The Travesty of Justice Continues….The Forgotten ICTR Acquitted in Arusha

This year – 2020 – Major Francois-Xavier Nzuwonemeye, the former Commander of the RECCE (Reconnaissance) Battalion in Rwanda in April 1994, has completed his full sentence of twenty years, rendered by the Trial Chamber II of the ICTR in 2011, for crimes for which he was acquitted on appeal in February 2014. And he still is not free – he has lived in a “safe house” in Arusha, Tanzania since his acquittal – now for six years.

It is obvious there is something fundamentally wrong here.

In my paper, “The Treatment of the ICTR Acquitted, the ‘Achilles Heel’ of International Criminal Justice,” available here I discuss this situation and identify proposals towards its remedy.  I originally wrote this paper for the 2017 IntLawGrrls 10th Birthday Conference in March 2017, and updated it in 2019 with additional information on the acquitted at the ICC (as of early June 2019).

I’ve also written on this blog in 2015 at https://ilg2.org/2015/11/21/litigating-compensation-for-the-acquitted/ about efforts (unsuccessful) to win compensation for Major Nzuwonemeye.  Chief Charles A. Taku and I represented the client at trial and on appeal, and in his request for compensation.  Defence Counsel Peter Robinson has represented him in other post-acquittal relief.

Unfortunately, there are still acquitted persons (and those who have completed their sentences) in the “safe-house” in Arusha and this travesty of justice continues.  This is a constant reminder that international courts and tribunals need to have the political and legal will to implement the acquittals which they render.

Reminder: Call for Contributions to the Human Rights Council Advisory Committee on Current levels of representation of women in human rights organs and mechanisms

Just a reminder that the deadline established by the Human Rights Council Advisory Committee to receive contributions and inputs from relevant stakeholders, including Member States, international and regional organizations, the Office of the United Nations High Commissioner for Human Rights, the special procedures, national human rights institutions, civil society and academic institutions, for its report on Current levels of representation of women in human rights organs and mechanisms is 29 May 2020. This is a great  opportunity to contribute to the debate on improving gender balance in international courts and organs.

In June 2019, the Human Rights Council adopted Resolution 41/6, in which it requested the Advisory Committee to prepare a report, in close cooperation with the Working Group on Discrimination against Women (WGDLP) and the Committee on the Elimination of Discrimination against Women, on current levels of representation of women in human rights organs and mechanisms such as the Advisory Committee, the treaty bodies and the special procedures established by the Human Rights Council.

The report is set to include good practices by States in nominating, electing and appointing candidates to ensure balanced gender representation, in line with the system-wide strategy on gender parity, and recommendations to assist the Council and Member States in this regard. The Rapporteur of the Advisory Committee leading the drafting of the report is Professor Elizabeth Salmon from Peru.

The GQUAL Campaign worked with the WGDLP and the Mission of Mexico in Geneva to craft language for this resolution to promote gender balance at the United Nations human rights organs and mechanisms.

For more information on the Resolution and the questionnaire to guide the contributions and views, click here. Contributions must be submitted to the Secretariat of the Human Rights Council Advisory Committee at hrcadvisorycommittee@ohchr.org

What is next for Félicien Kabuga? Socratic connivance and rupture in international criminal trials

An unpredictable side-effect of the COVID-19 related lockdown measures in France came in the form of the arrest of high profile fugitive Félicien Kabuga in a home raid outside Paris. The arrest ended twenty six years of Kabuga’s colorful flight across the globe, stopped finally by the COVID-19 pandemic induced restrictions on his movement. Long considered the key financier of the Rwandan genocide, Kabuga was indicted by the United Nations International Criminal Tribunal for Rwanda in 1996. He is now 84 years old and faces the possibility of a criminal trial in Arusha, Tanzania.

This is definitely the biggest breakthrough for international criminal law this year. For the International (Residual) Mechanism for International Criminal Tribunals (Mechanism / IRMCT), this capture and the promise of justice it carries is an important achievement in proving its own relevance in the face of questions about its legitimacy and permanence. If Prosecutor Brammertz decides to open this trial, it will be the IRMCT’s first full fledged trial.

For critical scholarship, this is an opportunity to re-open the conversation about legal institutions born out of the Rwandan genocide and the importance of narrative in transitional justice. The successful co-option of a particular narrative of the Rwandan genocide into mainstream international criminal law has created the Rwandan genocide story most know today. Rwanda, with the most at stake, must also have supported this narrative for the continued public interest in the tribunal to translate into funding for the Mechanism. The complex histories of the 1994 genocide and the peculiarly situated narratives based on geographical, political and ethnic lines created through Uganda, Burundi, and the DRC, of which the Rwanda chapter of the genocide, was arguably only one part, have been revised and ferociously protected by all the institutional powers that are now competent to try Kabuga.

There is something inescapably theatrical about the optics of a trial for Kabuga at the Mechanism – the symbolic irony of pitting the alleged financier of the Rwandan genocide against the “financiers” of the institutions supporting the mainstream account of the Rwandan genocide, that is, the assembly of states funding the international criminal tribunals. 

Martti Koskenniemi’s skepticism about the justice quotient of high profile criminal trials may be well placed here: the optics of finally putting on trial the wealthy businessman who headed important public offices connected to the genocide is a ticket to salvage, reinvigorate and popularise the Mechanism; and conversely, a great defence team could use this opportunity to raise important questions about the narrative of the genocide that the Mechanism and its predecessor the United Nations International Criminal Tribunal for Rwanda are founded on: they could revitalise the dormant questions on institutional legitimacy and shake the foundations of “truth” on which these tribunals are based. Whichever of these two ways it plays out, per Koskenniemi, this will be a show trial at best and a terrible waste of public resources during the ongoing global pandemic at worst.

But the optics of the trial are also its biggest upside.

(or Reinvigorating the IRMCT: Kabuga as a symbol of renewal)

Kabuga’s notoriously enormous private wealth has long been considered a key enabler of the Rwandan genocide. There is no comparable indictee in the rich jurisprudence of the ICTR; this makes Kabuga comparable to financiers of other comparable state sponsored campaigns. The Nazi party’s activities were bankrolled by the leadership of huge German private companies like I. G. Farben, Fritz Thyssen and Gustav Krupp. The Nuremberg Tribunal indicted Farben and Krupp on multiple charges related to the crimes committed by the Nazi party. Other private financiers like Martin Bormann, Flick and Steinbrinck, Hjalmar Schacht were key figures in the Holocaust who held top banking and accounting positions in the inter-war years and were complicit in funnelling massive donations to the party.

Kabuga served as final adviser to President Habyarimana and the two families were also related by marriage. Kabuga was also the main financier and logistical backer of the radicalised extremist militia Interahamwe directly responsible for the massacre of Tutsi, moderate Hutu, and Twa ethnicities during the genocide. He was a member of the Akazu (the “small house” in Kinyarwanda) and Réseau Zéro (network zero), two small circles of influential leadership within the cadres of the extremist Hutu groups masterminding the genocide. As a private entrepreneur, his vast business empire spanned tea and coffee plantations, flour mills and commercial properties. As president of the National Defense Fund during the interim government in Rwanda, Kabuga is accused of financing the training and supply of machetes to the Interahamwe, allegedly importing for distribution to the militia, vast supplies of machetes during the genocide to supplement the firearms that Habyarimana had imported through ancillary channels in the run up to the genocide in April 1994.

Kabuga was president of the board of directors of the Radio Television Libres des Mille Collines (RTLM) which was a widely popular radio network responsible for broadcasting racist hate propaganda against the Tutsi and the moderate Hutu in Rwanda during the period of the genocide. Broadcasts instigating violence against the Tutsi were carried on RTLM and played a crucial role in escalating the pace and frenzy of the genocide. In the famous Media case, the ICTR convicted two other key ideologues of the RTLM, Ferdinand Nahimana and Jean-Bosco Barayagwiza on counts of genocide, conspiracy and crimes against humanity. The ICTR affirmed through the Media case the incendiary power of media to instigate and directly commit crimes related to the genocide. With Kabuga’s arrest the larger question of the RTLM’s corporate criminal liability will find an opportunity to be studied as an extension of the Julius Streicher case at Nuremberg discussing the role of harnessing the power of popular institutions as vehicles of racist genocidal propaganda.

With this case, the IRMCT will perhaps be under scrutiny as an international criminal tribunal for the first time. So far, it has been tasked with trial and appellate functions that had an appreciable measure of continuity from their story at the ICTY and ICTR; but it is only now that the IRMCT is required to begin a trial from nothing more than an indictment. The lean structure of staffing, the judicial roster system and the expectation that the IRMCT which has been more or less fully operational for about five years now can deliver on a full fledged trial are about to be tested.

Specifically, the question of judicial independence that has haunted the Mechanism since the detention of the Turkish judge in the Ngirabatware case will be one of the biggest challenges should the MICT commence trial proceedings in Kabuga. Starting from the logistics and the costs involved in transferring Kabuga from France to Tanzania, a series of high pressure (and time sensitive due to the advanced age of the accused) challenges await the IRMCT. It will now be put under enormous financial and staffing strain to undertake a trial without compromising on the high standards of fairness and representation that its predecessor institutions have established.

Kabuga has evaded arrest for 26 years, escaping the wide net cast in 1997 by Operation Naki through which dozens of accused were caught in East African states and brought to face trial in Arusha. His vast fortunes bought him false identities and passports that enabled him to escape arrests despite intelligence and sightings that span Kenya, Switzerland, Belgium, South East Asia and France over the last 26 years that he has been at large. Under Rule 40 (A) of the ICTR’s Rules of Procedure and Evidence, a former prosecutor of the tribunal successfully requested France to freeze the Kabuga family assets and bank accounts worth $2.5 million in Switzerland, France, Germany and Belgium in the late 1990s. In the jurisprudence of the ad hoc international criminal tribunals this is noteworthy because it is most unusual for the assets of an accused pending trial to be seized or frozen. The US State Department in 2002 expanded its Rewards for Justice programme to include a reward of up to $5 million for Kabuga’s capture.

Cynics may well compare this belaboured delivery of an 84 year old Kabuga to trial with images of frail and old indictees with failing memories at the UNAKRT ECCC in Phnom Penh, but the jubilation in Rwanda appears to discount the long delay in tracking down Kabuga. This arrest will go a long way in reinstating the faith of victims and survivors in the fragile promise to fight impunity enshrined in Security Council Resolution 1966 (2010) that created the Mechanism:

Reaffirming its determination to combat impunity for those responsible for serious violations of international humanitarian law and the necessity that all persons indicted by the ICTY and ICTR are brought to justice.”

New Resource! Confronting Structural Violence: Law Teaching Guides

This week, the Cardozo Law Institute in Holocaust and Human Rights (CLIHHR) launched Confronting Structural Violence: Law Teaching Guides to provide open-access teaching resources for professors.

Law faculty in a range of disciplines can download and immediately use any of the 10 Law Teaching Guides, which are grounded in cases many professors already teach and cover topics that are currently making headlines. The Law Teaching Guides, which cover constitutional law, international law, criminal law, corporations, and intellectual property law, are a flexible resource professors can easily adapt for introductory survey courses or upper-level seminars. Please feel free to take a look and share with any law faculty or others who may find the Guides useful.

As students demand course materials that confront issues of structural and identity-based discrimination, these Guides begin to meet those demands with a positive preventative message toward recognizing and responding to structural violence through law. My hope in sharing this resource is to help law faculty bring into lectures rich discussions about the role that the law and lawyers can play to prevent systematic discrimination and violence.

To download the Guides and for more information about the project, visit: go.yu.edu/cardozo/lawteachingguides

To read more about the project’s goals, find a Q&A here.

Celebrating 25 Years of the Inter-American Moot Court Competition: an ongoing commitment to training new generations of lawyers on human rights law

This week the Academy on Human Rights and Humanitarian Law is proud to celebrate 25 years of the Inter-American Human Rights Moot Court Competition. The Competition is a unique trilingual (English, Spanish and Portuguese) event designed to enlighten and instruct students and legal practitioners on how to utilize the Inter-American System to tackle human rights abuses. From its inception in 1996 until to date, the Competition has evolved to become a global forum for scholarly engagement on frontline human rights issues in the Americas and beyond. Over the past 25 years the Competition has featured more than 4800 participants from over 50 countries, across 360 Universities.

The Competition is hosted by American University Washington College of Law (AU WCL), an institution with strong ties to the Inter-American Human Rights System, and was founded by Dean Claudio Grossman and implemented by Professors Claudia Martin and Diego Rodriguez-Pinzon, Academy’s Co-Directors. With 4 former Presidents of the Inter-American Commission on Human Rights, a former Ad Hoc Judge of the Inter-American Court and lawyers who worked at the Commission’s Secretariat or as litigators in the faculty, AU WCL has greatly contributed to shape the work of the System and promote its values for more than three decades. The Competition has been co-sponsored by the Inter-American Commission and Court of Human Rights.

Despite the fact that during this 25th celebration some aspects of the Competition have changed to take form virtually, our commitment to encouraging opportunities for law students from across the Americas and the globe to gain expertise in the Inter-American Human Rights System continues during the ongoing crisis. The commitment of all participants: team members, coaches, judges, observers, and bailiffs to make the 2020 Competition and 25th Anniversary of the Competition a truly special event, continues even in uncertain circumstances. Now is the time more than ever to use new platforms and to bring together students and human rights advocates to continue to discuss the most pressing human rights issues for our time.

The theme for the 25th celebration of the Inter-American Human Rights Moot Court Competition is “Rule of Law and Human Rights: Strengthening Democratic Institutions” and speaks to the challenges democratic institutions in Latin American face as a result of authoritarian policies and practices and how international law can address these issues using the human rights system. The hypothetical case was written by Katya Salazar and Ursula Indacochea, Executive Director and Head of the Judicial Independence Program respectively, at the Due Process of Law Foundation.

Over the past 25 years, the Inter-American Human Rights Moot Court Competition has brought together human rights advocates from the United Nations, Amnesty International, the Inter-American Commission and Court of Human Rights, the Center for Justice and International Law (CEJIL), Dejusticia and the Center for Legal and Social Studies (CELS) amongst other notable organizations as judges, observers and hypothetical case authors.

The history of the past 25 Competitions from 1996 to 2020 including the various cases that were created for the Competition, hypothetical case authors, the honor panel of judges, as well as the winning university teams from each year, can be accessed here. Also, all the virtual activities organized to celebrate this milestone are available here. The Closing Ceremony hosting a public panel with the Presidents of the Commission and Court, Joel Hernandez and Elizabeth Odio Benito, moderated by Professor Claudio Grossman is open for registration here.

Congratulations and thank you to all who have participated during these 25 years! Through your commitment you have helped this Competition to truly become an inspiration for future lawyers to be better members of the legal profession and committed citizens in the local and global communities to which they belong.

How the 2020 Guinean Elections Might Impact Justice for the 28 September 2009 Massacre. (Part 2)

This blogpost is the continuation of “How the 2020 Guinean Elections Might Impact Justice for the 28 September 2009 Massacre. (Part 1)“, posted yesterday morning.

3. Civil society member Asmaou Diallo expressed skepticism about the eventuality of a trial in June 2020

Asmaou Diallo, a Guinean civil society member who lost her son in the 28 September 2009 Massacre, has been working tirelessly since 5 October 2009 with her local association “Association des Victimes, Parents et Amis du 28 Septembre” to achieve justice. She explained that victims need medical and psychological treatment: many raped women at the stadium have contracted HIV and other life-threatening diseases, and a lot of victims also cruelly lack the necessary support to heal from this traumatic experience. 

Considering the current national political agenda, Ms. Diallo expressed doubts that a trial in 2020 would effectively deliver justice to victims. In the past, Guinea has consistently been falling into cycles of violence and impunity, and since October 2019, violence in the streets has increased. Further, as President Alpha Condé wants to amend the Constitution to stay in power, Ms. Diallo fears that another 28 September massacre might occur.

In Ms. Diallo’s view, the trial will not take place in 2020. Since accused officials continue to hold positions of power and victims remain unprotected, she argued that the government most likely will hinder any possibility for justice to be delivered. 

4. Franco Matillana, from the ICC OTP, expressed trust towards the Guinean justice system

Last but not least, Franco Matillana outlined the ongoing ICC proceedings with respect to the situation in Guinea. As mentioned above, the OTP opened a preliminary examination more than 10 years ago, in October 2009. In its 2019 Report on Preliminary Examination Activities, the OTP concluded that there was a reasonable basis to believe that crimes against humanity pursuant to article 7 of the Rome Statute had been committed in the national stadium on 28 September 2009 and in the immediate aftermath. More precisely, it mentioned murder under article 7(1)(a), imprisonment or other severe deprivation of liberty under article 7(1)(e), torture under article 7(1)(f), rape and other forms of sexual violence under article 7(1)(g), persecution under article 7(1)(h), and enforced disappearance of persons under article 7(1)(i).

Currently, the preliminary examination is at phase 3, which means that the OTP is assessing the admissibility of this situation, notably in the light of the complementarity principle. This principle entails that national authorities are primarily responsible of delivering justice at the national level (article 1 of the Rome Statute). That said, even though the perspective of a trial in June 2020 means that many steps have yet to be completed within a short period of time, including the construction of the new courtroom in Conakry and the training of the magistrates, Franco Matillana expressed trust towards the Guinean authorities. According to him, a real and genuine cooperation exists between the ICC and Guinean national authorities. Mr. Matillana reminded that setting and announcing publicly a precise date for the trial is a good sign, as it showcases the commitment of the Guinean government to deliver justice. 

5. Concluding remarks 

            Justice and accountability for the 28 September Massacre are far from certain. The perspectives shared by all panelists at the side event suggest that the decisions and actions taken by Guinean authorities are likely to have a decisive impact on the foreseeable future. It must be emphasized that the Guinean presidential elections’ agenda is concerning: Guineans do not want the current President Alpha Condé to amend the Constitution to allow him to run for a 3rd term, and civil society groups are regularly demonstrating in the streets. In this context, Ms. Diallo’s fear of another 28 September Massacre seem well-founded. In any case, the fight for justice for the 28 September Massacre should not be side-tracked by the upcoming elections. It is a high time for the international community to wake up and take concrete action to pressure the Guinean government to ensure justice and accountability for victims of international crimes in Guinea.

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This blogpost and the author’s attendance to the 18th Assembly of States Parties to the International Criminal Court are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

How the 2020 Guinean Elections Might Impact Justice for the 28 September 2009 Massacre. (Part 1)

On the third day of the 18th Assembly of States Parties (ASP) to the International Criminal Court (ICC), held in The Hague from 2 to 7 December 2019, a side event named “Guinea: A decade after, victims of the 2019 massacre are still waiting for justice” took place. It was co-organized by the International Federation for Human Rights (FIDH) and the Guinean civil society organizations Organisation guinéenne de défense des droits de l’homme et du citoyenMêmes droits pour tous and the Association des victimes, parents et amis du 11 septembre 2009. Moderated by Delphine Carlens, Head of the International Justice section at FIDH, the event featured panelists Drissa Traoré, FIDH Under-Secretary; Asmaou Diallo, President of the Association of Victims, Parents and Friends of the September 28 Massacre; and Franco Matillana, from the ICC’s Office of the Prosecutor (OTP). As panelists shared their views on the prospects for justice for the September 2009 Massacre in Guinea, this blog post will elaborate on the key aspects of this enriching discussion. Specifically, it will summarize the context of the September 2009 Massacre, before turning to explore the ongoing judicial proceedings within the Guinean domestic legal system, victims’ perceptions of these proceedings, and the ongoing ICC preliminary examination.

Flyer of the event co-organized by the FIDH and Guinean civil society organizations, held in The Hague on 4 December 2019. 

1. What happened in Guinea on 28 September 2009?

On 14 October 2009, the ICC OTP announced the opening of a preliminary examination with respect to the situation in Guinea. It stated that this “preliminary examination focusses on alleged Rome Statute crimes committed in the context of the 28 September 2009 events at the Conakry stadium.” As Guinea is a State Party to the Rome Statute, having deposited its instrument of ratification on 14 July 2003, the OTP announced that it would investigate international crimes committed on the territory of Guinea or by Guinean nationals from 1 October 2003 onwards (Rome Statute, article 11). 

 The contextual background of the September 2009 Massacre is described in the subsequent OTP Reports on Preliminary Examination Activities (see e.g the 2019 report here). In December 2008, after the death of President Lansana Conté, who had ruled Guinea since 1984, Captain Moussa Dadis Camara seized power in a military coup. As the new head of State, he established a military junta, the Conseil national pour la démocratie et le développement (CNDD, orNational Council for Democracy and Development), and promised that this body would ensure that power is handed to a civilian president following presidential and parliamentary elections. However, as time went by, Captain Camara’s attitude and statements seemed to suggest that he might actually run for president, which led to protests by its political opponents and civil society groups. 

On 28 September 2009, the Independence Day of Guinea, an opposition group gathering at the national stadium in Conakry was violently repressed by national security forces. According to Human Rights Watch, they opened fire on civilians that were peacefully calling for transparent elections. Some civilians were shot, beaten, and even raped in daylight. According to the OTP’s 2019 Report on Preliminary Examination Activities, more than 150 people died or disappeared, at least 109 women were victims of rape and other forms of sexual violence, including sexual mutilations and sexual slavery, and more than 1000 persons were injured. Cases of torture and cruel, inhuman or degrading treatment during arrests, arbitrary detentions, and attacks against civilians based on their perceived ethnic or political affiliation are also mentioned in the 2019 OTP Report.

Ten years after the massacre, are Guinean victims any closer to see their tormentors be held accountable? One after the other, panelists at the ASP side event shared their points of view. 

2. Drissa Traoré, FIDH Under-Secretary, depicted the judicial landscape and pointed key issues

At the ASP side event, FIDH Under-Secretary Drissa Traoré critically depicted the ongoing judicial proceedings taking place within the Guinean domestic legal system with respect to the 28 September massacre. In February 2010, the case was referred by Guinean Prosecutors to a group of magistrates, before whom it progressed slowly amid political, financial, and logistical obstacles. Despite being charged, many senior officials remained in office. During the investigation, judges have heard the testimony of 450 victims and their their family members. The judicial process was still ongoing when, in 2018, the Minister of Justice Cheick Sako set up a steering committee tasked with the practical organization of the trial. Conakry’s Court of Appeal was identified as the final location for the trial. However, Minister Sako resigned from his position as Minister of Justice in May 2019, causing further delays in the organization of the trial.

In 2019, the newly appointed Minister of Justice, Mohamed Lamine Fofana, decided to reform the steering committee: even though this committee was supposed to meet once a week, in practice, it had met only intermittently. Mr. Fofana also announced that the trial would take place in June 2020, and the government decided to build a new courtroom for this trial to be held. Drissa Traoré stressed that the construction of this courtroom could be a pretext to delay the trial once again. At the time of the ASP, in December 2019, the construction had not begun, and the judges presiding over the trial had yet to be appointed and trained for a such a trial. 

To Drissa Traoré, it is imperative that the charged civil servants who remain in office be dismissed from their positions before the beginning of the trial. He also emphasized the necessity for victims and witnesses to be protected from and any undue pressure that could be exerted against them. 

Mr. Traoré also highlighted that the sociopolitical context in Guinea is currently strained. Guinean presidential elections will take place in 2020, and demonstrations are regularly taking place, accompanied by daily arrests and deaths. To Mr. Traoré, it is crucial that this trial takes place, as it would send a message that impunity for grave crimes is not tolerated in Guinea. 

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You can read the second part of the blogpost here:  How the 2020 Guinean Elections Might Impact Justice for the 28 September 2009 Massacre. (Part 2)

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This blogpost and the author’s attendance to the 18th Assembly of States Parties to the International Criminal Court are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

New Women in International Law Scholarship Prize

The Inaugural Women in International Law Interest Group (WILIG) Scholarship Prize Committee (Lori Damrosch, Adrien Wing, Viviana Krsticevic, Nienke Grossman and Milena Sterio) is excited to create the inaugural WILIG Scholarship Prize.

The WILIG Scholarship Prize aims to highlight and promote excellence in international law scholarship involving women and girls, gender, and feminist approaches. Although scholars have utilized gender and feminist analyses in international law for at least a quarter of a century, such approaches frequently fail to permeate the mainstream of international legal scholarship and practice. This prize, awarded every two years, recognizes innovative contributions to international law scholarship that theorize or utilize a feminist lens or lenses, highlight and seek to address topics disproportionately affecting women and girls, or consider the impact of international law or policy on gender more broadly.

WILIG’s Scholarship Prize Committee invites all ASIL members to submit a single article, chapter, or book published in the last three years, for consideration. Self-nomination is welcome, as is nomination of others. The Committee will consider the following criteria in granting the award, and encourages nominators to include a brief cover letter describing how the submitted work meets these criteria:

(1) Appropriate Substance. The work utilizes a feminist lens or lenses, addresses a topic that disproportionately affects women and girls, or considers the impact of international law or policy on gender more broadly.

(2) Innovative. The work addresses topics not covered by previous scholars, highlights diverse perspectives on law and policy, uses new theoretical or methodological approaches, or applies theoretical or methodological approaches to topics in new ways.

(3) Learned. The work demonstrates in-depth knowledge and expertise concerning a topic.

(4) Impactful. The work has affected or has the potential to affect the way scholars and policy-makers view or address a particular topic or issue going forward.

Please email your cover letter and scholarly work to lschnitzer@ubalt.edu with subject line “WILIG Scholarship Prize Submission” by June 15, 2020. Questions about the prize can be emailed to wilig@asil.org.

The WILIG Scholarship Prize will be awarded at the WILIG Luncheon at the 2021 ASIL Annual Meeting.

Europe’s Failure to Uphold Refugee Rights During COVID-19

European states are utilizing emergency powers to curtail people’s rights and stop migration flows during the COVID-19 pandemic. In March, Schengen Area (visa free zone) states closed their borders and agreed to a European Commission plan to close Europe’s external borders for thirty days. This closure was extended until May 15 and could be extended again, even as states lift their stay-at-home orders. Although travel restrictions and quarantines have slowed down COVID-19’s spread within the general population, refugees are increasingly at risk of catching the deadly virus and facing harms as a consequence of continued human rights violations.

Prior to the COVID-19 outbreak, European states committed serious infringements on refugee rights. Since the 2015 refugee crisis began, states have blocked asylum seekers from passing through their borders. They’ve arbitrarily detained refugees and openly thwarted due process while forcing asylum seekers to live in inhumane living conditions. Far-right politicians use refugees as scapegoats to explain economic and societal problems. As populist support grows, states are adopting hardened migration policies that reflect rising xenophobia. Most recently, Greece declared a state of emergency after Turkey allowed migrants to pass into Greece in February 2020. Under this state of emergency, Greece suspended acceptance of new asylum applications and extended emergency powers due to COVID-19. Other European Union (EU) states’ responses to COVID-19 include their own declarations of states of emergency.

As external borders remain closed, asylum seekers cannot apply for international protection and can be sent back to potentially life-threatening conditions. Although the right to seek asylum isn’t secured under customary international law, it’s guaranteed through Article 18 of the Charter of Fundamental Rights of the EU. The principle of non-refoulement, which prohibits the return of refugees to a state where they may face persecution is in the 1951 Refugee Convention and Article 19 of the Charter of Fundamental Rights of the EU. Although states have sovereign control over their borders and can determine entry, two recent European Court of Justice (ECJ) cases ruled that states must always allow asylum seekers to lodge claims and that claims must be allowed to be reviewed by courts, even during national emergencies. Although states may derogate on certain rights during emergencies, the right to lodge an asylum claim and the principle of non-refoulement must be upheld under European law. 

The European Commission recently released guidelines on asylum, deportations and resettlement during COVID-19. Any restrictions must be, “proportional, implemented in a non-discriminatory way and take into account non-refoulement.” Although borders are closed to all and don’t single out asylum seekers, the closure violates the rights of those seeking international protection. Article 19 of the Charter of Fundamental Rights of the EU also prohibits the “collective expulsion” of asylum seekers and closing borders is effectively a collective expulsion.

Without access to the European asylum system, states aren’t only infringing on refugee’s rights to seek protection but may be violating the non-derogable right to be free from torture or other inhumane, degrading treatment or punishment found both in international law and in Article 3 of the European Convention on Human Rights. The European Court of Human Rights (ECHR) concluded in Sharifi and Others v. Italy and Greece (2014) that states violated the prohibition of torture by sending asylum seekers to Afghanistan without being given the possibility to apply for asylum. In Ilias and Ahmed v. Hungary (2019), the Court ruled under the prohibition of torture that asylum seekers cannot be sent to unsafe third countries where insufficient asylum procedures may lead to rejected claims and return to a dangerous home country. Closed borders may lead to increased refoulement and thus unlawful derogations.

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Introducing Ali Cain