Category Archives: International Human Rights

Is there such a thing as a Bar on Double Jeopardy in International Criminal Law?

On February 3, 2014, the Office of the Prosecutor (OTP) at the International Criminal Tribunal for the Former Yugoslavia (ICTY) filed a request to reconsider the acquittal of former Chief of Staff of the Yugoslav Army Momčilo Perišić for aiding and abetting crimes committed in Sarajevo and Srebrenica between 1993 and 1995. He was acquitted by the Appeals Chamber of the ICTY based on the legal determination that in order to aid and abet crimes, one must have a specifically directed the crimes in question. Subsequent decisions by the ICTY have called this legal finding into question. The OTP now seeks to undo what it sees as an injustice. Should they be allowed to reopen the case after acquittal on appeal?

The Rules of Procedure and Evidence (RPE) of the tribunal allow for a decision or judgment to be “reviewed.” Rule 119 provides as follows:

Where a new fact has been discovered which was not known to the moving party at the time of the proceedings before a Trial Chamber or the Appeals Chamber, and could not have been discovered through the exercise of due diligence, the defence or, within one year after the final judgement has been pronounced, the Prosecutor, may make a motion to that Chamber for review of the judgement. If, at the time of the request for review, any of the Judges who constituted the original Chamber are no longer Judges of the Tribunal, the President shall appoint a Judge or Judges in their place.

The formal requirements for such a motion are that there is a new “fact” and, in this case, that the request is made within one year of the issuance of the judgment in question.

Starting with the second requirement, we can see that it has clearly been satisfied. The Perišić judgment was issued on February 28, 2013, while the request was filed on February 3, 2014, just under the wire. The more interesting question is whether a determination of law is a new “fact” that can be raised to review a judgment of acquittal. I do not believe it is. Legal interpretations should not be considered “facts” for the purpose of a review of a judgment of acquittal for two reasons, one dealing with a simple interpretation of the rule and the other with general principles of justice.

The rule requires there to be a new “fact” that was not discoverable at the time in order to review a judgment. “Facts” are items of proof tending to demonstrate that the underlying crime in fact took place. These indicia are then interpreted in light of applicable law to see if they satisfy the elements of the crime in question. The OTP’s request in this case is not related to the first half of this equation, the facts, but to the second part, the law. The OTP should not be allowed to change the result of the trial simply on the clear wording of the rule.

Even if the differing legal interpretations should be considered as “facts,” they would still have to be “new,” or undiscoverable at the time of the original proceedings. This is clearly not the case here. The OTP made arguments along the lines being advanced in the request for review. It is just that the Appeals Chamber at the time rejected those arguments and made a contradictory ruling of law. Now, based on other authority, the OTP wishes to have that ruling reconsidered, this is nothing more than an attempt to get a second bite at the apple.

It is a general principle of justice that a person shall not be tried more than a single time for the same crime. This is known both as the prohibition on double jeopardy and the principle of ne bis in idem. It is enshrined in various national constitutions and international human rights documents. The rule not only protects individual rights but, like the related doctrine of res judicata, provides a needed finality to judgments and legal proceedings. The OTP in this case already had its chance to prove the crimes allegedly committed by Mr. Perišić. They failed to do so as the Appeals Chamber made a legal ruling, one that cannot be appealed as the chamber is the final instance of appeal, excluding his culpability. The OTP would like to revisit that judgment now and have Mr. Perišić re-judged based on a different legal standard. This is exactly what the prohibition on double jeopardy is designed to prevent. Justice cannot be effected through the application of a system that violates basic principles of justice.

There is a debate right now in international criminal law as to whether aiding and abetting requires there to be “specific direction.” Indicia at the moment appears to be moving away from such a requirement. Whatever the outcome of this legal evolution will be, it should not be used to retry those who have already been acquitted on appeal.

Advertisements

2 Comments

Filed under International Criminal Law, International Human Rights, News and Events

Issues of Immunity: India v. USA

On 12 December 2013, Federal authorities in New York City arrested Mrs. Devuani Khobragade – an Indian consular official – on charges of visa fraud and making false statements. The charges arise out of allegations that Mrs. Khobragade paid her house keeper less than minimum wage after pledging to do so in the housekeeper’s visa application. Such declarations are required to obtain visas for domestic workers to enter the United States.

Immediately after the arrest, Mrs. Khobragade claimed she was not subject to trial because, as a diplomat, she should benefit from personal immunity. Then, following these statements, she was transferred from the Indian consular mission in New York City to the United Nations diplomatic mission. The United States claims any such transfer will not effect the criminal trial. This post will analyze both of these claims: (1) if Mrs. Khobragade is entitled to immunity as a consular official and (2) if her transfer to the United Nations mission would prevent her trial.

Consular Immunity

Article 43 of the Vienna Convention on Consular Relations of 1963 provides that,

Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.

This provision provides for “functional immunity,” or, in other words, immunity from suit based on official acts. Visa applications and the employment of a domestic are not and should not e considered “official” acts. Their only connection to the work of the mission is that they allow the consular agent more time to work, as they will not need to tend to housework. However, if this were to an official at, all acts by the consular agent could be “official” in that they allow the agent to go about their day. Such total immunity from jurisdiction for the individual agent is better conceived of as “personal immunity” and is not established anywhere in the Vienna Convention on Consular Relations. In fact, it is implicitly excluded.

Article 41(3) of the convention reads in pertinent part,

If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities.

The convention clearly allows the institution and prosecution of criminal cases against consular officials. While agents may not be arrested based on minor charges (as set out in article 41(1)), they are liable to imprisonment upon conviction (this is article 41(2)). These provisions clearly set out the consular officials do not benefit from personal immunity and may therefore be prosecuted.

Considering that the charges against Mrs. Khobragade do not involve “official” acts and her post did not carry personal immunity, the United States may properly prosecute her based on allegations of Visa fraud and making false statements.

Diplomatic Immunity

The Indian solution to the problem of Mrs. Khobragade’s forthcoming trial has been to transfer to the diplomatic mission to the United Nations. A post, it is believed, will prevent her trial. This part of the post will evaluate this proposition.

Article 31(1) of the Vienna Convention on Diplomatic Relations of 1961 states that,

A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.

This rule is not subject to conditions. It is true that article 41(1) sets out that diplomatic agents must respect the law of the receiving State. However, this has nothing to do with immunity or ability to arrest or being subject to trial. Article 39(1) of the convention establishes when immunity begins, and when it ends. It reads,

Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry of Foreign Affairs or such other ministry as may be agreed.

The immunity continues until the diplomat has had a reasonable amount of time to leave the country as set out in article 39(2).

The terms of the convention clearly subtract diplomats from the jurisdiction of the host State, no exceptions (except waiver by the sending State). This personal immunity ceases upon departure of the diplomat, at which point prosecutions for criminal may be begun, or presumably, resumed. Even if this were not the case, and a prosecution could legitimately continued, the diplomatic agent would not be required to appear in court and could not be taken into custody on conviction. Any enforcement would have to wait until the person lost their diplomatic status, at which point they would already be out of the country and outside the reach of the domestic justice system (extradition could be requested, but it is very unlikely any such request would be granted).

In the present case, should Mrs. Khobragade take up a diplomatic post at the Indian mission to the United Nations, she will likely be out of reach of the American justice system.

There are still some details of this matter than cannot be addressed in a blog post such as this, not all the facts are in. Questions remain as to whether the charges against Mrs. Khobragade are well founded. Information is also lacking regarding the exact procedural mechanisms that are necessary for her to officially transfer to the Indian diplomatic mission to the United Nations. Whatever the specifics, however, it would seem to be counter intuitive if she were allowed to escape justice (and remain in New York) due solely to the clever shuffling of paper resulting in her job moving from one Indian office to another. Unfortunately, from the outside it is not possible to gain access to all the necessary documents to fully analyze the situation and determine what should happen in this specific case.

1 Comment

Filed under International Human Rights, News and Events, Public International Law

The Netherlands v. Russia, Criminal Jurisdiction and The Case of the Artic Sunrise

On 22 November 2013 the International Tribunal for the Law of the Sea (ITLOS) issued provisional measures ordering the Russian Federation to release the Dutch vessel the Artic Sunrise and her crew from detention and allow them to leave the country. The dispute is about Russian jurisdiction to arrest the vessel (in a technical sense) and prosecute her crew for crimes they allegedly committed. The issue at the heart of the dispute is whether or not Russia violated its obligations under the United Nations Convention on the Law of the Sea (UNCLOS) by taking the vessel and her crew into custody while they were in the exclusive economic zone without first asking the Netherlands government for permission to board.

ITLOS ordered the provisional measures because it accepted that the failure to comply with such an order would irreparably harm the Netherlands’ interests pending resolution of the dispute between the two countries. The interests considered by the tribunal being the condition of the vessel and the crew’s liberty interests, both of which being harmed by their detention. As a guarantee pending the resolution of the international dispute (and to guarantee payment of any damages to Russia) the tribunal ordered that the Netherlands take out a bond of 3.6 million.

Russia, for its part, has stated that it will ignore the order for provisional measures, as it does not accept that jurisdiction of the tribunal. In fact, Russia did not participate in the hearing on the Dutch request for the tribunal to intervene.

What makes the issue so interesting is that it appears to conflate the issue of a potential infraction of an international obligation (such as the arrest of the vessel) that is capable of being resolved by the payment of money (economic loss) and the enforcement of national criminal laws (against the crew for their alleged crimes). These two issues are of a type different, one is inherently “civil” in nature while the other has to do with public order. A bond, such as that ordered by the tribunal, can work to guarantee compensation for Russia should the Netherlands lose the suit and be forced to pay – which is the purpose of seizing the boat in the first place. The same cannot be said for the release of the vessel’s crew.

The enforcement of criminal law is not about money (or at least it should not be). The idea behind penal sanction is that punishment will not only deter the culprit from violating the law a second time, but the existence of punishment will deter others from committing crimes in the first place. If the crew of the Artic Sunrise are guilty of crimes under the Russian penal code, their release will effectively prevent their punishment and thereby undermine the effectiveness of Russian criminal justice. Even assuming, however, that these considerations are not relevant, that would still not mean Russia would lack the legal ability to try the crew of the Artic Sunrise because the vessel was seized in violation of UNCLOS.

There is an internationally recognized principle that those who break the law may be tried even if their initial arrest was made in contravention of the law, known as the male captus, bene detentus rule. This rule has been explicitly accepted as a matter of International Criminal Law, and has been applied by States to justify national prosecutions. Some countries object to the validity of this rule of law and choose, as a matter of national law to prevent trial after illegal arrest. No rule of generally applicable customary international law requires such a result.

ITLOS did not address the issues of the enforcement of criminal law or male captus, bene detentus. The basis for its issuing the precautionary measures vis-à-vis the crew of the Artic Sunrise is not clear. It would have been great benefit had the tribunal decided to explain its decision, unfortunately, it did not.

In the end, Russia should comply with the order to release the Artic Sunrise and accept the bond on this matter. This is the correct legal result and it could be good as a political bargaining chip. When it comes to the custody of the crew, however, I cannot say that Russia is entirely in the wrong, at least as a matter of international law on the exercise of criminal jurisdiction.

Leave a comment

Filed under International Human Rights, Public International Law

The Nairobi Mall Attack: Was it a Crime Against Humanity or War Crime?

On 21 September 2013, a group of armed individuals entered the Westgate mall in Nairobi, Kenya and began what would become a three-day hostage stand-off and shootout with the authorities. At most recent count, the death toll is 72 with over 200 hundred injured. The perpetrators have been identified as being associated with Al-Shabaab, an Islamist group that controls large swaths of southern Somalia. Kenya’s President, Uhuru Kenyatta, announced three days of national mourning and vowed that the perpetrators would face justice.[1]

On 24 September 2013, the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, issued a press release which read,

The Prosecutor of the International Criminal Court, Fatou Bensouda, expresses her deep sympathy to the victims of the appalling attack on the Westgate Mall in Nairobi and to their families and the people of the Republic of Kenya.  She prays that the hostages held in the mall have been safely delivered and for a swift end to this dire situation.

Such attacks by armed groups upon innocent civilians are contrary to international law and may constitute a crime under the Rome Statute, to which Kenya is a State Party.  In expressing her solidarity with the victims, their families and the people of Kenya, and with full respect for the primacy of jurisdiction of the Republic of Kenya, the Prosecutor stands ready to work with the international community and the Government of Kenya to ensure that those responsible for these crimes are brought to justice.

This press release sets out the possibility of classifying the tragedy which took place at the Westgate mall as an international crime by stating that “[s]uch attacks by armed groups upon innocent civilians are contrary to international law.” She then goes on to say that these are crimes within the jurisdiction of the ICC.[2] The court has jurisdiction over war crimes, crimes against humanity and genocide.[3] Therefore, in order for the ICC to have jurisdiction over crimes committed at the Westgate mall, they will have to fall into at least one of these three categories.

Each category of international crimes has its own detailed doctrines and elements that distinguish them from ordinary “national” crimes that are not punishable under international law. These elements are often referred to as “chapeau” elements or situational elements for the crimes. These can come in the form of objective elements, (such as the widespread or systematic attack or connection with an armed conflict for crimes against humanity and war crimes, respectively) or as a subjective element (such as the specific intent need for genocide).[4] The question therefore is whether or not these contextual elements can be said to have been satisfied in the case of the crimes committed at the Westgate mall.

Considering that Al-Shabaab appeared to be targeting civilians at the mall, and the absence of an armed conflict in Kenya, the appropriate place to begin our analysis seems to be with Crimes Against Humanity.

Crimes Against Humanity

The precondition for classifying an act as a “Crime Against Humanity” as opposed to a domestic crime is that it must have been “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”[5] The concept of attack is then defined to be “a course of conduct involving the multiple commission of acts referred to in paragraph 1 [individual crimes, e.g., murder, rape etc] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.”[6] The statute itself does not define the terms “widespread” or “systematic.” Nor are these terms defined in the Elements of Crimes, a supplementary interpretative tool for understanding the meaning of the Rome Statute’s provisions.

The definition of “widespread” as used in international jurisprudence is not 100% clear. It is undisputed that “widespread” character of the attack is in reference to the number of victims (as opposed to the territorial scope of the crime), but the language in the jurisprudence has been less broad in its interpretation of the threshold for making this determination.[7]  It is not clear what the numerical inquiry should be when faced with a new situation involving potential Crimes Against Humanity, but it is undisputed that the scale of the attack and number of victims must be considered when making the determination that a widespread or systematic attack has occurred. “Systematic” has been defined as a qualitative element relating to “the organized nature of the acts of violence and the improbability of their random occurrence.”[8]

An individual crime can therefore be prosecuted as a Crime Against Humanity before the ICC when it is committed in connection with a high casualty event or organized act(s) of violence and with knowledge of that event, in furtherance of an organizational policy.[9]

Do the events at the Westgate mall fall into this category?

Before turning to a more statutory analysis, I would like to make a teleological observation on international criminal law, that is, I would like to discuss the purpose of criminalizing behavior at the international level. The thing that separates ICL from municipal criminal law is the interest that it protects, that is, the interests of the international community as a whole. After all, the underlying crimes (murder, rape, enslavement, torture etc) are criminalized by national legislatures all over the world, independent from their status as components of internationally punishable activity. The international community (and therefore each individual State) does not have an interest in punishing every murder or rape in the world. If they did, there would universal jurisdiction for every State to punish every crime committed anywhere in the world according to its own laws regardless of the identity of the perpetrator(s) or the victim(s). However, this is not the case. States must have some form of connection to an event to criminalize and punish it.[10] Similarly, the heinousness of the crime is not enough otherwise every serial killer, torturer or cannibal would be subject to universal jurisdiction, which of course they are not. The same is true of gangland shootouts or systemic violence against the members of minority groups (think of the Klu Klux Klan).

This leads me to believe, based on the purpose of ICL as a protector of international interests, that for an act to be a “widespread or systematic attack against a civilian population” that “attack,” in whatever form it may take, must be something that threatens interests at the international level. I have written elsewhere that the creation of Crimes Against Humanity has seen a continual evolution toward an equation with gross violations of internationally protected human rights. In this light, if the “attack” is not related to gross violations of these internationally protected interests, it cannot be an “attack” within the meaning of Crimes Against Humanity.

The question to answer is then, what international interest was threatened by the events in Nairobi?

I struggle to see what that international interest could be. This event – tragic and hateful, for which the perpetrators must be punished – is a crime of national import. Otherwise, any hostage situation or horrible crime of violence could be characterized as a Crime Against Humanity. The Oklahoma City bombing might qualify (hundreds of people were killed)[11] and the same could be said about the Boston Marathon Bombing (while 3 people died, over 200 were injured – this could otherwise be considered as 200 counts of attempted murder as a crime against humanity). However, both of these acts feel like national crimes – not international crimes, and this seems correct.[12] International crimes and the international justice system should be reserved for those acts that threaten the international system, that are on such a scale that they destabilize a region or a country as a whole.[13] The events of the Westgate mall just fail to reach that level. While an argument can be made that the attack was widespread (there were many victims) or systematic (it was well planned and effectively carried out) – and it is clear they targeted civilians – the event fails to satisfy a teleological analysis of what it means for there to be a widespread or systematic attack against a civilian population as a contextual element for the commission of an international crime. For this reason, the ICC should not consider charging those allegedly responsible for the events at the Westgate for Crimes Against Humanity.

But wait, the Prosecutor’s press release states that “[s]uch attacks by armed groups upon innocent civilians are contrary to international law.” This could mean that the charges could be for War Crimes having been carried out by armed groups.

Let’s test that hypothesis.

War Crimes

The precondition for qualifying as a War Crime is that the underlying crime be “closely related to hostilities occurring in territories controlled by [the] parties” to an armed conflict, but not necessarily in a conflict zone.[14] An armed conflict is then defined as occurring whenever “there is a resort to armed force between States or protracted violence between governmental authorities and organized armed groups or between such groups within a State.”[15]

Without a doubt there is a war going on in Somalia. Al-Shabaab, the group who claimed responsibility for the events at the Westgate, is an active participant in that war, and at times has been on the winning side of major confrontations with Somali national forces.[16] Kenya has at times participated in this conflict on the side of the national forces fighting Al-Shabaab. Could this provide the link to the armed conflict in Somalia so as to qualify the crimes at Westgate as being of international concern?

I think that it can, but not because Al-Shabaab is an “armed group” that killed “innocent civilians.” If this were the case any armed street gang that took actions that resulted in the deaths of innocent bystanders would qualify. And not because Al-Shabaab is fighting in a conflict in Somalia, but because Al-Shabaab is fighting a conflict in Somalia in which Kenya is a participant. Furthermore, and this is necessary, because Al-Shabaab specifically characterized the Westgate events as a reprisal for Kenya’s aiding the Somali government as the reason for its actions. Should any one of these elements (the existence of an armed conflict, both sides participation in that armed conflict and the connection of the events at the Westgate mall to that conflict) fail to be proved before an international criminal tribunal (such as the ICC) it would mean that charges of international crimes would have to fail, the defendants acquitted and the events at the Westgate mall would be chargeable only as municipal crimes.

Conclusion

The statement by the Prosecutor of the ICC about the actions of Al-Shabaab at the Westgate mall as being contrary to international law is most likely an accurate statement. However, her statement failed to clearly set out on what basis the assertion was made. Each category of international crimes has its own detailed doctrines and elements that distinguish them from ordinary “national” crimes that are not punishable under international law. These elements are often referred to as “chapeau” elements or situational elements for the crimes. These can come in the form of objective elements, (such as the widespread or systematic attack or connection with an armed conflict for crimes against humanity and war crimes, respectively) or as a subjective element (such as the specific intent need for genocide). This brief analysis has shown that the crimes at the mall are most likely not chargeable as Crimes Against Humanity, which might have at first glance seemed to be the most appropriate way to charge them. However, a more expansive view shows that they are most likely punishable as War Crimes.

The choice of whether or not to move ahead with international trials for those responsible for the horrors of those three days in Nairobi will be, for lack of a better enforcement mechanism, a political decision. As it is, the Kenyan government has voted to leave the ICC system. This would greatly reduce the likelihood of an international trial leaving any trial to States that can gain custody of the accused and is interested to prosecute them.


[2] It is worth noting that while Kenya is a member of the court, its parliament recently voted to leave that organization. The consequences of this will need to be reviewed in another setting. See, http://www.bbc.co.uk/news/world-africa-23969316.

[3] There will also be jurisdiction over the crime of aggression in the future.

[4] See, Joseph William Davids, The Tenth Anniversary of the International Criminal Court: From Crimes Against Humanity to Human Rights Crimes, 18 New Eng. J. Int’l & Comp. L. 225 (2012). There is no indication that this was a genocidal attack, so there will be no further discussion of this crime.

[5] See, Article 7(2), Rome Statute of the International Criminal Court. See also, Davids at 233.

[6] Ibid. at Article 7(2)(a).

[7] For example, the ICTR in the Akayesu case articulated that the “concept of ‘widespread’ may be defined as a massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims.” Akayesu para. 580.  Subsequent decisions of the ICTR have echoed this definition, more succinctly, interpreting “widespread” as follows: “scale of the attacks and the multiplicity of victims”, see Muhimana para 257, “large scale, involving many victims” Kajalijeli para. 871. The ICTY has been somewhat looser with its definition of “widespread”, stating that the widespread requirement refers to “the large-scale nature of the attack and the number of targeted persons.” See Dixon p, 178, quoting Kordic Dec. 17 2004 para 94.

[8] Kunarac, appeals, 12 June 2002, para 94.

[9] There is an interesting debate about whether the “plan or policy” requirement of the ICC statute should be restricted to States. However, for the time being this seems to have been settled in favor of including non-State actors. See, e.g., Prosecutor v. Ruto & Sang, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-01/11-373 (23 January 2013).

[10] This is a very long and complex discussion for which there is unfortunately not enough room here. For summaries purpose, States have jurisdiction over their territory, their nationals and those acts that threaten their national security. I will attempt to address this subject in more detail at a later date.

[11] A single event may constitute an attack against a civilian population and “widespread” means number of those killed.

[12] It is worth noting that the Special Tribunal for Lebanon has jurisdiction over a terrorist bombing incident. However, this is not an international tribunal in the strictest sense. It was formed by an agreement with a national government and applies – in addition to international law – the national law of that State. The nature of the STL is a wonderfully interesting subject, but far outside the scope of this humble post.

[13] This would be the case with the unrest in Syria and Libya in recent memory and Yugoslavia and Rwanda in the 1990’s.

[14] See, ICTY, Prosecutor v. Gotovina et. al., Trial Judgment, ¶ 1677 (15 April 2011). See also, ICC, Prosecutor v. Lubanga, Trial Judgment, ¶ 504 (14 March 2012).

[15] ICTY, Prosecutor v. Tadic, Trial Judgment (2 October 1995), cited by Gotovina and Lubanga.

[16] The history of the collapse of Somali is another fascinating and tragic subject of inquiry that this post cannot hope to cover in a way that even remotely pays these events the respect that they are due.

2 Comments

Filed under International Criminal Law, International Human Rights, News and Events, Public International Law

The African Court’s First Judgment

On 14 June 2013, the African Court on Human and Peoples’ Rights (AFCtHPR or Court) issued its first judgment on the merits of a case in consolidated applications 009/2011 & 011/2011, Tanganyika Law Society, The Legal and Human Rights Centre & Rev. Christopher R. Mtikila v. The Republic of Tanzania wherein the Court found a violation of the applicants right to participate in public life, right of association and equality before the law. The applicants brought their case based on Tanzania’s requirement that all candidates for public office belong to a political party. Three judges issued separate opinions wherein they adopted the findings of the Court and further defined issues they felt to be important to the future operations of the AFCtHPR. In particular, the Judges focused on the propriety of deciding the issue of jurisdiction before that of admissibility (or vice versa).[1]

What makes this judgment so interesting is not that the Court found a violation of the applicants rights, that it was the first judgment on the merits or that the judges argued in their separate opinions about the order in which jurisdiction and admissibility should be addressed, but rather what the judgment says at paragraph 110 about the nature of the action: that it “cannot and must not be dealt with as though it were a personal action, and it would inappropriate for [the AFCtHPR] to do so.” This single statement, one that went unobserved in the long debate between the judges in their separate opinions about how the court should proceed in the future, could have resounding consequences for the Court.

Jurisdiction and Standing Before the Court

The AFCtHPR has jurisdiction to hear “all cases and disputes submitted to it concerning the interpretation and application of the Charter” submitted by individuals or non-governmental organizations (NGO’s) if the State against which the case is brought has authorized such actions.[2] The Court has not yet addressed what is meant by “case,” however, it should in its ordinary meaning be understood to mean litigation brought by a party with an actual interest in the outcome.[3] Such a distinction is necessary as the Court also has jurisdiction to issue advisory opinions when asked to do so by a State the African Union or recognized African Organizations.[4] Otherwise an individual or NGO could request an advisory opinion in the guise of filing a “case” before the court. It is exactly the need for this distinction that makes the Court’s judgment so interesting.

It is first necessary to point out that none of the applicants in Tanganyika Law Society et. al. v. The Republic of Tanzania were States, the African Union or recognized African organizations. The Court described the first two applicants as NGO’s with observer status before the African Commission.[5] The third applicant, obviously, was a natural person.[6] Neither of these parties therefore has standing to request an advisory opinion. The question then becomes what the Court meant in paragraph 110?

Representative Standing Before the Court

The problem of standing arises because the Rev. Christopher R. Mtikila has founded/joined a political party and so has had the ability to stand in local and national elections. In other words, the violation of the African Charter on Human and Peoples’ Rights (Banjul Charter) that he brought before the court was in many ways hypothetical, he was not prevented from standing for election and had done so in the past. It was in response to this fact that the Court opined that his case “cannot and must not be dealt with as though it were a personal action” so as to overcome the potential bar to hearing the case based on his not complaining about the violation of his personal right to stand for election. He could and had, after all, stood in elections.

The problem is that individual standing to bring “cases” before the court is just that, individual. Otherwise there would be no need to treat it differently from the way organizations and States are treated, including their ability to ask for advisory opinions. If the individual who files a case before the Court is not prejudiced by the alleged violation there is no “case” and the application should be found inadmissible. Obviously though, this is not exactly how the bench viewed the case or the individual standing to bring a State before the Court. Pursuant to the language used by the Court in paragraph 110 an individual can bring a case before the AFCtHPR even where he or she is not directed prejudiced by the alleged violation when that violation regards the whole society, as this would be “inappropriate.”

This possibility, that an individual may bring a “case” for the violation of rights protected by the Banjul Charter when that individual has not been harmed in the specific by that violation is revolutionary in human rights jurisprudence and all international jurisdictional settings.[7] It also has the possibility of opening up proceedings before the Court to a host of cases that do not see a concrete violation but hypothetical violations lacking concrete effect. On the other hand, it may provide an opportunity for individuals to bring cases alleging violations that they have not personally experienced but those whose victims are not in a position to bring a case.

Lastly, and this should at least be pointed out, there is the point that the Court may have been looking for a case to hear on the merits. Many cases have been filed before the AFCtHPR but none had yet been subject to a judgment on the merits due to admissibility problems. This case provided an opportunity for the Court to begin its work in earnest.

Conclusion

The Judgment of the African Court on Human and Peoples’ Rights in consolidated applications 009/2011 & 011/2011, Tanganyika Law Society, The Legal and Human Rights Centre & Rev. Christopher R. Mtikila v. The Republic of Tanzania is a fascinating document that potentially opens up a jurisdictional novelty in international law, the ability of a party to bring a case against a State where there is no concrete violation.


[1] The judges who issued the seperate opinions were Judges Ngoepe, Ouguergouz and Niyungeko.

[2] Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights, arts. 3(1), 5(3), 34(6).

[3] For the US examples of this see, Aetna Life Insurance Co. v. Haworth, 300 U.S. 227 (1937) (need for a case and/or controversy); Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) (case must not be moot); U.S. v. SCRAP, 412 U.S. 669 (1973) (standing must be based on actual harm not just some interest in the case).

[4] Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights, art. 4(1).

[5] AFCtHPR, Tanganyika Law Society, The Legal and Human Rights Centre & Rev. Christopher R. Mtikila v. The Republic of Tanzania, applications 009/2011 & 011/2011, Judgment, ¶¶ 1, 4-5, 7 (14 June 2013).

[6] Ibid. at ¶ 2.

[7] In fact, only the WTO has a non-violation proceedings and it has never been invoked. Here the Rev. alleged a violation (so this would not strictly speaking be a no violation situation, but it is not far off).

Leave a comment

Filed under International Human Rights, News and Events

The Republic of Catalunya

Since the end of last year there have been a series of street protests[1] and digital petitions[2] circulating online calling for the creation of an independent Catalan State to be carved out of the Kingdom of Spain. The new State would be comprised at a minimum of the current Spanish region of Cataluña centered around Barcelona. There are political, social and historical arguments both for and against such independence. There are also serious questions about the scope or scale of any such independence (territorially speaking), how such a decision would be made, who would be nationals of the new State and about whether such a new State should be allowed into the European Union. This first post on the question of Catalan independence will address the preliminary issue of whether there is a right for Cataluña to secede from Spain and form an independent State. The analysis here will be in the context of secession and not “self-determination” as this second term has found its greatest application in the colonial context, which this s not.

An Brief Overview of the History of Cataluña

International law on secession requires a look to the historical situation of a territory and its people. For this reason, it will be useful to provide a basic overview of Catalan history before delving into the details of the legal regulation of secession.

Cataluña has always had an identity distinct from that of the central Spanish authorities in Madrid. Spain has always been blessed (and cursed) with a great linguistic and cultural diversity. Two northern regions have local populations that speak indigenous Iberian languages other than Spanish (Castilian), which is the local language of the regions around Madrid. The area around Bilbao in the north forms part of the Basque country[3] where the local language is one of the most unique in the world with no apparent relationship to any known language.[4] Likewise, the language spoken n the northeastern region of Cataluña is distinct from Spanish. Unlike Basque, however, both Catalan and Spanish are Romance languages independently descended from Latin. After the fall of the western empire the regions around Madrid and Barcelona formed part of different kingdoms and followed their own distinct historical paths. Cataluña only became part of what would eventually be known as Spain, the Kingdom of Castile and Leon, in 1469 when the crowns of Castile and Aragon were united with the marriage of Isabella and Ferdinand, the Catholic Monarchs. Spain itself would not be “united” until 1492 with the conclusion of the “Reconquista” and the defeat of the last Moorish kingdom of Grenada.

The relationship between the central authorities in Madrid and the people of Cataluña has not always been smooth, but for much of ther history together, the two regions mostly tended to their own affairs. The relationship between Cataluña and Castile began to erode as early as the 1700’s (if not before) due to increased tension provoked by Madrid’s attempts to centralize authority and the intervention of other European powers. Several wars were fought as part of larger European conflicts and tensions remained through the Spanish Civil War. The situation remained strained during the regime of Francisco Franco. Franco’s nationalist regime included campaigns to “spanish-ize” the region and reduce the influence and use of the Catalan language.

Legal Framework

Secession in cases where the “mother” country does not consent to the territory’s separation, outside of the colonial context, is not a common occurrence. As a result there are very few international decisions on the subject and even fewer that likely carry substantial legal weight. There are two judicial decisions, one international and one national, that are generally referenced when analyzing the issue of non-colonial secession and independence. These are the Aaland Islands Case and the Quebec Case.

The Aaland Islands Case is notable for its context in that the territory in question wanted to secede from a newly formed State that had just itself seceded from another State, namely Finland from the Russian Empire. The question of Aaland separation from Finland was referred to a panel of experts by the League of Nations, the UN-type body formed after the end of the First World War. The Aaland islanders, a predominately Swedish speaking people, wanted to leave Finland and join the Kingdom of Sweden. The islands had been part of the Russian Empire and administratively part of its Finnish provinces. The argument went that if Finland could secede from Russia, why could they not secede from Finland?

The expert panel responded by saying that secession would be possible but only if two conditions are cumulatively satisfied. These conditions were, in broad strokes, that the territory in question was well defined and that its people were the victims of systematized discrimination. While the panel felt that the Finns had a defined territory and were subject to discrimination by the Russian authorities, there was no evidence of such treatment of the Aaland Islanders by the Finnish authorities. Furthermore, the islanders were permitted to use their own language and were given administrative autonomy. Under those circumstances the panel felt that secession would not be appropriate.

The Quebec Case, heard by the Supreme Court of Canada, dealt with the right of Quebec to secede from Canada. Quebec is of course the primarily French-speaking region of an otherwise Anglophone country. The region has a different linguistic and cultural history from the rest of Canada and from time to time there is a flair up in nationalistic sentiment and talk of secession to form an independent State. The Supreme Court in hearing the case adopted the criteria of the Aaland Islands Case that in order to secede a group must have a defined territorial unit and that they people must suffer from persecution by the central authorities from which they would like to separate.

However, the court added another consideration that was not present in the Aaland Islands Case, that of democracy. The Supreme Court considered that participatory democracy and the full inclusion of a people and the territory would act as a cure legally removing the right to secede. Essentially, by having full participatory rights, if the people of a territory did not like the way they were being governed they could remedy the problem by modifying government policy with their votes. To have a right to secession in a democracy it would have to be shown that for whatever reason the ballot box is an inadequate remedy.

There are more recent occurrences of territories seceding or at least attempting to secede from an already existing State. Most followed wars and involved political interests of the surrounding States who afforded the new entity recognition. Examples include Bangladesh and South Sudan. The extent and type of the violence involved in these cases make them very different from that of the Aaland islanders or the Québécois. As such, these situations are also very different from the case of Cataluña. One might also be tempted to refer to the case of Kosovo and the recent decision by the International Court of Justice on the legality of the Kosovar declaration of independence. However, the situation in the ex-Yugoslavia at the time was very different from the present situation in Spain. Furthermore, the decision did not reach the issue of Kosovar independence but only addressed the legality of a declaration of independence under international law.

Under current law, in order to have a legal right to secession, Cataluña would have to demonstrate that its people are subject to discrimination by the central authorities, that they posses a defined territory and that any of their problems cannot be addressed by the curative effects of democracy.

Independence?

It is not my goal here to enter into a debate about the nature of the historical relationship between Cataluña and the rest of Spain, nor to debate whether there has been discrimination against the Catalan by the central authorities in Madrid. More importantly, I do not mean to pronounce on whether any historical discrimination has continued into the 21st century. I will assume for the sake of argument that such discrimination has taken place in sufficient amount to satisfy the standard set out by international law for this discussion, as I do not believe that the lack or presence of such discrimination is important.

The above discussion should make it clear, without too much discussion here, that Cataluña does not at present have a right to secede from Spain as far as international law is concerned. The territory is an administrative unit and it has a history of being separate within Spain. There is also the allegation that the central authorities have historically and continue to discriminate against the Catalan people. Whatever the truth to these statements, there is no one who argues that Spain is undemocratic to the extent of imposing the will of the central authorities on Cataluña without their input or ability to participate in the national political/policy decisions.

My question though is why does the existence of a democratic State mean that there is no right to secede? It is true that allowing territories to leave already established States on the will of a vote would lead to significant amounts of instability in the international community. But in a modern Europe that is ever more integrated across national frontiers, why not let them go their separate way and join the Union? In effect the changes would be more administrative than substantive. If the people of a territory with a distinct history and language wish to peacefully form their own State, the only reason not to let them quietly leave is adherence to an outdated view of State power. A compelling reason for disallowing such a separation is necessary where the State is at the service of the people and not the other way around.

We may in fact have such a situation here where other interests outweigh the right of a people to leave a State and form their own. Even though Europe is continuously moving toward a greater degree of integration, the system is not yet mature enough to cope with such a fundamental shift in its internal political boundaries and possibly continual shifts in national boundaries. The precedent would run the risk of setting off a cascade of secessions creating political and social instability accross the continent, the very thing the Union was designed to prevent. The international system, and the European one at that, are not stable enough to allow as a general rule anything but amicable separations. However, future events may change the situation.

6 Comments

Filed under International Human Rights, Public International Law

“a birth certificate of the reality of the state of Palestine”

Yesterday, the United Nations General Assembly voted to upgrade the status of Palestine to a “nonmember observer State” ostensibly recognizing the existence of a Palestinian State in the Middle East.  As has been pointed out by others, this move could mean that the Palestinian Authority could accept the jurisdiction of the International Criminal Court and thereby cede jurisdiction to that body to investigate alleged crimes taking place on its territory.

The existence of a State is supposed to be a matter of fact (see my earlier post on this subject). In fact, when Palestinian Authority President Mahmoud Abbas called upon the General Assembly to upgrade his organization’s status he called on them to certify an already existing reality. That the situation on the ground should not continue as it has for decades now is not in question. The problem is, at least for me, that I do not see “Palestine” as an already existing State, but rather one that should already exist.

The Montevideo criteria for Statehood, as generally recognized as being the required conditions for being a State, are (1) a permanent population, (2) a defined territory, (3) a government and (4) the ability to enter into international relations with other States. Two of these criteria are without a doubt satisfied, the Palestinian Territories have a permanent population and the Palestinian Authority has entered into international relationships. The problems are with the defined territory and government.

The lack of a defined territory is not so much a barrier to Statehood. There is a core of the Palestinian Territories that would be without a doubt part of any future State and no other State claims them. The border issues (which of course is a big issue) do not change the fact that a core territory exists. In this context recognition should be able to cure any defect in territorial integrity. In fact, this was and is the case with the State of Israel.

The real problem is that any Palestinian State (recognized or not) does not currently have a government with control over the territory. Until yesterday, the Palestinian Territories were still referred to as the Occupied Territories. Israel still maintains significant control in the area, not to mention controlling much of the borders, the payments of monies customs duties and the ability to intervene with force when it chooses to do so. If there is no control, there can be no sovereign State. Sovereignty is after all defined as the ability to exclude other powers, something the Palestinian Authority cannot do as of yet.

If Palestine is a State, it can act in self-defense to a violation of its borders and can call on others to assist in that defense. This means that the status quo ante recognition and at the time of recognition could be considered an act of aggression or war. In other words, actions that were not illegal (or at least not acts of war or aggression) would be transformed by a diplomatic act into serious international crimes. The new State could then refer the issue to the ICC or invite other States to fight Israel in a ground war. In the first case, the referral would have no teeth as the Palestinian forces have no ability to arrest and transfer accused to the Court without Israeli cooperation. In the second, recognition did nothing more than lead to war. Neither of these are results that the international community should welcome.

I do not mean to say by this that the Palestinians should not have a State. My only point is that declaring something that does not yet exist to be a reality is to live in a land of fantasy. And when one lives in a land of fantasy, and acts based on that false reality, sooner or later, the real world will come calling and the result will not be pretty.

Leave a comment

Filed under International Criminal Law, International Human Rights, News and Events, Public International Law