Go On! Xiamen Academy of International Law Summer Program

 

This installment of Write On!, our periodic compilation of calls for papers, includes calls to apply to the Xiamen Academy of International Law: 

►The Xiamen Academy of International Law is now accepting applications for its summer program, which includes courses on various topics of international law. The program runs from July 8-26, 2019. The deadline to submit the application is April 30, 2019

► For more details, see 2019 Summer Program Brochure – Xiamen Academy of International Law.

 

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Go On! 6th Annual International Disaster Law Course

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Go On! makes note of interesting conferences, lectures, and similar events.

The 6th Annual International Disaster Law Course is now open for application. The course will take place in Sanremo, Itay from June 17-21, 2019. More info and the application form are available here.

The Course is organized jointly by the International Federation of the Red Cross and Red Crescent Societies, the International Institute of Humanitarian Law of Sanremo, the International Disaster Law Project and in cooperation with the Italian Red Cross and the EU Jean Monnet Module on “International and European Disaster Law” Roma Tre University.

Work On! Business & Human Rights Summer School

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

► The Human Rights International Corner, the Sant’Anna School of Advanced Studies, the University of Milan, and the National Research Council of Italy have organized its 2nd annual Business & Human Rights Summer School, which will address the main challenges of rising economic globalization. The course will be hosted by Temple University’s Rome campus in Rome, Italy and will take place on June 24-28, 2019. It will be taught entirely in English. Deadline to apply is April 25. Click here for more information and click the link below to view the program.

CALL FOR PAPERS: 4th ANNUAL “REVISITING THE ROLE OF INTERNATIONAL LAW IN NATIONAL SECURITY” WORKSHOP

Many conversations in the U.S. regarding situations of armed conflict – within civil society, academia, and the U.S. government – center on “national security law,” often drawing primarily from domestic law and military perspectives.  International law is sometimes set aside in these discussions. This workshop, now in its fourth year, aims to draw the international legal aspects of armed conflicts to the forefront of national security discussions.

The workshop is for public international law scholars and practitioners.  The co-organizers hope to drive discussions of public international law, including international humanitarian law, international human rights law and international criminal law, into conversations, in the U.S. in particular, on national security issues and situations of armed conflict. The workshop will focus on scholarship and ideas that seek to bridge partisan political divides while addressing both the law and national interests.

The workshop will provide an opportunity for authors to have their works in progress critiqued by established experts in the field of IHL, and will provide a networking opportunity for participants.  The organizers ask only for papers that that will not yet have been accepted for publication at the time of the workshop (July 12).

In addition to submissions to traditional US law reviews, participants might consider the possibility of publication in the ICRC’s International Review of the Red Cross, which is seeking submissions for its upcoming editions.  The Review is a thematic journal covering a wide variety of issues, and to the extent that papers submitted for the workshop overlap with upcoming Review topics, the organizers encourage these submissions. The upcoming Review topics are outlined below.  Please note that papers submitted for the workshop need not fall within Review topics and selection for this workshop does not guarantee that a paper will be published by the Review. The author would still need to submit the publication to the Editor of the Review for consideration.  The upcoming themes of the Review are:

  • The Sahel
  • Terror/Counterterror
  • How does IHL develop?
  • Emotions and war

Please direct questions about the Review to review@icrc.org.

We invite you to submit a detailed abstract or draft of an article for discussion.  A small number of papers will be selected for discussion at the workshop.

  • When:  July 12th, 2019 (full day)
  • Where:  Cardozo Law School, New York City
  • Submissions:  Please send your name, current affiliation, and paper proposal to Tracey Begley at trbegley@icrc.org. 
  • Deadline for submissions:  May 1st, 2019

Co-organized by the International Committee of the Red Cross Delegation for the United States and Canada, and faculty at Loyola Law School Los Angeles, Stanford Law School and Cardozo Law School.

 

 

 

 

ICJ Advisory Opinion in the Chagos Archipelago Case: Self-Determination Re-Examined?

On February 25, 2019, the International Court of Justice (ICJ) delivered an advisory opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965.  The advisory opinion had been requested of the court through a General Assembly resolution in 2017, on the following legal question:

(a) Was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius and having regard to international law, including obligations reflected in General Assembly resolutions 1514 (XV) of 14 December 1960, 2066 (XX) of 16 December 1965, 2232 (XXI) of 20 December 1966 and 2357 (XXII) of 19 December 1967?;
(b) What are the consequences under international law, including obligations reflected in the above-mentioned resolutions, arising from the continued administration by the United Kingdom of Great Britain and Northern Ireland of the Chagos Archipelago, including with respect to the inability of Mauritius to implement a programme for the resettlement on the Chagos Archipelago of its nationals, in particular those of Chagossian origin?

ICJ answered the first question in the negative, and concluded that the decolonization process of Mauritius had not been lawfully completed at the time of Mauritian independence.  And the court held, on the second question, that the United Kingdom was under an obligation to bring to end its administration of the islands as rapidly as possible.  This post will provide a brief factual background regarding the Chagos Archipelago, as well as a succinct legal analysis of the world court’s reasoning and ultimate conclusions.

Where is the Chagos Archipelago and what was its relationship to the United Kingdom and Mauritius prior to Mauritian independence in 1968? Between 1814 and 1965, the Chagos Archipelago was administered by the United Kingdom as a dependency of the colony of Mauritius.  In 1964, during a time when the  United Kingdom was contemplating decolonizing Mauritius, the United States expressed an interest (to the United Kingdom) in establishing a military base on one of Chagossian islands, Diego Garcia.  In 1965, the United Kingdom concluded the co-called Lancaster Agreement with the representatives of the colony of Mauritius.  Through the Lancaster Agreement, the U.K. and Mauritius “agreed in principle to the detachment of the Chagos Archipelago from the territory of Mauritius. This agreement in principle was given on condition that the archipelago could not be ceded to any third party and would be returned to Mauritius at a later date, a condition which was accepted at the time by the United Kingdom.” (para. 171).  After this Agreement, the United Kingdom detached the Chagos Archipelago from Mauritius.  In 1965, the United Kingdom also concluded an agreement with the United States, allowing the latter to build a military base on Diego Garcia.  By 1971, all of the inhabitants of Diego Garcia were forced to relocate from the island by the United Kingdom authorities and the United States proceeded to build a military base on the island.  Mauritius (without Chagos Islands) obtained independence from the United Kingdom in 1968; according to a former Mauritian Prime Minister, Mauritius had no choice but to agree to the detachment of the Chagos Archipelago prior to independence.  As of today, the United States still operates a military base in Diego Garcia (the U.S. – U.K. agreement of 1965, allowing the U.S. to operate a military base in Diego Garcia, has been extended).  The Chagossians have been dispersed, since the early 1970s, in Mauritius, the Seychelles, and the United Kingdom.  By virtue of U.K. law, they have not been allowed to return to the Chagos Archipelago.

How did the ICJ reason in this advisory opinion, and how did it reach its ultimate conclusions? First, the ICJ held that it had jurisdiction over the dispute because the request from the General Assembly for this advisory opinion constituted a “legal question” pursuant to article 65 of the court’s statute (para. 58).  Second, the ICJ held that, in its discretion, it should not decline to exercise jurisdiction over this case.  The court reasoned that it had enough factual information to answer the legal questions asked (paras. 69-74), that it was not for the court to decline jurisdiction based on the argument that the court’s opinion would not assist the General Assembly, as this is for the General Assembly itself to decide (paras.  75-78), and that it was not precluded through the principles of res judicata from rendering this advisory opinion (because the U.K. and Mauritius had arbitrated a slightly different dispute before an arbitral tribunal, and because the U.K. and Mauritius are not the same parties in the present request for an advisory opinion) (paras.  79-80).  Moreover, the ICJ rejected the argument that it should decline jurisdiction because the request for an advisory opinion would force the court to settle a territorial dispute between two states, the U.K. and Mauritius, which had not both consented to the court’s jurisdiction over this dispute (paras. 83-91).  Instead, the ICJ held that “the purpose of the request is for the General Assembly to receive the Court’s assistance so that it may be guided in the discharge of its functions relating to the decolonization of Mauritius.” (para.  86).

After answering the jurisdictional challenges, the ICJ turned to the merits.  The court examined the right to self-determination under customary law, and whether this right existed under customary law in the late 1960s, at the time that the U.K. decolonized Mauritius.  According to the ICJ, General Assembly Resolution 1514 of 1960 “represents a defining moment in the consolidation of State practice on decolonization” (para. 150) and “[t]he wording used in resolution 1514 (XV) has a normative character, in so far as it affirms that ‘[a]ll peoples have the right to self-determination.'” (para. 153).  Moreover, according to the court, “[b]oth State practice and opinio juris at the relevant time confirm the customary law character of the right to territorial integrity of a non-self-governing territory as a corollary of the right to self-determination.” (para. 160).  Thus, the ICJ concluded that the right of self-determination was a part of customary law in 1968, at the time of Mauritian independence.  Next, the court concluded that the people of Mauritius, through the Lancaster Agreement of 1965, did not freely consent to the detachment of the Chagos Archipelago (para. 172), and that the decolonization of Mauritius was thus not lawfully completed, as it did not respect the relevant principles of self-determination.  In light of this conclusion, the court found that “the United Kingdom’s continued administration of the Chagos Archipelago constitutes a wrongful act entailing the international responsibility of that State” (para. 177) and that “the United Kingdom is under an obligation to bring an end to its administration of the Chagos Archipelago as rapidly as possible, thereby enabling Mauritius to complete the decolonization of its territory in a manner consistent with the right of peoples to self-determination” (para. 178).  Moreover, the ICJ concluded that because “respect for the right to self-determination is an obligation erga omnes, all States have a legal interest in protecting that right” and “while it is for the General Assembly to pronounce on the modalities required to ensure the completion of the decolonization of Mauritius, all Member States must co-operate with the United Nations to put those modalities into effect” (para. 180).

Why did the court (likely) decide the way it did, and what does this all mean? First, it is important to note that the court’s decision was virtually unanimous: the judges unanimously determined that the court had jurisdiction; by twelve votes to two, the judges decided to comply with the request to render the advisory opinion (Judges Tomka and Donoghue against); by thirteen votes to one, the judges reached their substantive conclusions (Judge Donoghue against).  Second, as Marko Milanovic has argued, the outcome of this case may demonstrate how important the framing of the legal question is (“by avoiding the use of the term ‘sovereignty’, Mauritius and the GA defused the likelihood of the Court dismissing the case as involving a bilateral dispute”).  This may explain, in part, why the ICJ judges ultimately reached the conclusions above – that the narrow and clever wording of the advisory opinion request allowed the ICJ to reach particular legal conclusions without having to address issues of U.K. and/or Mauritian sovereignty.  Third, I agree with Marko Milanovic that the ICJ’s discussion of the most fundamental and difficult issue – whether the right of self-determination was part of customary law in 1968, at the time of Mauritian decolonization – was too brief, too rushed, and insufficiently developed in terms of legal analysis.  Fourth, the ICJ did not explain how the people of Mauritius could have freely exercised their right to self-determination (when they consented to the separation of the Chagos Archipelago): was the U.K. at an obligation to conduct a popular referendum in Mauritius on this issue, or were there other modalities of self-determination available in 1968? Fifth, it is clear that this outcome is a big loss for the U.K., as the ICJ most clearly stated that the Mauritian decolonization was not lawfully completed and that the U.K. was under an obligation to end its administration of the Chagos Archipelago immediately. Sixth, it may be argued that the outcome of this case is a loss for other countries, such as the U.S., as the ICJ concluded that all states were under an obligation to co-operate with the United Nations to ensure the completion of the decolonization of Mauritius (does this mean that the U.S. is now under an obligation to dismantle its military base on Diego Garcia?) Seventh, it may also be argued that the ICJ missed another opportunity to pronounce itself on the contours of the right of self-determination, like in the Kosovo Advisory Opinion.  The legal question in this advisory opinion concerned the right to self-determination directly; instead of quickly concluding that the right was part of customary law in 1968, the court could have included a more detailed legal analysis of the content and modalities of the right of self-determination under customary law.

It remains to be seen how the U.K. (or the U.S.) will react to this advisory opinion, whether the U.S. will be willing to negotiate the relocation of its military base in Diego Garcia, and whether the people of the Chagos Arhipelago may be allowed to return to their home land.

 

New ECtHR judgment on terrorism legislation and respect for private life: is Beghal v UK the conclusion to an old chapter, or the beginning of a new one?

On 28 February 2019, the European Court of Human Rights gave its judgment in Beghal v United Kingdom, in which it unanimously held that there had been a violation of Sylvie Beghal’s right to respect for private and family life, enshrined in Article 8 of the European Convention on Human Rights (“ECHR”).

The case concerns the power of police to stop and question travellers at ports and airports in Britain without the requirement for reasonable suspicion.

This post will provide a short description of the facts of the case and briefly set out the legal arguments put forward by both sides. It will then argue that, as some areas of the current terrorism legislation remain largely untested (e.g. power to seize sensitive electronic information outside the journalistic context), and with the introduction of new powers in the recent Counter-Terrorism and Border Security Act 2019, Beghal is unlikely to be the end of the story on no-suspicion stop and question powers.

The facts in Beghal

The applicant, Sylvie Beghal, is a French national living in Leicester, United Kingdom. On 4 January 2011, she arrived at East Midlands Airport following a visit to her husband, Djamel Beghal, who is in prison in France for terrorism offences. Upon arrival, she was stopped under the infamous Schedule 7 of the UK Terrorism Act 2000, a piece of counter-terrorism legislation which gives British police and immigration officers the power to stop, search and question passengers at international points of border-crossing (ports, airports and international rail terminals).

Such powers are to be exercised for the purpose of determining whether the person “appears to be concerned or to have been concerned in the commission, preparation or instigation of acts of terrorism” – and can be exercised without any suspicion of involvement of terrorism. If someone fails to co-operate he or she is deemed to have committed a criminal offence and could face up to three months in prison, a fine or both.

After being stopped, Sylvie Beghal was taken to an interrogation room and given the opportunity to call a lawyer. She was searched, and her luggage was searched too. She was told that she was not under arrest, but would be questioned under Section 7. She told the officers that she would only answer questions after her lawyer arrived, but the lawyer took a few hours to arrive and the officers started the examination. Thereafter, she was asked a number of questions about her family, her financial circumstances and her recent visit to France. She refused to answer most of those questions. She was later charged with wilfully failing to comply with a duty under Schedule 7.

Legal arguments: was the interference ‘in accordance with the law’?

The fact that there had been an interference with Ms Beghal’s right to respect for private life was not contested by the UK Government. The question, therefore, was whether such an interference was “in accordance with the law”.

The applicant argued that it was not in accordance in the law, because the powers under Schedule 7 were not sufficiently circumscribed and did not provide adequate safeguards against abuse:

  • The absence of any requirement for objective grounds for suspicion, or even subjective suspicion, meant that an officer could exercise powers based on no more than a hunch, which in turn gave considerable scope for extraneous factors and motives – such as biases and ingrained stereotypes – to influence how an officer selected individuals to stop and question.
  • In Gillan and Quinton v UK, sections 44 and 45 of the 2000 Act (which set out a power to stop and search exercisable in relation to any person anywhere in the street), had already been held not to be in accordance with the law despite having a narrower purpose and scope of application, and despite not allowing as intrusive a search as the one permitted under Schedule 7.
  • The Code of practice in force at the time of the applicant’s examination did not tell examining officers how to determine whether the exercise of Schedule 7 powers was proportionate, nor did it require them to keep to a minimum all interferences with fundamental rights.
  • Although individuals were entitled to consult a solicitor, that did not prevent arbitrary selection in the first place, and in any case officers were permitted to interrogate a person in the absence of their solicitor anyway (which is what happened to Sylvie Beghal).
  • There was no requirement for officers to explain the reasons why a particular individual has been selected for examination, and no obligation to record such reasoning either.
  • Because the lawful exercise of the powers was not conditional on any suspicion (reasonable or otherwise), the scope for using judicial review proceedings to challenge the decision was extremely limited.

The Government argued the following:

  • The power was focussed on entry and exit points to the United Kingdom, which were the first line of defence against the entry and exit of terrorists, and as such they provided a unique opportunity to target checks where they were likely to be the most effective.
  • There were sufficient effective safeguards in the operation of the scheme to meet the requirements of legality. The Government cited a list of factors demonstrating the existence of such safeguards, such as the restriction on the duration of the interview and on the type of search, the availability of judicial review, and the continuous supervision of the scheme by an Independent Reviewer.
  • There was no evidence that the powers had been used in a racially discriminatory fashion, and such a use was expressly prohibited by the Code of Practice.

The Court found that the legislation in force at that time had not been sufficiently circumscribed, nor were there adequate legal safeguards against abuse. In particular, people could be subjected to examination for up to nine hours and compelled to answer questions without being formally detained or having access to a lawyer.

To reach this conclusion, the Court considered the following factors:

  1. Geographic and temporal scope of the powers: The Court found that the wide scope of application of Schedule 7 (applying at all ports and border controls) did not in itself run contrary to the principle of legality. Consideration was also given to “the very real threat that Contracting States face on account of international terrorism” and the need to control international movement of terrorists.
  2. Discretion afforded to the authorities in deciding if and when to exercise the powers: The existence of a requirement of reasonable suspicion is an important factor in assessing the lawfulness of a power to stop and question or search a person, but the lack of such a requirement does not in itself render the exercise of the power unlawful. The Court gives Member States a wide margin of appreciation in matters relating to national security, and noted that there was clear evidence that the Schedule 7 powers have been “of real value in protecting national security”. Interestingly, the Court seemed to make a case against the requirement for reasonable suspicion, by pointing out that such a requirement could actually lead to terrorists avoiding the deterrent threat of Schedule 7 “by using people who had not previously attracted the attention of the police (“clean skins”)” and noting that “the mere fact of a stop could alert a person to the existence of surveillance”.
  3. Any curtailment on the interference occasioned by the exercise of the powers: Individuals could be subjected to examination for up to 9 hours, without any requirement of reasonable suspicion, without being formally detained, and without having access to a lawyer. The only ‘curtailment’ at the time of the applicant’s examination was therefore this 9-hour time limit.
  4. Possibility of judicial review: The Court found that the absence of a requirement of suspicion made it difficult to challenge the lawfulness of the decision to exercise Schedule 7 powers.
  5. Independent oversight of the use of the powers: The use of the powers is subject to independent oversight by the Independent Reviewer of Terrorism Legislation. Although the Court noted the Reviewer’s important role in providing unbiased, scrutinised oversight, it found that such oversight was not capable of compensating for the otherwise insufficient safeguards applicable to the operation of the Schedule 7 regime (noting, for example, that a number of important recommendations had not been implemented by the UK Government).

Do recent changes to Schedule 7 powers make Beghal v United Kingdom moot?

The writing had been on the wall for the most extended of Schedule 7 powers long before the Court’s judgment in Beghal v United Kingdom. The powers were facing a number of legal challenges and, in 2013, the UK Supreme Court raised serious concerns about the potential for “serious invasions of personal liberty” due to a lack of safeguards.

As a result, in 2014 significant changes were made to Schedule 7 with the aim of reducing the potential scope for interference with individuals’ rights while retaining operational effectiveness. This included limiting the maximum period of interview from 9 hours to 6 hours, providing for specific training for officers, and providing for specific protection for information benefiting from attorney-client privilege or journalistic material.

In the 2016 Miranda judgment, although the exercise of the Schedule 7 stop power in relation to Mr Miranda was deemed lawful, the Court of Appeal found that the stop power, if used in respect of journalistic information or material, was incompatible with Article 10 of the ECHR (freedom of expression) as it was not prescribed by law.  Again, judges warned that Schedule 7 appeared too arbitrary and lacked safeguards.

It would be easy to dismiss Beghal v United Kingdom as moot: Britain has changed its law since the relevant events occurred, hasn’t it? Indeed, throughout the judgment, the Court confirms it has only had regard to the Schedule 7 power to examine “as it was at the time the applicant was stopped” (see paragraph 110).

The UK Government is likely to argue that any flaw in the legislation has been remedied already, but the rest of paragraph 110 tells another story: “[The Court] has not considered the amendments which flowed from the Anti‑Social Behaviour, Crime and Policing Act 2014 and the updated Code of Practice; nor has it considered the power to detain under Schedule 7, which has the potential to result in a much more significant interference with a person’s rights under the Convention” (emphasis added).

This warning wasn’t lost on former Independent Reviewer David Anderson QC, who noted on Twitter: “the end of paragraph 110 contains a significant sting in the tail, flagging for future attention the use of more advanced no-suspicion powers not used in this case, e.g. to detain and to download devices”.

Data mining of electronic devices under Schedule 7 remains largely untested

In 2017, Muhammad Rabbani, the director of campaigning group Cage, was prosecuted after refusing to hand over the passwords of his mobile phone and computer when stopped by police at Heathrow Airport.

The case escalated to the Court of Appeal, with Rabbani’s lawyers relying on the Miranda precedent to argue that the protection owed to journalistic material applied to other categories of protected information. This argument was dismissed by the Court of Appeal, with Lord Justice Irwin noting that the Miranda decision was “expressly and narrowly” centred on Article 10 of the ECHR and freedom of expression for journalism, and that it was “by no means self-evident that identical or (or even similar) considerations arise in respect of other categories of excluded or special procedure information”.

Following the Court of Appeal decision in May 2018, Rabbani said he would appeal the decision at the UK Supreme Court. In an era where phones and computers give individuals the means of carrying a large number of potentially sensitive documents, the case raises important questions regarding the right to privacy and the limits of data mining of electronic devices in the name of counter-terrorism.

Regulating the retention of electronic data downloaded from devices is something that was indeed on the radar of Britain’s terrorism watchdog. In his most recent report dated October 2018, then Independent Reviewer Max Hill QC notes a sharp drop in the number of port stops: from 60,000 in 2012 down to approximately 16,000 in 2017. This remarkable trend is caused no doubt by multiple factors, “which must include better capture of passenger manifest data across the UK, and better use of targeting techniques, even though reasonable suspicion is still not required for a stop”.

But the numbers reveal something else: the proportion of detentions resulting from such examinations is rising. In 2012, around 1% of examinations led to detention. In 2017, a staggering 10.4% of examinations resulted in detention. Although this is not a particularly worrying pattern, and it might in fact simply be a result of rising efficiency in data capturing and targeting, the report nonetheless warns that “important questions remain, including the ongoing issue of satisfactory rules governing the retention of both biometric data taken from individuals and electronic data downloaded from their devices”.

New legislation enacted in February 2019: Schedule 7-type powers for non-terrorist ‘hostile acts’

Finally, one can expect renewed debate over no-suspicion stop and question powers in light of the new Counter-Terrorism and Border Security Act 2019 (the “2019 Act”), which was signed into law on 12 February 2019.

Defining ‘terrorism’ is always a tricky exercise. The 2018 Novichok poisonings in Salisbury, and the question of the perpetrators and their origin, or the question of state sponsorship, have inflamed the issue of what terrorism means – should counter-terrorism legislation include powers to deal with non-terrorist acts that nevertheless threaten the nation?

In reaction to this, the new 2019 Act provides a separate legal regime to deal with “hostile acts”, i.e. non-terrorist acts which threaten national security, threaten the economic well-being of the United Kingdom in a way relevant to the interests of national security, or constitute an act of serious crime. Schedule 3 of the 2019 Act provides for stop and question powers that the Government explicitly notes are “closely modelled on Schedule 7 of the Terrorism Act 2000”.

When it was still only a bill going through the parliamentary process, the 2019 Act was scrutinised by the relevant committee on human rights, which expressed concerns about the stop and search powers at ports and borders:

We expressed concern that Schedule 3 provides for interference with the rights to private life, freedom of expression, and property, yet the powers it gives are dangerously broad. In particular, the definition of ‘hostile act’ is extremely wide and there is no threshold test of suspicion required before a person is detained and examined. In its response, the Government acknowledges that the definition of hostile activity is broad but states that “it is required to encompass the spectrum of threats currently posed to the UK by hostile states, which includes espionage, subversion and assassination”. We would be grateful for more clarity of the Government’s position on the necessity of this ‘no suspicion’ power.

The committee suggested the insertion of a threshold of reasonable suspicion and a requirement that the exercise of the power must be necessary and proportionate. This fell on deaf ears, and the suggested amendments were not included in the draft bill (now the 2019 Act).

Conclusion

In conclusion, Beghal v United Kingdom is unlikely to be the end of the story in terms of challenges to counter-terrorism legislation. With the creation of new stop and search powers, and the unresolved question of the legality of the more advanced powers (such as the power to detain and search electronic devices), Britain would benefit from strong, independent oversight of its counter-terrorism legislation. Shame the position of Independent Reviewer of Terrorism Legislation has been vacant since October 2018, with no indication as to when the next ‘terrorism watchdog’ will be appointed and despite repeated calls from former reviewers.

 

 

Rule of Law Backsliding and a Rapidly Closing Space for the Justice System in Guatemala

© Wikimedia Commons

The rule of law has rapidly continued to backslide in Guatemala since my last post on ILAC’s report on the Guatemalan judiciary and our call for support to the United Nations-backed International Commission Against Impunity in Guatemala (CICIG). I had originally planned to discuss in this post how the current situation in Guatemala reflects the challenges and opportunities for promoting justice globally in the context of the United Nations 2030 Agenda for Sustainable Development. But, with such significant rule of law backsliding, the more pressing question is if it is possible to push back against this rapidly closing space for the justice system in Guatemala without CICIG?

Rule of law backsliding

In 2018, Guatemala’s Constitutional Court ruled against President Morales’s attempts to bar CICIG’s Commissioner from reentering the country, and since the beginning of the new year President Morales has retaliated against the Guatemalan justice system.

On January 7, President Morales declared that he was unilaterally and immediately terminating the agreement establishing CICIG even though its mandate does not expire until September. He also demanded that all CICIG officials leave the country within 24 hours. In his declaration he stated that CICIG had severely violated national and international laws and that it put the security, public order, governance, human rights, and above all the sovereignty of Guatemala at risk. This type of authoritarian overreaching to attack and dismantle the rule of law follows the pattern of authoritarian trends globally, as evidenced by V-Dem Institute’s 2018 Annual Democracy Report.

Two days after President Morales’s declaration, Guatemala’s Constitutional Court ruled that his unilateral decision was unconstitutional. This was a step forward for the rule of law in Guatemala and it appeared that the justice system was pushing back against a closing space. Nevertheless, this positive momentum was short lived. Later that same day, Guatemala’s Supreme Court accepted a request from Congress to begin impeachment hearings against three Constitutional Court magistrates and to lift their immunity. The magistrates subject to that request are those who have consistently ruled in favor of CICIG. The impeachment proceedings are currently pending before Congress, and the ultimate decision on whether to lift the magistrates’ immunity and possibly remove them from the bench now lies with a Congress which is heavily aligned with President Morales.

In addition to President Morales’s unconstitutional unilateral decision to terminate CICIG’s mandate, another recent alarming indicator of rule of law backsliding is that Guatemala’s Congress is considering an amendment to its National Reconciliation Law which would grant amnesty to those convicted of serious human rights violations within 24 hours of the amendment’s ratification. This would result in the freeing of more than 30 convicts, most of whom are former military officers, and end any ongoing or future trials for crimes which occurred during Guatemala’s 30-year internal conflict.

Rule of law without CICIG?

CICIG, as a hybrid of international experts and authorities working with national criminal investigative institutions, has provided a mechanism for “accomplished and courageous leaders and prosecutors to emerge” in Guatemala’s attorney general’s office. The result was the prosecution of high-level government officials, including former presidents, ministers, and army officers, the breakup of over 60 criminal networks and 310 related convictions, fighting corruption throughout the judiciary and government, and strengthening the rule of law through programs, projects, and legislation. It is estimated that CICIG has contributed to a net reduction of more than 4,500 homicides from 2007 to 2017. CICIG thus brought Guatemala closer to achieving the targets of Sustainable Development Goal 16 (SDG 16) of the United Nations 2030 Agenda by: significantly reducing all forms of violence and related death rates (Target 16.1); promoting the rule of law at the national level and ensuring equal access to justice for all (Target 16.3); significantly reducing illicit financial and arms flows, strengthening the recovery and return of stolen assets, and combating all forms of organized crime (Target 16.4); and substantially reducing corruption and bribery (Target 16.5).

In ILAC’s recent report on the Guatemalan judiciary, we recommended to the government of Guatemala that in order to guarantee the rule of law for all persons (relating to SDG 16, Target 16.3) it must: support the independence of justice operators, including ensuring adequate resources are made available to the justice sector to ensure that it can perform its vital function, and guaranteeing the safety of justice operators, in particular judges in jurisdictions such as the High Risk Courts; confirm state support for the rule of law and the independence of the judiciary; and ensure that the state complies with court judgements and provides adequate resources for the enforcement of judgements, such as those by the Constitutional Court.

The continuance of Guatemala’s rule of law achievements and the support and oversight for implementing our recommendations, however, relied on CICIG’s existence.

Pushing back

Given the significant rule of law backsliding, is it possible to push back against the rapidly closing space for the justice system in Guatemala? First, it is important to note that Guatemala will hold presidential and congressional elections this summer. The elections, if conducted in a free and fair way, could bring about significant change to the current political climate. And, although the international community could not prevent an abrupt end to CICIG’s mandate, there is resistance to the closing space on the national level. Guatemalans have openly protested against the rule of law backsliding, and just last week Guatemala’s Attorney General opened an investigation into first lady Patricia Marroquin de Morales’s alleged cashing of unreported campaign checks made out to President Morales during his election bid.

This push back by civil society and justice sector actors on the national level against the closing space is hopefully a signal that the change brought about by CICIG’s work will have a lasting effect on the Guatemalan justice system. The international networks of judges, lawyers, and human rights organizations must support and encourage civil society and legal professionals in Guatemala and raise awareness of the dangers of the current rule of law backsliding. With such support, Guatemala’s civil society and the justice system’s actors and institutions can hopefully withstand the executive and legislature’s attacks on the rule of law.

ILAC was established in 2002, to facilitate cooperation by international and regional actors involved in rebuilding justice systems and the rule of law in conflict-affected countries. In 2017, ILAC selected a delegation of experts from candidates put forward by its 50+ member organisations to carry out an assessment of the justice sector in Guatemala. The delegation traveled to Guatemala in October 2017, meeting with over 150 Guatemalans, including judges, prosecutors, lawyers, human rights defenders and business leaders. Follow the latest ILAC news at www.ilacnet.org and on Twitter @ILAC_Rebuild.