On 24 November, France filed a formal notice of derogation from the European Convention on Human Rights with the Secretary-General of the Council of Europe. The notice is available here (and is reproduced in full below), while the French legislation referred to in the notice is available here. As far as I could tell from the UNTC website, France has not (yet) derogated from the ICCPR. The state of emergency in France has been used even with respect to issues that have no bearing on terrorism, for example to curb climate change protests in Paris. The emergency powers have been criticised on civil liberties grounds, e.g. by Human Rights Watch. It seems likely that they will be at issue in litigation before French domestic courts and before the European Court in Strasbourg. In that regard, the derogation notice is remarkably vague and unhelpful, merely stating that some of the emergency measures ‘may involve a derogation from the obligations’ under the ECHR, without explaining which measures exactly do, in fact, require a derogation and to what extent, let alone why precisely were those specific measures strictly required by the exigencies of the situation. What Strasbourg will make of this rather pro forma derogation if and when a relevant case comes before it is anyone’s guess.
Last Friday a unanimous Grand Chamber of the European Court delivered a hugely important judgment in Roman Zakharov v. Russia, no. 47143/06, in which it found serious and systematic faults with the Russian legislative framework regulating the surveillance of mobile communications. This is set to be a leading Strasbourg authority on assessing the compliance of surveillance measures with human rights law, a topic we’ve already extensively discussed on the blog. This judgment important for a number of reasons.
First, because a unanimous Grand Chamber reaffirmed much of relatively older or Chamber-based case law, and applied the principles it identified robustly. This provides an important indication that the Court remains acutely aware of the dangers surveillance programs possibly pose to democratic societies, and that it will also scrutinize such programs robustly in the cases shortly coming before it, e.g. against the United Kingdom. I must say that I was particularly struck by how the Russian judge in the Court, Judge Dedov, concluded his concurring opinion with a quote from Edward Snowden – with the added irony of Snowden still continuing his sojourn in Russia, the very country whose regulatory system of surveillance the Court exposed as so sorely inadequate.
Yesterday, after 10 hours of debate, the UK Parliament approved the use of UK armed forces against ISIS on the territory of Syria; the German Bundestag also debated the use of force and will vote on the involvement of Germany in the coalition operation tomorrow. I found it particularly interesting to observe how the constructive ambiguity of the Security Council’s resolution 2249 (2015), that Dapo and I extensively addressed in our previous post, was used by the MPs during their debate.
When it comes to the UK Government’s official legal position on the use of force in Syria, they have been very careful not to rely on the resolution as a separate source of authority, but as a (unanimous) reaffirmation of the legal authority they already thought they had. That position is articulated most clearly in this memorandum from the Prime Minister to Parliament’s Foreign Affairs Committee, at pp. 15-17, and the legal bases for the use of force set out there are (1) the collective self-defence of Iraq and (2) the individual self-defence of the UK against ISIS, both pursuant to Article 51 of the Charter. The resolution is used to buttress these two claims, for example with the memorandum stating that: “Resolution 2249 (2015) both condemns the ISIL’s horrendous attacks that have taken place and notes ISIL’s intent and capability to carry out further attacks. It then calls upon States to take lawful action to prevent such attacks.”
Similarly, in his statement to the House of Commons on 26 November regarding that memorandum, the Prime Minister stated that:
It is a long-standing constitutional convention that we don’t publish our formal legal advice. But the document I have published today shows in some detail the clear legal basis for military action against ISIL in Syria. It is founded on the right of self-defence as recognised in Article 51 of the UN Charter. The right of self‑defence may be exercised individually where it is necessary to the UK’s own defence… …and of course collectively in the defence of our friends and allies. Mr Speaker, the main basis of the global coalition’s actions against ISIL in Syria is the collective self-defence of Iraq. Iraq has a legitimate government, one that we support and help. There is a solid basis of evidence on which to conclude, firstly, that there is a direct link between the presence and activities of ISIL in Syria, and their ongoing attack in Iraq… ….and, secondly, that the Assad regime is unwilling and/or unable to take action necessary to prevent ISIL’s continuing attack on Iraq – or indeed attacks on us. It is also clear that ISIL’s campaign against the UK and our allies has reached the level of an ‘armed attack’ such that force may lawfully be used in self-defence to prevent further atrocities being committed by ISIL.
And this is further underscored by the unanimous adoption of UN Security Council Resolution 2249. We should be clear about what this resolution means and what it says. The whole world came together – including all 5 members of the Security Council – to agree this resolution unanimously. The resolution states that ISIL, and I quote: “constitutes a global and unprecedented threat to international peace and security.” It calls for member states, and again I quote: to take “all necessary measures” to prevent and suppress terrorist acts committed specifically by ISIL… …and crucially is says that we should, and again I quote: “eradicate the safe haven they have established over significant parts of Iraq and Syria.”
Note how despite saying that “we should be clear about what this resolution means and what it says” the Prime Minister only proceeds to quote the resolution’s language, without explaining in any way whatsover (let alone clearly so) what it means and what it says. (By the way, isn’t that just wonderful howe he did that?)
It is always interesting to observe the evolution of the (infrequent) public official positions that the International Committee of the Red Cross adopts on controversial questions of international humanitarian law. The particular position I’d like to flag is the one on a functional approach to the end of belligerent occupation. This position is clearly of particular importance to the question of whether Gaza continues to be occupied by Israel, which I’ve looked at here on the blog a couple of times before (see here and here).
Some years ago the ICRC held a series of expert meetings on various issues arising out of the law of belligerent occupation, including the beginning and end of occupation. The 2012 report on the meetings is available here. The issue of the end of occupation proved to be controversial, especially on the example of Gaza. Some degree of consensus emerged that the legal criteria for ending an occupation should be the same as for establishing the occupation, but that the evidentiary factors to be taken into account may differ. Thus, an occupation would end if the occupant lost effective control of the territory or obtained valid consent from the sovereign of the territory to its presence there.
Also in 2012, the ICRC legal advisor dealing with the occupation issue, Tristan Ferraro, published an academic article on the beginning and end of occupation in the International Review of the Red Cross. Like most pieces written by ICRC legal advisors, the article includes an initial footnote which specifies that the ‘article was written in a personal capacity and does not necessarily reflect the views of the ICRC.’ In the article Ferraro argues in favour of a functional approach to occupation, where the end to an occupation should not be seen as an all or nothing switch.
With regard to the Gaza controversy in particular, the ICRC took the position (shared by many humanitarian NGOs) that Gaza remains occupied by Israel. In 2014, writing in the Israel Law Review, the ICRC president noted (p. 179) that ‘In the view of the ICRC, Israel continues to be bound by obligations under occupation law that are commensurate with the degree to which it exercises control.’
Last week, the ICRC published its challenges to IHL report (available on Just Security), written for the forthcoming ICRC conference in December (see also Gabor Rona’s post on the report here). And here, on pp. 11-12, we have an extensive articulation of the ICRC’s official position:
Three recent ESIL Lectures are now available on the European Society of International Law’s Youtube channel, which may be of interest to our readers:
Linos-Alexandre Sicilianos, ‘The European Court of Human Rights Facing Europe in Crisis’, European Court of Human Rights, Strasbourg, 16 October 2015.
Fausto Pocar, ‘Freedom of Movement and the Migration Issue in the European Context’, Belgrade Centre for Human Rights, 5 October 2015.
Giorgio Sacerdoti, ‘Le rôle de l’Organe d’appel dans la construction du droit international économique’, Centre de droit international et transnational (CDIT) de la Faculté de droit de l’Université Laval (Canada), 17 September 2015.
A standard trope when teaching multilateral human rights treaties has been to point to the Convention on the Rights of the Child as having achieved near-universal ratification, with only the United States and Somalia not having ratified it (at least among those entities generally recognized to be states under international law). Well, that trope now has to come to an end – on 1 October Somalia officially deposited its instrument of ratification with the UN Secretary-General, having completed domestic ratification processes earlier in the year. That leaves the US as the only state in the world not to have joined this treaty, a somewhat more unenviable position than before, one could say.
Unfortunately, upon ratification Somalia also made the following reservation: “The Federal Republic of Somalia does not consider itself bound by Articles 14, 20, 21 of the above stated Convention and any other provisions of the Convention contrary to the General Principles of Islamic Sharia.” The three enumerated articles deal with the freedom of thought, conscience and religion, and the protection of children deprived of their family environment, but the reservation extends to the Convention as a whole. Human rights bodies generally regard Sharia reservations to be incompatible with the object and purpose of human rights treaties (as do a number of other states parties), while in its work on reservations to treaties the International Law Commission objected to such reservations on the grounds of their impermissible generality and vagueness (see guideline 22.214.171.124 and commentary; see more the EJIL symposium on the ILC’s guide to practice on reservations).
In any event, the CRC is now just one step removed from becoming the only treaty to achieve universal ratification in modern times, other than the 1949 Geneva Conventions – but bearing in mind the internal politics in the US Senate and the 2/3 majority required there, that last ratification probably won’t come anytime soon.
Last week the Grand Chamber of the European Court of Human Rights delivered a very interesting judgment in Vasiliauskas v. Lithuania, no. 35343/05, in which it examined in detail the definition of the crime of genocide. This is another one in a series of relatively sui generis cases, mostly coming from the Baltic states, dealing with historical crimes and pleaded under Article 7 ECHR, which incorporates the nullum crimen sine lege principle. The basic issue in the case was that the applicant, who worked for Soviet security services and was involved in the killings of Lithuanian partisans, was convicted of genocide by Lithuanian courts after the resumption of independence by the Baltic states, under the new Lithuanian Criminal Code which explicitly had retroactive application.
The question that the Court had to answer, therefore, was whether the applicant’s conviction for genocide was reasonably foreseeable, in light of international law as it stood in 1953, when the crime was committed. The Court comes out terribly split on the outcome, ruling by 9 votes to 8 that the conviction was not foreseeable and that there was a violation of Article 7.
The majority and the minority both agree that customary international law at the time prohibited genocide, in parallel to the 1948 Genocide Convention. They also agree that the list of protected groups under Article II of the Convention, which is reflective of custom, deliberately excluded political groups. Thus, a conviction for genocide would not have been sound if the Soviets were ‘merely’ destroying their political opponents in Lithuania. But where the case really gets interesting is in the analysis of the ‘in part’ element of genocidal intent. Here the minority believes that it is perfectly fine to first define the protected group as ethnic Lithuanians, and then further define a ‘part’ of that group as Lithuanian partisans or opponents of Soviet rule. The majority, on the other hand, believes that while the idea of the ‘part’ of a group could foreseeably be thought of in numerical terms in 1953, it was not foreseeable that the part could also be defined in qualitative terms, as emerged from the case law of modern international criminal tribunals (para. 177). This last point is I think highly problematic, since those individuals convicted for intending to destroy a part of a group in modern trials could then also say that their convictions violated nullum crimen, since their crimes also preceded in time the jurisprudence of the tribunals who convicted them – that this happened by 5 or 10 years rather than 50 seems entirely immaterial.
On the other hand, accepting the minority’s approach to the definition of a ‘part’ of a group would expand the scope of genocide far beyond the approach taken so far in international criminal law. For example, if the applicant had intended to kill all gay Lithuanians or all disabled Lithuanians this would, under the minority’s reasoning as far as I understand it, also constitute genocide, even though sexual orientation or disability are not covered by the Genocide Convention. Both groups would be ‘substantial’ in number, much like the partisans. But in any event the whole case is yet another demonstration of the highly problematic and morally arbitrary nature of the definition of genocide, which is unfortunately coupled with the peculiar political magic that the word has. An excessive focus on that crime by prosecutors, judges and in public discourse only serves to systematically devalue other crimes against international law, be it in Bosnia, Darfur, Cambodia, or indeed in Soviet-controlled Lithuania.
I’ve somehow managed to miss this – and I don’t think it has been widely reported – but in June this year Ukraine formally derogated from the International Covenant on Civil and Political Rights and the European Convention on Human Rights. In late August it also filed a new interstate application before the European Court of Human Rights against Russia, and this is the really big one, dealing with events in Crimea and Eastern Ukraine after September 2014. A couple of days ago it was communicated by the Court to Russia for a response, as detailed in the Court’s press release. The press release also explains the current state of Ukraine/Russia related litigation; while one of the four interstate cases was discontinued, the three remaining cases come coupled with some 1,400 individual cases on various issues, against Russia, Ukraine, or both. Obviously this whole set of cases – together with those dealing with the downing of MH17, and future Ukraine/Russia cases to come – presents one of the most significant challenges that the Court has ever had to face on how the Convention should apply in armed conflict.
The press release also refers to Ukraine’s derogation from the ICCPR and the ECHR. The text of the detailed notice of derogation can be found here and here. In particular, Ukraine derogated (or at least attempted to derogate) from Articles 5, 6, 8 and 13 of the Convention, and the corresponding articles in the ICCPR. Much of the derogation notice, and the relevant Ukrainian legislation it refers to, deals with detention issues and other restrictions on personal liberty, such as the institution of curfews, as well as changes to judicial and prosecutorial procedures. The most important derogation seems to be the extension of detention without judicial authorization from 72 hours to 30 days, subject to decision of a prosecutor.
Two things struck me as particularly interesting – and particularly unhelpful – after reading the derogation notice.
A quick heads-up that the final version of my article on Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age, is now available on the website of the Harvard International Law Journal. The article grew from a series of posts I did here on this topic. The published version also contains a postscript addressing some of the recent developments after the piece was accepted for publication; see here generally for the blog’s coverage of surveillance issues.
In the meantime the UN Human Rights Council has appointed Prof. Joseph Cannataci of the University of Malta as the first special rapporteur on privacy. His candidacy enjoyed significant support from privacy organizations, while his election took no small amount of politicking, with the German president of the Council overruling a proposal made by a five-state consultative group, which favoured Estonian Prof. Katrin Nyman-Metcalf, who was perceived as not being sufficiently critical of mass surveillance practices. Prof. Cannataci, on the other hand, has already come out with harsh criticisms of digital surveillance programmes; he inter alia “described British surveillance oversight as being “a joke”, and said the situation is worse than anything George Orwell could have foreseen.”
Hyperbole aside, Prof. Cannataci has also called for the adoption of a “Geneva Convention” for the Internet “to safeguard data and combat the threat of massive clandestine digital surveillance.” And a couple of days ago Edward Snowden and a group of activists came out with one such proposal, labelled the “International Treaty on the Right to Privacy, Protection Against Improper Surveillance and Protection of Whistleblowers,” or the “Snowden Treaty” for short. Only a short and uninformative summary seems to be publicly available at this time.
I must say that I have grave misgivings about such proposals (with the caveat that the proposed draft has not yet been published). First of all, proposing such a new treaty implies that the existing legal framework is incapable of meaningfully regulating surveillance practices, despite the relevant privacy provisions in the ICCPR, the ECHR and the ACHR, and despite existing case law and materials (especially from the Strasbourg Court). In other words, proposing a binding gap-filling instrument assumes that a regulatory gap exists. Secondly, politically it seems exceptionally unlikely that any of the major players in the surveillance sphere (e.g. the US, UK, Russia, China), not to mention authoritarian regimes in many smaller states, would agree to any binding multilateral treaty in the foreseeable future, let alone to a comprehensive “Geneva Convention for the Internet.” Nor will the “Snowden Treaty” label make this proposed agreement any more politically palatable. So it’s just completely unclear to me what a feel-good, pie in the sky proposal such as this one is actually going to achieve, except needlessly waste precious political energy and undermine efforts to regulate surveillance and other intrusive cyber practices under the existing legal framework.
But let’s wait and see. In the meantime, Jessup competitors this year will have a nice, fat surveillance case to litigate before a fictional ICJ, and best of luck to them.
If you haven’t already – read, look, and weep. Then reflect, perhaps, on why and how it is that such images are able to penetrate the walls we erect to shield ourselves from an uncomfortable reality, even while we are rationally fully aware of that reality. Having done so, I could not help but remember this other, hypothetical drowning child (see also here and here):
To challenge my students to think about the ethics of what we owe to people in need, I ask them to imagine that their route to the university takes them past a shallow pond. One morning, I say to them, you notice a child has fallen in and appears to be drowning. To wade in and pull the child out would be easy but it will mean that you get your clothes wet and muddy, and by the time you go home and change you will have missed your first class.
I then ask the students: do you have any obligation to rescue the child? Unanimously, the students say they do. The importance of saving a child so far outweighs the cost of getting one’s clothes muddy and missing a class, that they refuse to consider it any kind of excuse for not saving the child. Does it make a difference, I ask, that there are other people walking past the pond who would equally be able to rescue the child but are not doing so? No, the students reply, the fact that others are not doing what they ought to do is no reason why I should not do what I ought to do.
Once we are all clear about our obligations to rescue the drowning child in front of us, I ask: would it make any difference if the child were far away, in another country perhaps, but similarly in danger of death, and equally within your means to save, at no great cost – and absolutely no danger – to yourself? Virtually all agree that distance and nationality make no moral difference to the situation. I then point out that we are all in that situation of the person passing the shallow pond: we can all save lives of people, both children and adults, who would otherwise die, and we can do so at a very small cost to us: the cost of a new CD, a shirt or a night out at a restaurant or concert, can mean the difference between life and death to more than one person somewhere in the world – and overseas aid agencies like Oxfam overcome the problem of acting at a distance.
At this point the students raise various practical difficulties. Can we be sure that our donation will really get to the people who need it? Doesn’t most aid get swallowed up in administrative costs, or waste, or downright corruption? Isn’t the real problem the growing world population, and is there any point in saving lives until the problem has been solved? These questions can all be answered: but I also point out that even if a substantial proportion of our donations were wasted, the cost to us of making the donation is so small, compared to the benefits that it provides when it, or some of it, does get through to those who need our help, that we would still be saving lives at a small cost to ourselves – even if aid organizations were much less efficient than they actually are.
I have always found this argument in its essence to be incredibly compelling, even if I am no utilitarian, and even if Singer’s argument when brought to its fullest is far too demanding of most of us. But even so, as the “migrant” crisis is sweeping Europe, as children are drowning on its shores, I feel that some people who are not moved by the big picture (like this guy) might, perhaps, be moved if they were asked a smaller, more human-scale question: what would you do if you saw a child drowning in a pond?