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Two Times Too Many: Botswana and the Death Penalty

Published on March 30, 2018        Author: 
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Without wanting to trivialise the hard work needed to litigate human rights cases, it is often implementation that is considered the pinnacle of achievement. Put simply, it is one thing to convince a commission or court that a countries’ policies or actions contravene a human rights instrument, it is quite another for that country to implement the decision. A blog post therefore about another failure by another country to implement another human rights decision may not immediately pique the interest of EJIL:Talk! Readers. But I hope this case might just do so.

In November 2015, the African Commission on Human and Peoples’ Rights rendered a decision following a case brought by NGOs Interights and Ditshwanelo acting on behalf of detainee Mr Oteng Modisane Ping, challenging Botswana’s use of the death penalty. The complainants alleged, inter alia, that the death penalty is by its very nature a violation of Article 4 (right to life) of the African Charter on Human and Peoples’ Rights. In addition, they argued that Botswana’s specific death penalty procedures also violated of Articles 1, 4 and 5 of the African Charter. In particular, they contended that hanging violated the prohibition of torture and cruel, inhuman and degrading treatment under Article 5 of the African Charter.

Whilst the African Commission did not go so far as to declare the death penalty itself in contravention of the African Charter, it did pronounce that the use of hanging as a method of execution violated Article 5 of the African Charter (the decision can be accessed here, see in particular paragraph 87). This pronouncement was lauded by many as a significant step towards the eradication of the death penalty in Africa, since hanging is a form of execution favoured by several African countries. (Although it should be noted that the African Commission does not render binding decisions like its judicial cousin the African Court on Human and Peoples’ Rights, but rather recommendations.) Read the rest of this entry…

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Time to Investigate European Agents for Crimes against Migrants in Libya

Published on March 29, 2018        Author: , and
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In March 2011, the ICC Office of the Prosecutor of the international criminal court opened its investigation into the situation in Libya, following a referral by the UN Security Council. The investigation concerns crimes against humanity in Libya starting 15 February 2011, including the crimes against humanity of murder and persecution, allegedly committed by Libyan agents. As the ICC Prosecutor explained to the UN Security Council in her statement of 8 May 2017, the investigation also concerns “serious and widespread crimes against migrants attempting to transit through Libya.” Fatou Bensouda labels Libya as a “marketplace for the trafficking of human beings.” As she says, “thousands of vulnerable migrants, including women and children, are being held in detention centres across Libya in often inhumane condition.” The findings are corroborated by the UN Support Mission in Libya (UNMSIL) and the Panel of Experts established pursuant to Resolution 1973 (2011). Both report on the atrocities to which migrants are subjected, not only by armed militias, smugglers and traffickers, but also by the new Libyan Coast Guard and the Department for Combatting Illegal Migration of the UN-backed Al Sarraj’s Government of National Accord – established with EU and Italian support.

These acts are not usually regarded as the bread and butter of international criminal law. Yet, for influential observers, they have seemed to reinstitute a modern form of slavery and to conjure images of mass arbitrary killings reminiscent of atrocity. For example, in a statement from November 22, 2017, French President Emmanuel Macron invoked slavery, explaining that trafficking in Libya has become a crime against humanity. For its part, the International Organisation for Migration, via its Missing Migrant project, has documented 46,000 cases of dead or missing worldwide since 2000.

During the whole time, however, various observers have pointed to the complicity of European countries with the relevant acts. Since 2011, Forensic Oceanography has been doing important investigative work in which the ethically fraught European involvement in preventing migration from Libya has been unfolded. Amnesty International has exposed a dark web of collusion, whereby EU states and Italy in particular have used Libyan militia to ensure migrants do not make it across the Mediterranean. Last December, John Dalhuisen, Amnesty International’s Europe Director, denounced European governments for:

“not just be[ing] fully aware of these abuses; by actively supporting the Libyan authorities in stopping sea crossings and containing people in Libya, they are complicit in these abuses.”

In perhaps the most recent evidence of such complicity, Italian authorities have seized the Spanish NGO rescue boat Open Arms and initiated a criminal investigation against members of its crew. The Open Arms, in response to a call from MRCC Rome of March 15, 2018, had rescued 218 people on the high seas and subsequently refused to deliver them to the (so-called) Libyan Coast Guard. After a row lasting several hours and including death threats, the vessel headed north for a medical evacuation in Malta, before requesting permission to disembark in Sicily. Despite Italy’s authorization, the captain and mission coordinator have been charged on counts of “criminal association” and “facilitation of irregular migration”. Italy claims they were obliged to hand over the survivors to Libya under its NGO Code of Conduct, disregarding that that would have amounted to refoulement. Italy thus flouted the requirement of delivery to a “place of safety” under the maritime conventions. It has become overwhelmingly clear that Libyan rescue operations in the Mediterranean are tantamount, as Charles Heller put it, to a plan of “rescue at gunpoint.”

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A New Extraterritorial Jurisdictional Link Recognised by the IACtHR

Published on March 28, 2018        Author: 
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In its recently published Advisory Opinion on “The Environment and Human Rights of 15 November 2017 (in EJIL: Talk! summarized here; on its potential diagonal effect see here), the Inter-American Court is the first human rights court to recognise a new extraterritorial jurisdictional link based on control over domestic activities with extraterritorial effect. This post explains how the conclusions of the Advisory Opinion specifically on the first question recognise a new extraterritorial jurisdictional nexus (1) and argues that despite certain welcome developments (2), the Inter-American Court failed to give a comprehensive guideline as to the limits of the jurisdictional link (3).

1.    Summary of the new jurisdictional test

In its advisory opinion, the Inter-American Court had to answer the question whether a State Party has jurisdiction under Article 1(1) of the Pact of San José over a person situated outside the territory of that State Party if his or her human rights have been violated as a result of damage to the environment or of the risk of environmental damage that can be attributed to that State party.

This is the first occasion the Inter-American Court faces the question of the extraterritorial applicability of the American Convention on Human Rights. Therefore, the Court examined the case law of the Inter-American Commission on Human Rights, the European Court of Human Rights and other treaty regimes and confirmed the Convention’s extraterritorial applicability, recognising two alternative bases of extraterritorial jurisdiction: effective control over territory or persons. However, the Inter-American Court did not stop here and accepted a third jurisdictional link “when the State of origin exercises effective control over the activities carried out that caused the harm and consequent violation of human rights” (para. 104(h)). The Inter-American Court widens extraterritoriality by establishing a new jurisdictional link that departs from the criteria for extraterritorial jurisdiction of effective control over territory/persons: it is based on the factual – or, as the Court formulates, “causal” – nexus between conducts performed in the territory of the State and a human rights violation occurring abroad (paras. 95, 101-102). While the European Court of Human Rights (ECtHR) vaguely recognised that “acts of the Contracting States […] producing effects […] outside their territories can constitute an exercise of jurisdiction within the meaning of Article 1” (e.g. Al-Skeini), it has never applied it as a standalone basis to establish the State’s extraterritorial jurisdiction. Read the rest of this entry…

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Achmea: The principle of autonomy and its implications for intra and extra-EU BITs

Published on March 27, 2018        Author: 
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On 6 March 2018, the CJEU issued its judgment in Case C-284/16 Achmea, where it opined that intra-EU BITs and in particular their ISDS provisions are incompatible with the principle of autonomy of EU law. In a rather brief judgment, the Court found the ISDS provision under the Netherlands-Slovakia BIT has an adverse effect on the autonomy of EU law, as the latter in enshrined in Articles 344 and 267 TFEU. With this judgment the Court gave a definitive answer to a long-awaited controversial issue as to whether international investment treaties between EU Member States are compatible with EU law. Yet, Achmea does not provide conclusive answers as to the interaction between EU law and international investment law, neither with regard to intra-EU BITs, nor for extra-EU BITs. Considering that the compatibility of ISDS under CETA with EU law is challenged by Belgium and is the subject matter of a pending Opinion, Achmea adds a, admittedly important, piece to the puzzle.

In finding an incompatibility between an intra-EU BIT with EU law, the Court focused exclusively on the ISDS mechanism and its effects on the autonomy of EU law. Although the parties to the dispute and in particular the Commission argued about the existence of incompatibilities on other grounds as well, the most important being non-discrimination, the Court chose to address only the autonomy concerns. Referring to its landmark judgment on autonomy, Opinion 2/13, the Court confirmed the key role that autonomy plays for identifying the compatibility of international dispute settlement with EU law. The argument used is easy follow: the principle of autonomy protects the full effectiveness and consistency of EU law, which entails the uniform interpretation of EU law. Article 19 TEU guarantees autonomy by providing exclusive jurisdiction to the CJEU to offer authoritative interpretations of EU law and enabling a judicial dialogue with national courts via Article 267 TFEU. Investment arbitration under intra-EU BITs can have an adverse effect on autonomy, as investment tribunals a) can decide matters of EU law and b) are not subject to the CJEU’s control.

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A New Legal Framework for the Enforcement of Settlement Agreements Reached through International Mediation: UNCITRAL Concludes Negotiations on Convention and Draft Model Law

Published on March 26, 2018        Author:  and
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Introduction

On February 9, 2018, the United Nations Commission on International Trade Law’s (“UNCITRAL”) Working Group II concluded negotiations on a convention and model law on the enforcement of settlement agreements reached through international commercial conciliation or mediation. Although the instruments still need to be finalized by UNCITRAL and then ratified by States, the completion of the drafting stage marks an important development in international commercial dispute resolution.

Given the debate regarding the increasing costs and time involved in international arbitration, greater attention has been paid to mediation as a method of dispute resolution. The flexibility involved in mediation eliminates many of the hurdles of arbitration, including bypassing disclosure. However, once a mediated agreement is reached, there is no comprehensive legal framework for the enforcement of international settlement agreements. The result is that parties are forced to attempt to enforce such agreements in domestic courts, typically as an ordinary breach of contract claim.

As a result, when a party to a mediated settlement agreement reneges on its obligations or otherwise refuses to uphold the terms of the agreement, the other party has had to commence separate proceedings in court or through arbitration to enforce the agreement. This has essentially meant initiating a new dispute after resolving the underlying one, adding increased costs and delay.

Through the creation of clear and uniform framework for the recognition of settlement agreements resulting from mediation – akin to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (“New York Convention”) – the new draft convention and the draft amended model will increase the predictability of settlements achieved through international mediation.

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Announcements: CfP Knowledge Production and International Law; UN Audiovisual Library of International Law; Responding to Hybrid Threats by Force Conference

Published on March 25, 2018        Author: 
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1. Call for Papers: Knowledge Production and International Law. The Graduate Institute’s International Law Department of the Geneva Graduate Institute is opening a call for papers to explore the theme of knowledge production and international law at a conference to be held on 7 – 8 September 2018. The deadline for abstract submissions is 14 May 2018. This conference aims to contribute to filling this gap by initiating a discussion on knowledge production and international law through four thematic panels. Selected contributions will be included in a publication. The full call for papers is here

2. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added the following lectures to the UN Audiovisual Library of International Law website: Judge Iulia Motoc on “The European Court of Human Rights and General International Law” and by Professor Larissa van den Herik on “International Commissions of Inquiry”. The UN Audiovisual Library of International Law provides high quality international law training and research materials to users around the world free of charge.

3. Responding to Hybrid Threats by Force: International and National Law Aspects Conference. A conference called Responding to Hybrid Threats by Force: International and National Law Aspects will be held on 24 – 25 May 2018 at the Law Faculty of Palacky University Olomouc, under the auspices of the Director of Special Forces and the Czech Branch of the International Law Association. Several distinguished experts have already confirmed participation in the conference (such as Aurel Sari, Tamás Hoffmann, Russell Buchan or Kubo Mačák). Call for papers is still open! For more information, see here

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African Union v International Criminal Court: episode MLXIII (?)

Published on March 23, 2018        Author: 
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It never gets boring. At the latest African Union (AU) summit, which wrapped up recently in Addis Ababa, the AU-ICC controversy went into its next round; this time, however, with a rather constructive proposal for easing the tensions that had built up over the past decade or so as a result of the uneven application of international criminal justice. In this post I will reflect upon the implications of the recent summit decision for the future of international criminal justice, including the debate about immunities, the consequences of potential arrest warrants for high-ranking Burundian officials, as well as the debate about an African mass withdrawal. 

Previous AU responses to what was being perceived as neo-colonial interference on the part of the International Criminal Court had not been very constructive – ranging from issuing shrill statements calling the Court “a political instrument targeting Africa and Africans“, threatening mass withdrawal, blocking the opening of the ICC Liaison Office in Addis, and announcing non-cooperation in the arrest of suspects. This time, by contrast, the AU opted for a more constructive, de-escalatory approach, using the tools of international law – instead of international politics – to make its voice heard: It announced that it would seek, through the UN General Assembly, an advisory opinion from the International Court of Justice (ICJ) on the question of immunity. The AU also decided that it would seek an interpretative declaration from the Assembly of States Parties (ASP) on how Article 27 of the Rome Statute of the ICC, which removes immunity for state officials, and Article 98, which addresses cooperation with respect to a waiver of immunity and consent to surrender relate to one another, and the related question of how a Security Council referral affects the enjoyment of immunities of officials of non-state parties. The proposal to seek an advisory opinion from the ICJ was first made several years ago. It is not clear why this proposal was shelved in the meantime. Perhaps the AU feared the ICJ would find in favor of the ICC’s position. Read the rest of this entry…

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Part 2: A few steps forward, a few steps sideways and a few steps backwards: The CAT’s revised and updated GC on Non-Refoulement

Published on March 21, 2018        Author:  and
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CAT’s Defiance in Response to State Pushback

In Part I of our analysis of the new CAT General Comment, we noted that state pushback on a range of issues, for example diplomatic assurances and post deportation redress, was successful as evidenced by the committee’s amendments to the now adopted GC.  In this post, we discuss the areas where the CAT stood its ground in the consultation process and resisted state pushback, on some occasions even pushing certain doctrines beyond the position stated in the draft GC, despite states’ concerns.

Reverse Burden of Proof

The draft GC proposed a reverse burden of proof in cases where an individual “cannot elaborate on his/her case”. This would be, for example, if she has no possibility to obtain documentation regarding her alleged torture or is deprived of her liberty (para 40). There was pushback against the reverse burden of proof from several countries with the US, Russia, Norway, Finland, Denmark, and Australia all arguing that this was not reflective of the wording of the Convention or the Committee’s caselaw, which suggests that the burden is always on the complainant to present their case.  While a reverse burden of proof is occasionally mentioned in the committee’s caselaw, this only ever shifts after the complainant has provided enough evidence to substantiate their case (see e.g. SPA v Canada, at para 7.5).  Despite this pushback, and the lack of grounding in the Committee’s caselaw, a reverse burden of proof has been retained in the adopted GC demonstrating the Committee’s use of the GC to engage in dynamic interpretation of the Convention.

Internal Flight Alternative Read the rest of this entry…

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Part 1: A few steps forward, a few steps sideways and a few steps backwards: The CAT’s revised and updated GC on Non-Refoulement

Published on March 20, 2018        Author:  and
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On 6 December 2017, after a year long consultation process with states and civil society representatives, the Committee against Torture (CAT) adopted its revised General Comment (GC) (now No.4) on the implementation of Article 3 of the Convention against Torture (the Convention)  in the context of Article 22.

In a decaying global human rights climate, in particular towards people on the move, this GC has been much awaited.  Non-refoulement claims are the single most common claims raised before all UN Treaty bodies.  Non-refoulement cases are over 80 percent of  CAT’s  caseload. In addition to this, the  Human Rights Committee (HRC), the Committee on the Elimination of Discrimination against Women (CEDAW) and the Committee on the Rights of the Child (CRC) also receive individual petitions concerning non-refoulement, and turn to CAT for guidance.

Twenty-three state parties to the CAT (out of 162 in total) provided written comments on the draft GC prior to its adoption. These, in almost every case, pushed back on the standards the Committee aimed to develop.  The significant majority of the twenty three States responding were asylum and migration destination states in the global north, well known for their anti migration rhetoric. Alongside these, countries that have a disproportionate burden of asylum seekers, such as Turkey and Morocco also responded. China, the US, the UK, Qatar and Egypt, even though they do not recognise the right to individual petition before CAT,  also provided written comments. The states that provided the most detailed and expansive submissions were: the United Kingdom, Norway, Denmark, Australia, Canada, the United States, the Russian Federation, France and Switzerland.

Over these two blog posts, we identify which issues were subject to state pushback and how CAT responded, highlighting the areas where CAT stood its ground and where it conceded. Read the rest of this entry…

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Can the ECtHR provide an effective remedy following the coup d’état and declaration of emergency in Turkey?

Published on March 19, 2018        Author: 
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The question posed in the title of this post has been discussed in various blogs suggesting that recent decisions of the ECtHR rejecting cases for non-exhaustion of domestic remedies have been politically motivated.  I recently discussed this issue at a meeting organised by the Law Society in conjunction with the German Bar Association (DAV) in Berlin on 5th March 2018. 

Let me say from the outset that I will argue that this question, for someone who has worked for many years with the Court (ECtHR) and who has dealt with many Turkish cases, is not the right question to ask.

From my perspective, the right question to ask is not whether the Court is capable of offering an effective remedy to Turkish citizens – of course it is – BUT rather when, and under what circumstances, will the Court offer such an effective remedy? 

As you can readily appreciate, this is a more positive formulation which better accords to reality.  After all, we would not doubt the capacity of the UK Supreme Court or the German Constitutional Court to offer effective remedies for violations of fundamental rights. So, why should we doubt the capacity of the European Court to do so given its proven track record of upholding Convention (ECHR) principles, often in the face of vitriolic criticism from states and others?

Subject to that reservation, I make the following remarks about the matter. Read the rest of this entry…

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