Work On! International Journal of Socio-Legal Analysis and Rural Development (IJSARD) eJournal

Work On! is an occasional item about workshops, roundtables, and other fora that do not necessarily include publication:

A call for proposals for papers has been made by the International Journal of Socio-Legal Analysis and Rural Development (IJSARD) eJournal for its Volume 4, Issue 1, from legal academicians, professionals and students. International Journal of socio-legal analysis and Rural Development (IJSARD) ISSN: 2455 4049  is an peer reviewed eJournal published by Sikshalaya Educational Society. The deadline for applications is January 7, 2019. More details can be found here.

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Read On! The Alienation of Adjudication and the Weakening of Procedural Rule of Law within the Context of Asylum in Europe

I have just published an article with the Columbia Journal of European Law, Vol. 24 (3) 2018. The article argues that the extreme politicization of refugee law has prompted the alienation of adjudication by courts and administrative agencies as the relevant institutions to develop refugee law. The Article further underscores the trend towards diminished the procedural rule of law, including the right of appeal and the opportunity to receive legal aid. It suggests that this trend diminishes the European constitutional values of the rule of law, respect for human rights, justice, and solidarity. The Article considers the potential impact of the Proposal for a Common Procedure for International Protection presented by the European Commission in July 2016 and the subsequent response by the regional courts.

Part I provides an overview of the components of the procedural rule of law in the context of asylum. Part II presents a case study from Norway illustrating the Parliament’s immediate and fundamental violation of the principle of access to an independent decision-making body in the context of a hasty reform of immigration law in response to an influx of asylum seekers on the Russian border in 2015. Part III describes the weakening of access to legal aid for asylum seekers within Europe as well as in other regions. This correlates with the escalation of implementation of detention and deportation (including children) without the guarantee of effective remedy

The conclusion calls for reflection on whether European constitutional values should be deemed aspirational in light of the fact that the normative and institutional reforms undertaken in response to the recent arrival of refugees run contrary to the principles which once enabled the region to win the Peace Prize in 2012, “for over six decades [having] contributed to the advancement of peace and reconciliation, democracy and human rights in Europe.”The Article advocates a recommitment to European constitutional values and suggests measures to strengthen respect for the rule of law, human rights, justice, and solidarity, underscoring the importance of engagement by courts at both regional and national levels and training of judges and adjudicators. The article is available here

 

Carrots, Sticks, and the ICC: Prospects for Cooperation? Part 2

The contributions discussed in part one may be used to frame an analysis of the Court’s recent request to Belarus to cooperate in the arrest and surrender of al-Bashir. The ICC has issued two arrest warrants for al-Bashir, one in 2009 and one in 2010, for alleged war crimes, crimes against humanity, and genocide. Since the arrest warrants were issued, al-Bashir typically travels to non-states parties, who are under no obligation to arrest him. Indeed, Belarus has neither signed nor ratified the Rome Statute. However, he has also visited states partieswho do have an obligation to arrest, including (but not limited to) Chad, Kenya, Djibouti, Malawi, the Democratic Republic of Congo, Jordan, Uganda, and South Africa. Despite the Court’s request to these states parties for cooperationin the arrest of al-Bashir, national governments such as those of Chad, Jordan, and South Africa have refused to comply, using the justification that al-Bashir’s status as head of state provides him with immunity from arrest. This opinion is also promoted by the African Union, which has asked for an advisory opinion from the International Court of Justice on the issue of immunities of heads of state and government within the Rome Statute system.  

The relations between Belarus and Sudan are strengthening in several key areas. Al-Bashir and Belarus’ President, Alexander Lukashenko, signed agreements on ‘friendly relations and cooperation’in 2017 emphasizing dynamic trade and joint projects in the industrial and agricultural sectors. Al-Bashir’s speculated travel to Belarus is for the purpose of finalizing trade deals and enhancing bilateral relations. However, the link between the two countries is long(er)standing. Belarus is a Sudanese armament provider. In 2006, a military cooperation protocolwas signed by the two countries covering training, exchange of experiences, and military science. Belarus has a reputation as an arms exporter to rogue states. Since Belarus is under no legal obligation to cooperate with the ICC, the arrest and surrender of al-Bashir highly unlikely. The high probability that Belarus will ignore the Prosecutor’s request contributes to a culture of impunity and staunch criticism of the Court.  

Inasmuch as states pursue political and economic (self) interests, the UNSC expressed a need for accountability for the atrocious crimes committed in Darfur under the leadership of President Omar al-Bashir at the ICC. The majority of states agree that the gravity of the crimes covered by the Rome Statute are so abhorrent that they are an offence to humankind and should not go unpunished. It is necessary to question the elusiveness of state cooperation in the situation concerning al-Bashir and consider what can be done to facilitate a different, more just outcome. Relying on Belarus is insufficient without the political backing of the UNSC to oblige all member states to enforce their referral and facilitate cooperation by all states to this end.   

Political strategizing for the majority of states requires a balance of hard and soft power; this includes the promotion of international criminal justice and the use of international institutions, which creates a sense of solidarity among Member States. Expectations of behaviour establish trust. The rules-based order in the Rome Statute system contributes to a shared commitment to these goals. The referral of the situation in Sudan to the ICC by the UNSC signals that the perpetration of atrocious crimes is unacceptable, even for states who have neither signed nor ratified the Rome Statute. Appeals to sovereign power, interests, or status as a head of state are irrelevant. This could be a significant moment for the international criminal justice project, but the transfer of political power (UNSC) to legal action (ICC) has been weak and haphazard. The lack of organizational support and state cooperation to see justice done devalues international criminal law and subjects the ICC to a serious legitimacy crisis.  

The lack of credible commitment on the part of the UNSC to enforce this referral, or to provide the necessary political support has undermined (and continues to undermine) the ICC’s ability to see justice done. The UNSC has failed to take measures against states who choose not to execute the arrest warrant, which ought to be an obligation that emanates from the referral itself. The need for the UNSC to take a bigger role in the enforcement of its own resolutions remains an important focal point in the discussion on cooperation more broadly.  

The obsequious attention paid to al-Bashir and his disregard for the indictment by the ICC has led to increasing frustration on the part of those who oppose impunity and demand justice and accountability for the victims in Sudan. The role of civil society is particularly important in this regard. Depending on states such as Belarus to cooperate with the execution of an arrest warrant in the absence of political or legal obligations is fundamentally flawed. How persuasive is a sharp carrot when the states involved have the stick? 

This blogpost and my attendance to the 17thAssembly of States Parties are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

Carrots, Sticks, and the ICC: Prospects for Cooperation? Part 1

The third day of the Assembly of States Parties (ASP) to the International Criminal Court (ICC) or ‘Court’ pivoted around the issue of cooperation. A side event was organized by the Institute for Security Studies (ISS) and the Embassy of Ireland titled, “Cooperation with the ICC: What the Security Council and ASP Must Do.” Panelists included Allan Ngari (ISS), Phakiso Mochochoko (Head of the Jurisdiction, Complementarity and Cooperation Division of the Office of the Prosecutor), Matt Cannock (Amnesty International) and H.E. Ambassador Kevin Kelly (Ireland). 

The panelists argued that non-cooperation by states severely limits the effectiveness of the ICC, and the United Nations Security Council (UNSC) and the ASP can do something about it. Matt Cannock explained that a stronger approach to cooperation is needed. The UNSC has referred two situations to the ICC – Darfur (2005) and Libya (2011) – where crimes occurred on the territory of non-States parties to the Rome Statute. In both situations, the UNSC imposed an obligation of cooperation only on the state involved(i.e. Sudan or Libya).[1]For other states who are not party to the Rome Statute, the UNSC has explicitly outlined in its referrals that there are no binding obligations in relation to the Court to cooperate, but also added language “urg[ing]all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor.”[2]Cannock framed this voluntary cooperation obligation under the current regime in terms of the metaphorical ‘carrot and stick.’ He posited that the current approach is ‘more carrot than stick’ and explained that a ‘sharpened carrot’ could yield better results. He explained that this can be achieved through UNSC and UN General Assembly follow-ups to acts of non-cooperation with the ICC. 

Allan Ngari and Matt Cannock both emphasized the need for the UNSC to impose cooperation obligations under all members states of the UN. This would be consistent with the procedure that was taken when the Council established the ad hoctribunals for the former Yugoslavia and Rwanda. The ISS provided a document at the side-event, which outlines this and other key recommendations.[3]Regarding the UNSC, some specific examples include: (1) the Council should impose cooperation obligations on all states; (2) not restrict or bar UN funding for investigations and prosecutions; (3) not seek to limit the jurisdiction of the ICC over persons relevant to the situation; and (4) it should adopt explicit language lifting any immunities that might hinder ICC prosecution, especially those involving state officials or non-states parties. With respect to the ASP, it is recommended that findings of non-cooperation be routinely responded to, and the ASP should ask the UNSC and the UN General Assembly to take appropriate measures. Both Ngari and Cannock described a relationship between the UNSC and ICC based on mutual reinforcement in order to achieve the overall goal of enhanced cooperation.     

Phakiso Mochochoko offered a different perspective and confronted the pervasive challenges that stem from the ICC-UNSC dichotomy. Focusing on cooperation with respect to arrests, he was less optimistic. The investigation and prosecution stages require little (if anything) from the UNSC. On the other hand, arrests require assistance, particularly when the referral was made by the Council. Mochochoko explained that the Prosecutor has begged and pleaded to the UNSC for help, but nothing happens. He argued that the fundamental difficulty lies with the often-cited issue that permanent members United States, China, and Russia are not members orsupporters of the ICC. This combative environment makes cooperation unlikely. While the UNSC referred the situations in Sudan and Libya to the Court, these referrals came with no substantive political support or backing. As a result, Mochochoko posited that the UNSC referrals are a ‘poison chalice,’ and the source of the attacks that the ICC is facing (i.e. effectiveness, legitimacy). Therefore, opposition from permanent members of the UNSC towards the ICC is good, since referrals will not be made. This way, the ICC can go about its work on its own, without having to rely on the UNSC.  

This blogpost and my attendance to the 17thAssembly of States Parties are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.


[1]See: Operative paragraph 2, UN Security Council Resolution 1593 (2005); Operative paragraph 5, UN Security Council Resolution 1970 (2011).

[2]International Criminal Court, Assembly of States Parties, Report of the Bureau on non-cooperation, ICC-ASP/17/31 (28 November 2018) available at: https://asp.icc-cpi.int/iccdocs/asp_docs/ASP17/ICC-ASP-17-31-ENG.pdf, p. 23. Regarding the obligation of states parties see: Rome Statute of the International Criminal Court, A/CONF.183/9 (17 July 1998), Article 89: States Parties are obliged to execute the Court’s pending orders for the arrest and surrender of a person. 

[3]Dapo Akande, “Cooperation with the ICC: What the Security Council and ASP must do,” Institute for Security Studies, (December 2018): www.issafrica.org: this is a preliminary document. The complete ISS report on how the Security Council can promote state cooperation with the ICC is forthcoming. 

ICC Assembly of States Parties 2018: Day Four

Yesterday, the fourth day of the ICC’s Assembly of States Parties, was focused on consulations on the annual ‘omnibus’ resolution, which is titled “Strengthening the International Criminal Court and the Assembly of States Parties”. This resolution is usually quite lengthy, as the 2017 resolution shows – and covers a wide range of issues. It addresses the goal of universal ratification of the Rome Statute, and invites states not yet parties to the Rome Statute to ratify. It also reiterates the obligations of States Parties under the Agreement on the Privileges and Immunities of the ICC. It calls upon States Parties to cooperate – legally, politically and diplomatically – with the Court, including on arresting individuals for whom a warrant of arrest has been issued. Other issues it tends to cover are: the relationship of the ICC with the United Nations and other international organizations, the relationship with the Netherlands as host state, the activities of the Court (such as the Prosecutor’s implementation of her office’s Policy Paper on Sexual and Gender-Based Crimes), upcoming elections, working methods, issues related to victims, staff recruitment, complementarity, the Independent Oversight Mechanism, the budget, amendments and participation in the Assembly. Negotiations on this resolution will continue on Monday, December 10th.

A number of side-events also took place on the fourth day of the Assembly, including sessions on the prosecution of war crimes in Iraqi Kurdistan, the situation in Georgia, the role of Latin America and the Caribbean in the adoption of the Rome Statute, transitional justice in Mexico, and the link between the ICC and environmental law.

With this post, I introduce Sarah Nimigan, who is blogging for IntLawGrrls today. She is currently at the Assembly as a delegate of the Canadian Partership for International Justice. Sarah is a Ph.D. candidate in the Department of Political Science at the University of Western Ontario (Canada) with specialization in Transitional Justice and Post-Conflict Reconstruction. Her dissertation addresses the problems facing the International Criminal Court through the African experience. More specifically, her research traces theSarah Nimigan active role taken by various African delegations in negotiating the Rome Statute from 1993-1998 to better explain and situate the criticisms levied against the ICC today. She holds an LL.M. in International Human Rights Law from the University of Exeter (United Kingdom) and a Master of Arts in Political Science with specialization in Migration and Ethnic Relations. Both her LL.M. and M.A. degrees focused on sexual and gender-based crimes within the contexts of international criminal law and transitional justice.

Heartfelt welcome to Sarah!

Calculus: Deal Doggedness and Human Rights Diplomacy

As the issue of denuclearization in the interest of global peace and security continues to be of pressing concern to the world, there is a growing tendency to prioritize such matters of international import above concerns around the problematic human rights records in countries like Iran and North Korea. However, concerns regarding the human rights situation within a country’s borders should not be relegated to the backburner while negotiating deals regarding international peace and security owing to two broad, interconnected reasons.

First, egregious violations of human rights within national borders – by their very nature – cut across these national borders and thus merit international anxiety. In particular, repressive regimes foster instability, dissatisfaction, violent conflict, and frequently, radicalization. While it is tempting to call for an emphasis on America’s “softer” side in response to human rights concerns beyond American borders, it may be prudent to acknowledge instead that the way a country treats its people can be of consequence to polities the world over. Accordingly, if Azadeh Moaveni’s conclusion that any substantial improvement in Iran’s human rights situation demands larger, structural reforms from within is accurate, any gains consolidated by finalizing deals such as the Joint Comprehensive Plan of Action are necessarily of limited value for international peace and security. In fact, regimes that mete out systematic repression to their own people, such as Iran and North Korea, are “inherently destabilizing”; their volatile internal dynamics, posited against the background of nuclearization, present huge risks to international security, which merit due investigation, analysis and response. In such a scenario, allowing horrific internal conditions to play second fiddle while negotiating sweeping arrangements for global peace is to miss the forest for the trees.

Secondly and more specifically, acknowledging that both these concerns are relevant to the all-pervasive ‘international security’ problem could also be helpful in selling negotiations and engagement with an adversary state such as Iran to domestic constituencies. By emphasizing its potential to raise Iran’s profile in the world order and bring economic relief within Iranian borders, President Rouhani, for instance, garnered some measure of domestic support for a deal which – on the face of it – seemed like a massive concession of sovereignty. In an increasingly polarized international order, where domestic forces operating within one of the negotiating parties may view the very act of approaching the negotiating table as an admission of weakness, acknowledging that there are costs to peace and security on both sides of the coin may be a wiser move.

Syria and Domestic Prosecutions: Upholding hope, one case at a time (Part 2 of 2)

National Prosecutions based on Universal Jurisdiction: the cases of Germany, Sweden, and “France”

Last June, Germany’s chief prosecutor issued an international arrest warrant for Jamil Hassan, head of Syria’s powerful Air Force Intelligence Directorate, and one of Syria’s most senior military officials. This move comes as a 2017 Human Rights Watch report mentioned [p.36] that, so far, very few members of the Assad government had been the subject of judicial proceedings in Europe based on universal jurisdiction.

At the time these charges (based on command responsibility) were filed with Germany’s Federal Court of Justice, Patrick Kroker (European Center for Constitutional and Human Rights, hereinafter “ECCHR”) commented that this moment was“historical”, adding: “That this arrest warrant has been signed off by the highest criminal court in Germany shows that they deem the evidence presented to the prosecutor is strong enough to merit urgent suspicion of his involvement.”

N.N., a Syrian activist present at the side-event held today mentioned in Part 1 of my post, underlined several times the importance of these arrest warrants. Until their issuance, he said, many Syrians never would have thought that high-level representatives of the Syrian regime would have charges laid against them. For many this is a great sign of hope, a demonstration that we are “not only listening to stories but also doing something about it.” He mentioned this point in part as an answer to a participant at the event who wondered what it could mean to the people still in Syria to see prosecutions happening in Europe, but not in Syria or before the ICC.

Mr. Patrick Kroker, Legal Advisor& Project Lead for Syria at the ECCHR (Berlin) explained the work done by his organization to initiate prosecutions in Germany linked to the Syrian conflict. With regard to Germany, the progress over the past few years has been spectacular: 11 cases have been brought to trial. As well, three were brought to trial in Sweden, one in Switzerland, and another in Austria (for an excellent overview of proceedings linked to Syria, see the Amnesty International page “Justice for Syria” here).

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