The Crime of Aggression under International Criminal Law: Links with Refugee Law

The 16th Assembly of States Parties to the Rome Statute of the International Criminal Court is already more than halfway done. Many of the themes at the ASP this year is worthy of note, including the election of six new judges, planning for the 20th anniversary of the Rome Statute of the International Criminal Court, as well as consideration of activation of the International Criminal Court’s jurisdiction over the crime of aggression.

Of particular interest is the ICC’s activation of the crime of aggression, which will be the focus of this blog post. The crime of aggression is defined under the Rome Statute as ‘the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations’. The activation and exercise of the ICC’s jurisdiction over the crime of aggression is of significance because there are outstanding jurisdictional issues which are to be discussed at the ASP, including whether all States Parties are subjected to the ICC’s jurisdiction over the crime of aggression, or whether only States Parties which have ratified the crime of aggression amendments are subjected to the ICC’s jurisdiction over the crime of aggression (see Coalition of the ICC Backgrounder). This blog post will consider the impact the activation of the crime of aggressions may have on international refugee law.

ASP Work Programme

ASP Work Programme

One can see several parallels between international criminal law and refugee law. While at first glance, international criminal and refugee law may seem distinct from one another, in fact, when operating together, these two fields of law may enhance the functions of the other. First, the purposes of international criminal law and refugee law draw parallels with one another. Second, while international refugee law regime’s main purpose is to protect refugees, in order to do so, it must also protect the institution for asylum, by preventing those who have committed grave crimes from gaining refugee status and corresponding protection. Here, international refugee law borrows from international criminal law so as to ascertain what type of individuals would be excluded from international protection.

 One view of international criminal law’s purpose is to bring justice to victims through the prosecution of an individual for international crimes, i.e. by holding an individual liable for committing mass atrocities. The command responsibility rule is illustrative of this purpose in that high-ranking individuals can be held responsible for crimes committed by their subordinates. One view of international refugee law is that it offers the widest protection to those deserving through the granting of refugee status. Article 1F(a) of the Convention Relating to the Status of Refugees (Refugee Convention) prevents those who are undeserving of international protection from benefiting from that protection. This provision applies to those who have committed crimes prior to admission as refugees. Article 1F acts to preserve the institution of asylum, and to safeguard the receiving country from criminals who present a danger to that country’s security. Borrowing from international criminal law, international refugee law determines who is deserving of refugee status by excluding those who have committed serious international crimes. By working together, international criminal law brings perpetrators to justice, while international refugee law excludes those who try to find safe havens through acquiring refugee status and corresponding protection.

International refugee law borrows from international criminal law when determining which individuals would be excluded from refugee status under Article 1F(a) of the Refugee Convention. Under Article 1F(a), individuals are excluded from refugee status and corresponding protection where there are ‘serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes’. The United Nations High Commissioner for Refugees (UNHCR) has stated that ‘a ‘crime of aggression’ is essentially a ‘crime against peace’’ in its commentary. A crime against peace is defined as ‘the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any manner inconsistent with the Charter of the United Nations’. This definition of a crime against peace was drawn from the United Nations General Assembly 1974 definition of ‘aggression’ and such definition has been retained in the International Law Commission’s Draft Code of Crimes against the Peace and Security of Mankind. As can be seen, international refugee law draws upon international criminal law in defining the relevant crimes under Article 1F(a) of the Refugee Convention. This type of close relationship between international criminal and refugee law may enhance respect for the rule of law internationally, while preventing individuals who do not deserve to be protected under the international refugee law regime from attaining refugee status.

As briefly demonstrated, while both international criminal law and refugee law may serve different functions, these two branches of international law, when operating together, may draw upon the other to enhance international respect for the rule of law. The negotiation between States Parties at the ASP will likely clarify the activation and jurisdiction of the ICC over the crime of aggression, which may, in turn, inform how Article 1F(a) may be interpreted by international refugee law adjudicators. Now more than ever, the institution for asylum must be protected from potential abuse by perpetrators of international crimes, so that only those deserving may be given the widest possible protection under the international refugee law regime.

This blogpost and Jenny Poon’s attendance to the 16th Assembly of States Parties in the framework of the Canadian Partnership for International Justice was supported by the Social Sciences and Humanities Research Council of Canada.

Partnership logoSSHRC-CRSH_FIP

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Write On! [Slavery Past, Present In & Future]

This installment of Write On!, our periodic compilation of calls for papers, includes calls to present at Indiana University Europe Gateway, Berlin, as follows:

chains.jpgThird Global Meeting: Slavery Past, Present and Future, to be held July 10 & 11, 2018, at Indiana University Europe Gateway in Berlin, Germany. Theme is “Slavery Past, Present and Future.”

Controversial estimates indicate that up to 35 million people worldwide are enslaved today.  This modern re-emergence of slavery, following legal abolition over two hundred years ago, is said to be linked to the deepening interconnectedness of countries in the global economy, overpopulation, and the economic and other vulnerabilities of the individual victims and communities. This conference will explore slavery in all its dimensions and, in particular, the ways in which individual humans and societies understand and attempt to respond to it.

Deadline is Friday, March 2, 2018. For more information, click here.


Call for Papers: Vulnerability, Protection, and Agency: An Interdisciplinary Conference on Migration

24-25 May 2018, Law Faculty, University of Oslo, Norway

Organized by the Research Group on International Law and Governance in collaboration with the Research Group on Human Rights, Armed Conflict, and Law of Peace & Security, and the Peace Research Institute of Oslo (PRIO)

Migration is presenting a challenge to migration practitioners, policymakers and academics given the manifestation of extra-territorial approaches, increased reliance on technology, and weakening of accountability for violations of rights. Migrants are increasingly limited in accessing rights and in receiving protection from harm when fleeing, both en route and upon arrival.   The phenomenon of irregular migration, often organized by human smugglers, foments vulnerability. Legal and operational structures result in discriminatory treatment, detention, and deportation, signaling what Boaventura de Sousa Santos characterizes as “abyssal thinking”.  The majority of migrants and displaced persons actually remain within their own countries or regions in Africa and Asi, thus we also seek understanding of the consequences of internal migration/displacement and “trapped migration” e.g. the Rohingya exodus, the Syrians, and Ukrainians.

A juxtaposition is the articulation of migrants’ agency, relating to their journey, drive to seek protection and regular status, and survival.  Their agency is both strengthened and weakened by the use of technology and social media, modes of travel, smuggling and use of migration brokers, the migration industry (detention, biometrics, security), transnational remittances.

Finally, we consider the complex situation of the asylum bureaucracies; there are disagreements among and within Ministries of Justice, Immigration Boards, Immigration Judges and regular case workers as to the legality or morality of regulations and policy implementation.  There are tensions regarding limited accountability of state and non-state actors acting in a official capacity as well as the negative and positive impact on the agency of migrants.  Migrants have mixed experiences communicating with interpreters, police, caseworkers, and other actors.

The lack of an international refugee law court has resulted in a flood of cases being presented to human rights courts and committees at the universal and regional levels resulting in increased fragmentation without attaining normative clarity.

This conference calls for papers proposing how to move beyond the abyss, welcoming perspectives from law and the social sciences (including geography, anthropology, sociology, criminology, and IR); interdisciplinary approaches are encouraged.  We call for paper proposals from scholars, policy makers, or practitioners, at different stages of their careers, Phd candidates, post-docs, and professors.   Proposals for a poster session will also be evaluated:

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Lebanon and the Origins of International (Refugee) Law

I’ve spent most of these past years researching the situation of Syrian refugees in Lebanon, culminating in a series of recent articles which among others can be found here and here. Today, Lebanon hosts the highest number of refugees in the world in proportion to its population size of about six million. Many of these live in deep social and legal precarity, with an estimated 60 per cent of Syrian refugees living irregularly in the country and thus subject to extremely harsh and marginalized conditions.

From an international law perspective, however, Lebanon is a fascinating country. It takes pride in its contribution to some of the earliest international human rights instruments, including the participation of Charles Malik in the drafting of the Universal Declaration of Human Rights and his chairing of the UN Commission on Human Rights in 1951-1952.

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U.S. Government Sued Over Illegally Turning Away Asylum Seekers

Today several groups filed suit against the U.S. government’s Department of Homeland Security and the Customs and Border Protection (CBP) agency for turning away asylum seekers, contrary to domestic and international law.

Along the U.S.-Mexico border, asylum seekers arrived from all over the world to present themselves to CBP to ask for protection. The right to seek asylum is enshrined in Article 33 of the United Nations Convention on the Status of Refugees, which came into being in 1951 and was expanded by the 1967 Protocol. The United States signed the Protocol in 1968, enacting domestic law to implement the international agreement in 1980.  The U.S. is thus bound by the terms of the Protocol and the Convention itself, including, critically, the principle of non-refoulement — non-return of individuals to a place where they would  face persecution on account of one of the five protected grounds.

In recent years, however, CBP has been routinely turning away vulnerable asylum seekers, forcing them to return to Mexico without allowing them to pursue their right to claim asylum.  This illegal practice has worsened as CBP officers became emboldened following the election and inauguration of Donald Trump as U.S. President. Indeed, in January 2017, several groups filed a complaint with the Department of Homeland Security’s Offices of Civil Rights and Civil Liberties and Inspector General, alleging systemic abuses at the border. In March, the U.S. government failed to even show up to defend their practices before the Inter-American Commission for Human Rights, a session which included testimony from multiple groups on the illegal turning away of asylum seekers at the border.

To challenge the unlawful practice of turning away asylum seekers, today the American Immigration Council, the Center for Constitutional Rights, and Latham & Watkins LLP filed suit in federal court in California’s Central District. The plaintiffs are Al Otro Lado, a “national, direct legal services organization serving indigent deportees, migrants, and refugees in Tijuana, Mexico” and six of their clients. The lawsuit alleges that DHS and CBP have violated asylum seeker’s rights to seek protection, along with their due process rights under the Fifth Amendment to the U.S. Constitution, and violations of international law.

The plaintiffs’ stories are all too familiar to asylum lawyers based in the U.S. Personally, I Co-Direct the Immigration and Human Rights Clinic at the University of the District of Columbia’s David A. Clarke School of Law. Our current clients include several mothers fleeing violence in Central America who eventually made it into the U.S. after being illegally turned away. We work with survivors of extreme domestic violence and persecution at the hands of transnational criminal organizations, known as “maras,” were turned away at the border by officials with statements such as “There’s no asylum for people from Honduras…” or “You can’t get asylum because you’re scared of your husband.” These statements are patently false, of course, and the precedential Board of Immigration Appeals decision, Matter of A-R-C-G-made clear that individuals fleeing domestic abuse can meet the asylum definition.

As Karolina Walters of the American Immigration Council summarizes from the Complaint today, on their blog, “[o]ther examples of the tactics used by CBP officers against asylum seekers, include:

  • Misrepresenting that visas are required to cross at a POE or that asylum seekers must obtain a “ticket” from a Mexican government agency before they will be allowed to enter the United States to seek asylum;
  • Yelling profanities at an asylum-seeking mother and her 5-year-old son, throwing her to the ground, and forcefully pressing her cheek into the pavement; and
  • Coercing asylum seekers into recanting their fear on video and into withdrawing their applications for admission to the United States.”

The Washington Post quotes legal fellow, Katie Shepherd, also with the American Immigration Council  “‘[CBP officers are] getting very creative; we keep hearing new ways they’re turning people away. . . ‘If a single asylum seeker is denied in a day, that’s one too many.’”

It is, of course, a sad state of affairs that a lawsuit to protect the rights of asylum seekers is necessary. We can only hope that the Court will hold the government to account and the government will honor their legal obligations to protect refugees.

 

SCOTUS should grant cert in Castro. Judicial review of Trump’s immigration detention regime depends on it

cambria-fence

60 miles outside Philadelphia, on a bucolic country road in Berks County, PA, sits a brick building with a fenced-in yard fronting a line of trees. To look at it, you would never guess this place is the epicenter of the coming battles over judicial review of immigration detention in the United States.

Today the Supreme Court is conferencing to decide whether to grant a writ of certiorari in the case of Castro v. Department of Homeland Security.

Of the two dozen families who are the plaintiffs in Castro, about half have been released. But 14 families remain at Berks. They fled gender-based violence and threats to their lives in their home countries and sought asylum in the United States. After deeply flawed credible fear interviews and rubber-stamp affirmations by an immigration judge, they have languished in legal limbo for the past year and a half.

The Third Circuit decided that these families had no access to habeas corpus, the ability to seek judicial review of one’s detention – a basic right dating back to English common law. The Third Circuit’s reasoning was that these families had entered “surreptitiously” and were apprehended “near the border,” ergo they had no constitutional right to challenge their detention.

That’s plainly wrong. Even Guantánamo detainees, as law professor Steve Vladeck has pointed out over at Just Security, have been given more right to judicial review than the Berks families.

Vladeck called the ruling “deeply troubling” and pointed out that “it is now so much more important for the Supreme Court to grant certiorari in Castro–and reverse the Third Circuit. Reasonable minds may well disagree about the limits of immigration law, and the extent to which the Executive Order (and other U.S. immigration policies) run afoul of the Constitution. But the courts have to be the institution to settle those disputes; under Castro, the Executive Branch’s actions could theoretically be immune from such review… .”

Over at the Insightful Immigration Blog, David Isaacson writes:

The purpose of the Suspension Clause is to ensure that the government can be held to account in court when it detains someone, whether that someone is a suspected terrorist or a woman fleeing persecution with her child. The Third Circuit panel in Castro denied the petitioners in the case that Constitutionally guaranteed ability to demonstrate that they were being held pursuant to an erroneous application or interpretation of the law. We can hope, however, that … the Supreme Court on certiorari, may restore it to them.

Signing on as amici in Castro are no less eminent legal scholars than Chemerinsky, who literally wrote the book on constitutional law; the American Bar Association; and IntLawGrrls’ own editor Jaya Ramji-Nogales and contributors Lindsay M. Harris and Sarah Paoletti, who conclude: “Particularly given that the procedural and substantive protections provided to asylum claimants are consistently flouted or ignored, safeguarding Petitioners’ access to habeas corpus is of exceptional importance.”

Since last fall, I’ve been working with the Berks families and their attorneys as a legal advocate. Berks may be fine for a short-term stay but to be stuck there for 600 days is a living nightmare. This week NBC published an in-depth investigative article on the facility. If you haven’t read it yet, please do.

I’d really like to let the families speak for themselves, but cameras aren’t allowed in Berks, nor is access to social media.

Here’s America’s sweetheart Tom Hanks recently discussing the Castro plaintiffs with lead attorney Lee Gelernt of the ACLU. The card made for him by the Berks kids says simply, “We want to be free.”

Finally, please watch this 9-year-old girl who was detained in Berks but freed in December after “only” a year. This is her heartfelt message on behalf of the families who still remain:

For the sake not only of the Castro plaintiffs, but all those who are and will be caught up in Trump’s expanded detention regime, let’s hope SCOTUS is listening.

Go on! Global Migration Law @ ASIL

bio_Thomas_Chantal_ct343For those interested in global migration law, we hope you’ll join the Migration Law Interest Group for a works-in-progress session at the American Society of International Law’s Annual Meeting on Friday, April 14 from 11 am to 12:30 pm in the Yosemite Room. (It is listed in the program as the Migration Law IG business meeting.) We have a terrific line-up:

  • Chantal Thomas (pictured above), Chair
  • Tendayi Achiume (pictured below), International Law and Xenophobic Anxiety
  • Itamar Mann, Maritime Legal Black Holes: Migration as Extra-legality
  • Ralph Wilde, Unintended consequences: Do progressive legal developments protecting forced migrants undermine protection in other areas?

The tendayipapers are available on a password-protected website. Please e-mail Joel Houkom at joel.houkom@temple.edu to access the site.

We hope that you will join us, and please spread the word widely!