The UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Killing has issued a call for submissions on gender-sensitive issues relating to her mandate on extrajudicial, summary or arbitrary killings (see here).
In particular, she has asked for submissions on the following questions:-
- How to define and explain “Gender” with specific reference to human rights violations, protection, obligations, accountability?
- What does a gender-specific perspective into extra-judicial, summary or arbitrary executions (thereafter EJEs) entail? Which principles, steps and analysis should be followed?
- What is the significance of gender on specific forms of EJEs?
- What is the significance of gender on the legal definitions of the various forms of EJEs?
- What does a gender-specific approach to States’ obligations with regard to the right to life entail?
- What are states’ obligations for gender-based unlawful killings at the hands of non-State Actors?
- What does a gender-specific approach to non-States Actors’ obligations with regard the right to life entail?
- What are the gender-sensitive interview methods to be followed to interview relatives of victims of EJEs, witnesses to EJEs, and others actors involved in the reporting or investigation into EJEs?
- What does a gender-specific approach to the prevention of EJEs entail?
- What does a gender-specific approach to accountability for EJEs entail?
- What does a gender-specific approach to access to remedies entail?
- How does an intersectional approach affect all aforementioned questions and issues, such as the intersections between gender, race, class, disability, ethnicity, indigenous, religion and belief, sexual orientation and gender identity, or other forms of identity?
All submissions should be sent by 31 January 2017 in English, French or Spanish to firstname.lastname@example.org
Guest Post by Marissa R. Brodney: New Article Explores Debates Inhibiting Implementation of Collective Reparations at the International Criminal Court
I am pleased to present a guest post by Marissa Brodney in which she presents her new article on collective reparations and the ICC. Marissa Brodney is a graduate degree candidate in Law and International Relations at Harvard Law School and Princeton University’s Woodrow Wilson School of Public and International Affairs. She previously served as a senior program associate on the research and investigations team at Physicians for Human Rights. Marissa was recently based in the Office of the Prosecutor at the International Criminal Court.
In a new article just published in the Journal of the Oxford Centre for Socio-Legal Studies, I take a fresh look at debates happening now at the International Criminal Court (ICC) with respect to collective reparations in the case against Thomas Lubanga Dyilo. Lubanga was convicted in 2012 for forcibly conscripting or enlisting children into the armed forces and using them to participate actively in hostilities. Collective reparations were authorized for victims, and the Lubanga case has become the first case at the ICC to reach the implementation stage for collective reparations. Now, in this implementation stage, the ICC Trial Chamber and Trust Fund for Victims (Trust Fund) are embroiled in debates that have stalled the implementation process, and which threaten to undermine the reparative potential of the ICC’s reparations regime more broadly.
In my article, I take a look at these debates, and different conceptual frameworks that underlie them. I explore fundamental tensions inherent to integrating reparation as a transitional justice measure within the legal framework of a criminal court, bound to protect the rights and scope of liability of the convicted person; then, I try to illuminate ways in which these tensions filter into divergent understandings of what might make the ICC’s reparations regime effective. My article interrogates the differing institutional interests and mandates of the Trial Chamber and Trust Fund, to understand why some of the present procedural impasses facing the Court may have emerged. It then anchors this conceptual exploration in analysis of ICC case law and recent filings in the Lubanga case, to suggest a pragmatic path forward.
The article focuses on two orders that the Trial Chamber recently gave the Trust Fund, as part of the Trial Chamber’s efforts to determine the scope of Lubanga’s monetary liability for reparations. First: the Trial Chamber recently ordered the Trust Fund to determine eligibility of individual beneficiaries as a prerequisite to determining Lubanga’s monetary liability for collective reparation awards. Second: the Trial Chamber ordered the Trust Fund to secure consent of victims to disclose their identities to Lubanga as a precondition to obtaining reparations. The Trust Fund has refused to comply with both orders, citing concern for victim safety among other reasons. I suggest that the Trial Chamber’s current approach would lead victims’ interactions with the ICC’s reparations regime to be more detrimental than reparative, and call upon the Trial Chamber to shift course.
Through this article, I hope to show that divergent perspectives on what might make the ICC’s collective reparations regime effective are not irreconcilable. The Court must ensure that its reparation implementation process moves forward in a way that is more responsive to victim rights and concerns, at the same time that it builds the procedural architecture necessary to protect the rights and scope of liability of the convicted person.
For previous posts on the ICC, Lubanga case and reparations on this blog, see here:-
Guest post by Diana Contreras-Garduno: Passing the buck: the ICC Trial Chamber’s approach in Lubanga Reparations Decision, 15 August 2012
Guest post by Julie Fraser and Brianne McGonigle Leyh, Fine-tuning the ICC’s Reparations Regime: Appeals Chamber Decision on Reparations in Lubanga Case, 19 March 2015
Jennifer Schense is one of the editors of an important new study on the deterrent effect of international criminal tribunals. She presents a brief summary of its scope and main findings below:-
On 4 November 2016 in Nuremberg, at its annual forum commemorating the 70th anniversary of the adoption of the Nuremberg Principles by the UN General Assembly, the International Nuremberg Principles Academy launched its first book, a volume of deterrence studies titled, Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals. This volume comprises ten country studies (Serbia, Kosovo, Rwanda, Sierra Leone, DRC, Uganda, Darfur, Kenya, Cote d’Ivoire and Mali), as well as a chapter on methodology, and conclusions drawing from all the country studies, with recommendations for further action.
Two Steps Forward is notable in a number of respects. While various articles have addressed deterrence in international criminal law in some fashion, it is apparently the first volume that addresses the issue so comprehensively. It also ventures to offer conclusions on the question of deterrence based on quantitative and qualitative research, noting that nearly 20 years have passed since the ICTY and ICTR’s establishment, and nearly 15 since the ICC and Sierra Leone Special Court’s establishment. While the Nuremberg trials themselves arguably took several generations for their effects to be fully felt, enough time has passed that it is fair to begin to examine what has been the deterrent effect so far of international tribunals, and how that effect can be enhanced or improved.
The good news is that in all of the country situations surveyed, at least some deterrent effect was reported. The authors draw on quantitative factors first to assess whether overall criminality has risen or fallen, a fundamental baseline for asking whether crimes have thereafter been deterred. The authors draw on qualitative factors to assess perceptions of deterrence, in particular amongst perpetrators and potentially like-minded individuals, including members of militaries and rebel groups, political actors, diplomats and politicians, as well as academics, civil society members and victims. Perceptions of deterrence are as significant as objectively measurable deterrence; people act on their perceptions, for good or bad, and these actions can help determine whether further crimes will be committed. In all the situation countries surveyed, the authors found that while the international court or tribunal concerned had a deterrent effect, both objective and perceived, it proved difficult to sustain because the factors supporting it often fell apart. This is an important starting point for examining how to ensure that any hard-won deterrent effect is not ultimately lost.
It is worth noting in this context that factors affecting deterrence and perceptions come not only from criminal law (either national or international) but also from other relevant fields, in particular conflict prevention and human rights. They are both court-based and contextual. Further academic work analyzing the origins and commonality of such factors has been conducted through Leiden University and should be available fairly soon. It is hoped that studies such as these can galvanize action across the dividing lines of different fields so that we can effectively address together the global challenges that most concern us, in particular how to help ensure both global accountability and meaningful, sustainable peace. The full deterrence volume is available for free on the Nuremberg Academy’s website here.
Jennifer Schense is the founding director of the House of Nuremberg and of Cat Kung Fu Productions, both dedicated to creating films and other popular, cultural works reflecting on justice. She has also worked with the ICC Office of the Prosecutor in the Jurisdiction, Complementarity and Cooperation Division since 2004, and is currently contributing to the ICC Registry’s external relations and networking strategy. Prior to her work at the ICC, she served as the Legal Adviser for the NGO Coalition for the International Criminal Court (CICC) from September 1998 until September 2004, and served for one year as a fellow at Human Rights Watch. She is currently completing her PhD in international criminal law at Leiden University. She received her Juris Doctorate from Columbia Law School in 1997, and her Bachelors of Science in Russian language and Russian area studies from Georgetown University in 1993.
This week, EJILTalk! has been hosting an interesting discussion of Daragh Murray’s book on the human rights obligations of armed groups (which we advertised on the blog a few months ago here). After an introduction by Murray, Jonathan Horowitz, Cordula Droege, and Marco Sassoli have commented on the book and Murray has been invited to respond.
First, full disclosure: many of you will know that my own book on the same topic is coming out with the Oxford University Press in 2017, so reading Murray’s book has been an pleasurable experience for me. Over the last five years Murray and I have clearly trawled through many of the same primary materials and puzzled over the same difficult questions. On many points Murray and I have come to similar conclusions, which is satisfying as it validates our separate conclusions. For example, we both agree that in instances where armed groups control territory there is a good legal argument to be made that armed groups are bound by human rights law. We also agree that an armed group’s obligations under human rights law should be graduated to match its normative capacity. But interestingly, we often reach and reason our conclusions in different ways.
Although covering the same broad topic, our books have different content and approaches. For example, in the second chapter of my book I evaluate whether IHRL has any added value vis-à-vis IHL and set out a ‘life goes on driver’ theory (see here for a further exposition of this elsewhere) which then returns later in the book. I also engage in a detailed historical analysis of the law on belligerency and insurgency, to understand how armed groups have traditionally acquired legal personality under international law and better understand the characteristics of that personality. We take different theoretical approaches when analysing how armed groups acquire legal personality under international law and draw different conclusions on how armed groups may be bound by customary international law . Unlike Murray, my starting point on this issue is that not all subjects of international law are bound by the same range of customary international law norms. In doing so, I develop a different set of arguments that provide practitioners with operational guidance about how to approach the problem of armed groups and human rights law.
Murray’s analysis is very good and his book is definitely to be recommended. In my view, the most fascinating part of his book is Part III where he painstakingly undertakes detailed operational analysis of how specific human rights obligations can be applied to armed groups in practice. In doing so, he analyses three distinct issues (i) prosecution (ii) detention and (iii) the right to health showing what armed group’s do on these issues and what role human rights law may play in their protection. In this section, he considers how different armed groups may be able to adhere to the corresponding human right obligations, by conducting an evaluation based on a combined analysis of legal framework together with the practice of armed groups. The question of how human rights law might be operationalised is one which has been given little attention until now, but is fundamentally important for the future.
There is no doubt that Murray’s book is an important addition to a question of ever-pressing importance in international law.
AJIL Unbound has posted a symposium on “The Colombian Peace Talks and International Law.” The symposium includes an introduction by Alexandra Huneeus and Rene Urueña and the following seven contributions:-
Christine Bell, Lex Pacificatoria Colombiana: Colombia’s Peace Accord in Comparative Perspective, 110 AJIL Unbound 165 (2016).
Nelson Camilo Sanchez Leon, Could the Colombian Peace Accord trigger an ICC investigation on Colombia?, 110 AJIL Unbound 172 (2016).
Juana Inés Acosta-López, The Inter-American Human Rights System and the Colombian peace: Redefining the fight against impunity, 110 AJIL Unbound 178 (2016).
Lina M. Céspedes-Báez, Gender Panic and the Failure of a Peace Agreement, 110 AJIL Unbound 183 (2016).
Laura Betancur Restrepo, The Legal Status of the Colombian Peace Agreement, 110 AJIL Unbound 188 (2016).
Pablo Kalmanovitz, Ius post bellum and the imperative to supersede IHL, 110 AJIL Unbound 193 (2016).
Rene Urueña, The Colombian Peace Negotiation and Foreign Investment Law, 110 AJIL Unbound 199 (2016).
On 13 September 2016, Advocate General Wathelet published his opinion in a case pending before the European Court of Justice that raises several fundamentally important questions of international law.
In the coming months, the Court is set to clarify whether the trade agreements between Morocco and the European Union apply to the Western Sahara. If the Court confirms that the agreements do not apply to Western Sahara, this will give backing to the long-standing argument made by the Polisario Front that Morocco cannot legitimately make agreements with foreign companies regarding the exploitation of Western Sahara’s natural resources (see here and here). The Polisario Front is a national liberation movement and has been recognised by the UN General Assembly as the representative of the people of Western Sahara (see here and here).
The Advocate General’s opinion is not binding upon the Court but is often indicative of how the court will decide. The opinion is interesting for scholars looking at accountability and responsibility issues, because it sheds light on how the rights of persons living in non-self-governing territories can be defended. It also contains a rare evaluation of the question of whether national liberation movements, such as the Polisario Front, have legal personality under international law. Before looking more closely at the case, I will first give a brief background to the Western Saharan situation.
Background to the Western Saharan situation
Western Sahara is a disputed territory in the Maghreb region of North Africa, bordered by Morocco, Algeria and Mauritania. In 1974, the General Assembly asked the ICJ to rule whether prior to the colonization by Spain, Western Sahara was a terra nullis and if not, to clarify the legal ties between the territory and the kingdom of Morocco and the Mauritanian entity. In its 1975 advisory opinion, the ICJ rejected the argument that there was a “tie of territorial sovereignty” between the Western Sahara and Morocco or Mauritania. Although it found that there were some ‘legal ties’ between these entities, the ICJ concluded that they did not “affect the application of [General Assembly] resolution 1545(XV) in the decolonization of the Western Sahara and, in particular, the principle of self determination”. \
Guest Post by Lily Rueda Guzman: Catching the Tiger by the Tail: Colombians Vote against Peace Agreement with the FARC-EP but Hope for Peace Remains
Lily Rueda Guzman is a Colombian lawyer who specializes in the interaction between criminal law and human rights in the context of political transitions. She holds an LLM in Human Rights and International Criminal Law from Utrecht University and is Magister from the Universidad Nacional de Colombia.
The events of the last two weeks in Colombia are confusing. Peace with the FARC-EP seemed to be within reach when Colombia’s President, Juan Manuel Santos, and the top commander of the FARC-EP, Timoleón Jiménez, formally signed a peace agreement on 26 September. One week later, however, Colombians voted to reject this negotiated solution in a plebiscite that took place on 2 October. After the President subsequently announced that the bilateral ceasefire would only remain in place until 31 October, people took to the streets and to social media in massive numbers to shake the political arena and demand that the negotiations be re-opened. Even though it has become clear that the peace agreement will not be implemented in the near future, the hope of a negotiated settlement remains. However, the goal of reaching a national consensus on this remains elusive. What factors are driving this paradox consisting of the rejection of an agreement on the one hand and the enduring hope for peace on the other hand? This post attempts to highlight the main facts that could help in understanding what the future holds for the country and the peace agreement.
A very controversial agreement
On 26 September, after more than 50 years of armed conflict and four years of negotiations, the Colombian Government and the main guerrilla of the country, FARC-EP, announced that they had reached an agreement to end the conflict. It was, however, a very controversial pact. Colombians were upset by the fact that guerrilla leaders would have not been sentenced to jail time for the international crimes and humanitarian law violations they committed. They would, instead, face alternative and reparatory sanctions. This part of the agreement was criticized as not fulfilling international legal standards and, at the end, resulted in an understandably visceral reaction of rejection. The FARC-EP have caused untold suffering to the Colombian population and, to make matters worse, referred to themselves as “victims” and to their crimes as “mistakes” until advanced stages of the peace negotiations.
The second controversial item was the fact that the peace agreement would have opened the door to the political participation of members of the FARC-EP who are responsible for grave human rights violations and international crimes, which is currently banned by the Constitution. The negotiating parties agreed that, once the peace deal was in place, three representatives of the new political party created by the FARC-EP would have a voice in the Congress, but no vote. Following the legislative elections of 2018, the political party of the FARC-EP would have had ten seats in Congress until 2022, with full political powers.
This measure divided the opinion of the Colombian society between those defending the possibility of political participation of the former FARC-EP members and those considering that such political prerogatives amount to a reward. The former group maintained that political participation is a necessary feature for a consensual transition to take place with a Marxist rebel group, especially given that the absence of political participation would have been a “deal breaker” for the FARC-EP. Those against the political participation of the FARC-EP argued that granting such political prerogatives was unacceptable given that the FARC-EP has participated not only in political crimes but also in drug-trafficking and terrorism. Endowing the former guerrillas with political authority and formal participation in the decision-making processes would, according to this group, show that “crime does pay.”
The third item giving rise to intense debate was the economic support that demobilized FARC-EP members would have received as part of a reintegration program. A monthly subsidy, amounting to close to the Colombian minimum wage (180 Euros per month) would have been granted by the Government for two years. Large part of the population saw this as deeply unfair in a country with a 27 percent poverty rate and in which many struggle to obtain sufficient income to procure basic supplies and housing. Those in favour of this point argued that economic support is necessary to avoid the repetition of violence and that this need should take precedence to the perceived unfairness of the arrangement. Absent economic support, they argued, demobilized persons would be at risk of regressing into organized criminality before having had a chance to acquire the skills that would allow them to engage in licit economic activities.
The implementation of the agreement would also have required several constitutional and legislative amendments. The measures in need to facilitate these future legal reforms were a matter of intense legal debate. At the end, in July 2016, the granting of special powers to the President to implement some dispositions of the agreement by decree was approved and a new expedited procedure (referred to as fast track) to pass peace-related laws was also in place. The possibility of elevating the Agreement to status of “Special Agreement under the terms of the Article 3 Common to the Geneva Conventions” was also approved and it would have resulted in the agreement being given constitutional normative hierarchy.
A special plebiscite
The fear that the strong opposition to the Santos government, coupled with the dark shadows of the FARC-EP’s extreme violence, could undermine the sustainability of the peace agreement led to the negotiating parties’ decision to present the peace deal for popular approval. Strictly legally speaking, this special plebiscite was not necessary. Under the Colombian Constitution the President has the power to conclude and implement peace agreements without public consultation.
On 2 October, 6,431,376 of Colombians, representing a narrow majority of 50.2 percent of the actual voters, rejected the agreement. It must be noted that out of almost 35 million of potential voters, only little more than 13 million exercised their right. As was the case in the recent “Brexit” referendum in the UK, the vote itself reflected a much wider range of issues well beyond the immediate subject matter that was being voted on. Indeed, voters would appear to have used this platform to express discontent with the Santos Government whose presidency suffers from low rates of approval (less than 25%) due to different concerns, such as the state of the economy, the low rate of formal employment and the poor state of public health.
In the second place, some Colombians feared that the implementation of the agreement would usher in a castro-chavista communist catastrophe. Even though the bases of the political and economic system were not topics of negotiation, this fear was fuelled by the poignant images of the Venezuelan crisis of the last months, which were handily exploited by the campaign against the peace deal.
A third, and perhaps more surprising but nonetheless significant factor comes from a staunchly conservative and religious sector, which contended that the repeated mention of “gender” as a relevant category and the protection of LGTB’s rights within the agreement were evidence of an attack against the “natural” model of family. For them, the vote on the peace agreement became an opportunity to reject progressive policies on sexual education and the recognition of minority rights
A final factor was the revival of the political rivalry between “Santistas” and “Uribistas”. Current president Santos used to be the right-hand and protégé of former president Uribe, who cultivated conservative policies. After Uribe blessed and bolstered Santos’ presidential bid, Santos departed from his predecessor’s policies and set a slightly more progressive course, which was seen by many as a betrayal. This gave rise to profound and at times even intensely personal clashes. The plebiscite on the peace agreement never really managed to transcend the Uribe-Santos story of betrayal and rivalry.
Is negotiated peace really possible?
Few days have passed after the rejection of the peace agreement. The results have bolstered Uribe’s political leverage and obliged Santos to negotiation and dialogue with his political opponents. Several meetings have taken place between Santos, religious leaders, Uribe and his supporters. They all have stated they are willing to form a new national pact for unity. Timoleón Jiménez, leader of the FARC-EP, initially expressed that he had no intention of changing the agreement, which, to his view, was legally valid and ready for implementation. However, later on, through a joined press release, the Colombian Government and the FARC-EP expressed that “it is convenient to continue hearing to the different sectors of the society”. Against this background, what are the possible scenarios the future holds for a negotiated peace in Colombia?
The first possibility is a renegotiation of the peace agreement. This scenario is complex because it would imply re-opening the discussion on contentious points such as the possibility of prison terms for guerrilla leaders, maintaining limits on their political participation and the elimination of provisions intended to protect vulnerable groups, such as LGTB victims. The biggest hurdle so far seems to be the unwillingness of the guerrilla to settle for less than what they thought they had achieved.
If a renegotiation is to take place, it will need to be fast and effective. The ceasefire has been temporary extended until 31 October and while it could be prorogued, the situation would be a fragile one. Additionally, Santos’ presidential term is to finish in August 2018 and it would be risky for this peace negotiation to overlap, again, with a presidential campaign.
Another option is to adopt a constitutional assembly. This was in fact, the first proposal of the FARC-EP for the endorsement of the agreement and it was also a suggestion once made by Uribe’s party. However, this was rapidly rejected by the government. Currently, this scenario seems improbable. Holding a constitutional assembly is a legal and political endeavour of daunting complexity. It would need either Congressional action or a referendum. In practice, it could open a Pandora box of structural political and economic changes. As a matter of fact, this possibility has not yet been defended by any of the leaders following the outcome of the plebiscite.
The final option is to revert to active armed conflict, an option which is currently actively rejected by all relevant actors in Colombia. The Government, the FARC-EP, the political opposition and the civil society have strongly ruled out war as an option. In fact, those who voted “yes” and those who voted “no”, peacefully marched the streets to demand that their political leaders reach a new accord. This being said, the conciliation of all the contradictory views and interests, some of which this blog post has attempted to explore, will prove to be extremely difficult. In order to avoid falling back into war, a new collective decision needs to be made. It would seem that, after five decades of war and polarization, Colombian society and its leaders feel more comfortable with division and strife than with navigating in the uncharted waters of dialogue and compromise.