Transitional Justice and State Responsibility

If international atrocity crimes are acts so egregious that their impunity cannot be legally tolerated, why don’t we punish States that commit them? I explore this question in my recent article A Wolf in Sheep’s Clothing? Transitional Justice and the Effacement of State Accountability for International Crimes, published in the Fordham International Law Journal. States and individuals each may be responsible under international law for the same incidents of mass atrocities: individuals under international criminal law and States under the law of state responsibility. Yet when the international community mobilizes to sanction State-perpetrated atrocities, it moves to punish individual perpetrators and side steps States. For example, a 2014 proposal before the Security Council to refer the situation in Syria to the ICC made no mention of legal responsibility of the Syrian State for violation of obligations erga omnes. I argue that part of the reason the international community prefers enforcing international criminal responsibility over holding states accountable is transitional justice.

Transitional justice has emerged as the dominant normative framework for how the international community responds to mass violence. Within transitional justice, the legacy of the Nuremberg trials has produced individual criminal accountability as the highest form of legal accountability for atrocities. Transitional justice rejects punishing States for atrocities as illiberal (collective punishment) and illegitimate (lack of positive law). Advocates justified the ad hoc criminal tribunals for the former Yugoslavia and Rwanda by arguing that punishing individual war criminals was necessary to avoid collective guilt and would promote reconciliation. Transitional justice has focused on legal accountability for individuals and needs to consider what State responsibility offers as a normative and practical matter. Without legal accountability, States enjoy moral and legal impunity for their crimes. States escape their legal obligations to repair the injury they cause and to institute reforms that secure a fuller measure of justice and peace.

The pursuit of State responsibility for atrocity crimes furthers the aims of transitional justice in important conceptual and practical ways. Accountability for international crimes is a bedrock international principle around which the United Nations has organized international transitional justice policy. Rule of law ideals have thoroughly infused the international justice discourse. Yet international rule of law principles apply equally to States. So when, in the name of accountability for international crimes, transitional justice effectively ignores State legal responsibility, transitional justice undermines the international commitment to rule of law.

In the case of mass atrocities, States violate norms of the highest order—genocide, crimes against humanity, war crimes—and obligations owed to the international community as a whole. Such transgressions deserve to be acknowledged as such. State-perpetrated mass slaughter of civilians is conducted in furtherance of a State policy, and relies on multiple collective dimensions of the State to advance this criminal pursuit. To the extent that transitional justice pursues international criminal sanctions, these acts when carried out by States also should be identified as wrongs, and offending States should be held accountable.

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Write On! Inaugural Postgraduate Conference in International Law and Human Rights, University of Liverpool (deadline April 1)

The International Law and Human Rights Unit, part of the School of Law and Social Justice at the University of Liverpool, welcomes paper, poster and ‘soapbox’ proposals for its Inaugural Postgraduate Conference in International Law and Human Rights. The conference will take place June 14-15, 2016. The theme of the conference is: ‘International Law and Human Rights in Crisis’. The keynote speech will be delivered by Professor Antonios Tzanakopoulos, University of Oxford. The conference theme should be broadly conceived, and we encourage proposals from any postgraduate/doctoral student specialising in international law, human rights or related subjects. The conference offers a unique opportunity for postgraduate/doctoral students to present and discuss their work in a stimulating and friendly academic environment, among peers with similarly oriented research interests. Abstracts of no more than 300 words can be sent to ilhrucon@liverpool.ac.uk. The deadline for submissions is April 1, 2016.

Please click here for more information about the conference theme and call for papers https://www.liverpool.ac.uk/law-and-social-justice/conferences/inaugural-postgraduate-conference-in-international-law-and-human-rights/

Custody hearings lower rates of pretrial detention, but show structural problems in Brazilian criminal justice system

Pretrial detention should be an exceptional measure. According to the inter-American system of human rights (comprised of the Inter-American Commission on Human Rights, based in Washington, D.C., and the Inter-American Court on Human Rights based in San Jose, Costa Rica), States are only allowed to apply it for procedural purposes: when there is a risk that the defendant might flee (and the case might thus not be brought to justice), and/or where proceedings (such as the investigation of the case) might be affected. Even in such situations—which must be corroborated by facts, not suppositions—the application of pretrial detention must be necessary, limited, and proportional, and should be reviewed periodically. The mere existence of indications of guilt of the defendant is not sufficient for the application of pretrial detention.

However, despite the fact that these standards have been applicable for more than two decades, the Inter-American Commission on Human Rights concluded in its 2013 Report on the Use of Pretrial Detention in the Americas that the application of pretrial detention continues to be the norm, rather than the exception, in the region.

That is why it was good news when, just over a year ago (at the end of February 2015), the Brazilian National Judicial Council (CNJ) started a pilot project in the city of São Paulo to organize so-called custody hearings. The initiative was the result of a collaboration between the CNJ, the Ministry of Justice and a Brazilian NGO called IDDD (Instituto de Defesa do Direito de Defesa – Institute for the Defense of the Right to Defense), and aimed to apply international law, transform the criminal justice system, stimulate restorative justice approaches, and collect data about the impact of alternative sentencing in Brazil.

In custody hearings, people detained in flagrante delicto are brought before a judge within 24 hours. This includes cases in which a person can be linked to a crime relatively shortly after its occurrence. However, no time limits are given, so judges can interpret this provision broadly. The judge, after having heard the defendant, the public prosecutor, and the defense counsel (a public defender or a private lawyer), decides whether the defendant will be allowed to await trial in freedom (posting bail or complying with provisional measures), or whether pretrial detention will be applied.

The custody hearings are still in an initial phase—even though they have been implemented throughout the country, their coverage beyond state capitals and outside of normal working hours is still limited. However, in May 2016, all jurisdictions in the country are required to organize these hearings.

The Stanford Human Rights Center, together with graduate student Thiago Reis, is monitoring the impact of these custody hearings in the city of São Paulo. Brazilian human rights organizations, such as IDDD, Instituto Sou da Paz, and Conectas, do this at a larger scale.

The initial results of the custody hearings are promising. Continue reading

Four questions for MACCIH, OAS-backed anti-corruption body in Honduras

On Monday February 22, 2016, the Mission to Support the Fight against Corruption and Impunity in Honduras (MACCIH) officially presented itself in Honduras. MACCIH is a hybrid mechanism, backed by the Organization of American States (OAS), which was created to assist Honduran institutions tasked with the prevention of corruption and impunity. The establishment of MACCIH is a drastic measure; an admission that the Honduran State, for whatever reason, is unable to adequately investigate and punish corruption cases. But for those who have followed the situation in Honduras, this is no surprise.

The country suffered a coup d’état in June 2009, which further weakened Honduras’ already frail institutions. It caused a severe deterioration in the protection of human rights, and increased poverty and inequality. Violence shot up to 85.5 intentional homicides per 100,000 inhabitants in 2012, according to the National University’s Observatory of Violence (although the UN Office on Drugs and Crime even registered 90.4 intentional homicides that year).

Six years after the coup, the situation remains dire. According to a recently published report by the Inter-American Commission on Human Rights, Honduras continues to suffer from high levels of violence and organized crime, attacks on human rights defenders, militarization, growing inequality, and a lack of judicial independence. (And its highly criticized Supreme Court selection process does not bode well for the future.)

This situation is, unfortunately, not unique in the region. In the countries that compose the Northern Triangle of Central America—Guatemala, El Salvador and Honduras—levels of (organized) violence are high, government institutions are weak, and corruption and impunity are rampant.

Guatemala found its own way of attacking these problems. Following civil society initiative, the UN-backed International Commission against Impunity in Guatemala (CICIG) was created. After some eight years of operation that had ups and downs, CICIG has recently shown impressive results: it has rolled up crime rings run by notorious criminals and State officials, and has brought to light enormous corruption scandals, for example in the customs authority, in which the highest authorities of the country were involved. This led to the resignation of both the President and Vice-President, both of whom are currently imprisoned, awaiting trial.

The reactions in Guatemala’s neighboring countries were almost immediate: citizens in Mexico, El Salvador, and Honduras called for the creation of similar entities in their countries. However, governments have been reluctant to accede to these demands. No initiative has been taken in Mexico, and El Salvador has only agreed to a U.S.-sponsored anti-corruption program. But in Honduras, following a scandal that involved the embezzlement of social security funds (that were, moreover, allegedly used to finance the governing party), national protesters called for the establishment of an investigative body similar to CICIG, to take on corruption in the country.

On September 28, 2015, the Secretary General of the OAS and Honduran President Hernández announced the creation of MACCIH to assist Honduran institutions in preventing, investigating and punishing corruption. Continue reading

You can run but you can’t hide? Rwabukombe and universal jurisdiction

As the International Criminal Tribunal for Rwanda (ICTR) officially closed its doors on the 31st of December 2015, one thing still remained certain, the lives of the victims and affected communities of the Rwandan genocide will never be the same. The ICTR may have delivered justice to the best of its abilities but understandably could not prosecute each and every perpetrator, especially those that fled and sought refuge in other countries. However, due to the fact that international crimes like genocide, affect the entire international community, international law obliges states to prosecute perpetrators of international crimes no matter where those crimes were committed through the application of universal jurisdiction. A German court in Frankfurt recently did a service to international criminal justice by prosecuting and sentencing Onesphore Rwabukombe, a former Rwandan mayor for his participation in the Rwandan genocide. Mr Rwabukombe, a Hutu, was sentenced to life in prison for his participation in an attack on a church which had been housing Tutsi refugees during the 1994 genocide. Rwabukombe had relocated to Germany where he had been living under asylum since 2002.

The limelight in terms of international criminal law cases is usually stolen by more newsworthy cases before the International Criminal Court or the respective tribunals and often times, not enough credit is given to domestic courts for their contribution towards fighting impunity. Rwabukombe’s case is significant, not only as an addition to yet another victory for international criminal justice but also as an example of the complementary role that domestic courts play in the fight against impunity. Additionally, the case illustrates the importance of universal jurisdiction towards the enforcement of international criminal law in situations where the perpetrator tries to avoid accountability. The case reiterates that the ends of international criminal justice can be met if more states lived up to their international legal obligations by prosecuting perpetrators of international crimes instead of placing high expectations on international courts and then complaining when they deem the said courts inefficient.

Furthermore, the case brings to mind a number of pertinent questions regarding the accountability of crimes committed on the African continent. Given Germany´s colonial history in some African countries and particularly in Rwanda between the 19th and 20th century, one might be left wondering, who should have been at the forefront of prosecuting Rwabukombe? More generally, who should be at the forefront of prosecutions for crimes committed in Africa? It should be noted that Rwandan officials were the ones that initially transmitted the international arrest warrant to German officials but after his arrest, Germany declined to extradite Rwabukombe on the basis that he would not be afforded a fair trial in Rwanda. This was actually not the first time German courts have tried and sentenced individuals for crimes committed in Africa. In fact, other European based courts have also prosecuted numerous high ranking officials of African origin for the commission of international crimes in Africa. Continue reading

The Assange saga: who does the Working Group on Arbitrary Detention represent?

It is not a normal occurrence to see the decision of one of the so called ‘special procedures’ of the United Nations receiving worldwide attention. However, the opinion of the Working Group on Arbitrary Detention categorising the situation of Julian Assange as arbitrary deprivation of liberty, on 4 December 2015, has attracted the attention of the press, social media and experts’ commentary around the globe.

Suspiciously enough coming from the founder of WikiLeaks, this response was sparked by Assange himself, when he announced, a day before the Working Groups’ opinion became public, that he would surrender to UK authorities if the Working Group concluded that the Swedish and British authorities had acted legally.

Background: The Working Group on Arbitrary Detention consideration of individual cases

The Working Group on Arbitrary Detention is one of the ‘thematic special procedures’ of the United Nations Human Rights Council. The creation of a special procedure is dependent on the approval of a resolution creating the mandate by a simple majority of a governmental body (the Human Rights Council or its precursor, the Commission on Human Rights). These resolutions are therefore result of political negotiations between states, although the mandate-holders of special procedures are independent experts. As a consequence, the scope of competence and methods of work are framed in vague terms, and mandate-holders have enjoyed great flexibility and autonomy in operationalising their activities.

While intervention in individual cases was well-established among other mandate-holders of special procedures when the Working Group on Arbitrary Detention was created in 1991, this was the first special procedure to be explicitly endowed with the power of ‘investigating cases’ falling within its mandate. The Working Group has adopted methods of work  similar to treaty-bodies dealing with individual complaints, complete with conclusions concerning the existence of a violation by the State concerned. Special procedures do not require  the exhaustion of domestic remedies to be able to access them, one of the many features making these mechanisms particularly attractive to those who need a reaction from an international body, including the possibility of ‘urgent appeals’ which can be sent in a matter of hours, if there is an imminent risk to the life or physical integrity of the victim.

Undermining human rights bodies: reactions to the opinion of the Working Group on Assange

It is not the purpose of this commentary to assess the content of the opinion of the Working Group, largely criticised for its shaky legal foundations elsewhere (see for instance: Mathew Happold here, Joshua Rozenberg here, or a more nuanced view by Liora Lazarus here). Instead, it seeks to highlight the implications of the reaction to the opinion, which risk damaging international human rights bodies, at a time when mistrust towards the international human rights regime, often voiced by countries ‘in the South’ as attempts to undermine their sovereignty, are increasingly being augmented by the voices of Western States including the UK.

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Write On! Call for Papers: Colonial Law Conference, Helsinki (deadline March 1)

eci20ryhmakuva-7-349pxThe Erik Castrén Institute of International Law and Human Rights at the University of Helsinki has announced a call for papers for the Conference “Law Between Global and Colonial: Techniques of Empire,” to be held from 3-5 October 2016.

The conference proposes to discuss the legal languages and techniques through which colonial powers ruled non-European territories and populations throughout the modern age. The aim of the conference is to examine in detail the juridical practices and discourses of colonial powers when they exercised their supremacy over colonial subjects and disciplined them. Although the focus of the conference is historical, its theme resonates in the present. With the great numbers of people moving about in Europe, Asia and Africa as migrants, guest workers, refugees and displaced persons, territorial states have often used methods and techniques that resemble those with which colonial populations once were treated. With research showing a sharp rise in world inequality, the conference poses the question whether legislative techniques and institutions inherited from the imperial past, once again see the light of day in the present.

The conference will close the four and a half-year period of the Finnish Academy research project on “International Law, Religion and Empire” at the Erik Castrén Institute of International Law and Human Rights, University of Helsinki. Members: Martti Koskenniemi, Paolo Amorosa, Mónica García-Salmones, Manuel Jimenez and Walter Rech.

Abstracts are due by March 1. For more information, see the full Call for Papers at http://www.helsinki.fi/eci/Events/Call_for_Papers_Colonial_Law_2016.pdf.