts includes force majeure among the circumstances excluding wrongfulness. Pursuant to its article 23 (1), ‘[t]he wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible forceor of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation[emphasis added]’. In its Commentary relating to this article, the ILC states ‘[f]orce majeure differs from a situation of distress (art. 24) or necessity (art. 25) because the conduct of the State which would otherwise be internationally wrongful is involuntary or at least involves no element of free choice.’  Moreover, the ILC expressly notes that ‘[f]orce majeure does not include circumstances in which performance of an obligation has become more difficult, for example due to some political or economic crisis’.  This was also the view of the Arbitral Tribunal set up by an agreement between France and New Zealand, in the famous Rainbow Warrior case, when the Tribunal held that ‘New Zealand is right in asserting that the excuse of force majeure is not of relevance in this case because the test of its applicability is of absolute and material impossibility, and because a circumstance rendering performance more difficult or burdensome does not constitute a case of force majeure’.[4]

Coming to the case at issue, while it is evident that the mass protests and the religious forces were –by the admission of Mali- ‘socio-cultural realities’ of Mali,[5]and therefore could not be seen as an unforeseen event, theoretically they could, however, represent an ‘irresistible force’. Yet, the respondent state should have proved that the events would not make it simply difficult for the State to promulgate the law, but actually impossible. Otherwise, the lack-of-free-choice requirement provided by Article 23 of the 2001 ILC’s Draft Articles could not be met. Most importantly, the very same word ‘occurrence’ suggests that the event at stake should happen after the relevant state signs and ratifies the treaty. It is therefore quite obvious that a socio-cultural factor, such as the presence of conservative religious forces in the territory of a state, cannot trigger any argument based on force majeure. To the contrary, claiming that the decision was taken under force majeure would run counter article 26 of the Vienna Convention on the Law of the Treaties (VCLT), which reads as follows: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith’.

Furthermore, article 61(1) of the VCLT provides that ‘[a] party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty.’ Yet, the ILC has clarified that while force majeure applies to the single obligation arising from the treaty, supervening impossibility results in the suspension of the treaty as a whole.[6]Thus, unless Mali wanted to suspend the treaty as such, this route could not constitute an option.

 

Conclusion

 

In the case Association Pour le Progrès et la Défense des Droits des Femmes Maliennes (APDF) and the Institute For Human Rights and Development in Africa (IHRDA) v Republic of Mali, Mali had submitted before the African Court on Human and Peoples’ Rights that they could not comply with their treaty obligations because of force majeure.  In particular, Mali argued that religious forces in the country were resisting the adoption of a new Family Code that would eliminate all discrimination against girls when it came to marriage. This post has investigated the reasons why Mali might have turned into force majeure arguments and concluded that this might depend on the fact that the international instruments that were invoked by the applicants do not include any derogation clause. The Court completely overlooked the arguments based on force majeure and concluded that Mali had violated its treaty obligations arising from CEDAW, the Children’s Charter and the Maputo Protocol. However, the arguments based on force majeure could not be considered admissible, as socio-cultural ‘realities’ of a country could not be seen as unforeseen events, nor could they represent new factors ‘occurring’ after the signature and ratification of the relevant treaties.    

 

 

[1]Association Pour le Progrès et la Défense des Droits des Femmes Maliennes (APDF) and the Institute For Human Rights and Development in Africa (IHRDA) v Republic of Mali(ACtHPR, 11 May 2018), at 64.

[2]ibid.

[3]See, also, American Convention on Human Rights, O.A.S.Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992), art 27.

[4]Rainbow Warrior affair, UNRIAA, vol. XX (Sales No. E/F.93.V.3), p. 215 (1990), p. 253 [emphasis added].

[5]Ibid (1), at 66.

[6]ILC, ‘Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries’ (2001) The Yearbook of the International Law Commission, 2001, vol. II, Part Two, as corrected, at page 71.au

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

Introduction

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]

Conclusion

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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Deportation of the Rohingya people as a crime against humanity and the territorial jurisdiction of the ICC

Alessandra M De Tommaso (PhD student in international law, Middlesex University (London); alessandra.detommaso@gmail.com)

  1. Introduction

On 9 April 2018, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC, or the Court) submitted a request pursuant to article 19(3) of the Rome Statute establishing the ICC (or the RomeStature, or the Statute) seeking a ruling on whether the Court may exercise its jurisdiction “over the alleged deportation of the Rohingya people from Myanmar to Bangladesh”. On 11 April 2018, the President of the Pre-Trial Division, Judge Antoine Kesia‐Mbe Mindua, assigned the matter to Pre-Trial Chamber I for further determination. On 7 May 2018, the Pre-Trial Chamber issued a decision inviting Bangladesh to submit its observations on the Prosecution’s request.

Article 19(3) of the Statute grants the Prosecutor the power to request a ruling from the Court on a question of jurisdiction or admissibility.[1]To date, this is the first time that the OTP submits a request pursuant to article 19(3).  In the case at hand, the need for such a ruling arises from the exceptional circumstances of the situation concerning the Rohingya people. Indeed, in this case, only the receiving State (Bangladesh) has accepted the ICC’s jurisdiction, while the originating State (Myanmar) has neither ratified the Rome Statute nor accepted the Court’s jurisdiction underarticle 12(3) of the Statute.

In its Request, the OTP addresses two legal issues: (i) the definition of deportation as a crime against humanity pursuant to article 7(1)(d) of the Statute; and (ii) the scope of the Court’s territorial jurisdiction under article 12(2)(a) of the Statute. This post provides a brief overview of the arguments submitted by the OTP, focusing in particular on the observations concerning the inherent transnational character of the crime of deportation and its implications on the territorial jurisdiction ofthe ICC.

  1. Deportation as a crime against humanity under the Rome Statute

The first issue addressed by the Prosecutor concerns the definition of deportation as an independent crime against humanity distinct from the crime of forcibletransfer. The Rome Statute lists both crimes under article 7(1)(d), which reads as follows:

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

[…]

(d) Deportation or forcible transfer of population;”[2]

Although included under the same provision, deportation and forcible transfer should be interpreted as two separate offences.[3]Indeed, as argued by the Prosecutor, deportation requires that the victim is forced to cross a de factoor de jureinternational border, whereas forcible transfer refers to internal displacement.[4]Such a distinction has constantly been recognised in the copious jurisprudence of the ICTY on the matter.[5]To provide a recent example of that, in 2016, the Trial Chamber in Prosecutor v Radovan Karadzic observed:

‘488. The elements of deportation and forcible transfer are substantially similar. Deportation and forcible transfer are defined as: (i) the forced displacement of one or more persons by expulsion or other forms of coercion, (ii) from an area in which they are lawfully present, (iii) without grounds permitted under international law. There is an important distinction between the two crimes; for deportation, the displacement of persons must be across a de jureborder between two states or, in certain circumstances, a de factoborder, and for forcible transfer, the removal may take place within national boundaries.’[6]

Interestingly, it is from the case law of the ICC that some uncertainty may still arise on the legal standing of deportation as an autonomous crime. In the Rutocase, Pre-Trial Chamber II described ‘deportation or forcible transfer’ under article 7(1)(d) of the Statute a ‘unique crime’ with ‘two labels’, leaving any concrete determination on the distinction existing between the two labels to the Trial Chamber.[7]In recalling this precedent, the OTP contests that it was in the intention of the Pre-Trial Chamber II to conflate the two crimes and observes that in many other occasions the ICC Pre-Trial Chambers have implicitly recognised the distinct nature of the two crimes by confirming charges ‘onlyof forcible transfer and notdeportation’.[8]

Therefore, the OTP concludes that deportation under article 7(1)(d) of the Statute is anautonomous crime, requiring the forcible displacement of persons across an international border. It followsthat deportation has an inherently transnational component and ‘is not completed until the victim has been forced to cross a de jureor de facto international border’.[9]

  1. The scope of the territorial jurisdiction of the Court under article 12(2)(a) of the Statute

The transnational character of deportation implies that not all legal elements of the crime occur on the territory of a single State. By definition, indeed, the crime is established only when the victim crosses the border of the State where he or she lawfully resided, to enter the territory of a different State. No particular issues arise when both the originating State and the receiving State are Parties to the Statute. But what happenswhen only one of the two States has ratified the Rome Statute?

Pursuant to article 12(2)(a) of the Statute, the Court may exercise its territorial jurisdiction when ‘the conduct in question’ occurred on the territory of a State Party or of a State that hasaccepted the Court’s jurisdiction.[10]The Statute provides no guidance on how the term ‘conduct’ should be interpreted in the context of article 12(2)(a) of the Statute. Thus, the Court is left with the task of establishing whether the term ‘conduct’ refers only to the criminal conduct or includes also its consequences, and whether the provision applies to the partial commission of a crimeon the territory of a State Party or requires all the elements of the crime to occur on that territory.[11]Narrowly interpreted, the provision might restrict the Court’s territorial jurisdiction only to instances where the whole conduct (understood as the physical manifestation of the criminal act/omission) took place on the territory of a State Party, irrespectively of its consequences.

In its Request, the OTP firmly refuses such a narrow interpretation. First of all, the Prosecutor argues that the correct way of interpreting article 12(2)(a) of the Statute is to read the term ‘conduct’ as a synonymous of ‘crime’, so to include the criminal act/omission and its consequences.[12]The Prosecution then argues that the ‘conduct’ requirement under article 12(2)(a) of the Statute means that ‘at least one legal element of an article 5 crime must occur on the territory of a State Party’.[13]Indeed, the OTP submits that excluding the Court’s territorial jurisdiction when only some of the elements of a crime occurred on a State Party’s territory would be inconsistent with ‘the general and long-establishedapproach of the international community in exercising criminal jurisdiction’ and would go against the object and purpose of article 12(2)(a).[14]

Applying this interpretation of article 12(2)(a) of the Statute to the crime of deportation, the Prosecution submits that the ICC may exercise itsterritorial jurisdiction ‘eitherif the originating State is a State Party to the Court orif the receiving State is a State Party to the Court’.[15]In case of deportation, indeed, it is not relevant that the coercive acts took place only on the territory of a State not Party, ‘since the coercion and the movement of the victim [across the border] are distinct legal elements under article 7(1)(d)’.[16] In the Prosecutor’s own words:

“… in adopting the Statute as a whole, the drafters manifestly intended to grant the Court ‘jurisdiction over the most serious crimes of concern to the international community as a whole’. This expressly included the crime of deportation, which has an inherently transnational character. If it was understood arguendo that article 12(2)(a) jurisdiction was only established where all the elements of a crime were committed on the territory of a State Party, this would exclude the Court’s jurisdiction over deportation—which requires one element that always occurs beyond the territory of the victims’ State of origin—unless both States are Parties to the Rome Statute.”[17]

Thus, it is the Prosecutor’s conclusion that, in the situation concerning the Rohingya people, the circumstance that the receiving State (Bangladesh) is a State Party may trigger the Court’s territorial jurisdiction even though the originating State (Myanmar) is not a Party to the Statute.

  1. Conclusion

The Prosecution’s Request should be saluted as a positive attempt to bring justice to the Rohingya people.[18]From a more general perspective, the Request should also be welcomed for its interesting insights in the interpretation of the Court’s territorial jurisdiction in connection with those crimes which have an inherently transnational character. Even if the judges of the Pre-Trial Chamber will not adopt the broad interpretation of article 12(2)(a) of the Statute submitted by the Prosecution, the latter’s request may give them the opportunity to clarify one of the still untouched issues concerning the territorial reach of the Court’s jurisdiction. However, it is not unrealistic to suppose that the Pre-Trial Chamber may refrain from embracing the Prosecutor’s interpretation of article 12(2)(a), as a similar determination may stir complaints from States not Parties to the Statute, fearing  future ‘interventions’ by the Court.Rohingya

[1]Article 19(3) of the Rome Statute.

[2]Article 7(1)(d) of the Rome Statute.

[3]Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, ICC-RoC46(3)-01/18-1, 9 April 2018, para 13.

[4]Ibid., , paras. 15-2.7

[5]See e.g. Gotovina et al. case(Judgment) IT-06-90, 15 April 2001, para. 1740; Kristíc case (Judgment) IT-98-33-t, 2 August 2001, para. 521; Krnojelac case(Judgment) IT-97-25-T, 15 March 2002, para. 474; Karadžić case(Public Redacted Version of Judgment Issued on 24 March 2016 – Volume I of IV) IT-95-5/18-T, 24 March 2016, paras 488-490.

[6]Karadžić case(Public Redacted Version of Judgment Issued on 24 March 2016 – Volume I of IV) IT-95-5/18-T, 24 March 2016, para 488.

[7]Ruto case(Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute) ICC-01/09-01/11-373, 23 January 2012, para 268.

[8]Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, ICC-RoC46(3)-01/18-1, 9 April 2018, para 26 [emphasis in the original].

[9]Ibid., para 26.

[10]Article 12(2)(a) of the Rome Statute.

[11]See, on this regard, Michail Vagias, ‘The Territorial Jurisdiction of the International Criminal Court – A Jurisdictional Rule of Reason for the ICC?’ (2012) 59 Netherlands International Law Review 43, 44; Jean-Baptiste Maillart, Article 12(2)(a) Rome Statute: The Missing Piece of the Jurisdictional Puzzle, EJIL: Talk! https://www.ejiltalk.org/article-122a-rome-statute-the-missing-piece-of-the-jurisdictional-puzzle/(last accessed on 9 May 2018).

[12]Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, ICC-RoC46(3)-01/18-1, 9 April 2018, para46.

[13]Ibid., para 28.

[14]Ibid., paras 25 and 29.

[15]Ibid., para 28 [emphasis in the original].

[16]Ibid., para 28.

[17]Ibid.,para 49.

[18]See Human Right Watch, ICC Prosecutor’s Unprecedented Bid to Bring Justice to Rohingya, 10 April 2018, https://www.hrw.org/news/2018/04/10/icc-prosecutors-unprecedented-bid-bring-justice-rohingya(last accessed on 9 May 2018).

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The dismissal of the revision request in the case of Ireland v UK

 Introduction*

On 20 March 2018 the European Court of Human Rights (ECtHR) has dismissed, by six votes to one, the Irish Government’s request to revise the 1978 Ireland v UK judgment.[1]

The case concerned the use, by British authorities, of ‘disorientation’ or ‘sensory deprivation’ techniques on men detained under emergency powers during Northern Ireland’s civil strife. The so-called ‘five techniques’ consisted in hooding, wall standing in stress position for long periods of time, sleep deprivation, subjection to noise, food and water deprivation. The conclusion reached in 1978 by the ECtHR was that, although the techniques ‘undoubtedly amounted to inhuman and degrading treatment’, ‘they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood’.[2]

The revision request, submitted under Rule 80 § 1 of the Rules of Court, aimed at obtaining a different legal qualification of the techniques: the Irish Government produced newly discovered evidence, on the basis of which it was alleged that the 1978 judgment should have considered the techniques as torture.[3]

The five techniques have been used by other Governments’ agencies in Afghanistan, Iraq and detention facilities such as Guantanamo, and the 1978 judgment has been cited by the 2002 ‘Torture Memo’ to justify the conclusion that the use of similar techniques by the United States did not amount to torture. It is therefore not surprising that the dismissal of the revision request has provoked strong reactions among human rights activists.

However, the dismissal is correctly grounded on technical arguments which derive logically from the Court’s case law, and it should not be read as a rejection of the opinion according to which the techniques amount to torture. The present post analyses the dismissal and argues that it should be welcomed as a proof of the Court’s consciousness of the extent of its own interpretative powers.[4]

The 1978 judgment

Ireland v UK was the first interstate application lodged before the ECtHR. Its exceptional nature lied also in the fact that the respondent Government had acknowledged the violation for which the applicant state had set in motion the proceedings.[5] Thus, before the Court it needed not to be established whether the five techniques had been used: what was disputed was the amount of damages caused by them, a key factor for their legal qualification under Article 3 of the European Convention on Human Rights (ECHR, or the Convention).

Article 3 ECHR prohibits ill-treatments of two kinds: ‘torture’ and ‘inhuman and degrading treatments’. The dividing line between the two notions has been clarified progressively by the Court’s case law,[6] but in 1978 it was already clear that the severity of the treatment played a significant role in the distinction.[7]

The European Commission issued a report and concluded, by a unanimous vote, that, while it was clear that the techniques resulted in no physical injury, the available evidence did not allow to establish the exact degree of their psychiatric after-effects;[8] however, in light of their systematic application and of the underlying purpose (i.e., extracting information from prisoners) they amounted to torture.

The Court, to whom the case was subsequently referred, reached a different conclusion. While sharing the view that the five techniques amounted to inhuman and degrading treatments, having regard to other instruments of international law,[9] it concluded that the notion of torture is meant to attach ‘a special stigma to deliberate inhuman treatment causing very serious and cruel suffering’.[10] In the light of the factual findings, the Court concluded that the five techniques did not occasion ‘suffering of the particular intensity and cruelty implied by the word torture as so understood’.[11]

The revision request

The revision request lodged by Ireland was grounded on Rule 80 of the Rules of Court, which reads as follows:

‘A party may, in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party, request the Court, within a period of six months after that party acquired knowledge of the fact, to revise that judgment.’

The Irish Government alleged that in 2014 it had become aware of previously secret documents, including medical reports by Dr. L (one of the experts heard by the Commission), which if known to the Court at the time of the judgment, would or might have had a decisive influence.[12] The documents demonstrated that in 1978 it was already clear that the effects of the five techniques could be substantial, severe and long-lasting, thus justifying their legal qualification as ‘torture’.[13]

The UK contested the revision request, alleging, inter alia, that it was not grounded on new facts but aimed at acquiring new evidence, and that, even assuming it was grounded on new facts, these did not have a decisive influence.[14]

The 2018 revision judgment

The 2018 judgment is grounded on two premises.

The first premise is the need to apply a restrictive interpretation. The Court recalls that revision is an exception to the rule of finality of judgments, which is not provided for by the Convention but by Rule 80 of the Rules of Court.[15] In order to protect legal certainty (essential element of the rule of law) revision can only be allowed in exceptional circumstances, which must be subject to strict interpretation: accordingly, where doubts remain as to whether or not a new fact actually could have a decisive influence on the original judgment, legal certainty must prevail and the final judgment must stand.[16]

The second premise is the need to take into account the temporal aspect of the revision request. The Court underlines that the new facts grounding the request occurred almost 40 years after the original judgment. Since then, the Court’s case law on the notion of torture has considerably evolved; the long-term effects of a treatment when distinguishing between torture and inhuman treatment are now particularly relevant.[17]

On the basis of these premises, the Court concludes that there is no certainty that the alleged new fact (‘namely that Dr L. misled the Commission regarding the effects of the five techniques)[18] could have a ‘decisive influence’ on the original judgment. Indeed, there is no certainty that, had the Court been aware of the fact that the five techniques could have severe long-term psychiatric effects, in the light of the case‑law on Article 3 of the Convention as it stood at the time, this would have led to a qualification of the techniques as torture. [19]

Analysis

As underlined by Judge O’Leary in her dissenting opinion, the judgment has undeniably some flaws. For instance, it reduces the ground for revision relating to the discovery of new documents to the fact that ‘Dr L. misled the Commission regarding the effects of the five techniques’.[20] However, the Irish Government had relied on various documents, not limited to those demonstrating Dr L.’s allegedly misleading statements.

Furthermore, the reasoning given for the assessment of non-relevance of the new facts is inter alia grounded on the assertion that ‘the original judgment does not mention the issue of possible long-term effects of the use of the five techniques in its legal assessment’.[21] While it is true that the 1978 Court’s judgment made no reference the possible long-term effects of the five techniques, the Commission had clearly taken into account the issue when making its own assessment. Thus, it cannot be said that the topic was completely unknown to the European judges.

These flaws, although regrettable (for they expose the judgment to potential criticism), are not substantial, and they certainly do not render the judgment a rejection of the opinion according to which the techniques amount to torture. What needs to be borne in mind is the double premise on which the judgment was grounded: the need to apply a restrictive interpretation to revision requests, and the temporal dimension of the Ireland v UK request for revision.

The ECtHR conceives the Convention as a ‘living instrument’, which must be interpreted in the light of present-day conditions.[22] For this reason, it applies extensively the rights and freedoms guaranteed by the Convention, often demonstrating a certain activism.[23] For instance, its case law as to the rights of post-operative transsexuals has considerably evolved during time, shifting from non-recognition to recognition in a lapse of less than 20 years.

In this context, the Court’s dismissal of Ireland’s revision request is equivalent to admitting that it is impossible to evaluate with sufficient certainty how evidence discovered today on the long-lasting effects of ill-treatments would impact on a judgment issued well before the establishment of a clear case law under which long-lasting effects determine the difference between ‘inhuman treatments’ and ‘torture’.

Conclusion

The 2018 judgment by which the ECtHR dismissed the revision request in the case of Ireland v UK is clearly not a rejection of the opinion according to which the brutal interrogation techniques which were at the origin of the case amount to torture.

On the opposite, one could argue that the Court knew that the five techniques would amount to torture under the current case law on Article 3 ECHR: however, it also knew that this case law has developed considerably over the last forty years, and for this reason it acknowledged the impossibility of reaching an impartial and sufficient certain conclusion for a period in which such case law was not yet available.

By this judgment, the Court has demonstrated a willing restraint in the exercise of its powers, motivated by the extraordinary nature of the request, that is, the revision of a final judgment issued 40 years ago. Conclusively, the judgment should be welcomed as a proof of the Court’s consciousness of the need to handle with due care the powerful interpretative tools at its disposal.

 

 

 

 

* The views in this post represent the personal opinion of the author in her private capacity.

[1] Ireland v. the United Kingdom, no. 5310/71, Judgment (revision) 20 March 2018.

[2] Ireland v. the United Kingdom, § 167.

[3] Ireland v. the United Kingdom, §§ 21-27.

[4] For other commentaries to the decision see: Iulia Padeanu, Why the ECHR Decided not to Revise its Judgment in the Ireland v. The United Kingdom Case, and Michael O’Boyle, Revising the verdict in Ireland v UK: time for a reality check? both on http://www.ejiltalk.org.

[5] The respondent Government had ‘conceded.. that the use of the five techniques was authorised at ‘high level’’, see § 97 of the judgment.

[6] See, among other authorities: Selmouni v. France [GC] no. 25803/94, ECHR 1999‑V Gäfgen v. Germany [GC], no. 22978/05, ECHR 2010

[7] As recalled by the Court at paragraph 167 of the 1978 judgment, Article 1 in fine of Resolution 3452 (XXX) adopted by the General Assembly of the United Nations on 9 December 1975 declares: ‘Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment’.

[8] At that time the European Commission of Human Rights shared adjudicatory functions with the ‘old’ Court.

[9] Particularly, Resolution 3452 (XXX) adopted by the General Assembly of the United Nations on 9 December 1975: see § 167 of the judgment.

[10] Ireland v. the United Kingdom § 167.

[11] Ibidem.

[12] Ireland v. the United Kingdom, §§ 19-44.

[13] Ireland v. the United Kingdom, §§ 61-67.

[14] Ireland v. the United Kingdom, §§ 46-60.

[15] Ireland v. the United Kingdom §§ 93, 122.

[16] Ireland v. the United Kingdom § 122.

[17] Ireland v. the United Kingdom § 124.

[18] Ireland v. the United Kingdom § 96.

[19] Ireland v. the United Kingdom §§ 125-135.

[20] Ireland v. the United Kingdom § 96.

[21] Ireland v. the United Kingdom §§ 134.

[22] Tyrer v United Kingdom  (1978) Series A no 26, par 31; Marckx v Belgium (1979) Series A no 31, par 41.

[23] For references on this topic, see D. Sartori, Gap-Filling and Judicial Activism in the Case Law of the European Court of Human Rights, Tulane European and Civil Law Forum, 29, 2014.

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The Use of Force of Turkey in Rojava after the Capture of Afrin. Consequences for International Law and for the Syrian Conflict.

On 20 January 2018 Turkey initiated a military operation in the territory of Northern Syria, also known as Rojava: an area under Kurdish administration which is increasingly gaining international legitimacy as a result of both its struggle against the Daesh and its model of a system of governance based upon respect for human rights and multicultural coexistence . To date, the main attacks have targeted the Region of Afrin (one of the three cantons of Rojava – the other two being Jazira and Kobane) which was captured by Turkey on the 18 March of this year. However, Turkey has expressed its intention to expand the attacks in the rest of Northern Syria and possibly in the territory of Iraq. The military operation was given the Orwellian name of Operation Olive Branch

The present analysis argues that Operation Olive Branch constitutes a violation of ius ad bellum and amounts to a crime of aggression. Furthermore, the continuation of attacks violates the 30-day ceasefire established by the Security Council in Resolution 22401 of 24 February 2018. Furthermore, reports from the field indicate a pattern of war crimes.

The strategic importance of Turkey in the maintenance of the equilibrium of the region has silenced the reaction of most actors in the area, as well as of the international community. The acquiescence towards the violations committed by Turkey in Northern Syria risks undermining the current interpretation of the fundamental tenets of self-defence as a legitimate basis for use of force, and, from a political perspective, risks jeopardising the Syrian peace process.

The Olive Branch Operation as a War of Aggression

Since 20 January 2018, Turkey has been carrying out military operations in Rojava, and on 24 March, it declared itself to have established full control over the region of Afrin. The area is controlled by the Democratic Federation of Northern Syria, also known as Rojava or Syrian Kurdistan. Turkey argued for the legality of the intervention in a letter to the Security Council sent on 22 January of the same year.

Turkey bases the legitimacy of its actions on art. 51 of the UN Charter, thereby invoking the principle of self-defence, against a “threat of terrorism”. According to the document, this threat undermines Turkish national security, as well as the territorial integrity of Syria, and regional and international security.

However, there are fundamental flaws in Turkey’s argument that its actions were legal under international law. The Turkish justification falls within the evolving legal regime of self-defence against imminent terrorist attacks in territories which are not under the control of any State. Notwithstanding the complexity and fluidity of the legal issues at stake, it seems uncontroversial that, in the present case, the use of force of Turkey is blatantly illegal. First, Turkey is required to clearly substantiate its allegation that an armed attack took place (ICJ, Armed Activities in the Territory of the Congo (2005), para. 146). In this case, however, Turkey merely mentions general “threats of terrorism”, not even imminent, occurring at its Syrian border. In addition, self-defence against a non-state actor, such as Rojava, would, arguably, only be legitimate only in presence of large scale attacks (ICJ Congo v. Uganda 2005, para. 147): a circumstance which does not arise in the present case. The argument that the operation was intended to safeguard the territorial integrity of Syria is also problematic, in that the Government of Damascus has denounced it as an act of aggression, in a letter to the UN Security Council.

Furthermore, the Kurdish institutions controlling the region of Afrin, and other groups active in the area, are not designated as ‘terrorist’. Turkey defines the Kurdish administration in Northern Syria as the PKK/KCK/PYD/YPG terrorist organisation. In so doing, Turkey equates the Turkish Kurds organization, the PKK, (Kurdistan Workers’ Party Partiya Karkerên Kurdistanê) to the Kurdish administration of Northern Syria (PYD,  Partiya Yekîtiya Demokrat, Democratic Union Party) and its militia (YPG, Yekîneyên Parastina Gel, People Protection Units). While the PKK is considered to be a terrorist organization by several states, including the US and the EU (but not other states or entities, inter alia, the United Nations), the Syrian institutions are not listed as terrorist organisations. On the contrary, they receive military support in the fight against Daesh from the international coalition Combined Joint Task Force – Operation Inherent Resolve.

In its declaration to the Security Council, furthermore, Turkey affirms that it targets Daesh activity in the region of Afrin. The Syrian army, however, has denied that ISIS has a presence in the area.

With the attack in Northern Syria, Turkey invoked the principle of self-defence against a potential threat of terrorism, in the absence of an armed attack, and against a group which is not largely acknowledged as being terrorist. In so doing, Turkey violated the prohibition to use force, in blatant violation of the fundamental tenets of self-defence as a legitimate basis for use of force.

The tacit acceptance of the abuse of the self-defence principle to carry out military operations may contribute, under certain conditions, to a normative change in the prohibition to use force. An extensive interpretation of self-defence, and the tolerance of non-authorised military operations, may extend the possibility to use force beyond the current limits established under international law, and allow States to justify acts of aggression with arguments of self-defence against threats of terrorism.

The violation of Resolution 22401 and Reports of War Crimes

On 24 February 2018, the UN Security Council unanimously adopted Resolution 22401, which demands “a durable humanitarian pause for at least 30 consecutive days throughout Syria”. The Resolution was adopted following the increase in violence by the Syrian army in Ghouta and Idlib, which are specifically mentioned in the document. Conversely, because Afrin is not mentioned in the document, Turkey has argued that its military operation in Afrin is not covered by the Resolution, and that the Resolution does not prohibit the use of force against the Kurdish targets.

While specifically referring to Ghouta and Idlib in the context of humanitarian crises and the escalation of violence in the territory of Syria, the Resolution clearly states that the only exception to the ceasefire, imposed “throughout Syria” relates to the operations against Daesh and Al Qaeda. The humanitarian pause, therefore, is fully applicable in relation to Northern Syria and the Turkish attacks against Kurdish militia, therefore, fall squarely within the scope of the Resolution.

During the military operation, Turkish forces are reported to have perpetrated a pattern of serious violations of international humanitarian law. The UN High Commissioner for Human Rights has denounced deliberate attacks against civilian populations. The Syrian Observatory for Human rights reports the mutilation of female fighters, the use of gas weapons, the execution of refugees, and the bombing of an hospital, all of which constitute a pervasive pattern of war crimes.

The silence of the international community

From January 2018, Turkey has been perpetrating grave violations of international law including: a violation of the ius ad bellum regime; failure to adhere to a UN Security Council Resolution; and a pattern of violations of humanitarian law.

The Syrian Government immediately denounced the aggression against its territorial integrity, but the strategic importance of Turkey as a key regional power and as a NATO member, has hindered a strong international reaction against the aggression. The United States, the European Union and most of the international community have only expressed concern for the humanitarian situation.

This is regrettable due to the fact that, on a political level, the armed conflict between Turkey and the Kurdish area of Northern Syria jeopardises the possibility of an end the Syrian conflict. The Kurdish administration of Northern Syria manages an important part of the territory of the country. The Kurds are currently establishing an extremely progressive regime based on democratic confederalism, feminism, social ecology and human rights. Additionally, Syrian Kurds have renounced to the struggle for statehood and have indicated that would accept to constitute a federation under the control of Damascus.

The federal proposal of Kurdish Syria could, in principle, obtain the support of the different actors involved in the conflict, and inspire a possible path to reach the end of hostilities as well as towards rebuilding a post-conflict Syria. First, the acceptance of an autonomous region within the Syrian State could lead to an agreement with the central Government of Damascus. Second, the US are militarily supporting the Kurdish administration in the fight against Daesh, obtaining the liberation of the “capital” Raqqa in October 2017. Third, Russia, a federation itself, and a supporter of the current Syrian Government, does not exclude federalism as a possible model of administration for the post-conflict country. The consistent opposition of Turkey, however, has excluded the Syrian Kurdish representation from the international talks in Geneva and Astana.

The main challenge to this potential solution is indeed the exclusion of the PYD from the Peace talks, which is due to the opposition of Turkey as well as of other Syrian rebel groups, including other Kurdish groups. Its participation in this international forum would have strengthened the Rojava administration, in terms of both its stability in the field and its visibility as an ambitious model, for the international community and in particular for Syria, to administer a multicultural society.

Conclusion

Turkey is perpetrating grave international crimes, within the territory of Syria, against Kurds. Given the key role of Turkey in the region, the international community does not appear to be able to condemn the violations. In so doing, however, international law loses its effectiveness and risks allowing further abuses in the legal regime governing the use of force. This could contribute to a normative change in the definition of legitimate self-defence. Furthermore, the Rojava administration, which has been labelled by Turkey as a terrorist organisation, is among the main actors in the fight against Daesh. Finally, it is the only democratic model of governance in the Syrian territory, promoting the respect of human rights and multicultural coexistence. With its military campaign in Northern Syria, Turkey seriously weakens position of one of most relevant actors in the peace process for the region and one of the few players representing democracy, human rights and multicultural coexistence in the post-conflict Syria.

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The Italian legislation on foreign and unaccompanied minors between international principles and EU good practices: is a new de iure condendo perspective needed?

  1. Introduction

Over the past few years, the European Union has adopted a number of Directives relating to migrant rights. In particular, European Union Directive 2013/33/EU, laid down standards for the reception of applicants seeking international protection, while Directive 2013/32/EU established common procedures for the granting and withdrawal of international protection. In Italy, these Directives were implemented by means of legislative decree n. 142 of 2015 (hereinafter dlgs n. 142/2015)Law n. 47, of 7 April 2017, (hereinafter Lg. n. 47/2017), and legislative decree n. 220, of 22 December 2017 (hereinafter dlgs. N. 220/2017).

This post will focus on the recent Italian legislative developments in relation to unaccompanied minors. Following an overview of the legislation and the guidelines issued by the European Union, the post will highlight some outstanding issues relating to the existing body of legislation in the field and will seek to address whether a new legislative perspective is needed.

  1. The international principles and EU guidelines.

On 19th September 2016, the General Assembly of United Nations, adopted the ‘New York Declaration for Refugees and Migrants’ (hereinafter the NY Declaration), through resolution 71/1. In Section I, para 3, the Declaration states that ‘We are witnessing in today’s world an unprecedented level of human mobility. More people than ever before live in a country other than the one in which they were born. Migrants are present in all countries in the world. Most of them move without incident. In 2015, their number surpassed 244 million, growing at a rate faster than the world’s population. However, there are roughly 65 million forcibly displaced persons, including over 21 million refugees, 3 million asylum seekers and over 40 million internally displaced persons’ (NY Declaration, Section I, para 3).

One of the main concerns for the United Nations, as well as for other supranational non-State actors, such as the European Union, is that, as has been demonstrated, a high degree of human mobility increases the number of unaccompanied children among migrants. The NY Declaration sets out a number of commitments towards migrant and unaccompanied children. One of these is the ‘equality’ clause at paras 5 and 6, which affirms the equality between migrants and refugees in terms of entitlement to international human rights protection. It includes this among the priorities of the international community, recalling established principles like the ‘best interests of the child’ and the special status of children as ‘vulnerable’ (paras 58 – 59 NY Declaration). In relation to the procedure granting international protection to third country nationals and migrants, the declaration affirms States’ commitment to ensuring “access for children to child-appropriate procedures” (para 70, NY Declaration).

The European Union, which is currently facing huge inflows of migrants through the European-African route, has shared the same concern for guaranteeing the adequate protection of third country national minors, especially unaccompanied children, in accordance with the principle of the best interests of the child. The ‘EU Guidelines for the Promotion and Protection of the Rights of the Child (2017) – Leave no child behind’, issued on the 7th of March 2017, recalled, established and pointed out some examples of good practice. The tool is general in nature and is, therefore, applicable to all the sensitive situations which could require the safeguarding of the rights of children: the management of migration certainly falls within its scope.

On this specific point, on the 12th of April 2017, the European Commission, recalling the NY Declaration itself, addressed the ‘Communication on The protection of children in migration’ (COM(2017) 211 final) to the EU Parliament and the Council, highlighting the best practices applicable to migrant and unaccompanied minors. In this document the Commission highlights several improvements requested of EU Member States with the aim of complying with EU standards relating to the identification procedure, the (adequate) standard of reception and the effective access to status determination procedures. All of these matters should be addressed by the EU Member States, in the Commission’s view, in accordance with the Council proposal for a Common European Asylum system (COM(2016) 467 final), the Council of Europe Guidelines on child-friendly justice and the EASO (European Asylum Support Office) recommendation and practices on age assessment procedure in Europe.

  1. The Italian legislation on foreign and unaccompanied minors.

At the same time that the European Commission issued its communication, Italy began its own reform process of the legislation on unaccompanied children, with the aim of complying with the new obligations established. It also issued its response to alleged violations which gave rise to Infringement proceedings opened against Italy in 2014 by the European Commission about the matter at stake. The allegations, made in a letter issued on the 11th of July 2014, listed several violations of Directive 2003/95/EU and Directive 2003/9/EU committed by Italy. In particular, it was stated that the Italian asylum system failed to grant both an expeditious and adequate procedure for the minors seeking international protection, and a high standard of conditions for their reception in the territory.

Lg n. 47/2017 aimed to integrate the already existent discipline of reception, international protection and the asylum procedure, as well as introducing regulations on unaccompanied children, regardless of their status as refugees, asylum seekers or any other status.

The law focuses on some key points, grounded on the principle of the best interests of the child, namely: the definition of the unaccompanied minor as a vulnerable subject; the principle of non-refoulement and the special return policy; the creation of a national database aimed at collecting and sharing data on unaccompanied and foreign minors at both the national and European level; and the introduction and the reaffirmation of some significant procedural guarantees in the identification and determination of the age of minors. Regarding the latter point, the law introduced a significant modification to dlgs 142/2015, by adding a new art. 19-bis. The provision establishes some mandatory steps to be followed in the reception of a foreign minor, regardless of the status of the child. These include: the medical procedures needed to determine the age of the child (which should be as non invasive as possible); an informative interview, conducted by qualified personnel; the judicial appointment of a legal guardian; an investigation on the family situation and conditions of family life; and the duty to fully inform the minor about his/her own right to apply for any form of international protection. Also particularly significant are the provisions of Art. 15 (the right of the minor to be heard in any judicial proceedings on their own interests) and Art. 16 (the right to legal representation in any proceedings and the assistance of a lawyer of their own choice).

These two specific guarantees comply with the universal principle of the effective participation of minors in proceedings involving their own interests, which, in the case of unaccompanied minors and asylum-seekers, needs to be protected even further, due to the special vulnerability of the applicants involved.

Dlgs 220/2017 builds upon Lg. n. 47: in particular, Art. 2 significantly modifies the procedure to appoint a guardian. In line with the request by the EU to grant an adequate and expeditious procedure in a specialized and streamlined system, the competence for this is assigned to the Youth Court, instead of the Civil Litigation Section of the Ordinary Tribunal.

As regards the procedure to apply for international protection, dlgs. 220 significantly modifies the clause included in Art. 19 bis of the Law Decree n. 13/2017 (converted into Law n. 46/2017 – hereinafter the Decreto Minniti). The latter, which significantly reformed the regulation of reception and asylum/international protection procedures, provided for a ‘clause of non applicability’ of the regulation to unaccompanied minors. This aimed to exclude sensitive and vulnerable minors from the general regulation.

Notwithstanding the several recent reforms, the Italian immigration system does not yet provide for a special regulation and procedure for unaccompanied minors seeking international protection. Furthermore, in excluding unaccompanied minors from its scope, the Decreto Minniti de facto created a normative vacuum. The dlgs 220/2017 solves the issues by referring, even in the case of unaccompanied minors, to the applicability of Decreto Minniti in the part relating to the international protection and asylum seeking procedure and to any other related administrative procedure.

The modification of the non applicability clause of the Decreto Minniti by the dlgs. 220 suggests a proposal de iure condendo. The total absence of a comprehensive code of procedural and substantial provisions specifically for the protection of the foreign and unaccompanied minors seeking international protection would suggest to intervene to fill the gap.

Italian legislation currently in force encompasses a significant number of different regulations: the comprehensive code of immigration law (Decreto legislativo, testo coordinato, 25/07/1998 n° 286, G.U. 18/08/1998), as integrated and amended; dlgs 145/2015, implementing directives 2013/33/EU and 2013/32/EU; the most recent so-called Decreto Minniti, converted into Law n. 46/2017; Law n. 47/2017 on unaccompanied children; and, lastly, dlgs n. 220/2017. The last three tools supposedly amended the Code of immigration law. This situation creates an uncomfortable patchwork of regulations.

  1. Final remarks

The current legislative framework is so fragmented and convoluted that it would appear to run counter to the fundamental principles as well as objectives set out by supranational bodies and with which the Italian system is trying to comply.

From a strictly legislative point of view, the recent reforms in Italian legislation deserve to be acknowledged as being formally consistent with European Union regulations and guidelines, as well as with the international principle of the best interests of the child.

However, the fragmentation in the relevant legislative tools creates a confused framework that makes it difficult to really cater for the most vulnerable category of migrants (children), who deserve to be prioritized. In this sense, the adoption of a comprehensive code of regulation in the field could probably help Italian interpreters and front line operators to intervene as best as they can to ensure the highest standard of substantial and procedural guarantees for accompanied and unaccompanied minors seeking international protection.Berlin

 

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“IMPUNITY” FOR GROSS HUMAN RIGHTS ABUSES? THE PARDON OF FUJIMORI

1. Introduction

On 24th December 2017, the Peruvian President Kuczynski granted a pardon to the former President Alberto Fujimori, convicted in 2009 as indirect perpetrator “by means of a criminal organised apparatus” for the aggravated kidnapping, aggravated murder and serious injuries, committed during the Barrios Altos and La Cantuta massacres.[1] Fujimori had already served 12 out of the 25 years of imprisonment to which he had been sentenced.

On 2nd February 2018, the Inter-American Court of Human Rights (IACtHR) held a hearing in the monitoring compliance proceedings relating to the Barrios Altos case: on that occasion, victims of the massacre argued that Kuczynski’s pardon of Fujimori amounts to an infringement of the duties imposed on Peru by the Barrios Altos judgment. The decision of the Court is due shortly.

Meanwhile, the pardon has been strongly criticized by the Peruvian civil society, and by human rights activists worldwide. Not only was it controversial as to the procedure, timing and the alleged underlying motives leading to its adoption, but it also reignited the debate surrounding the admissibility of amnesties, pardons and other waivers of punishment for people convicted of gross human rights violations.

2. Issues of legitimacy, hidden motives and reasoning

Kuczynski’s pardon of Fujimori has raised a lot of criticism in Peruvian society, not only because the memory of the human rights abuses committed during the dictatorship is still alive and sensitive, but also because of the circumstances in which the measure was adopted.

Firstly, the pardon was granted surprisingly fast, almost without any opportunity for a debate, just a few days after a parliamentary motion to remove the current President of Peru, Pedro Paulo Kuczinsky, from his post on the basis of allegations of corruption. According to public opinion, the pardon would be the result of a quid pro quo agreement between Kuczinsky and the Fujimorist party Fuerza Popular, in order to get support against the impeachment.

Secondly, the measure was formally grounded on humanitarian reasons, which apply to cases of terminal diseases or poor health, rendering imprisonment a threat to life, health or integrity. In this regard, commentators have pointed out that, besides the need for a more detailed reasoning, the medical diagnosis about Fujimori’s health is rather doubtful. The former President was indeed receiving special medical attention in jail and in hospital, whenever needed. Furthermore, his personal doctor also participated in the Board recommending the release, thereby raising issues as to the impartiality of the Board itself.

3. The big issue: can international crimes be pardoned?

3.1. Strict vs. flexible interpretation of the duty

The evolution of International Human Rights Law and International Criminal Law in the past decades has led to the emergence of a duty to prosecute and punish those allegedly responsible for those crimes.[2] The scope of this duty and its content are still debated in case law and in scholarly literature; in this regard, we can recall the existence of two opposite views, referred to as the “human righters” and the “peace makers” positions.[3] The former maintain a strict interpretation of the duty, entailing a full ban on amnesties and pardons for international crimes/gross human rights (HR) violations, irrespective of the democratic legitimacy of the measure and of the context in which it is issued.[4] The latter purport a more flexible interpretation, according to which there would be room for these kinds of measures, as long as an exceptional context of transition so requires and insofar as they meet some legitimacy requirements. Therefore, whilst self-amnesties, self-pardons or blanket amnesties can never be accepted, an amnesty or pardon issued by legitimate democratic institutions, and made conditional to certain limits and requirements, might be considered as compatible with international norms.[5]

Yet, when adopting this second, more flexible interpretation, one should bear in mind that this flexibility can seemingly be justified by the existence of a transitional context,[6] in which specific goals, priorities and limits legitimate a partial modification of the rules for prosecution and punishment of offenders. One might doubt that Peru is still living in a transitional context: after the collapse of Fujimori’s dictatorship in 2000, the country has experienced a progressive strengthening of the recovered democratic institutions. Although the spectre of the Fujimorism (brought about by the dictator’s daughter Keiko) is still very alive, this is due to the citizens’ free choice in democratic elections. Therefore, it is difficult to argue that Peru is currently living a transitional process in which the need for peace, consolidation of the new institutions and social reconciliation are priorities over the claim for punishment of perpetrators of human rights abuses.

These considerations may cast doubts as to the grounds for granting this pardon, if not on the legitimacy of the pardon itself. However, it is this Author’s belief that some criticisms to the measure should be more carefully addressed.

3.2. The legal qualification of the facts

Fujimori was not formally convicted of crimes against humanity, but for ordinary crimes (kidnapping, murder and injuries). At one point the judgment qualified the facts as crimes against humanity.[7] However, the Supreme Court did not derive from this qualification any other consequence, such as the non-application of amnesties or of statutory limitations,[8] and it did apply the sentencing framework provided for by the Peruvian Criminal Code for the ordinary crimes of aggravated kidnapping and murder. The goal possibly pursued by the Court in qualifying the facts as crimes against humanity was to impose the maximum sentence and to send a strong message to society as to the gravity and blameworthiness of the offences.[9]

However, the offences for which Fujimori was sentenced, according to the judgment, were ordinary crimes. Therefore, they would not fall within the scope of the prohibition on amnesties and pardons that International Law sets out for international crimes. The IACtHR has argued that the duty extends to the wider category of gross HR violations.[10] But, whereas the agreement on the ban on (at least self and blanket) amnesties and pardons for international crimes is almost unanimous, its expansion beyond this category is much more controversial.[11]

3.3. Does a partial pardon entail impunity?

An issue deserving further consideration is whether the pardon granted to Fujimori actually entails a form of impunity (which is exactly what the international norm aims to avoid).

Leaving aside specific features of different legal systems, pardons, in contrast with amnesties, do not eliminate the criminal conviction, nor the assessment of facts contained in the judgment.[12] They exonerate only from serving the sentence, or, as in this case, a part of it. Actually, this measure does not deny Fujimori’s criminal responsibility, nor eliminate the part of the sentence that he has already served (which is half of the whole sentence imposed on him).

Consequently, one might wonder whether the international norm requires, besides criminal prosecution, the full serving of the sentence. On which grounds is the latter necessary? Does it really grant some kind of satisfaction to victims? And, despite the due respect and concern for the victims and their claims, should not the State take into consideration also other interests?

4. Conclusion

The pardon of former President Fujimori raised protests in Peru because of its allegedly political (and not humanitarian) nature and has fuelled the debate about the admissibility of amnesties and pardons for those held responsible for international crimes.

In fact, the pardon has highlighted the lack of clarity and consensus about the international duty to prosecute and punish international crimes, i.e. about its limits (the possibility of a flexible application in transitional contexts), its scope (its applicability beyond the category of international crimes) and its content (the requirement for a full serving of the sentence).

It will be interesting to see how the decision of the IACtHR, in the framework of the monitoring compliance proceeding in the Barrios Altos case, evaluates the compatibility of the measure with the duties imposed on the Peruvian State by the Barrios Altos judgment.

[1] Peruvian Supreme Court, Sala Penal Especial, Fujimori Fujimori, Alberto, exp. nº A.V. 19-2001, 7 April 2009. The judgment also qualifies the facts as crimes against humanity, but it does not formally use that label for the conviction: for more detail, see section 3.2 of this post. For a commentary on the judgment, see: K. Ambos, ‘The Fujimori Judgment: A President’s Responsibility for Crimes Against Humanity as Indirect Perpetrator by Virtue of an Organized Power Apparatus’, (2011) 9 Journal of International Criminal Justice, 137; J.M. Burt, ‘Guilty as Charged: The Trial of Former Peruvian President Alberto Fujimori for Human Rights Violations’, (2009) 3(3) International Journal of Transitional Justice, 384.

[2] K. Ambos, Treatise on International Criminal Law. Vol. I (OUP, 2013), 393-45.

[3] J. Chinchón Álvarez, Derecho internacional y transiciones a la democracia y la paz (Parthenos, 2007) 280.

[4] Ibidem, 437; M. C. Bassiouni, ‘The Need for International Accountability’, in M. C. Bassiouni (ed.), International Criminal Law, vol. III (New York, 1999), 6; N. Roht-Arriaza, L. Gibson, ‘The Developing Jurisprudence on Amnesty’, (1998) 20(4) Human Rights Quarterly, 843; C. Edelenbos, ‘Human rights violations: a Duty to Prosecute? ’, (1994) Leiden Journal of International Law, 5.

[5] K. Mcevoy, L. Mallinder, ‘Amnesties in Transition: Punishment, Restoration, and the Governance of Mercy’, (2012) 39(3) Journal of Law and Society, 410; K. Ambos, ‘The Legal Framework of Transitional Justice’, in K. Ambos, J. Large, M. Wierda (eds.), Building a future on peace and justice: studies on transitional justice, conflict resolution and development (Berlin, 2009), 19; L. Mallinder, ‘Amnesties’, in M. C. Bassiouni (ed.), The Pursuit of International Criminal Justice: A world Study on conflicts, Victimization, and Post-Conflict Justice, vol. I (Intersentia, 2010), 900; D. Orentlicher, ‘Settling Accounts Revisited: Reconciling Global Norms with Local Agency’, (2007) 1(1) International Journal of Transitional Justice, 10.

[6] D. Orentlicher, “Settling Accounts Revisited: Reconciling Global Norms with Local Agency”, International Journal of Transitional Justice, vol. 1, n. 1, 2007, 10, at 14 et seq.

[7] Point II and para. 710 of the reasoning.

[8] It has been argued that this interpretive strategy was unnecessary in this case, since no amnesty law was in force and the time for statutory limitations had not passed yet: see E. Maculan, ‘La respuesta a las graves violaciones de derechos humanos entre derecho penal e internacional. Observaciones sobre el caso Fujimori’, (2012) 14(5) Revista Electrónica de Ciencia Penal y Criminología, 1.

[9] Ibidem.

[10] IACtHR, Barrios Altos v. Peru, 14 March 2001, IACHR, Serie C No. 75, paras. 41 et seq.; Albán Cornejo y otros v. Ecuador, 22 November 2007, IACHR, Serie C No. 171, para. 111; in Bulacio v. Argentina, 18 September 2003, IACHR, Serie C. No. 100, paras. 116 et seq., the Court refers to the even wider category of “human rights violations” (with no gravity threshold required). For a critical overview of this case law, see: E. Malarino, ‘Judicial Activism, Punitivism and Supranationalisation: Illiberal and Antidemocratic Tendencies of the Inter-American Court of Human Rights’, (2012) 12 International Criminal Law Review, 665.

[11] K. Ambos, Treatise on International Criminal Law. Vol. I (OUP, 2013), 394-5; A. Seibert- Fohr, Prosecuting serious Human Rights Violations (OUP, 2009), 274 et seq.

[12] A. Gil Gil, ‘El tratamiento jurídico de los crímenes cometidos en el conflicto armado colombiano. La problemática jurídica en el marco de la dicotomía paz-justicia’, in A. Gil Gil, E. Maculan, S. Ferreira (eds.), Colombia como nuevo modelo para la justicia de transición (IUGM, 2017), 40.

 

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Can the effects of an ECtHR’s judgment be extended? The answer of the Italian courts as to the guarantees of criminal trial

Introduction

Under Article 46, paragraph 1, of the European Convention on Human Rights (‘ECHR’), “the High Contracting Parties undertake to abide by the final judgments of the Court in any case to which they are parties”. According to the European Court of Human Rights (‘ECtHR’), this provision implies that “a judgment in which the Court finds a violation imposes on the respondent State a legal obligation (…) to choose (…) the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects”.[1] Thus, judgments issued by the ECtHR may require the interested State to adopt measures which go beyond the scope of the concrete case under review.

This interpretation of the provision is in line with the role of the ECtHR, a court whose task is not limited to solving disputes between parties but extends to the safeguard of general interests.[2] At domestic level it may raise the issue of whether and, in the affirmative, how, the effects of a judgment finding a violation of the Convention should be extended to other cases.

The present post analyses how the Italian system deals with this issue, with specific reference to the ECtHR’s judgments finding violations of the guarantees of criminal trial. First, it recalls the remedies developed by Italian courts to enforce the ECtHR’s judgments; then, it describes how these remedies are applied to extend the effects of an ECtHR’s judgment to other cases. It will be argued that the exceptional review under article 630 CPP is now to be considered as the “ordinary” remedy, both to enforce ECtHR’s judgments and to extend the effects of such judgments to similar cases.

The enforcement of ECtHR’s judgments

The Italian legislator has not yet dealt with the enforcement of ECtHR’s judgments finding violations of the guarantees of criminal trial comprehensively.[3] Thus, the enforcement of these judgments is mostly left to the interpretative efforts of the Italian courts, which, as described in a previous post, have relied on different solutions.

The Italian Court of Cassation has applied analogically two sets of procedural remedies: the “ricorso straordinario per errore materiale o di fatto”, an extraordinary appeal to correct material errors contained in the Court of Cassation’s judgments, under article 625bis Code of Criminal Procedure (‘CPP’);[4] and the “incidente d’esecuzione” procedure, providing remedies to deal with issues arising in the execution of a sentence, under articles 666 and following CPP.[5] In 2011 the Constitutional Court has added a further remedy, by declaring the partial unconstitutionality of article 630 CPP, insofar as it did not include ECtHR judgments finding a violation of criminal guarantees among the exceptional circumstances allowing the review of a final conviction.[6]

Therefore, the Italian system counts three different options to implement the ECtHR’s judgments finding violations of the guarantees of criminal trial and apply them to a case: the “ricorso straordinario per errore materiale o di fatto” under article 625bis CPP; the “incidente d’esecuzione” procedure under articles 666 and following CPP; the exceptional review of a final conviction under article 630 CPP.

The extension of ECtHR’s judgments to other cases

The issue of whether and how an ECtHR’s judgment finding violations of the guarantees of criminal trial may be extended to other cases was first examined by the Italian courts following the case of Scoppola v Italy (n.2).[7] The case originated in some amendments to the provision regulating the reduction of a life sentence, following trial under summary procedure. The ECtHR found a violation of the principle of legality in criminal law (Article 7 ECHR), as Italy failed to apply retroactively the more lenient law to Mr Scoppola.

The decision was implemented in Mr Scoppola’s case through the “ricorso straordinario per errore materiale o di fatto”.[8] With regard to individuals in similar positions, the Italian Government adopted a quite simplistic view, recalling “the possibilities offered by the procedure of incidente d’esecuzione to those in the same situation as the applicant in this case”.[9] However, the Court of Cassation had to intervene, following the refusal by a lower court to extend the effects of the Scoppola judgment through the “incidente d’esecuzione” procedure.

On that occasion, the Court of Cassation stated that the conclusions reached in Scoppola have general nature, and that the effects of a judgment finding a general and objective violation of the Convention should be extended to identical cases, notwithstanding the existence of a final domestic decision which would normally prevent reconsideration of the case.[10] The acknowledgment of limits to the res judicata principle, on the ground of an ECtHR judgment issued in a case other than the one under review, was in itself innovative.[11] Furthermore, the Court of Cassation deferred a question of constitutionality to the Constitutional Court, which took this opportunity to clarify that the “incidente d’esecuzione” procedure can be used when the issue at stake is a mere redetermination of the sentence to be imposed, whereas the exceptional review under article 630 CPP concerns trials that must be reopened.[12]

The distinction between these remedies and the “ricorso straordinario per errore materiale o di fatto” was the object of further examination by the Court of Cassation, following the case of Contrada v Italy (n. 3).[13] The case originated in the introduction, by way of interpretation, of a new crime. The ECtHR found a violation of the principle of legality in the case of Mr Contrada, because he had been tried and found guilty for facts committed before the moment in which the case law introducing the new crime had settled: which is to say, at a time when the crime was not yet clearly foreseeable.

Following this judgment, the Court of Cassation was confronted with appeals by individuals claiming to be in the same situation as Mr Contrada, and asking for an extension of the effects of the judgment to their cases.[14] In the first case, Mr Dell’Utri, an Italian politician, requested the annulment of his final sentence by way of “ricorso straordinario per errore materiale o di fatto” under article 625bis CPP. The Court of Cassation declared the remedy not applicable, underlying that -unlike the two previous cases in which this remedy had been used-[15] Mr Dell’Utri had no ECtHR’s judgment in his favour, nor had he asked for a mere modification of his conviction.[16] Mr Dell’Utri then applied for revocation or non-execution of his sentence, under articles 673 and 670 CPP. Both remedies operate in the executive phase of the judgment, and are thus species of the wider genus “incidente d’esecuzione”. The Court of Cassation recalled the judgment issued by the Constitutional Court in the post-Scoppola cases and clarified that, after 2011, the exceptional review introduced by way of interpretation under article 630 CPP has become the “ordinary” remedy to enforce ECtHR judgments.[17] This remedy may be applied not only to enforce a judgment in the specific case under the ECtHR’s review, but also to extend the effects of such judgments to similar cases; and not only for violations of Article 6 ECHR, but also when violations of Article 7 ECHR are at stake.[18] The “incidente d’esecuzione” procedure, to the contrary, may be used as a “residual” remedy only upon three conditions: that the ECtHR’s judgment has general nature; that the case at stake is identical to the one decided by the ECtHR; that execution does not require a previous declaration of unconstitutionality or any discretional evaluations by the execution judge.[19] Having assessed that in the case of Mr Dell’Utri these conditions were not met, the Court rejected his application.[20]

In the second and most recent case, the Court of Cassation recalled and fully endorsed these conclusions about the ambit of application of the “incidente d’esecuzione” procedure and of the exceptional review under article 630 CPP.[21]

Interestingly enough, in the lapse of time between these two judgments, a different section of the Court of Cassation rejected a request for extraordinary review lodged under article 630 CPP.[22] The refusal was grounded on the fact that the applicant was not directly interested by the ECtHR judgment of which he had asked enforcement, thus contradicting the Court of Cassation’s position developed since 2011 in the post-Scoppola cases, and reaffirmed in the post-Contrada ones.[23] As for now, the judgment remains a unicum in the case law of the Court of Cassation: however, it certainly demonstrates how a jurisprudential solution may be subject to revirements.

Final remarks

In the Italian legal system, the absence of a comprehensive legislative intervention on the enforcement of ECtHR judgments finding violations of the guarantees of criminal trial has led domestic courts to intervene. Procedural remedies are applied analogically (“ricorso straordinario per errore materiale o di fatto” under article 625bis Code of Criminal Procedure; “incidente d’esecuzione” procedure under articles 666 and following CPP), and a general remedy has been introduced (exceptional review of a final conviction under article 630 CPP).

The most recent developments of the Italian case law deal with the issue of how to extend the effects of an ECtHR judgment to cases other than the one under the ECtHR’s review. In the absence of any organic stance by the executive or by the legislative power, cooperation between higher courts seems to have led to a solution. According to a set of judgments by the Court of Cassation and the Constitutional Court, the exceptional review under article 630 CPP is now to be considered as the “ordinary” remedy, both to enforce ECtHR’s judgments and to extend the effects of such judgments to similar cases. The “incidente d’esecuzione” procedure, instead, represents a residual solution which may be used when the effects of the ECtHR’s judgments pertain exclusively to the execution phase and do not require the use of any discretional power by the judge.

Doubts have been cast on this conclusion by a recent conflicting judgment of the Court of Cassation, which, however, remains so far isolated. In any case, it must be pointed out that only a comprehensive legislative intervention could solve, once and for all, the issues of enforcement of the ECtHR’s judgments in the Italian system.

 

 

 

[1] Inter alia: Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000‑VIII; Sejdovic v. Italy [GC], no. 56581/00, § 119, ECHR 2006‑II.

[2] Under Article 19 of the Convention, the Court’s task is to “ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and its Protocols”. On Article 49 ECHR: S.Bartole, P. DeSena, V. Zagrebelsky, Commentario breve alla convenzione europea per la salvaguardia dei diritti dell’uomo e delle libertà fondamentali, CEDAM Padova 2012, pp. 749 ff.

[3] Currently, the only legislative intervention has been the one allowing the reopening of proceedings celebrated in absentia, introduced by law 67/2014 with the specific aim of bringing the system in compliance with the numerous findings of violation by the ECtHR. On this topic, see: G. Di Paolo, La Rescissione Del Giudicato Ex Art. 625-Ter C.P.P.: Rimedio Effettivo O Meccanismo Virtuale?, Penale Contemporano 2015.

[4] E.g.: Cass sez VI, 12 novembre 2008, Drassich (2009) Cass Pen 1457.

[5] E.g.: Cass sez I, 1 dicembre 2006, Dorigo (2007) Cass Pen 1447. On this remedies in Italian criminal procedure: G. Lattanzi, E. Lupo, Codice di procedura penale: rassegna di giurisprudenza e di dottrina, VII / VIII, Giuffré Milano 2013.

[6] C Cost, sent n 113/2011.

[7] Scoppola v. Italy (no. 2) [GC], no. 10249/03, 17 September 2009.

[8] Cass., sez. V, 11 febbraio 2010, n. 16507, Scoppola.

[9] CM/ResDH(2011)66.

[10] Cass. pen., Sez. Un., ord. 19 aprile 2012 (dep. 10 settembre 2012), n. 34472, Pres. Lupo, Est. Milo, Imp. Ercolano.

[11] A wide number of commentaries is available on this judgment. By way of example, see: F. Viganò, Pena illegittima e giudicato. Riflessioni in margine alla pronuncia delle Sezioni Unite che chiude la saga dei “fratelli minori” di Scoppola, Penale Contemporaneo, 1/2014.

[12] C Cost, sent n. 210/2013.

[13] Contrada v. Italy (no. 3), no. 66655/13, 14 April 2015.

[14] The follow-up cases of the Contrada judgment have encouraged a wide scholarly debate. See, by way of example: F. Viganò, Il caso Contrada e i tormenti dei giudici italiani: sulle prime ricadute interne di una scomoda sentenza della Corte EDU, Penale Contemporaneo, 26.4.2016; A. Manna, La sentenza Contrada e i suoi effetti sull’ordinamento italiano: doppio vulnus alla legalità penale?, Penale Contemporaneo, 4.10.2016.

[15] Cass sez VI, 12 novembre 2008, Drassich (2009) Cass Pen 1457; Cass., sez. V, 11 febbraio 2010, n. 16507, Scoppola.

[16] Cass., sez. V pen., sent. 14 marzo 2016 (dep. 8 luglio 2016), n. 28676/16, Pres. Bruno, Rel. Catena, Ric. Dell’Utri.

[17] Cass., sez. I pen., sent. 11 ottobre 2016 (dep. 18 ottobre 2016), n. 44193/16, Pres. Mazzei, Rel. Magi, Ric. Dell’Utri, p. 29.

[18] Ibid, p. 27.

[19] Ibid, p. 30.

[20] Ibid, pp. 35-40.

[21] Cass., Sez. I, sent. 10 aprile 2017 (dep. 27 novembre 2017), n. 53610, Pres. Mazzei, Rel. Rocchi, Ric. Gorgone.

[22] Cass. pen., sez. II, sentenza 20 giugno 2017 (dep. 7 settembre 2017), n. 40889, Pres. Fiandanese, rel. Recchione, ric. Cariolo.

[23] For a critical commentary of this decision: S. Bernardi, La Suprema Corte torna sui limiti di operabilità dello strumento della “revisione europea”: esclusa l’estensibilità ai “fratelli minori” del ricorrente vittorioso a Strasburgo, Penale Contemporaneo, 26.9.2017

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The UK and the right to life: Some preliminary remarks on the UK Government’s observations on the Draft General Comment no 36

In July 2017 the UN Human Rights Committee finalised the first reading of its Draft General Comment no 36 on article 6 (right to life) of the International Covenant on Civil and Political Rights (ICCPR). All stakeholders, including Member States, other UN and regional human rights mechanisms, National Human Rights Institutions, NGOs, research institutions, and academics were invited to provide their observations by 6 October 2017.  In November 2017, the UN Human rights Committee started the second reading of its Draft General Comment. This post aims to provide some preliminary remarks on the UK Government submissions, which should be interpreted while bearing in mind a significant difference between the UK position and the Draft Comment: according to the former, indeed, there is no hierarchical relationship among rights, and the right to life is not the ‘supreme’ right among all others, as it is, conversely, for the latter.[1] This post will focus on three specific areas of concern for the UK: the desirability of an international treaty banning any Lethal Autonomous Weapons Systems (LAWS), the relationship between the regimes of international human rights and international humanitarian law, the linkage between the right to life and any act of aggression.

 

On the ban of any Lethal Autonomous Weapons Systems (LAWS)

 

Starting from the assumption that in the development of new kind of weapons Sates should always consider the possible implications of such weapons for the right to life, the UN Human Rights Committee, at paragraph 12 of its Draft General Comment, holds that ‘the development for use in military operations of new lethal autonomous robotics lacking in human compassion and judgement, raises difficult legal and ethical questions concerning the right to life, including questions relating to legal responsibility for their use’. The Committee therefore concludes that this kind of weapons should not be developed or put in operation; neither in time of war or peace. The UK Government, on the contrary, considers that since it is unclear whether these weapons would ever be developed, it would be pointless to have an international agreement banning them pre-emptively.[2] Thus, the UK ‘strongly urges’ to delete the part relating to the need to avoid the development and/or ban of any LAWS. Yet, this conclusion seems to lie more on the non-existence of such weapons, which furthermore still lack of a definition, than on their legality under international law. In this respect, the UK aligns its positions to the other EU member states. As Veronique Caruana has pointed out, however, in the future we might witness «the continued development of a “class of systems capable of selecting targets and initiating the use of potentially lethal force without the deliberate and specific consideration of humans”». Considering that the issue has been broadly debated among governments, scholars,[3] and NGOs, the prospect of developing such weapons seems in fact to be a concrete possibility.

 

On the relationship between International Humanitarian Law and Human Rights Law

According to paragraph 67 of the Draft General Comment, the Covenant as a whole continues to apply in time of armed conflict,[4] as the two regimes of Human Rights Law and International Humanitarian Law (IHL) are complementary, rather than mutually exclusive. The UN Human Rights Committee concludes that during an armed conflict States have therefore an obligation to disclose, inter alia, ‘whether non-lethal alternatives for attaining the same military objective were considered. They must also investigate allegations of violations of article 6 in situations of armed conflict in accordance with the relevant international standards.’[5] In respect of both these points the UK Government submits that International Humanitarian Law is lex specialis applicable during an armed conflict,[6] and under this regime there is no rule imposing upon states an obligation to consider whether a non-lethal means was available.[7] Moreover, while it is admitted that States have an obligation to investigate breaches of IHL in accordance to international legal standards, they reject the submission that in time of an armed conflict such obligation to investigate would also apply to any violation of article 6 ICCPR.[8] This would be somehow equal to interpret the two regimes of International Humanitarian Law and Human Rights Law as mutually exclusive, and might have serious implications when it comes to the implementation of the principles of proportionality and necessity, which are much more stringent within the context of the International Human Rights regime.[9] This would also place the UK far from the interpretation given by the European Court of Human Rights (ECtHR) of the positive procedural obligations stemming from article 2 (Right to life) of the European Convention of Human Rights (ECHR).[10] The ECtHR has indeed ‘held that the procedural obligation under Article 2 continues to apply in difficult security conditions, including in a context of armed conflict’.[11] In the opinion of the Strasbourg Court these obligations include a duty to carry out an effective investigation,[12] which might comprise criminal procedures, but also inquiries on state responsibility. [13] This might apply to cases of death of civilians as well as soldiers,[14] and can also require the investigators to ‘establish basic facts about the use of indiscriminate weapons’, when the former were ‘crucial for the assessment of the causal link between their use and the casualties’.[15] The Court has in fact found that the ‘use of explosive and indiscriminate weapons, with the attendant risk for human life, cannot be regarded as absolutely necessary’. [16]

 

 

On the implications for the right to life as a result of acts of aggression

 

The last two paragraphs of the Draft Comment no 36 are dedicated to the implications for the right to life in case of war, and even more specifically, in the event of the commission of any act of aggression contrary to the UN Charter. Paragraph 71, notably provides as follows: ‘States parties engaged in acts of aggression contrary to the United Nations Charter violate ipso facto article 6 of the Covenant. Moreover, States parties that fail to take all reasonable measures to settle their international disputes by peaceful means so as to avoid resort to the use of force do not comply in full with their positive obligation to ensure the right to life.’

The UK, at paragraph 34 of its observations, comments by stating: ‘We are rather surprised at the inclusion of paragraphs 70 and 71; these appear to be better suited to an aspirational document rather than a General Comment. We do not consider that the content is helpful, nor that it is within the Committee’s mandate.’ Thus, in the UK Government’s opinion the loss of lives resulting from the usage of an unlawful means, that is, in this specific case, an illegal war or an act of aggression, would not fall within the jurisdiction of the UN Human Rights Committee. It is however unclear where this limitation should be inferred from. In Europe, the Strasbourg Court has kept holding that article 2 ECHR (right to life) cannot be subject to any derogation, under article 15 ECHR, if not with regard to ‘lawful acts of war’.[17] A contrario, one might argue that all other means should be considered as unlawful and cannot find any justification under the ECHR. Moreover, it rests to be shown how, under which circumstances and towards whom such paragraphs might ever end up being in any way ‘unhelpful’.

 

Conclusion

 

The UN Human Rights Committee is currently at its second reading of the Draft General Comment no 36 on article 6 ICCPR (right to life). Between its first and second reading, the Committee invited all stakeholders to submit their observations. This post focused on the UK position on article 6 ICCPR, which significantly departs from the Draft Comment in many aspects. First, the UK while aligning itself with the position taken by all other EU member states, differs from the UN Committee’s Draft General Comment, when the Government considers it pointless to ban or refrain from developing any LAWS. In the opinion of the UK Government, in fact, these weapons have not been developed yet and a significant amount of uncertainty surrounds their future characteristics, effects and even definition. Second, while the UN Human Rights Committee considers the Covenant to apply during an armed conflict, the UK sees the regime of International Humanitarian Law as lex specialis and deems there exists no positive obligation to investigate any violation of article 6 ICCPR. Nor do they think they have any obligation to disclose whether any non-lethal means was available. This might have huge implications on the implementation of the principles of necessity and proportionality, which refer to different standards, depending on which regime, i.e., Human Rights Law or International Humanitarian Law, is indeed applicable. In this respect, the UK would put itself far from the stance of the ECtHR’s case law. Third, the UK considers the UN Human Rights Committee went beyond its jurisdictions, when it inserted paragraphs 70-71 in the Draft General Comment. These paragraphs concern the casual relation between any unlawful armed conflicts, or more specifically any acts of aggression contrary to the UN Charter, and an automatic violation of article 6 ICCPR. However, when it comes to any possible implications for the right to life, it is unclear where the UK could infer any limitation of the UN Human Rights Committee’s ratione materiae jurisdiction. Moreover, it rests to be shown how, and especially under which circumstances and towards whom, such paragraphs could be in any way ‘unhelpful’. In sum, the UK position on the right to life differs significantly from the UN Committee, and in many occasions this would be equal to a less comprehensive protection of the individuals’ right to life. This might find an explanation in the UK vision of human rights, which according to the Government’s observations relating to the Draft General Comment no 36, would not have any hierarchical relationship, so that the right to life would not be seen as ‘the supreme’ among all other rights any more.

[1] UK Governments, Comments on the UN Human Rights Committee’s Draft General Comment No 36, the right to life (6 October 2017) at 5. Cf Human Rights Committee, ‘General comment No. 36 on article 6 of the International Covenant on Civil and Political Rights, on the right to life’ (Revised draft prepared by the Rapporteur) available at < http://www.ohchr.org/Documents/HRBodies/CCPR/GCArticle6/GCArticle6_EN.pdf> visited on 5 December 2017. Cf Case of TagayevaaAnd Others v. Russia App no 26562/07  (ECHR, 13 April 2017) at 599.

[2] UK Governments, Comments on the UN Human Rights Committee’s Draft General Comment No 36, the right to life (6 October 2017) at 12.

[3] See, e.g., Nehal Bhuta, Claus Kreβ, Autonomous Weapons Systems: Law, Ethics, Policy (CUP 2016).

[4] Cf The relevant ECtHR’s case law. See William Schabas, The European Convention on Human Rights. A Commentary (OUP 2015) 154-55.

[5] UK Governments, ‘Comments on the UN Human Rights Committee’s Draft General Comment No 36, the right to life’ (6 October 2017) at 67. Cf William Schabas, The European Convention on Human Rights. A Commentary (OUP 2015) 156-58.

[6] Cf Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Reports (2004) 136, para. 106. See also Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) ICJ Reports (2005) 168, para. 216.

[7] UK Governments, ‘Comments on the UN Human Rights Committee’s Draft General Comment No 36, the right to life’ (6 October 2017) at 33.

[8] Ibid.

[9] As for the ‘absolute necessity’ requirement according to the ECtHR, see Case of McCann and Others v. The United Kingdom App no 18984/91 (ECHR, 27 September 1995) at 149; Case of Andreou v. Turkey App no 45653/99 (ECHR, 27 October 2009) at 55; Case of Putintseva v. Russia App no 33498/04 (ECHR, 10 May 2012) at 69. As for the proportionality requirement as developed by the ECtHR, see Case of Wasilewska and Kałucka v. Poland App nos 28975/04 and 33406/04 (ECHR, 23 February 2010) at 56-57; Case of Finogenov and Others v. Russia App nos 18299/03 and 27311/03 (ECHR, 4 June 2012) at 236. See also Conor Foley, UN Peacekeeping Operations and the Protection of Civilians: Saving Succeeding Generations (CUP 2017) 183.

[10] William Schabas, The European Convention on Human Rights. A Commentary (OUP 2015) 139. Cf Case of the “Mapiripán Massacre” v. Colombia (Inter-American Court of Human Rights, 15 September 2005) at 238.

[11] Case of Al-Skeini and others v. The United Kingdom App no 55721/07 (ECHR, 7 July 2011) at 164;Case of Mocanu and Others v. Romania App nos 10865/09, 45886/07 and 32431/08 (ECHR, 17 September 2014) at 319. See also Case of Benzer and Others v. Turkey App no 23502/06 (ECHR, 12 November 2013) at 184.

[12] See, for instance, See also Case of Benzer and Others v. Turkey App no 23502/06 (ECHR, 12 November 2013) at 198.

[13] Case of Al-Skeini and others v. The United Kingdom App no 55721/07 (ECHR, 7 July 2011) at 174.

[14] Smith v Secretary of State for Defence [2010] UKSC 29, at 70-72.

[15] Case of TagayevaaAnd Others v. Russia App no 26562/07  (ECHR, 13 April 2017) at 527.

[16] ibid at 609.

[17] Case of Al-Skeini and others v. The United Kingdom App no 55721/07 (ECHR, 7 July 2011) at 162.

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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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