Category Archives: Public International Law

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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The State of the Union 2018 and Migration: a far-sighted Europe deserves more courage

Introduction

On the 12th of September 2018 the President of the European Commission, Mr. Jean Claude Juncker, pronounced the State of the Union Address of 2018 before the plenary session of the European Parliament. The State of the Union’s speech prepares the ground for the debate which will involve the highest EU Institutions the year ahead. It normally includes a report on the Union’s activities of the past year, as well as a letter of intent for the forthcoming one with the aim of underlining the priorities of the Union. While migration was included in the agenda, one might have expected a more far-sighted approach from the EU institutions. This post aims to see how the current -still improvable- EU policy on migration, as emerged from the 2018 State of the Union Address and its attachments, could act as a useful starting point for a more ambitious project in the future.

The 2018 Address: the responsibility of solidarity

‘We cannot continue to squabble to find ad hoc solutions each time a new ship arrives. Temporary solidarity is not good enough. We need lasting solidarity – today and forever more’.

‘Responsibility’ and ‘solidarity’ were two of the most frequent concepts the President Juncker made reference to in his speech. The first mention of the perpetual responsibility of the European Union comes at the very beginning of the speech together with a reference to the EU’s well-known role as the guardian of peace. As for solidarity, the President reminds how the EU operations have rescued more than half a million of people at sea since 2015, The Address brings to light several ambitious proposals linked to the main criticalities of the EU’s migration policy at the moment: the improvement of equipment and means for the European Border and Coast Guard; the reinforcement of the European Agency for Asylum; a more effective European return policy; the improvement towards more effective legal migration policy through the opening of legal pathways ( based on humanitarian reasons as well as on labor market needs) to the Union.

All of these tasks are planned according to the updated version of the project for a Common European Asylum System, which includes a stronger protection of the European external borders and a sharper distinction in terms of status between irregular and legal migrants among the EU priorities. In all fairness, the reinforcement of the European Agency for Asylum should also serve the scope of making the support of the EU to Member States more effective in order to comply with the international protection principles. At the same time, however, strengthening the European Border and Coast Guard would probably mean for the EU to stay focused on a short-term ‘border defence’ purpose rather than on a long-term management and regulation of third nationals’ inflows. On the one hand, the improvement of a EU Border and Coast Guard might lead eventually to reconsider the broad responsibility which the EU has partially discharged through the externalization of the migration management at its external borders counting on its neighbours, such as Turkey and Libya; on the other, however, the priority accorded to such a defensive objective makes extremely clear which direction has been chosen by the EU for the benefit of a certain idea of sovereignty. Besides any possible uncertainty, it is worth to bear in mind that a number of European Mediterranean countries at the border of the EU, particularly affected by the Balkan and the Central Mediterranean Route, have managed a huge humanitarian crisis since 2011 and, because of the lack of resources and obsolete EU and domestic legislation, they have faced it through all but a far-sighted approach. This has resulted in the implementation of many emergency measures within the EU, instead of a long-term and perspectival reform for a fair and common migration management.

The reform of the 2008 Return Directive: from a liberal approach to more restrictive definitions

In 2008 the EU States agreed upon several common rules for the return and the removal of irregularly staying migrants which have been transposed in the Directive 2008/115/EC of the European Parliament and the Council (hereinafter the ‘Return Directive’). Nowadays the enforcement of an amended European return policy should be considered the most significant point among the proposals announced by the EU Commission (or the Commission) on the occasion of the State of the Union: it resulted in the presentation of a Proposal for the reform of the Return Directive).

The Proposal, contrary to the more liberal case law of the Court of Justice of the European Union on the 2008 Return Directive, [1] embraces the more restrictive current approach of the Commission.[2] In the Explanatory Memorandum attached to the Proposal, the Commission underlines that an update of the EU return policy is needed due to the increasing migratory pressure on the Member States and the Union. In the past few years, Member States have indeed struggled in implementing the EU framework. They also have faced numerous difficulties in managing return procedures and complying with return decisions against irregular migrants allegedly because of their lack of cooperation in doing so.

The most delicate issues of the EU return policy deal with the relationship between the rules on detention (Article 15 of the 2008 Return Directive) and the functional definition of the “risk of absconding” (Article 6 of the Proposal), which is a condition to apply detention. The definition of the ‘risk of absconding’ has been set through the not exhaustive list of objective criteria provided by the Proposal: this parameter shall be used in the overall assessment of the specific individual case in migration-related procedure (administrative or criminal) in order to evaluate the need of preventing secondary movements of an individual within the EU. The list of criteria refers, in some cases, to extremely broad issues (such as the a risk for public security or national security), and in others to grounds that might potentially correspond to the commission of crimes (or single elements of crimes), depending on the system (e.g. see, among others, (from the list provided by the new article 6 of the proposal): (a) lack of documentation proving the identity; (b) lack of residence, fixed abode or reliable address; (c) lack of financial resources; (d) illegal entry into the territory of the Member States; (e) unauthorised movement to the territory of another Member State; (f) explicit expression of intent of non-compliance with return-related measures applied by virtue of this Directive) etc. The ‘risk of absconding’ itself could frequently be included, as occurs in the Italian criminal system, among specific procedural requirements for custody against suspects of crimes. For that reason, the use of such an ambivalent concept could create significant ambiguity in the law instruments that every Member State is requested to adopt.

After reminding that the new Directive Proposal aims at guaranteeing the principle of non refoulement, as well as the supreme protection of fundamental rights, the EU Commission turns to the use of detention (Article 18 of the Proposal) against illegal migrants. The Commission rates as a new emerging risk the fact that some third country nationals -supposedly considering the massive inflows- have posed or might pose a threat to public order or national security.

In the same way as in the externalization policy implemented and regulated by the EU and Turkey statement and the agreement between EU and Libya, the notions of public order and national security risk also in this case to appear to be empty boxes to store every undefined conduct so as to detain individuals who might be classified as ‘suspects’ of law breaching (such as irregular migrants, suspects of crimes, reported as suspects against national security). Moreover, like in the 2008 Directive, the Proposal does not refer to the precise field of law within which the detention of “irregular” migrants should find its own regulation: that is probably due to the fact that Member States apply either administrative or criminal measures depending on the risk assessment.

The unbearable uncertainty of the criteria on which the application of detention measures is based in the case of illegal migrants (i.e., irregulars, individuals affected by an order of expulsion or by a denial of international protection, “suspects” of not defined crimes) has therefore even got worse as a consequence of the undefined nature of the measures adopted. The latter might also affected the remedies at migrants’ disposal against a first instance denial of international protection or against an expulsion order, which are, again, differently-defined depending on the Member States’ legislative and judicial orders.

To sum up, notwithstanding the ambiguity in referring to the administrative or the criminal dimension indifferently has allowed every Member State to regulate freely the matters of detention against ‘illegal migrants’ according to its own legal system, a step forward in the perspective of a complete reform of the Return policy with the aim of ensuring harmonization among Member States’ practices could and should have been planned.

Conclusion

The 2018 State of the Union Address by the EU Commission promotes a ‘necessary’ switch of perspective allegedly caused by, on the one hand, an increasing pressure of migration on Member States’ boarders and, on the other, an ineffective return practice within the EU. Notwithstanding the urgency of setting out several key points – which the Proposal did meet, – such as the improvement of equipment and means for the European Border and Coast Guard, the reinforcement of the European Agency for Asylum and the reform of the return policy, the Address seems to leave behind several permanent criticalities in terms of de-harmonisation.

The protection of an idea of sovereignty of the European Union should have brought to light a more ambitious proposal, much more ambitious than a mere ‘defensive’ approach in terms of return policy and individual guarantees. The EU could have proposed the establishment of the principle of the EU sovereignty in the migration matters on the Member States’ practice through the creation of a long-term common operative équipe of experts dealing with migration within the EU by applying EU regulations and fundamental principles. This in order to erode progressively and slowly national sovereignty in a field which cannot be handled by single competent national authorities, normally politically linked to the national Government in charge (such as the Ministry of Home Affairs in Italy). This long-term revolution would ensure a far-sighted harmonization of practices within the EU in order to ‘offer – As the Commissioner for Migration, Home Affairs and Citizenship, Mr. Avramopoulos, stated –more Europe where more Europe is needed’ and ‘to support Member States to take up their responsibilities.

 

 

[1] See on this point the interesting contribution of S. Peers, Lock’em up: the proposal to amend the EU’s Return Directive, 12th September 2018 <http://eulawanalysis.blogspot.com/2018/09/lock-em-up-proposal-to-amend-eus.html&gt;; for some examples on the more ‘liberal case law’ see Judgment of the Court (Grand Chamber), 18 December 2014 Mohamed M’Bodj v État belge, Judgment of the Court (Grand Chamber), 18 December 2014, Centre public d’action sociale d’Ottignies-Louvain-La-Neuve v Moussa Abdida, Judgment of the Court (Second Chamber) of 26 July 2017 Criminal proceedings against Mossa Ouhrami, Judgment of the Court (Grand Chamber) of 7 June 2016 Sélina Affum v Préfet du Pas-de-Calais and Procureur général de la Cour d’appel de Douai.

[2] ibidem ; see also European Commission releases proposal to recast Return Directive, 14th of September 2018, <https://www.ecre.org/european-commission-releases-proposal-to-recast-return-directive/&gt;.

 

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PARDONS FOR GROSS HUMAN RIGHTS VIOLATIONS: A FOLLOW-UP ON THE FUJIMORI CASE

1         Introduction

On 24th December 2017, the former President of Perú, Alberto Fujimori, was granted a pardon that terminated his conviction for very serious offences committed in the context of his repressive regime. As I commented in a previous post, this measure gave rise to important criticism of political bias and violation of the international duty to prosecute and punish those responsible for gross human rights (HR) violations.

The Inter-American Court of Human Rights (IACtHR) was called upon to decide whether this pardon violated the international duties of the Peruvian State and, more precisely, the sanctions imposed in the Barrios Altos and La Cantuta cases. The IACtHR decision of 30th May 2018, in the framework of the monitoring compliance proceedings for Barrios Altos and La Cantuta, confirmed the incompatibility of the pardon with the duty to prosecute and punish those responsible for gross HR violations. It also urged the competent domestic courts to revise the pardon decision, to check both its compatibility with the Constitution and the legality of its application.

As a consequence, on the 3rd October 2018 the Peruvian Supreme Court (SC) issued a decision that declared the invalidity of the pardon and ordered the resumption of the sentence serving.

In this post, I will point out the key legal arguments of both the IACtHR (Section 2) and the Peruvian Supreme Court (3) ground their decisions. In addition, I will share some critical remarks on these arguments (4), and conclude that it would have been less controversial to declare the invalidity of this pardon solely for the incompatibility with domestic legislation.

2         The reasoning of the IACtHR

The reasoning of the IACtHR takes into account two separate grounds of invalidity of the contested pardon. On the one hand, it recalls the duty of all States parties to the American Convention of Human Rights (ACHR) to prosecute and punish those responsible of serious violations of HR and the parallel prohibition of amnesties, pardons and other waivers of punishment for the same crimes.. On the other hand, it echoes the applicants’ doubts on the compliance with Peruvian legislation on pardons. For instance, with the impartiality of the medical panel certifying a serious illness, and the requirement to ground the decision on a detailed reasoning.

The first set of reasons is more relevant to an international law perspective, because it may be applied to any pardon issued for serious HR violations, regardless of the specific and critical features of the concrete benefit to Fujimori. Here, we might summarise the IACtHR’s position into three basic arguments.

Firstly, the international duty to prosecute and punish for gross HR violations encompasses the claim for proportionality between the seriousness of the offence and the degree of culpability of the offender, and the sentence imposed. This principle applies not only at the moment when the sentence is imposed, but also throughout its serving (paras. 30-31).

Secondly, the execution of the sentence is included in the victims’ right to access to justice (paras. 30, 47), in that it prevents the convictions from being a mere declaration with no practical effects. As a consequence, during the serving of the sentence “it is impermissible to grant in an undue manner beneficial measures that may lead to a form of impunity” (para. 30).

Thirdly, any measure that affects a sentence of serious HR violations, even more when based on a discretionary power of the executive, must be balanced against the other interests at play (especially the right to have access to justice), in order to guarantee its compatibility with the minimum standards set out by the Constitution and HR law (para. 57). The task of striking this balance belongs to the domestic judiciary, which the IACtHR urged to take action.

3         The Decision by the Peruvian Supreme Court

The decision by the Peruvian SC to invalidate the pardon is largely grounded in the same arguments of the IACtHR. The SC applies the “conventionality test” (control de convencionalidad), as defined by the IACtHR (para. 152 ff.), to check the compatibility of the pardon with the obligations of the American Convention and the jurisprudence of the IACtHR. In this regard, the SC comes to the same conclusion, namely, that this measure violates both the obligation to prosecute and punish and the right to access to justice.

While the IACtHR showed a degree of self-restraint in identifying the alleged illegal or unconstitutional aspects of the measure from a national law perspective, the domestic Court deals with them quite extensively. Here, the SC finds that the political context in which the pardon was issued indicates that it was a benefit granted by then President Kuczynski in exchange for political support against his impeachment (paras. 207-222). Additionally, it points out several irregularities in the administrative procedure of adoption of the pardon:  the non-impartiality of one member of the medical panel nominated to evaluate Fujimori’s health conditions; inconsistencies between the two reports issued by this panel; inadequate description of both the illness that would justify this extraordinary measure and the conditions in jail that would impede an adequate medical treatment thereof (paras. 223-245). These factors, together with the surprising rapidity of the procedure (paras. 246-256) and the lack of adequate motivation of the resolution itself (paras. 256-281), lead to the conclusion that Fujimori did not have such a medical condition as to legitimise a pardon “for humanitarian reasons”. The SC therefore declared measure to be invalid.

4         Some critical remarks

Whereas the invalidation of Fujimori’s pardon should be very welcome, the reasoning of both decisions deserve a more careful assessment.

Firstly, the distinction between the concepts of crimes against humanity (CAH) and serious HR violations. Both the IACtHR and the SC apparently apply these categories indistinctly to describe the scope of the prohibition of pardons. Yet, the scope and the foundation of such prohibition varies depending on which of the categories it refers to.[1] Moreover, both Courts reiterates that the judgment that convicted Fujimori qualified the facts as CAH, whereas, as it was noted in a previous post, Fujimori was not formally convicted of CAH, but for ordinary crimes (kidnapping, murder and serious bodily harm).

Secondly, in reaffirming the absolute ban on amnesties, pardons and other waivers of punishment, both tribunals seem to ignore the very relevant differences among these measures. In fact, pardons only affect the serving of the sentence, without excluding the search for the truth, the official declaration of responsibility, nor reparation for victims. Therefore, pardons have a minor impact than amnesties,[2] as that they do not preclude the fulfilment of key goals: truth, acknowledgment, reparation.

Thirdly, by prohibiting pardons as a whole, insofar as they cover serious HR violations, the Courts close the door ona measure that might be very useful in certain situations. Not only are pardons normally envisaged in modern criminal systems, as a tool to take into account specific considerations of criminal policy, but they might also be necessary in transitional settings.[3] In transitional contexts, the need to strike a balance between countervailing objectives might lead to the adoption of special measures (like pardons). Here, the relevant criteria is whether these measures respond to good faith policy considerations[4] or, on the contrary, their goal is to grant impunity.

5         Conclusions

The pardon granted to Fujimori “for humanitarian reasons” was a clear fraud, so the declaration of its invalidity should be welcome. Yet, in my view, the specific case should not reflect a general ban on pardons, irrespective of the features of each case and of the reasons that might, in some cases, justify them under a criminal policy perspective. It would have been much more effective and less problematic to focus exclusively on the specific features that cast doubt on its legitimacy, namely, the lack of legal justification for such a measure, , the failure to comply with domestic legislation, and the illegitimate political motive behind Fujimori’s pardon.

[1] E. Maculan, ‘Derecho penal, obligaciones internacionales y justicia de transición’, 2018 (41) Revista penal, 117-135, at section 2.2. The Inter-American jurisprudence shows a clear trend towards an expansión of the scope of the prohibition: E. Malarino, ‘Las víctimas en la jurisprudencia de la Corte Interamericana de Derechos Humanos’, in A. Gil Gil, E. Maculan (eds.), La influencia de las víctimas en el tratamiento jurídico de la violencia colectiva (Dykinson, 2017), 23-44, at 41. Yet, a thorough analysis of the relevant HR jurisprudence and State practice leads to the conclusion that the prohibition is consolidated only in relation to the core international crimes: A. Seibert-Fohr, Prosecuting serious Human Rights Violations (OUP, 2009), 274 ff.

[2] J. Chinchón Álvarez, Derecho internacional y transiciones a la democracia y la paz (Parthenos, 2007), 459.

[3] In similar terms, K. McEvoy, Mallinder, ‘Amnesties in Transition: Punishment, Restoration and the Governance of Mercy’, 2012 (39) 3 Journal of Law and Society, 401-440, at 427-8.

[4] L. Mallinder, “Can Amnesties and International Justice be Reconciled?”, 2007 (1) International Journal of Transitional Justice, 208-230, at 221. no al indulto

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Redefining Jus Cogens. An Insight into the International Law Commission’s Discourse on Peremptory Norms of General International Law

Ana Srovin Coralli (Master in International Law from the Graduate Institute (Geneva) and Master in Law from the Faculty of Law (Ljubljana); ana.srovin@graduateinstitute.ch) &

Christian Bukor (Master student in Law, European Faculty of Law (Nova Gorica); cbukor@gmail.com)

 

Three months have passed since the 70thannual session of the International Law Commission (ILC) came to its conclusion in August 2018.[1]Perhaps it is no exaggeration to say that jus cogens was for the majority of the members, at least with respect to the meetings which took place in Geneva, the most intriguing topic scheduled on this year’s agenda. Indeed, the third report on peremptory norms of general international law, which resulted in 13 draft conclusions,[2]not only triggered significant interest from a great majority of the ILC members, but it also stimulated a vivid and provocative discussion among them.

 

Even though nowadays a special status of jus cogens in international law is beyond dispute, many controversies and disagreements surrounding the legal consequences and effects of peremptory norms still persist. Having this in mind, it is crystal clear that the Special Rapporteur Dire Tladi has been confronted with no easy task. Precisely because of the difficulty of the subject matter, it is important to note that the ILC members generally agreed on the quality of his third report, noting that it makes an important step forward in clarifying the consequences and the effects of the highest norms in international law.[3] This post provides a summary of the ILC’s discourse on the jus cogens debate in Geneva, with a focus on the most controversial aspects of the relevant report.

 

Overview of the report and the draft conclusions

 

At the outset, it should be explained that the ILC’s topics under consideration are mainly handled by the individual Special Rapporteurs, whose duties include the preparation of reports on the assigned topics and the proposition of draft conclusions, which could then potentially serve as guidelines or articles of a treaty. The present contribution will tackle both the newly-proposed draft conclusions on the topic of jus cogens and the yearly report of the Special Rapporteur on the same topic.

 

As a preliminary remark, it should be emphasized that the ILC generally promotes the idea of relying on the1969 Vienna Convention of the Law of Treaties(VCLT) when preparing draft conclusions on the topic of jus cogens. It has been agreed among the members that this was respected by Mr. Tladi, as his report clearly takes the VCLT into account.[4]It would, however, be premature to conclude that no concern was raised by the ILC members during the debate on the subject. Recalling that the VCLT was drafted with a particular subject in mind, namely the law of treaties, some of the members warned that the Convention should be considered with caution when adopting a new set of rules on a different topic.[5] This approach seems more correct, as it stresses that international law is an evolving and flexible system, although consistency between legal documents remains crucially important in law. It is for this reason that the ILC should consider other relevant sources and take into account the development of international law over time.

 

Another issue raised during the debates was whether it is appropriate to focus on certain consequences and effects of jus cogens.[6]Specifically, some of the members were reluctant to support the explicit reference to the United Nations Security Council (SC) resolutions and certain issues concerning international criminal law.[7]Noting that such references might be selective and consequentially problematic, the majority of members refused to include it in the draft conclusions. In so doing, an opportunity was missed to explore the consequences of jus cogens more widely, including the implications of a conflict with SC resolutions, and the impact of peremptory norms in international criminal law. There is furthermore a need for an explicit stipulation affirming that any principle or rule established through any source of international law, including general principle of law, may not be valid if it is in contrast with a norm of jus cogens nature.

 

Specific issues on the table

 

The effect of jus cogens on treaty relations has been acknowledged as one of the most uncontroversial aspects of the third report.[8]In the eyes of the ILC members, the Special Rapporteur managed to prove the inherent nature and non-derogability of jus cogens norms. Therefore, all treaties must be consistent with these norms.[9]Nevertheless, the remaining matter of controversy is the general rule on the non-severability of treaty provisions, when a provision is part of a treaty which was in conflict with jus cogens at the time of its conclusion.[10]Whereas some of the members agreed on this matter, the stability of treaty relations was prioritized by others, who claimed that the general rule of severability would be preferable. By taking the latter approach, the rule of non-severability would be presented as a special rule for cases relating to article 53 of the VCLT, which would, in effect, result in the prioritization of treaty relations without departing from the VCLT.

 

Another interesting question on the recommended dispute settlement procedure in case of invalidity of a treaty because of a conflict with jus cogens was pointed out during the debates.[11]More precisely, doubt was raised as to the immediate consequences following a decision by the International Court of Justice (ICJ) or by an arbitral tribunal; would such decision lead to the invalidation or termination of a treaty, or would it be merely declaratory in nature? In the view of the majority, the treaty would, in fact, become invalid immediately.

 

Furthermore, the draft conclusion 17 explicitly states that SC resolutions do not establish any binding obligations if they violate jus cogens norms. Recalling the aim of the presented draft conclusions, which is to formulate general rules, this approach was unwelcomed by the majority of the ILC members.[12]Indeed, as the legal order in international law now stands, it would be possible for a state to refuse the fulfillment of any obligation endorsed in SC resolutions on the basis of a conflict with jus cogens. It is nevertheless clear that if such a provision was adopted, this could not only result in political disturbances – it would be almost impossible to implement it in practice.

 

As for the responsibility of states, two draft conclusions concerning states’ obligation with respect to a situation conflicting with jus cogens have been brought into question by the ILC members.[13]To be exact, the bone of contention was whether it is justified to differentiate between the active and the passive state obligations, namely the “duty to cooperate” and the “duty not to recognize and assist”, depending on the gravity of breach of jus cogens norm. This approach conflicts with previous documents of the ILC (see article 41 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts). In spite of the departure from the wording used in the aforementioned article, it seems reasonable to support the Special Rapporteur’s insistence to differentiate between different states’ obligations. Imposition of a lower standard, namely, not to recognize and assist in any situation which resulted from a violation of jus cogens norms, should be regarded as a welcome novelty. Indeed, it would be completely absurd to consider the gravity of the breach of jus cogens in this situation and therefore give the impression that it is lawful to recognize and assist in situations where the breach of jus cogens norms is not considered “serious”.[14]

 

Yet, the real trigger for divergent opinions were the draft conclusions addressing specific aspects of jus cogens and international criminal law. They stipulated state obligation to prosecute in cases of commission of “jus cogens crimes”, i.e. crimes violating jus cogens norms, and the irrelevance of the immunity ratione materiae for those offences.[15]These findings involve a number of highly complex issues. Firstly, any suggestion on a universal agreement concerning the duty to exert universal jurisdiction for all jus cogens crimes is insufficiently proven. This is evidenced by the fact that many states have expressed a clear reluctance towards the existence of the aforementioned duty.[16]Secondly, the discussion on the (ir)relevance of immunity ratione materiae for jus cogens crimes has demonstrated a certain level of misunderstanding among the ILC members, e.g. concerning the difference between immunity from civil and criminal proceedings. More importantly, a clear line between state and personal immunity has not been emphasized sufficiently. As a result, the reference to the ICJ judgment Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), as proof that there exists an exception to the rules on immunity,[17]appears inaccurate and unpersuasive. In this case, the ICJ has even explicitly stated that the only immunity in question is the immunity of a state, and that in any event, this should be considered without prejudice to the immunity of an official of the state.[18]

 

What comes next?

 

The ILC’s discussions on jus cogens are to be continued next year and many challenging questions will come into play again. According to the emphasis given to the issue, an illustrative list of jus cogens norms is to be expected sometime in the future.[19]Also, the need for a separate discussion on regional peremptory norms has been stressed on many occasions.[20]It would, therefore, be interesting to see how such norms could be subsumed under the current definition of jus cogens which stipulates them as “norms accepted and recognized by the international community of States as a whole.”[21]

 

Before concluding the present analysis, it is important to point out a core concern: it is evident that the ILC considers states’ consent and agreement to be crucial in all matters related to jus cogens. In this respect, it should be noted that the values protected by jus cogens are above states and their will, hence, their consent can never be the most relevant or the only decisive factor for their definition. Regardless of states’ perception of the peremptory norms, jus cogens should be perceived as principles which aim to protect the interests of the international community as a whole, and which therefore impose legitimate limitations to some other key principles of international law, such as stability of treaty relations, or the superior and binding nature of SC resolutions. While we do not wish to prejudge the accuracy of the ILC’s current approach, we wonder whether it is truly independent from state or political influence.

 

 

 

 

[1]The session ended on 10 August 2018 as provided by the UNGA Resolution 72⁄116 (7 December 2017) UN Doc A⁄RES 72⁄116, at para 14.

[2]For the full text of the proposed draft conclusions see ILC, ‘Third report on peremptory norms of general international (jus cogens) by Dire Tladi, Special Rapporteur’ (12 February 2018) UN Doc A⁄CN.4⁄714, at para 160.

[3]ILC, ‘Report of the ILC on the Work at its 70th Session (30 April–1 June and 2 July–10 August 2018) UN Doc A⁄73⁄10, at para 111.

[4]Ibid, at para 113.

[5]Apart from the individual ILC members, Mr. Tladi also raised similar concerns. Ibid, at para 153.

[6]See, e.g., ibid, at para 131.

[7]See full texts of draft conclusions 17, 22 and 23 in ILC, ‘Third report’ (n 2), at para 160.

[8]ILC, ‘Report of the ILC on the Work at its 70th Session (n 3), at para 154.

[9]See full text of draft conclusions 10 to 13 in ILC, ‘Third report’ (n 2), at para 160.

[10]ILC, ‘Report of the ILC on the Work at its 70th Session (n 3), at para 119.

[11]Ibid, at paras 123–124.

[12]Ibid, at para 132.

[13]See full text of draft conclusions 20 and 21 in ILC, ‘Third report’ (n 2), at para 160.

[14]This argument was also introduced by the Special Rapporteur. ILC, ‘Report of the ILC on the Work at its 70th Session (n 3), at para 159.

[15]See full text of draft conclusions 22 and 23 in ILC, ‘Third report’ (n 2), at para 160.

[16]Roger O’Keefe, ‘Universal Jurisdiction: Clarifying the basic concept’ (2004) 2 JICJ 754. See also Dapo Akande’s response related to the topic: (…)“where universal jurisdiction is lawful the state exercising it will usually be permittedto prescribe globally. But it is not required to do so.” Galli Toma, ‘Universal Jurisdiction or Regional Lawfare’ (EJIL: Talk!, 1 June 2016)         <https://www.ejiltalk.org/universal-jurisdiction-or-regional-warfare/>  accessed 2 November 2018.

[17]See, e.g., ILC, ‘Report of the ILC on the Work at its 70th Session (n 3), at para 161.

[18]Jurisdictional Immunities of the State (GermanyvItaly, Greece intervening), Judgment, ICJ Reports 2012 (3 February 2012), at para 91. See also para 87 of this judgment.

[19]Ibid, at para 150.

[20]Ibid, at para 151.

[21]Vienna Convention on the Law of the Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT) art 53.Jus cogensJus cogensJus cogens

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In the Spotlight: The Legitimacy of the International Criminal Court

By Caleb H Wheeler

Lecturer in Law at Middlesex University, London

 and author of the recently published book The Right to Be Present At Trial in International Criminal Law (Brill 2018)

c.h.wheeler@mdx.ac.uk

 

Recently, the International Criminal Court (‘ICC’ or ‘the Court’) has increasingly found itself in the political spotlight. On 10 September John Bolton, a United States National Security Adviser, attacked the Court as ‘illegitimate’ and claimed that ‘for all intents and purposes, the ICC is already dead.’ Donald Trump reinforced those contentions in his address to the United Nations General Assembly on 24 September when he asserted that ‘the ICC has no jurisdiction, no legitimacy and no authority.’ This blog post will examine the context of Bolton and Trump’s statements about the legitimacy of the International Criminal Court in an effort to determine whether they were challenging its legitimacy vis-à-vis the United States or if they meant to question its overall legitimacy. It finds that the Court’s overall legitimacy is not in question but that it is very limited in how it can exert jurisdiction over the United States.

 

There is some basis for the argument that the International Criminal Court lacks legitimacy with regard to the United States. As a treaty-based legal institution, the International Criminal Court is limited to exercising authority only in the territory of those states that have consented to such an exercise of power. The United States is not a state party to the International Criminal Court and as such the Court can only apply jurisdiction over its populace in two situations. The first is if an American citizen commits a crime on the territory of a state that is a party to the Statute. The second would arise following a Security Council referral to the Court of a situation occurring in the United States. However, as a permanent member, the United States can veto any Security Council decision, making it functionally impossible that there ever will be such a referral. Further, The United States has negotiated over 100 bilateral agreements in which states parties to the Rome Statute have agreed that they will not surrender Americans found on their territory to the International Criminal Court. While it is not strictly true that the International Criminal Court can never exercise jurisdiction over Americans accused of international crimes, it can only happen under a narrow set of circumstances.

 

The context of Trump and Bolton’s statements may also suggest that they were specifically challenging the International Criminal Court’s legitimacy to act in relation to the United States. Trump’s comments were prefaced by the qualifier, ‘[a]s far as America is concerned…’ This statement can be interpreted in two ways. It could mean that the Court has no jurisdiction, legitimacy or authority when it comes to Americans or acts that take place on the territory of the United States. It could also mean that the United States rejects the jurisdiction, legitimacy, and authority of the Court in toto.

 

Bolton’s comments seem to confirm that American criticism of the International Criminal Court is largely focused on its perceived interference with state sovereignty. Not surprisingly, his comments are primarily designed to protect American interests, but he also argues against any possible interference by the Court with Israel’s construction of settlements in the West Bank. He also threatens sanctions against the Court if it attempts to initiate proceedings against ‘us, Israel or other US allies.’ While Bolton clearly dislikes the International Criminal Court as a whole, he is particularly concerned with the possibility that it might exercise judicial authority over citizens of states not party to the Court Statute. This is made clear in his summation in which he states, ‘an international court so deeply divisive and so deeply flawed can have no legitimate claim to jurisdiction over the citizens of sovereign nations that have rejected its authority.’ Although the United States is not directly mentioned, it is apparent that the possibility that the Court might try to exert authority over the United States, and to a lesser extent Israel, is foremost in Bolton’s mind. Ultimately it should come as no real surprise that the United States would prioritize protecting its citizens over the interests of justice. The late Cherif Bassiouni predicted that the interests of states and Realpolitik would be the ‘principle obstacles to the effectiveness of the ICC.’

 

A much more complicated question is raised if Trump and Bolton meant to suggest that the International Criminal Court is generally illegitimate. Bolton, speaking on behalf of the president, challenges the overall legitimacy of the Court by attacking its ‘unfettered powers’ and for being structured in a way that he believes is ‘contrary to fundamental American principles’. A superficial reading of this statement leads to the conclusion that Bolton is asserting that the International Criminal Court lacks legitimacy only in relation to the United States. However, when placed in its larger context it becomes apparent that Bolton’s statement could have been meant to attack the legitimacy of the Court as a whole. In a journal article published in 2000, Bolton specifically stated that ‘the Court and the Prosecutor are illegitimate’ and he directly tied their lack of legitimacy to the way in which the Court is structured.[1]Bolton expresses particular concern with what he characterises as the prosecutor’s ‘potentially enormous, essentially unaccountable powers’ that give her the ability to exercise jurisdiction over citizens of states that are not party to the Rome Statute. He also believes that the Court’s decision not to implement a tripartite structure, with three equal and co-extensive branches, means that it lacks the necessary checks and balances to adequately protect the liberty of individuals. Bolton further claimed, both in 2000 and 2018, that the Court’s Statute is so deeply flawed as to be irreparable. It is reasonable to believe that the comments made in September 2018 are a continuation of the position he first set out in 2000, and thus to conclude that the perceived problems with the Court’s structure and Statute impair its overall legitimacy. As Bolton was speaking in his official capacity as a national security adviser, and his comments were partially echoed by President Trump, one could infer that the United States believes that the International Criminal Court suffers from a fundamental lack of legitimacy.

 

Only weeks before Bolton’s speech, a group of 132 parliamentarians from five Southeast Asian states released a joint statement in which it called on the United Nations Security Council to refer Myanmar to the International Criminal Court for human rights abuses allegedly committed against the Rohingya ethnic group. That was followed on 25 September, a group of six South and North American states formally referredVenezuela to the International Criminal Court for international crimes allegedly being committed there. This referral and proposed referral act to contradict the United States’ position on the legitimacy of the Court. This is demonstrated by the fact that both groups believe that the International Criminal Court is the appropriate venue at which to prosecute the perpetrators of the crimes alleged. The Court’s legitimacy was bolstered by Canada’s president, Justin Trudeau when he asserted, ‘[t]he International Criminal Court has our full support and confidence.’ The Southeast Asian parliamentarians also implicitly recognized the legitimacy of the Court when they directly linked referral to the Court as the best pathway to accountability for the alleged perpetrators. These actions and statements leave no doubt that those nations involved still believe in the Court’s legitimacy.

 

Most importantly, the inherent legitimacy of the International Criminal Court is demonstrated by the fact that there are 123 states parties to the Court. This constitutes 64 percent of all members of the United Nations. Those 123 nations confirm their belief in the Court’s legitimacy by accepting the jurisdiction of the Court within their territory and over their nationals. Interestingly, Bolton tries to downplay this source of legitimacy in his remarks by suggesting that because 70 nations are not member states, and because of the large population of some of those states, ‘most of the world’ has rejected the Court.

 

The Court itself confirmed its own legitimacy in its recent decision on its jurisdiction over the crime against humanity of deportation as alleged against the government of Myanmar. In that decision, Pre-Trial Chamber I found that the International Criminal Court possesses ‘objective international personality’ as a ‘legal-judicial-institutional entity’ that is separate and apart from the legitimacy conferred upon it by the recognition of its states parties. That legitimacy is evidenced by the Court’s engagement and cooperation with both states parties and non-states parties alike. The United States is included amongst the non-states parties that have engaged and cooperated with the Court by virtue of its status as an observer state to the Assembly of States Parties of the International Criminal Court. In fact, at the most recent Assembly of States Parties the United States implicitly acknowledged the Court’s legitimacy when it identified the important role the International Criminal Court can play in ensuring that justice is delivered to the victims of international crimes.

 

The overall legitimacy of the International Criminal Court is not in doubt. Numerous international actors, including the government of the United States, have reconfirmed its legitimacy. Therefore, the comments made by Bolton and Trump must be viewed as a repudiation of the International Criminal Court’s ability to exercise jurisdiction over citizens of the United States. That being said, simply because the Court cannot exercise jurisdiction over Americans does not also mean it is illegitimate as far as the United States is concerned. What Bolton and Trump are really expressing is their disapproval with the manner in which the Court operates and their concern that it might exercise jurisdiction over American citizens in one of the small areas still open to it. In the end, these comments are really nothing more than rhetoric designed to achieve the political objective of undermining the Court at the expense of justice.

 

[1]John R Bolton, ‘The Risks And Weaknesses Of The International Criminal Court From America’s Perspective’ (2000) 64(1) Law and Contemporary Problems 167, 169blog

Photos courtesy: Spencer Platt/Getty Images: Andrew Harnik/AP Photo: The International Criminal Court

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The Concept of Abuse of Process in the Immunities Case between Equatorial Guinea and France before the ICJ

Dr. Eugenio Carli, Ph.D. (Research Fellow Political and International Sciences Department, University of Siena, eugenio.carli86@gmail.com)

 

Overview of the Dispute

On 13 June 2016 Equatorial Guinea (the Applicant) filed an Application instituting proceedings against France (the Respondent) before the International Court of Justice (ICJ or ‘the Court’) claiming that certain ongoing criminal proceedings in France against the Equatoguinean Second Vice-President – Mr. Teodoro Nguema Obiang Mangue – constituted a violation of the immunity from criminal jurisdiction he is entitled to under international law. The Application also claimed that the seizing of a building located in Paris used for the purposes of the diplomatic mission of Equatorial Guinea in France constituted a breach of the norm on the inviolability of the premises of diplomatic missions. The Applicant maintained that the ICJ had jurisdiction both on the basis of the Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Diplomatic Relations of 18 April 1961(the ‘Optional Protocol’)[1]and of Art. 35 of the United Nations Convention against Transnational Organized Crime of 15 November 2000(the ‘Palermo Convention’).[2]

In the third of its preliminary objections of 30 March 2017, France affirmed that the case’s referral to the ICJ is ‘completely artificial’ (para. 59), because ‘Equatorial Guinea links its claims to conventional provisions which, given the facts of the case, cannot be regarded as a credible basis for the exercise of the Court’s jurisdiction’ (para. 58) and, as claimed in the oral proceedings, ‘en l’absence manifeste de toute voie de droit’ (p. 48, para. 8) (i.e.through an abuse of process). France also upheld that the Application filed by Equatorial Guinea constituted an abuse of rights and should, therefore, be dismissed.

The case is interesting because it confirms the tendency of the ICJ to not uphold claims by Respondent States aimed at asserting the commission of an abuse of process by the Applicant party, this time providing few more indications as to the scope of application of this principle.

 

The Notion of ‘Abuse of Process’ and the ICJ Case Law

The abuse of process can be defined, in general terms, as the use of a legal process to accomplish an unlawful purpose, by resorting to illegal, malicious, or perverted means.[3]As Kolb puts it, abuse of process ‘consists of the use of procedural instruments or rights by one or more parties for purposes that are alien to those for which the procedural rights were established, especially for a fraudulent, procrastinatory or frivolous purpose, for the purpose of causing harm or obtaining an illegitimate advantage, for the purpose of reducing or removing the effectiveness of some other available process or for the purpose of pure propaganda’.[4] The notion at stake can be considered as a corollary of the international law principle of good faith with which the former shares a certain degree of vagueness.

While the notion of abuse of process has become dangerously popular in international investment arbitration in recent years,[5]the same cannot be said with regard to the practice of the ICJ, which has not yet provided for a definition of abuse of process and have thus far rejected all claims concerning this particular conduct. One of the first cases where the ICJ was faced with this issue was the Arbitral Award of 31 July 1989, in which Senegal upheld that Guinea-Bissau’s Application was inadmissible since Guinea-Bissau was trying to misuse a declaration with the intention of casting doubts on the validity of the arbitral award. However, the judges rejected the argument affirming that ‘Guinea-Bissau’s Application [was] properly presented in the framework of its right to have recourse to the Court in the circumstances of the case’.[6]In Certain Phosphate Lands in Nauru Australia upheld that Nauru had failed to act consistently and in good faith in relation to rehabilitation of the phosphate lands at stake, but the judges concluded again that the Application by Nauru had been properly submitted and that its conduct did not amount to an abuse of process.[7]In Armed Activities in the Territory of the Congo Rwanda contended that the re-submission of the same application by Congo was a clear abuse of process, but the ICJ decided not to remove the case from its list, without giving any further explanation.[8]

These judgments show that abuse of process only concerns the preliminary phases of proceedings (not the merits) and is, in particular, linked to the admissibility of a claim. This is confirmed by the judgment on the Immunities Case, discussed below.

 

The Content of the Claim of ‘Abuse of Process’ made by France and the Position of the ICJ

As mentioned earlier, France claimed that the Application submitted by Equatorial Guinea should be rejected, constituting an abuse of process. More specifically, the Applicant allegedly reversed the ordinary procedural sequence, claiming breaches by the Respondent of its international obligations and requesting the Court to make a finding to that effect, but remaining ‘evasive’ and ‘cursory’ as to the basis for the exercise of the Court’s jurisdiction.[9]Therefore – as argued by France – the conduct of Equatorial Guinea is in contrast to the fundamental principle of international law, which provides that no State may be subject to the jurisdiction of an international court without its consent.[10]Moreover, according to the Respondent, the Application contained similar submissions to those articulated in a previous one, dated 25 September 2012, when France had not accepted the exercise of the ICJ’s jurisdiction, which has led Equatorial Guinea to find a strategy to devise that lack of consent in the present case. This strategy consisted, on the one hand, in acceding to the Optional Protocol – yet without specifying which provision of the Vienna Convention on Diplomatic Relations is at the origin of the dispute with France – and, on the other, in invoking the Palermo Convention, whose provisions, according to France, do not concern the present facts.

On its part, in its written statement, Equatorial Guinea contended that it had recourse to dispute settlement procedures in good faith and in accordance with the conditions and requirements laid down in the Optional Protocol and in the Palermo Convention. In particular, the Applicant maintained that seizing the ICJ, ‘even immediately after accepting its jurisdiction’, does not constitute an abuse of process and that under international law ‘there is no limitation period for invoking bases of jurisdiction’.[11]

In its judgment on Preliminary Objections of 6 June 2018, the ICJ first drew a distinction between the concepts of abuse of process and abuse of rights. While admitting that ‘the basic concept of an abuse may be the same’, the judges argued that consequences stemming from the two may be different.[12]After having mentioned earlier cases in which the ICJ had to deal with those issues, the judges tried to clarify the scope of application of the abuse of process, by saying that it ‘goes to the procedure before a court or tribunal and can be considered at the preliminary phase of these proceedings’.[13]In light of this, the Court concluded, by fourteen votes to one,[14]that ‘Equatorial Guinea, having established a valid title of jurisdiction, should [not] be barred at the threshold without clear evidencethat its conduct could amount to an abuse of process. It is only in exceptional circumstancesthat the Court should reject a claim based on a valid title of jurisdiction on the ground of abuse of process’ and this was not the case.[15]

 

Final Remarks

The ruling of the Court confirms that abuse of process only comes into play as a preliminary objection as to admissibility. The concept is defined in very narrow terms by the judges, so as to raise the threshold of application. Furthermore, a clear explanation of why the abuse of process did not occur in the present case is hardly substantiated. Judges seem to assert that when a valid title of jurisdiction is present, hardly ever an abuse of process can prevent the continuance of proceedings.[16]In so doing, the Court seems almost to put those two distinct concepts on a hierarchical scale of values, with the one corresponding to a valid title of jurisdiction prevailing.

Moreover, the way the Court deals with this aspect looks slightly dismissive. In particular, it remains uncertain what is to be meant as ‘clear evidence’ and what France should have proved for its claim to be upheld. Even analysing the Respondent’s arguments, the diversity and vagueness of the elements supporting the claim of an abuse of process against Equatorial Guinea seem to confirm the view that the content of this concept is still unclear in the context of international adjudication.[17]Yet this was a good (missed) opportunity for the Court to clarify the issue, in order to avoid applicant States to take advantage of this case law in the future. Eurgenio

 

 

 

[1]According to Art I of the Optional Protocol, ‘[d]isputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the [ICJ] and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol’.

[2]Art 35, par 2, of the Palermo Convention provides that ‘[a]ny dispute between two or more States Parties concerning the interpretation or application of this Convention that cannot be settled through negotiation within a reasonable time shall, at the request of one of those States Parties, be submitted to arbitration. If, six months after the date of the request for arbitration, those States Parties are unable to agree on the organization of the arbitration, any one of those States Parties may refer the dispute to the International Court of Justice by request in accordance with the Statute of the Court’.

[3]In the present post we will only deal with the concept of abuse of process– considered as an application of the abuse of rightsprinciple – having the ICJ ruled that the latter requires an examination of the merits of the case which has yet to be done at the time of writing. It is however interesting to note how the Court is extremely careful to keep the two concepts distinct from one another, probably with a view to raise the threshold for inadmissibility.

[4]R Kolb, ‘General Principles of Procedural Law’ in A Zimmermann et al. (eds), The Statute of the International Court of Justice: A Commentary (Oxford University Press 2006) 831, para 65.

[5]See on this E Gaillard, ‘Abuse of Process in International Arbitration’ in ICSID Review(2017), pp 1-21.

[6]ICJ, Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment, ICJ Reports 1991, p 53, para 27.

[7]ICJ, Certain Phosphate Lands in Nauru(Nauru v. Australia), Preliminary Objections, Judgment, ICJ Reports 1992, p 240, para 38.

[8]ICJ, Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, ICJ Reports 2006, p 6, para 25.

[9]ICJ, Immunities and Criminal Proceedings(Equatorial Guinea v. France), Preliminary Objections of the French Republic, 30 March 2017, paras 60-61.

[10]Ivi, para 75.

[11]ICJ, Immunities and Criminal Proceedings(Equatorial Guinea v. France), Written Statement of the Observations and Submissions of the Republic of Equatorial Guinea on the Preliminary Objections Raised by the French Republic, 31 July 2017, para 1.73.

[12]ICJ, Immunities and Criminal Proceedings(Equatorial Guinea v. France), Judgment, Preliminary Objections, 6 June 2018, para. 146.

[13]Ivi, para. 150.

[14]Judge Donoghue against.

[15]ICJ, Immunities and Criminal Proceedings(Equatorial Guinea v. France), Judgment, Preliminary Objections, 6 June 2018, para. 150 (emphasis added).

[16]Like the one owned by Equatorial Guinea on the basis of the Vienna Convention on Diplomatic Relations, having the Court found that it lacks jurisdiction under the Palermo Convention.

[17]Undue shortness and evasiveness of the question of the Court’s jurisdiction, lack of any conventional provisions binding the Parties to submit such a dispute to the Court, prior lack of consent by France to its exercise of jurisdiction, etc.

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TORTURE AND INHUMAN AND DEGRADING TREATMENT IN EUROPEAN JURISPRUDENCE. COMMENTS ON THE CASE OF JUANANEA AND YARZABAL V. SPAIN

1. Introduction

On 13th February 2018 the European Court of Human Rights (ECtHR) issued a judgment in the case of Portu Juanenea and Sarasola Yarzabal v. Spain,[1] condemning the Spanish State for a violation of art. 3 of the European Convention of Human Rights (ECHR) in both its material and procedural dimensions. The case stems from an episode of alleged torture or inhuman treatment perpetrated by members of the Guardia Civil [civil guard] in the context of the repression of the terrorist group ETA.

Beyond the controversy still surrounding the alleged torturous practice applied by the Guardia Civil against ETA detainees, the judgment in this case is interesting because it confirms the difficulty in drawing a clear line between the different concepts of torture on the one hand, and inhuman and degrading treatment on the other.

2. The case and judgment

The applicants, Portu Juanenea and Sarasola Yarzabal, are former members of ETA who were arrested on 6th January 2008 by a specialised antiterrorist unit of the Guardia Civil. They report that during their arrest they suffered physical and psychological ill treatment by Police officers, such as injuries and insults, and that they were subsequently taken to an isolated place where they were subjected to beatings, mock execution and waterboarding. A medical examination undertaken the following day confirmed that both had suffered injuries, the origins of which were compatible with the facts as described by the applicants.

A judicial investigation was therefore opened against 15 members of the Guardia Civil who had taken part in the arrest of the applicants. All the defendants denied the charges and declared that the injuries that were caused in the context of the arrest were an exercise of the legitimate use of force which was required to prevent the suspects from escaping.

The first-instance judgment convicted four of the defendants for the offences of injuries and torture, while acquitting the others. But this conviction was reversed by the Spanish Supreme Court which found that there was no sufficient evidence that the injuries suffered were caused by ill-treatment intentionally perpetrated by the Police officers.

The ECtHR, contrary to that judgment, concluded that there was sufficient evidence of the facts, as described by the applicants, that they had suffered inhuman and degrading treatment when they were in the custody of the Guardia Civil. As a consequence, the Court declared that Spain had violated art. 3 ECHR in its substantive dimension. Furthermore, the ECtHR found that the Spanish Supreme Court, in reversing the first-instance judgment, did not make a “scrupulous assessment” (para. 94) of the facts, as required by art. 3 ECHR, thereby violating the procedural dimension of the norm as well.

Nevertheless, the Court concluded that the facts did not meet the requirements of the definition of torture, as it has been progressively developed by ECtHR jurisprudence. However, it did find that the acts perpetrated against the applicants constituted inhuman and degrading treatment.

3. The conceptual distinction between torture and inhuman treatment in the European jurisprudence

Despite the universal acknowledgment of the ban on torture in international and regional human rights treaties,[2] there are some significant discrepancies as to its notion and structure in the international instruments that prohibit it. Against such a fragmented framework, the ECtHR has undertaken the difficult task to clarify the definition of the constitutive elements of torture and the distinct features between this conduct and inhuman treatment.[3] Despite its efforts, such clarification has not been reached yet.

Although art. 3 ECtHR encompasses both torture and inhuman and degrading treatment, the distinction between them is primarily relevant because universal jurisdiction is apparently consolidated only with regard to torture.[4] Furthermore, a conviction for torture usually allows the imposition of a higher sentence and it is deemed to have a “special stigma”[5] attached.

Through previous judgments, the Court has developed two basic criteria for distinguishing between the two prongs of art. 3. The first considers torture to be an aggravated form of inhuman treatment, implying a greater intensity of the harm or suffering inflicted,[6] the second focuses on the requirement for a specific purpose (punishing, humiliating or getting a confession), in addition to the intentional nature of the conduct, as a distinctive feature of torture as opposed to other forms of ill-treatment.[7]

However, in relation to the first criterion, jurisprudence has not been consistent in determining the exact threshold for an act to be qualified as torture as opposed to inhuman treatment. Actually, the Court itself has previously admitted that the classification of a particular conduct may change over time.[8]

To interpret this requirement, the Court has developed the principle of the relative assessment, according to which one must consider both the general circumstances surrounding the facts, such as the duration of the treatment and its physical effects, as well as the circumstances relating to the specific victim, such as, sex, age and state of health.[9] Yet, the weight attributed to each of these elements in the concrete cases varies. So too does its interpretation, as the Northern Ireland case demonstrates. Here, the combined use of the so-called five techniques of interrogation was deemed to amount to torture by the European Commission but, in contrast, was considered to be of insufficient intensity and cruelty to be qualified as such by the European Court. As a result, it was labelled by the latter as inhuman and degrading treatment, and a revision request presented by Ireland has been recently dismissed on the ground of technical reasons.

As to the second criterion developed by the Court, which focuses on the specific purpose of torture, this not only poses some problems in relation to the requirement to demonstrate of a subjective element, but also narrows the scope of the offence.

The ECtHR has also explored a combined application of the two criteria, taking into account both the scale of severity of the suffering and the existence of a specific purpose.[10] This combined approach is also followed in the case under comment.

4. Application to the present case

The majority of the Court finds that the ill-treatment imposed on the applicants does not amount to torture because, on the one hand, it does not reach the required severity threshold and, on the other hand, there is no sufficient evidence of the existence of a specific purpose (para. 84).

This judgment therefore follows an approach based on the combined application of the two criteria developed by the ECtHR. Yet, it does not solve the uncertainties surrounding the definition of their constitutive elements, as the partially dissenting opinion (DO) demonstrates. The latter labels the facts as torture, on the basis of a different assessment of the evidence provided.

The different conclusion stems from two considerations. First, after recalling the various elements that may define particular conduct as torture, in accordance with the principle of the relative assessment (para. 72), the majority then focuses exclusively on the lack of evidence that the treatment caused long-term effects on victims (para. 84). Contrary to this, the partially dissenting opinion points out that one of the applicants had to spend five days in the hospital (3 of which were in an Intensive Care Unit) because of the injuries he suffered, and that this met the severity threshold of torture (para. 11 DO).

Second, whereas the majority found that no sufficient evidence demonstrated the existence of a specific prohibited purpose in the police officers’ behaviour (para. 84), the minority established specific purpose from the context of the arrest. Its circumstances suggested that the officers knew that the suspects were members of ETA and were eager to punish them for this membership (paras. 13-15 of the DO).

Both conclusions are, in my view, reasonable from a legal point of view, and the fact that the Court was split 4-3 in this judgment confirms the difficulty to find a shared interpretation on these highly controversial and discretional matters.

5. Conclusion

This judgment shows that, despite the significant effort by the ECtHR to define torture and inhuman treatment and to draw a clear distinction between the two concepts, the assessment of the respective constitutive elements is far from being settled. Beyond the intrinsic relativity of the principle of the relative assessment applied by the Court, maybe it has to be accepted that it is not possible at all to identify precise and consistent elements that unequivocally qualify a fact as torture. Much depends on the judges’ discretionary and inevitably subjective interpretation of the evidence, and it has to be dealt with on a case by case basis.

[1] ECtHR, Portu Juananea et Sarasola Yarzabal c. Espagne, No. 1653/13, 13 février 2018 (original in French). The Judgment has become final on 13th May 2018, because reference of the case to the Grand Chamber has not been requested in three months after its date.

[2] Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, of 9 December 1975; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984; Inter-American Convention To Prevent And Punish Torture, adopted by the Organisation of American States on 9 December 1985.

[3] E. Maculan, ‘Judicial definition of torture as a paradigm of cross-fertilisation. Combining harmonisation and expansion’, 2015 (84)3 Nordic Journal of International Law, 456.

[4] B.R. Roth, ʻJust Short of Torture. Abusive Treatment and the Limits of International Criminal Justiceʼ, 2008 (6) Journal of International Criminal Justice, 215.

[5]  ECtHR, Ireland v. UK (Northern Ireland case), 18 January 1978, No. 5310/71, §167.

[6] EComHR, Denmark, Norway, Sweden, Netherlands v. Greece (Greek case), 4 October 1969, No. 3321/67, 3322/67, 3323/67, 3344/67, §186; ECtHR, Gäfgen v. Germany, 1 June 2010, No. 22978/05, §90; El-Masri v. The Former Yugoslav Republic of Macedonia, 13 December 2012, No. 39630/09, §197.

[7] ECtHR, Tyrer v. UK, 25 April 1978, No. 5856/72, §13; ECtHR, Egmez v. Cyprus, 21 December 2000, No. 30873/96, §78; Denizci v. Cyprus, 23 May 2001, No. 25316-25321/94 and 27207/95, §§384-386.

[8] ECtHR, Selmouni, v. France, 28 July 1999, No. 25803/94, §101.

[9] Northern Ireland case, § 162.

[10] ECtHR, Aksoy v. Turkey, 18 December 1996, No. 21987/93, §§ 63-64; more recently, Cestaro v. Italy, 7 April 2015, No. 6884/11, §§ 171-176.descarga

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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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