Case Note: The Queen (on the application of Citizens UK) and Secretary of State for the Home Department [2018] EWCA Civ 1812

This guest blog by Jessica Brennan (UCC School of Law PhD researcher) analyses the recent UK decision on the treatment of children in the so-called ‘Jungle’ camp in Calais.

Court Misled Over Treatment of Children in Calais

This matter came before the Court by way of an appeal against the order of Soole J. The claim related to the lawfulness of what is known as the ‘expedited process’ which was established by the Secretary of State for the Home Department, the Respondent, together with the French authorities in October 2016 in response to the impending demolition of the makeshift tented encampment in Calais which was commonly known as ‘the Jungle’. Using the expedited process, the Respondent sought to assess the eligibility of unaccompanied asylum-seeking children to be transferred to the United Kingdom.

The legal argument revolved around whether the expedited process was unfair and therefore unlawful on any or all of the grounds advanced by Citizens UK; under EU law, under the common law or under the Human Rights Act of 1998. The Court of Appeal had the advantage of seeing further evidence which was not before the High Court or the Upper Tribunal of the Immigration and Asylum Chamber. Citizens UK argued at appeal stage that even if the position were otherwise at first instance, the additional evidence demonstrates that there was fundamental unfairness in the expedited process. Complaint was also made that the Secretary of State breached their duty of candour and co-operation with the Courts.

Factual Background

The demolition of the Calais camp was announced on 7th October 2016. This led to discussions between the Secretary of State and the French authorities, with a view to expanding and modifying a pilot process for an ‘accelerated’ Dublin III procedure. The expedited process, which became known as ‘Operation Purnia’, ultimately consisted of two phases. The first phase was an interview, decision-making and transfer phase, which took place at the camp itself in the last two weeks of October 2016. Approximately 200 children were transferred to the UK in the first phase. On 28 October 2016 the French authorities asked the Secretary of State to cease interviewing at the camp. In early November children began to be dispersed to CAOMIs (Centres d’accueil et d’orientation pour mineurs isloes) across France. That dispersal gave rise to Phase 2 of the expedited process. The second phase of the process related to 1,872 unaccompanied children who had not been fully processed in Phase 1. In the second phase, 90 UK officials interviewed the children in 20-minute slots over a period of three weeks. Interviews with family members in the UK were conducted by telephone by UK based officials. Decisions were made by comparing the paper records of those two interviews.

Following both phases a total of approximately 550 children were identified as being eligible for transfer under Dublin III and transferred to the UK between October and December 2016. However, over 500 children claiming to have family members in the UK were not transferred at that time. Refusal decisions were communicated not directly to the children but to the French authorities by means of a spreadsheet with only a one-word explanation related to the refusal. Most of the children were then told of the decision by the French authorities. Neither family members in the UK nor the children were contacted by the Secretary of State. They were never told of the reasons for refusal nor given any opportunity to correct errors whether actual or perceived in the decisions. Although there was an opportunity to ask for a reconsideration, in the vast majority of cases there was no new information and on reconsideration, the initial decision was merely confirmed.

Issues

The following issues were considered on appeal:

First, under EU law:

  1. Was Soole J correct to conclude that applications for international protection within the meaning of Article 2(b) of Dublin III had not been made by unaccompanied minor in the expedited process?
  2. Was Soole J correct to conclude that the process fell outside Dublin III and was not governed by its criteria and procedural protections?
  3. Was it lawful for the Secretary of State to devise such a scheme under EU lthe ECHR?

Secondly, was the decision-making process fair as a matter of common law?

Thirdly, was it fair in accordance with the procedural requirements of Article 8 of the ECHR?

Decision

EU Issues

Lord Justice Singh gave the judgment in the matter with Lady Justice Asplin and Lord Justice Hickinbottom concurring. The Judge began by firstly considering the place where a person makes an international protection application and found that international protection is not the same thing as an intention to make such an application after a person has been transferred to another Member State. Furthermore, an application must usually be made in accordance with the procedures laid down in Dublin III. In the present context, that would mean that an unaccompanied minor would have to make an application in France. If it then transpired that the mandatory criteria for a transfer to the UK set out in Article 8 were satisfied, that process would be followed. However, that does not lead to the conclusion that the expedited process adopted bilaterally by France and the UK in the present context amounted to a procedure under Dublin III. The Court found that as a matter of law, the expedited process was not a process under Dublin III.

The next issue considered was whether it was legally permissible for France and the UK to adopt the expedited process. Lord Justice Singh rejected that argument. The Judge found nothing to prevent a Member State from adopting a procedure in its own domestic law which requires an application for asylum to be made on its own territory and not from outside that state. Similarly, there is nothing to prevent two Member States of the EU from bilaterally agreeing that they will adopt a process which sits alongside that in Dublin III. It would be otherwise if they agreed to derogate from the procedural safeguards in Dublin III. However, that is not what the expedited process was. At all material times it was open to an unaccompanied minor in France to make an application for international protection, which would then have to be dealt with in accordance with the requirements of Dublin III. Even the fact that they were not selected for expedited transfer in anticipation of a formal consideration under Dublin III did not preclude them at any material time from making such an application in the future. Lord Justice Singh reached the conclusion that Soole J was correct in his interpretation of the Dublin III Regulation and accordingly rejected the appeal by Citizens UK insofar as it was based upon EU law.

Common law fairness

The Court considered whether the particular circumstances in which the Secretary of State was operating, sufficiently modified the duty to act fairly so as to relieve her from the usual requirements of procedural fairness. Lord Justice Singh agreed with Soole J that the most important concern was the “sparseness” of the reasons which were given for an adverse decision. The argument that it was possible for a person to proceed under Dublin III at all material times which attracted the full panoply of procedural safeguards was flawed for two reasons according to the Judge.

Firstly, it assumes that fairness is not required at an earlier decision-making stage because fairness is required at a later decision-making stage. Secondly, the pure Dublin III process could not in practice be insulated from what had gone before. Lord Justice Singh recognised that the manner in which the expedited procedure operated in practice had implications for the child applicant. For example, some children gave up and never made a formal application under Dublin III because of an adverse decision in the expedited process. The Judge suggested that if brief reasons were conveyed to the children affected at the relevant time, it might have been possible for someone to make a meaningful response, for example correcting some inaccuracy in the information. Conversely, if the reasoning was wholly accurate, it would have stopped them making a futile application for reconsideration or still less a futile application for formal consideration under the full Dublin III process. Lord Justice Singh concluded, the process which was adopted by the Secretary of State in the present context failed to comply with the requirements of procedural fairness as a matter of common law.

Article 8 of the echr

Lord Justice Singh found it unnecessary to lengthen the judgment further by addressing the procedural requirements that might arise under Article 8 of the ECHR but suggested that they could not give greater rights than the common law would in such a context.

the duty of candour and cooperation

The Judge ruled that the duty of candour and co-operation with the court is a “self-policing duty”. A particular obligation falls upon both solicitors and barristers acting for public authorities to assist the court. The duty of candour and co-operation is to assist the court with full and accurate explanations of all the facts relevant to the issues which the court must decide. The Judge warned that witness statements filed on behalf of public authorities in a case such as this must not either deliberately or unintentionally obscure areas of central relevance; and those drafting them should look carefully at the wording used to ensure that it does not contain any ambiguity or is economical with the truth. The duty not to mislead the court can occur by omission, for example by the non-disclosure of a material document or fact or by failing to identify the significance of a document or fact.

Lord Justice Singh reviewed the additional evidence available only at appeal stage and in particular the email correspondence between officials working on behalf of the Secretary of State. It came to the attention of the Court through this additional documentation that the French authorities requested more detailed reasons of refusal to be given to the minors. Such a request was refused by the British authorities on the ground that this would give rise to the risk of legal challenge. Further, it was found that the filter process had not been adequately explained in evidence, particularly the possibility of reconsideration. Lord Justice Singh concluded there was a serious breach of the duty of candour and co-operation in the present proceedings. The effect, even if it was unintentional, was that significant evidence was not brought to the attention of the High Court.

The Judge added that it was purely by chance that the Court came to learn of such important matters, including what was said in contemporaneous emails in December 2016 and January 2017. The most serious omission was the failure by those presenting evidence on behalf of the Secretary of State to explain the true reason why they refused to provide an adequate explanation to the unaccompanied minors as to why their claim had been refused. The Court found that such a decision was not based on urgency or because the French authorities demanded a greater explanation but because the British authorities did not wish to do so because of a perceived risk of legal challenge.

The Judge found that:

  1. there was a serious breach of the duty of candour and co-operation by the Secretary of State; and
  2. the evidence before the Court supported the submission made by Citizens UK that the process adopted was unfair and unlawful as a matter of common law.

Conclusion

A declaration was granted that there was a breach of the duty of fairness under the common law. As this was a generic challenge by a non-governmental organisation and given that the expedited process is now long in the past, no other remedy was deemed necessary or appropriate. This case highlights the responsibility placed on persons such as the Secretary of State to carry out their duties in a fair and lawful manner at all times and further reiterates the fact that children are entitled to the same fair procedures and processes as adults.

An Analysis of Common Justifications for Prisoner Disenfranchisement

This guest blog by Samantha Morgan-Williams (UCC School of Law PhD researcher) examines recent developments in the UK regarding prisoner disenfranchisement.

The ongoing saga of prisoner disenfranchisement in the UK has recently come to a head with the Committee of Ministers of the Council of Europe closing the supervision of the prisoners’ voting rights cases against the United Kingdom (UK) in December 2018. In adopting final resolution CM/ResDH(2018)467 the Committee has effectively accepted that the limited ‘administrative amendments’ are sufficient to satisfy the ECtHR. In the wake of the New Zealand Supreme Court’s confirmation that disenfranchising prisoners is inconsistent with the Bill of Rights, and amidst the enfranchisement of 1.5million convicted felons in Florida, this post seeks to revisit the political basis for disenfranchising prisoners, appraising determining the core arguments presented for justifying blanket bans on prisoner disenfranchisement.

Justification for Prisoner Disenfranchisement

Proponents of a ban on prisoner voting often justify disenfranchisement under one of the following reasons: the civic death or civic virtue ground; the social contract; or that disenfranchising prisoners achieves sentencing aims.

The Civic Death/ Civic Virtue Argument

The civic virtue and civic death arguments, although predominantly intertwined and spawned from the same ideology, differ on the actual reason or main aim of their use. The civic virtue argument stems from the act of committing of a crime as a member of a democratic process. This strand of this argument asserts that when one violates the laws one participated in creating, that one defaults on the agreement to respect the law and hence forfeits any right to assist further in creating it, in short, one loses their civic virtue. However, in order to say that prisoners lack civic virtue, certain generalisations must be inferred about their character and although it is true that people who break the law seemingly do not respect the law, the justification on this premise for taking away their vote based on a lack of civic virtue appears to create or infer a second punishment. Traditionally in most jurisdictions, sentences for crimes appear in the form of incarceration, thereby invoking the issue that if there has already been a punishment given, then what is the second crime then that prisoners are being punished for by forfeiting their vote? It follows that disenfranchisement is fundamentally an additional punishment and as such requires an additional justification, yet none has ever been supplied as far as this author can gauge. Consequentially this idea of civic death or a second punishment appears jurisprudentially to be morally unjustifiable. Thomas Hammarberg, former Commissioner for Human Rights at the Council of Europe, has articulated his opinion on this matter stating that:

 Prisoners though deprived of physical liberty, have human rights … Measures should be taken to ensure that imprisonment does not undermine rights, which are unconnected to the intention of the punishment.

Thomas Hammarberg

The civic death argument, much like the civic virtue argument, centres on a removal of civic rights or the right to be involved in the shaping of society by virtue of committing a crime. In losing civic virtue, one befalls civic death, a term which conjures forth draconian ideas of having damaged the democratic process and as a result losing all rights. In other words, if you refuse to follow the law, you clearly do not respect it and should lose the ability to partake in its development.

Although this is the most common justification used to justify the continuation of a blanket ban on voting for those imprisoned, it is undoubtedly the weakest, stemming from the fact that those who utilise the argument have yet to explain its rationale. Further, a brief overview of the history of this particular justification serves to undermine its very practice. The claim of civic death suggests that through the act of their crimes, prisoners lose their civic virtue, are no longer worthy of being afforded civic duties and as a result befall ‘civic death.’ It is apparent therefore that the relationship between the individual and the state changes radically when one is found guilty of an offence and incarcerated.

It is clear therefore the connected civic death and civic virtue argument is decidedly weak and standing as it does on feeble and unpersuasive evidence. The term ‘civic virtue’ is used as haphazardly as ‘civic death’ in support of prisoner disenfranchisement, with little evidence that its proponents can even define the essential term of the premise nor explain how it justifies the ban.

The Social Contract

The Social Contract theory has been used to justify the current stance taken in Australasia by the Australian and New Zealand Legislators respectively. In Australia, prisoners serving sentences of more than three years are denied the right to vote, and the Australian Human Rights Commission recognised that this is in breach of the State’s obligations under Article 25 ICCPR. In New Zealand, the position was much more severe, mirroring the UK’s stance with the effect that no person incarcerated after the amendment could register on the electoral roll. The High Court of New Zealand, highlighted the weakness of such arguments in the Arthur William Taylor case:

[T]hose ‘who infringe the laws of society to the extent that they are put into penal institutions should not be entitled to exercise a vote in a general election.’ A principled view to the contrary of Justice, is that a sentence of imprisonment should not deprive a person of civil rights, beyond those inherent in the sentence, namely freedom of movement and association. (Taylor v Attorney General [2015] NZHC 1706 at 25).

Taylor v Attorney General [2015] NZHC 1706 at 25

The use of the Social Contract argument places a great deal of trust and onus onto the effectiveness of a criminal justice system, as in order for the Social Contract theory to stick as a justification, we would need to ensure that all criminals are incarcerated or there would need to be an insured and complete consistency in sentencing process and a clear delineation of such. Pursuant to this, the Social Contract theory gives no guidance as to how we should do this or how we should create this degree of seriousness and minimal threshold. Furthermore, this argument neglects the comparative and complementary question of whether society has upheld its duties to the criminal, as they are also a person given obligations under the Social Contract. In short, we must not forget that the contract is bilateral.

The second strand of the Social Contract argument can perhaps be offered as an indicator of why the punishment manifests itself in such a way. The Social Contract theory asserts that when one violates the laws one participated in creating, the criminal defaults on the agreement to respect the law and hence abdicates any right to assist further in creating it. In short, while the first argument is based on the fact of the law breaking, the latter part of the argument claims that society can deny the vote to citizens based on an inference about their attitude to the law, given their law-breaking. In summary, both the civic death and Social Contract argument appear to follow the rather arbitrary approach that if you refuse to follow the law you clearly do not respect it and should lose the ability to partake in its development.

Achieving Sentencing Aims

A further justification often presented in favour of a continuing ban on prisoner enfranchisement is the premise that the blanket ban serves certain sentencing aims. Such a position is arguably the most untenable, particularly when one considers the vast research evidencing that engaging prisoners in civic duties mitigates ‘othering’ and has a direct consequence lowered rates of recidivism. This position however, found great favour in the UK in their attempts to justify the blanket ban created under the s.3 of the Representation of the People Act, 1983.

During a statement providing evidence before the Joint Committee on the Draft Voting Eligibility (Prisoner) Bill, the Right Honourable Jack Straw MP (former Home Secretary and Justice Secretary) and David Davies MP (former Shadow Home Secretary and Minister for Europe) both advocated this approach:

By committing offences which by themselves or taken with any aggravating circumstances including the offender’s character and previous criminal record require a custodial sentence, such prisoners have forfeited the right to have a say in the way the country is governed for that period.

Joint Committee on the Draft Voting Eligibility (Prisoner) Bill

Consequently, despite the over-generalisation of politicians contrary to this, research proves that maintaining a life as close to normality as possible during incarceration will make re-integration an easier process, aide rehabilitation and diminish recidivism rates upon the prisoner’s release. This point was recognised by Judge Caflisch in Hirst (No. 2) at para. 5 of his concurring judgment where he stated that:

The UK Government further contended that disenfranchisement in the present case was in harmony with the objectives of preventing crime and punishing offenders thereby enhancing civic responsibility (judgment, §50). I doubt that very much. I believe, on the contrary, that participation in the democratic process may serve as a first step toward re-socialisation.

Judge Caflisch in Hirst (No. 2) at para. 5

The supporting claim here is that the loss of the vote sends a clear message to the wrongdoer about the evil of their conduct: are we telling them that because they are a bad person they will not only be incarcerated but also further excluded as they committed a crime and their opinion is no longer valued? The second aim offered under the title of sentencing aims is deterrence. However, there is little evidence to support this stance and therefore this justification fails for two reasons. Firstly, policy makers are assuming that people know about disenfranchisement laws. Evidence suggests however the majority of those incarcerated are more concerned with maintaining their personal and familial relationships and losing their freedom than with their suffrage. Thus, the deterrence value of the deprivation of a right to vote is slim to none. Acknowledging that there are exceptions to each rule, it appears that if a person has chosen to forsake their civil liberties then deprivation of their electoral rights may not provide effective deterrence. On the contrary, greater civic involvement actually contributes to an easier transition into life post-incarceration.

Conclusion

In summary, recent events resulting in the enfranchisement of prisoners have been both welcomed and scorned in equal measure. When considering the interdivisibility of human rights and the apparent ‘worthy’ rights holder which disenfranchising prisoners creates, it is clear that prisoner disenfranchisement is an extremely polarising issue and arguably at odds with a number of legal norms. However, when the justifications for restricting prisoners from exercising their voting rights are examined, it is clear that such justifications – civic death, civic virtue, the social contract and the ambiguous achieving of sentencing aims – cannot withstand scrutiny.

CCJHR Annual Distinguished Lecture 2018: Professor Rhona Smith

The Centre for Criminal Justice and Human Rights is delighted to be hosting Professor Rhona Smith to conduct our Annual Distinguished Lecture which is being held this week – Thursday 6th December 2018 from 5.30pm-8pm.

Professor Smith, the UN Special Rapporteur on the situation of human rights in Cambodia, will deliver this years Distinguished Lecture on:

The centrality of human rights in creating durable peace, stability and development: lessons from Cambodia. 

The event coincides with key human rights anniversaries including Human Rights Day (10th December) which this year marks the 70th anniversary of the Universal Declaration of Human Rights, and the 20th anniversary of the UN Declaration on Human Rights Defenders (9th December).

Professor Smith is highly respected expert in international human rights and has been the UN Special Rapporteur for Cambodia since 2015.

The event is being held in UCC’s Executive Education Centre, The Banking Hall, 1 Lapp’s Quay. Registration (with tea/coffee) is at 17.30. The lecture will start at 18.00 and will be followed by a short wine reception at 19.30.

Details and tickets are available on Eventbrite: https://www.eventbrite.ie/e/ccjhr-11th-distinguished-lecture-tickets-52816001081

CPD points are available.

Call for Papers: Journal of International Humanitarian Legal Studies

Call for Papers

The Journal of International Humanitarian Legal Studies is a biannual peer-reviewed journal published by Brill | Nijhoff.

JIHLS logo

JIHLS logo

The objective of the Journal is to explore the application of international law to humanitarian crises and, more specifically, to examine the role that this legal framework plays in protecting human security during times of emergency.

The scope of the Journal is broad and it publishes papers on international humanitarian legal issues including but not limited to: the law of international and non-international armed conflict; the protection of human rights during times of armed conflict; international refugee law; military law; disaster law; the law of post-conflict reconstruction; and international criminal law.

The Editors-in-Chief are Russell Buchan (University of Sheffield, UK), Emily Crawford (University of Sydney, Australia) and Rain Liivoja (University of Queensland, Australia).

The Journal is now accepting contributions for Volume 10(1), which will be published in late 2019. The Journal publishes full length articles (of no more than 10,000 words), shorter commentaries and case comments (4,000 words), and book reviews (1,500 words). The Journal welcomes contributions from academics, government and non-governmental organisation officials, military personnel, and practitioners working in the humanitarian field more generally.

Contributions must adhere to OSCOLA referencing style. Guidance on preparing and submitting manuscripts is available at www.jihls.net/authors. For contributions to be considered for publication in Volume 10(1) they must be submitted no later than the 15 January 2019. Any queries may be addressed to the Editors-in-Chief at editors@jihls.net.

For previous issues of the Journal, see brill.com/ihls.

Call for Abstracts: Yearbook of International Disaster Law

The Yearbook of International Disaster Law (YIDL) aims to foster the interest of academics and practitioners on legal and institutional issues relevant to all forms of natural, technological and human-made disasters, including rapid and slow onset events, but excluding events such as armed conflicts or political/financial crises per se. The YIDL is a double-blind peer review journal published by Brill/Nijhoff.

For its inaugural issue (vol. 1, 2018) the YIDL welcome submissions of abstracts for papers addressing topics pertaining to any issue of international disaster law. Abstracts shall be sent by 15th November 2018 at the e-mail address: info@yearbookidl.org The YIDL also welcomes suggestions for book reviews.

Abstracts should be between 700-1,000 words, including relevant citations. Authors are also kindly requested to attach a short curriculum vitae to their e-mail. Further details available in the attached call.

‘Beyond McMahon – the future of asylum reception in Ireland’

We are delighted to welcome this guest post by Claire Dorrity, lecturer in social policy in the School of Applied Social Studies, UCC.

Nasc logoOn Wednesday 25th April 2018 Nasc and the Centre for Criminal Justice and Human Rights (CCJHR) co-hosted a conference in UCC on the future of asylum reception in Ireland. The conference participants included members of the Working Group (Working Group to Report to Government on the Protection Process, including Direct Provision and Supports to Asylum Seekers), academics, representatives from state institutions, international speakers from both the Portuguese and the Scottish Refugee Councils, representatives from the Irish Human Rights and Equality Commission, Migrant NGO representatives, and members of the asylum seeking community in Ireland. The main foci of the conference related specifically to the system of direct provision, models of integration and rights that are afforded to asylum seekers.

Broadly speaking, asylum policy incorporates three key areas: – 1) the rights and entitlements of those entering the state to seek asylum, 2) the reception conditions afforded to asylum seekers by the state, and 3) how asylum issues are represented both in policy and practice. The political representation of asylum issues will also be determined by the modes of participation, engagement and inclusion available to asylum seekers. In Ireland, rights available to asylum seekers to influence political outcomes and decision-making processes remain severely restricted. This is mostly attributed to the nature of immigration policy, more specifically the asylum process and the restricted status asylum seekers occupy within the Irish state (Titley, 2012; Lentin, 2004).

The system of direct provision (DP) has been in operation in Ireland since 1999 and was made the official mechanism for the reception of asylum seekers in 2000. Prior to the introduction of DP, asylum seekers had the right to access the labour market and receive social welfare payments, equivalent to that of an Irish citizen. The system of DP, however, removed that right and since then asylum seekers have been the subject of an increasing array of restrictions on many of their basic human rights. The system of DP placed asylum seekers in designated accommodation centres dispersed around the country and has continued to operate for the past 18 years.

The exclusionary aspects of DP are well documented (Kinlan, 2013; Arnold, 2012; Lentin, 2012; Titley, 2012; Akidwa, 2010; FLAC 2010; Considine and Dukelow, 2009). They are evident in the location of DP centres, generally located away from local communities, limiting the ability of asylum seekers to integrate into communities. Also evident in this system is the denial of the right to work and third level education, economic marginalisation, conflated with limited rights and freedoms. A weekly allowance of €19.10 per week adults and €9.60 per child was permitted from 2000 until 2016. This rate did not change in over 16 years despite incremental increases in other social welfare allowances. In January 2016 the child allowance increased to €15.60 and the adult weekly allowance now stands at €21.10 (Department of Social Protection, 2016). In 2017 the rate increased to €21.60 for both adults and children (Department of Employment Affairs and Social Protection).

The administering of the direct provision system is carried out by the Reception and Integration Agency (RIA), as part of the Department of Justice and Equality, who are contracted to provide full board and accommodation for asylum seeker residents. There is currently no requirement for staff employed in DP centres to undertake training in the area of child protection or to have had any training of working with asylum seekers, vulnerable people or children (Irish Refugee Council, 2013). However, RIA has now brought their child protection policies in line with new legislation and have a dedicated seconded Tusla social worker on staff. There is also now a requirement for training in child protection when working with vulnerable children and adults (RIA, 2018).

The introduction of the policy of DP has been widely criticized, by both academics and migrant NGOs alike, for its failure to consult with asylum seekers and migrant NGOs prior to its implementation and also for the exclusionary and restrictive nature of the system and its impact on the daily lives of asylum seekers (O’Connor, 2003; Healy, 2007; Lentin 2012). Furthermore, while the European Union introduced a Council Directive 2003/9/EC of 27 January 2003 (revised in 2013) putting in place minimum standards for the reception of asylum seekers, the Irish state opted out of this directive. This allowed Ireland to continue administering the system of DP at a policy level. The system allows for little recourse for those living within DP accommodation (Irish Refugee Council, 2011). In 2012 the Irish Refugee Council released a document addressing child poverty in the DP system entitled ‘State Sanctioned Child Poverty and Exclusion’. The report highlighted both child poverty and child protection issues. More specifically it stated:

The Special Rapporteur on Child Protection, Geoffrey Shannon, has raised concerns about the detrimental effect of Direct Provision accommodation on children and on parents’ ability to provide adequate care. He describes the system as amounting to institutionalised poverty (2012:21)

Also highlighted was ‘unsuitable living conditions, malnourishment, poverty, exclusion and lack of play space’ (2012: 21). The Irish Human Rights and Equality Commission have also repeatedly expressed concern about the human rights of residents in DP (Irish Human Rights and Equality Commission, 2014). Both NGOs and academic commentators have criticised the system and highlighted the challenges to integration that DP presents for asylum seekers (Irish Refugee Council, 2012; FLAC, 2010; Nasc 2007; Fanning 2002).

Reflections on the Conference

Political representation is highlighted as one of the most crucial avenues to democratic processes of representation (Pitkin, 1967). It both establishes the legitimacy of democratic institutions while also creating institutional incentives for state bodies to respond (Dovi, 2017). Political representation has been acknowledged as an important means of providing voice to oppressed groups through assigning meaning to the manner in which groups are represented and importing significant issues and their relevance into the body politic (Young, 2000). The literature on inclusive political representation indicates that the exercise of voice and demanding more responsiveness and accountability from state institutions is more likely to occur when other participatory mechanisms are present (Rocha Menocal, 2014). In this context, developing more inclusive representative structures and fostering strong mechanisms of inclusion is highly significant.

The conference ‘Beyond McMahon – the future of asylum reception in Ireland’ took a step towards facilitating inclusive dialogue on key asylum issues. It provided an interactive space involving the participation of state and non-state actors, along with a range of participants working directly or indirectly with asylum seekers. Most refreshing was the inclusion of the voices of asylum seekers. Lucky Khambule, a spokesperson from MASI (Movement of Asylum Seekers in Ireland) gave a poignant contribution from the perspective of the asylum seeker, giving the audience a real insight into the lived experience of those accommodated in the DP system. This provided both the speakers and the attendees with a clear sense of how oppression and injustice operates within the DP system.

The international perspectives from both Teresa Mendes, Director of the Portuguese Refugee Council and Sabir Zazai, Director of the Scottish Refugee Council provided an invigorating alternative to systems such as DP, placing a focus on the importance of making explicit the vital supports required for asylum seekers when arriving in host countries. Both of these approaches provided avenues for new thinking in relation to how Ireland might respond to the reception of asylum seekers in future policy formation. Both contributions highlighted the important role refugees play in enriching and providing positive contributions to host societies. The right to work was highlighted as playing a crucial role in supporting refugees to integrate into community life. Promoting autonomy within the asylum seeking community was also viewed as a key factor in ensuring successful and inclusive participation and integration. These explicitly inclusive and supportive systems of reception illustrate how the Scottish and Portuguese models emphasise humanitarian principles and place human security at the centre of their approach. It also highlights how such approaches can assist in resolving some of the tensions and challenges Ireland currently faces.

Overall the conference discussions illuminated the need for a more coordinated approach to asylum policy that does not involve punitive measures or prolonged periods of time in DP. The contributions and discussions made clear that any coherent policy must prioritise rights and dignity. This will require a willingness on the part of all parties to accept that the current system is not fit for purpose and failing asylum seekers socially, financially and politically. In bringing together all parties, the conference set the foundations for building better working relationships but highlighted that such relationships must place asylum seekers at the forefront of this process. This will require new and different approaches, one that treats asylum seekers in a more humane and dignified way and as people who can make a valuable contribution to Irish society if given the opportunity to do so.

Further References:

Reflections from the Exercise Viking18 on civil-military cooperation in multinational crisis response and peace operations

Viking18 Red Cross team

Viking18 Red Cross team

This guest blog by Lenin Tinashe Chisaira (candidate on the UCC LLM International Human Rights Law & Public Policy programme) reflects on his experience in the Viking18 civil-military training exercise in Custume Barracks, Athlone.

The Exercise Viking18 on civil-military cooperation in crisis response and peace operations was conducted from 16th – 26th April 2018 at sites in Brazil, Bulgaria, Finland, Ireland, Serbia and Sweden, with over 2,500 military personnel and civilian humanitarians simultaneously working on the same fictitious scenario in real-time. The Swedish Armed Forces are the primary coordinator and host of the exercise, in conjunction with the Folke Bernadotte Academy (the Swedish agency for peace, security and development). The Viking training exercises are held every four years; therefore 2018 was an opportune time for the dozen law and international relations students from University College Cork who applied and got selected to participate in the exercise. It was an informative and hectic week for students interested in international humanitarian law.

The exercise is conducted in real-time. The Exercise Viking focused on the fictional State of Bogaland, whose map, however, is modelled on Sweden. There is an excellent level of seriousness from both military, police and civilian participants and that makes the whole exercise worthwhile. The Exercise Viking indeed develops a sense of ‘on the ground’ experience for all participants.

In Ireland, the exercise was conducted at Custume Barracks in Athlone, County Westmeath. The participating UCC team was joined by other students from University College Dublin and NUI Maynooth. Students were divided amongst dedicated Irish Aid mentors, and they participated in the simulated ground operations of some humanitarian aid agencies. These agencies included the Red Cross, UN Office for the Coordination of Humanitarian Affairs (OCHA), UN Mission in Bogaland (UNMIB), the UN High Commission for Refugees (UNHCR) and non-governmental organisations (NGO).

As UCC students, we had some helpful prior pieces of training in Cork, conducted by our UCC coordinators Dr Dug Cubie from the School of Law and Dr David Fitzgerald from the School of History. We also had a briefing from Comdt Laura Fitzpatrick, from the Defence Forces Ireland. She is also the Chief Instructor at the United Nations Training School Ireland (UNTSI).

As a participant, I was first deployed to the Red Cross office and then to the OCHA office due to the availability of experienced mentors. My day during the exercise would start at 0700hrs each morning with breakfast and then going over the events of the previous night. Information was shared via email, telephone and especially dedicated social media and newspapers. I would draft emails to seek clarity on specific issues with the military side of the exercise.

There were also daily briefing meetings. As a participant, I attended the OCHA briefing meetings with humanitarian agencies where we planned activities such as the deployment of secure aid convoys to disaster-affected regions of Bogaland. This participation in meetings was very informative as it informed how civilians and the military should communicate in a conflict zone.

I also managed to attend some army briefings as an observer, notably the morning Commanders Briefing and the Operations Briefing. During the Commanders Briefing, leaders of each army unit from intelligence, operations, legal and others would brief the commander about the situation on the ground and discuss the planned activities for the next 24 hours. This method was also the situation with the Operations Briefing.

On the overall, the Exercise Viking was a critical and practical element to my LLM experience in Ireland. I imagine that it was similarly helpful and practical for all the other participating students, civilian, police and military personnel from around the world. It added a real-world dimension on what life and interaction would be like in a humanitarian situation, in conflict areas.

The only downside is that the exercise is only held every 3-4 years, which means such an opportunity would only be availed to students and other stakeholders in the year 2021.

For future participants, the training is a once in a lifetime event, and it adds to the practical side of learning. It is a welcome experience that holds together lessons from international humanitarian law, international relations, development planning, crisis response, and conflict resolution and human rights sides. And yes, in the end, we were awarded #Viking18 pins and certificates for successful participation in Exercise Viking 18.

The Future of the International Criminal Court in Africa (Part II): The Birth of an “African Criminal Court”

This guest blog by Kiconco Katabaazi Patrick (candidate on the UCC LLM International Human Rights Law & Public Policy programme) examines the African Union’s proposed African Court of Justice and Human and Peoples’ Rights.

Introduction

In 2012, after series of engagements within the African Union system, Ministers of Justice and Attorneys General on Legal Matters resolved to amend the Protocol on the Statute of African Court of Justice and Human Rights by extending its jurisdiction to cover international crimes.

On 27th June 2014 the AU’s Assembly of Heads of State and Government sitting at the 25th ordinary session of African Union adopted the Protocol in Malabo, Equatorial Guinea and in effect extended the mandate of the African Court of Justice and Human and Peoples’ Rights to cover International Criminal Law.

Through this intervention, the African Union replicated crimes covered under Rome Statute of the International Criminal Court (ICC) such as genocide, crimes against humanity and the crime of aggression, but additionally included crimes that were not previously known as traditional crimes under international law such the crime of unconstitutional change of government, terrorism, corruption, money laundering and others.

From the list of crimes under the jurisdiction of this court one would conclude that the African Union has embarked on a very ambitious journey which may present some future hurdles in implementation.

As discussed in the previous blog article, African leaders were very enthusiastic in embracing the ICC and became very active in referring both real and perceived political opponents – until the reality of their own possible prosecution set in.

It is still too early for one to dismiss the newly constituted African court as a non-starter, but it is important to appreciate that to-date only 11 out of 55 AU member states have signed the amended statute, with zero ratifications and zero deposits in spite of the fact that the Protocol and the accompanying statute are mandated to enter into force 30 days after the deposit of instruments of ratification by 15 member states. As a result, the court does not yet have the authority to utilise its newly granted powers.

It would seem to me that the pressure and zeal of African leaders demonstrated at the height of the ICC’s hot pursuit of the Presidents of Kenya and Sudan has since subsided and the need for an African specific criminal court may after all not be as urgent as it was in yester years .This is particularly so because one of the arguments that has been consistently flaunted by Kenya was that the ICC needs to allow national courts and other African-based judicial mechanisms to be given a chance and that intervention from The Hague should be at last resort.

With Kenya off the radar of the ICC for now, this aggressive campaign to start an African version of ICC may no longer seem very attractive. This may explain why Kenya became the symbolic first signatory on 27th January 2015 but has since failed to ratify and deposit the Protocol and statute.

It may be argued that with the changes in the political landscape particularly in South Africa, Zimbabwe, Gambia and others, the issue of having a court motivated by the leaders’ misgivings against the ICC may be watered down.

Besides, one of the biggest concerns that preceded this protocol, which is still relevant today, is the issue of funding. The African Union itself is largely dependent of donations and as such supporting a very expansive court to standards required may be a tall order in light of the fact that most African states are still struggling to provide adequate funding for their own national courts.

How will the African Court of Justice and Human and Peoples’ Rights affect ICC?

Whereas it is speculative to focus so much on the likely effects of the new powers of the African Court of Justice and Human and Peoples’ Rights before the Protocol comes into force, it clear that Africa as a block constitutes a third of the total membership under the Rome Statute and its decisions (as long as they are taken as a block) have implications on the ICC.

One such decision to circumspectly look out for and how it will play out is the ‘withdraw strategy’ which was adopted at the Assembly of African Union that I have already pointed out. It will be interesting to see how this African Court will relate with the ICC given that that some hitherto vocal supporters of the former, such as South Africa and Gambia, seem to have developed cold feet.

However, it remains a concern that an African criminal court may pose challenges for the ICC as this could give room for excuses for African leaders to withdraw from the ICC on the pretext that they have their own court of a similar jurisdiction. It is also likely that some may not withdraw from the ICC but may find it difficult to cooperate with requests and warrants from the ICC as has been the case with President Al-Bashir.

The other glaring challenge is that the ‘African Criminal Court’ will not have jurisdiction to charge sitting Heads of State and Government and thereby lowering the standard set by the Rome Statute and as such if African states prioritise their court ahead of the ICC, citizens on the continent will be denied a sense of protection from ruthless rulers and leaders.

Whilst this fear is logical, it needs to be clear that whereas the Rome Statute recognises national courts, it does not have any provision that recognises interstate or regional courts and so developments within the African Union may not have direct adverse legal implications on the power and authority of the ICC.

Nonetheless, it remains to be seen how the ICC will deal with the mounting pressure from the African block and my view is that there is a need for strategic engagements by stakeholders to see how ICC can be strengthened rather than weakened. Stakeholders such as UNSC are important because if their actions in referring cases to ICC do not reflect fairness, the ICC as a justice-centred institution will continue to face reputational problems.

Further, ICC needs to broaden stakeholder engagements and consider establishing closer relationships with citizens of member states through their representatives. This is important because it has been established that the ICC enjoys great public support from ordinary citizens including from those countries whose leaders have been vocal against the court. In Kenya for example, an opinion poll conducted by IPSOS Synovate in 2013 revealed that 67% of respondents were in favour of the ICC’s process at same the time when President Uhuru Kenyatta and his henchmen were vigorously campaigning against it.

Citizens can be engaged through their respective Parliaments/National Assemblies with aim of broadening support and building a knowledge base that can help legislators make informed decisions. Parliaments are critical and the case of Gambia and Burundi is clear demonstration that weak parliaments can be used by leaders to rubber stamp things that may even be against public interest such as casually withdrawing from the Rome Statute without public participation.

Other institutions such as the judiciary and civil society organisations play a vital role in creating checks and balances in member states .In South Africa, for example, when the executive arm of government defied the ICC by refusing to detain and hand over Al–Bashir, the High Court and later South African Supreme Court of Appeal made orders that have capacity to influence how situations of a similar nature will be handled in future.

Beyond strategic engagements with Heads of States/Heads of Government and departments responsible for foreign affairs, the need to create linkages with legislature, judiciary and civil society cannot be over emphasised. This may require the creation of a strategy and policy coordination office which may be a stand-alone department or it can be placed under the Independent Oversight Mechanism (IOM) to ensure that the ICC as an institution gets reasonable visibility on key issues.

Conclusion

It should be recalled that the establishment of the International Criminal Court was a long and often a very capricious process involving extensive negotiations and compromises. What we learnt from the two world wars is that human-made catastrophes such as the ones witnessed then may be caused by very small things. What starts as a small dispute involving few countries has the potential to generate into a full blown crisis with very serious consequences for the human race. With improved technology the threat of mass destruction caused by a small dispute is even greater.

The idea to create a global criminal court started way back in the 19th Century but did not materialise until 1948 when the International Law Commission was established. Even then, it took over fifty years to finally deliver the Rome Statute. The ‘road to Rome’ was long and more often than not bumpy and therefore any attempts to weaken or kill this clearly betrays victims of crimes this court was set up to fight and in addition such endeavours undermines huge sacrifices made by all players involved in the birth of the ICC.

Further, our inability to forecast future events with precision is another strong reason why we must fight to consolidate the achievements made and perhaps strive to make the ICC stronger and tougher.

African Union therefore, should instead advocate for reform of the ICC to ensure that it achieves its objectives rather than weakening it, and even if the African Court of Justice and Human and Peoples’ Rights opens its doors for business there is a need for dialogue – particularly on crimes under the jurisdiction of ICC. The Chief Prosecutor Ms Fatou Bensouda of the ICC and newly elected President Judge Chile Eboe-Osuji are from Africa and who knows – the future of the ICC could have greater prospects on the continent after all!

The Future of the International Criminal Court in Africa (Part I): Tracing the Roots of the Love/Hate Relationship

This guest blog is written by Kiconco Katabaazi Patrick who is a candidate on the UCC LLM International Human Rights Law & Public Policy programme.

Introduction

In July 2018, the International Criminal Court (ICC) will celebrate 20 years since the Rome Statute was opened for signature on 17th July 1998, thereby establishing a global criminal court whose idea had been mooted several decades back.

Over the course of two blog articles, I will shed light on the genesis of the ICC, the relationship the Court has had with African countries and how the creation of an African version of ICC in the name of the African Court of Justice and Human and People’s Rights is taking shape .This new Court is expected to try international crimes including those under the jurisdiction of ICC, thereby opening debate on the future of ICC in Africa.

Tracing the origins of ICC

The idea to set up a world criminal court owes its origins in 19th century during the Franco- Prussian War. In 1872, Gustav Moynier – a Swiss jurist and one of the founding fathers of the International Committee of the Red Cross advocated for the establishment of a permanent court to respond to crimes committed in interstate conflicts .This idea did not gain traction largely because the impact of war at that time was not felt by many states in Europe.

The effects of First and Second World Wars played a very significant role in the establishment of an international court responsible for prosecuting perpetrators of crimes against humanity, breach of peace and crimes of aggression. The genesis of this deep seated desire has roots in the Versailles Treaty of 1919 between Germany and Victorious Allies that signalled the end of the First World War. However, it was not until 1945 that active steps were taken towards setting up a court to prosecute perpetrators of serious international crimes. This culminated in the Nuremberg Tribunal and Tokyo war crimes trials established under the 1945 Nuremberg Charter and International Military Tribunal for Far East Charter respectively.

It should be noted that the Nuremburg and Tokyo trials and their founding charters were limited in scope. The main focus was on crimes committed in the Second World War and did not address future similar events – thereby leaving a lacuna in the international judicial system. The desire to establish a permanent international criminal tribunal/court gained momentum at the 179th plenary meeting of the UN General Assembly in December 1948 in which Resolution A/RES/3/260B specifically mandated the International Law Commission (ILC) to explore the necessity and prospects of setting up an International Criminal Tribunal.

The International Law Commission went ahead to produce the first draft in 1950s but further progress on this process was affected by disagreements occasioned by Cold War politics. Work on the statute was rejuvenated in early1990s by two major factors namely conflicts in Bosnia-Herzegovina, Croatia and Rwanda as well as the end of Cold War which made consensus building for the promoters of the ICC much easier than ever before.

The ILC produced the final draft on International Criminal Court statute in 1994 which was considered at the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. The resulting Rome Statute created the first ever International Criminal Court (ICC) with a universal mandate to try perpetrators of war crimes, crimes against humanity, genocide and crimes of aggression.

The creation of the ICC was touted by experts and leading politicians as a momentous step towards a world of accountability and peace. This optimism was equally espoused by Kofi Annan, then UN General Secretary, when he stated in his speech:

“For nearly half a century – almost as long as the United Nations has been in existence – the General Assembly has recognized the need to establish such a court to prosecute and punish persons responsible for crimes such as genocide. Many thought … that the horrors of the Second World War – the camps, the cruelty, the exterminations, the Holocaust – could never happen again. And yet they have. In Cambodia, in Bosnia and Herzegovina, in Rwanda. Our time – this decade even – has shown us that man’s capacity for evil knows no limits. Genocide … is now a word of our time, too, a heinous reality that calls for a historic response.”

The memories of the genocide in Rwanda and the effects of wars in Cambodia, Bosnia-Herzegovina and Kosovo/Serbia were still very fresh and this perhaps provided motivation for many countries to sign up to the Rome Statute. The other motivation may be deduced from the desire by some leaders whose countries were facing internal threats to create a platform whereby rivals who had taken up arms against the state would be neutralised by threats of indictments. It has been suggested that President Yoweri Museveni of Uganda – one of the earliest supporters of the ICC – was largely motivated by a belief that the court would assist him end a decade long war championed by the notorious Joseph Kony of Lord’s Resistance Army in the Northern part of Uganda.

It can be safely argued that while some proponents were desirous of seeing a world court that would contain international crimes thereby promoting world peace and harmony, the mandate of the court to some remained narrow – as evidenced by events that have characterised the implementation of the Rome Statute.

How Africa became a focus of the ICC

The wheels of justice started spinning at ICC headquarters in The Hague leading to the arrest and detention of Thomas Lubanga. By 30th November 2011, Charles Taylor (the former President of Liberia), Germain Katanga, Ngudjolo Chui, Jean Pierre Bemba, Callixte Mbarushimana and Laurent Gbagbo (the former Ivorian President) had been apprehended by the ICC.

From the word go, the African continent became the main area of ICC operations largely because most heinous crimes were ostensibly being committed on the continent. Moreover, African leaders themselves sought the court’s intervention and were very enthusiastic in referring the initial cases for prosecution. While it is true that the arrest and detention of high profile figures such as Charles Taylor and Laurent Gbagbo attracted mixed reactions across the African continent largely because of their status as ex-Presidents, the arrests also demonstrated the vulnerability of future heads of State particularly in Africa. However, this issue did not become contentious at that point. It was rather the case of President Omar Al-Bashir of Sudan that propelled the loud voice of resentment and resistance to the ICC by many African Heads of State and Government largely because it became apparent that the ICC was getting closer and closer to the gates of their palatial presidential palaces and statehouses.

The indictment of Al-Bashir seemed to have surprised many Heads of State since Sudan was not a state party to the Rome Statute. In addition; they seemed to have imagined that the referral system by the UN Security Council (UNSC) was farfetched because of the UN rigorous processes. That was until 2015, when the UNSC referred the Darfur crisis to ICC for investigation by Resolution 1593. This culminated in the issuance of warrants of arrest against the President of Sudan, among others for crimes against humanity and other crimes related to genocide, thereby effectively putting African leaders on unprecedented collision course with the ICC. African leaders under the umbrella continental body of the African Union challenged the institution of the ICC and requested the court to suspend warrants of arrests, but to no avail.

On 3rd July 2009, the 13th African Union Summit of Heads of State in Libya unanimously resolved to defy the ICC and not to cooperate in any endeavours to apprehend and hand over the Sudanese President Al-Bashir.

The ICC-Africa affair was further complicated by the warrant of arrest in the cases of Muammar Gaddafi and Saif Gaddafi and the subsequent summons issued in the cases against Uhuru Kenyatta and William Ruto – the President and Vice-President of Kenya respectively. These new cases galvanised resistance of some African Heads against the ICC. Consequently, the African Union passed numerous resolutions calling for the suspension of active trials involving Heads of States and barred any action against any sitting Head of State or anyone acting in that capacity from being subjected to ICC jurisdiction until their concerns were addressed by the ICC and UNSC.

The Governments of Burundi, South Africa and The Gambia initiated processes aimed at withdrawing from ICC .The decision by these countries to withdraw from the ICC was cited with approval at the African Union General Assembly and ultimately inspired the assemblage to unanimously adopt ‘the ICC withdrawal strategy’ recommending member states to follow suit.

While the effect of ‘the ICC withdrawal strategy’ remains a subject of intense debate, the move is arguably the clearest expression of interest to quit the Rome Statute by African countries to date.

The crux of the dispute between Africa and ICC

From the onset, the indictment of President Al-Bashir reignited the debate on the sizzling issue of sovereignty and immunity of Heads of State. The issue of immunity had seemingly been resolved in 2002 (the same year ICC came into force) by the verdict of the International Court of Justice (ICJ) in the widely reported Arrest Warrant case in which that court held that diplomatic immunity extended to:

“Diplomatic and consular agents and certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs.”

From the traditional international law perspective, the immunity for a Head of State/Head of Government in respect to acts done in both an official and private capacity remains assured for as long as such a Head of State remains that position. This school of thought regarding acts done in a personal capacity changed in light of the Pinochet case in which Lord Browne-Wilkinson held that an ex-Head of State has no immunity for acts done in a private capacity while he was Head of State.

However, by signing the Rome Statute state parties had consciously or inadvertently waived all probable immunities under international law and customs for Head of State and other state officials as regards to crimes under the jurisdiction of the ICC, as evidenced by Article 27 of the Rome Statute:

  1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

  2. Immunities or special procedural rules which may attach to the official capacity of a person whether under national or international law shall not bar the court from exercising its jurisdiction over such a person.

In addition, Article 13b of the Rome Statute provides for the mandate of the Security Council to make referrals to ICC, which has been interpreted by the ICC Trial Chamber to mean that such referral is capable of extending court’s jurisdiction to non-party states.

Different scholars and politicians have argued African leaders were tricked into signing the Rome Statute and that they were not alive to the wide implications this had on their immunity and state sovereignty .This view is espoused by Professor Mahoomed Mamdani who asserts that African member states joined in unthinkingly and not knowing that the ICC was likely to be used as tool of oppression for powerful states.

I strongly disagree with a proposition that African leaders were outwitted or that in fact they unthinkingly joined the ICC, largely because the objectives of the court were comprehensible and largely conspicuous as evidenced from annals of history dating from the Nuremburg Tribunal and the final text of the International Law Commission. The spirit of the Rome Statute from the onset could not have been articulated better by anyone than Kofi Annan, then UN General Secretary, when he emphatically avowed:

“In the prospect of an international criminal court lies the promise of universal justice. That is the simple and soaring hope of this vision. We are close to its realisation. We will do our part to see it through till the end. We ask you … to do yours in our struggle to ensure that no ruler, no State, no junta and no army anywhere can abuse human rights with impunity. Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and that those who violate those rights will be punished.”

It is unquestionably clear that in circumstances such as the ones under which party states signed the Rome Statute, there was an overwhelming desire for the creation of an international court that would hold anyone liable and accountable. Thus, any suggestion that some member states were not aware of the nature of likely implications of the Rome Statue is either unfathomable or simply in bad faith.

Perhaps what seems to be of more concern is the perception that the AU has regarding the UNSC referral process which has been termed as “unfair”, and in some cases deemed to be “selective”. At the annual meeting of 123 ICC state parties in 2013, Ethiopia’s Foreign Minister acknowledged that the ICC was “no longer a court for all” and more ardently this popular criticism was summed up by President of Chad Idriss Deby after being elected African Union Chairman in 2016 thus; “Elsewhere in the world, many things happen, many flagrant violations of human rights, but nobody cares.”

The conduct of the UNSC’s handling of requests from the African Union may have been less than satisfactory, but that cannot be blamed on the ICC but rather on the statute which created an alternative powerbase at the UN where non-party states could sanction or veto any proposals relating to the ICC depending on their own interests. This means that countries such as Russia and USA, which are non-party states, can veto any resolution at the UNSC that is not in tandem with their own interests which has the potential to create double standards and ultimately defeat the principle of equality for all before the law.

Whereas the foregoing criticism is reasonable, it is important not to lose sight of the fact that the African continent has 5 seats at the UNSC and African representatives voted alongside other members on the question of impugned referrals to the ICC – which further reflects the lack of unanimity of African Union member states on the subject matter.

Further, it is equally vital to emphasize that, beyond the two cases at the ICC under UNSC referral and perhaps the unique case of Kenya where the ICC Prosecutor exercised proprio motu powers; all other cases on the African continent were self-referrals to the ICC by party states.

This suggests that the alleged issue of targeting African leaders can only be viewed in the unique context of cases of Al-Bashir and Gaddafi respectively and in my view may not be support this often touted accusation. What remains undeniably apparent is that the UNSC has remained less enthusiastic about other similar cases elsewhere such as Syria, Iraq, Burma and other places which cast doubt on the efficacy of this referral system under the UNSC.

The second part of this analysis will continue by examining the potential for an “African Criminal Court” – as proposed by the AU to establish the African Court of Justice and Human and People’s Rights.

Zimbabwe’s November 2017 Military Action: A Critique on Constitutionalism, Liberation Armies and Political Realities

This guest blog is written by Lenin Tinashe Chisaira (LL.B (Hons) (Univ. of Zimbabwe)) who is a candidate on the UCC LLM International Human Rights Law and Public Policy programme.

1.    INTRODUCTION

From the time on 13 November 2017, when Commander of the Zimbabwe Defence Forces (ZDF), General Constantino Chiwenga issued a press statement ostensibly protesting against purges occurring in the ruling Zimbabwe African National Union – Patriotic Front (Zanu-PF) party, there were debates, justifications and criticisms concerning military interference in the affairs of a civilian government. On 15 November 2017, a mere two days after the General’s statement, the ZDF blockaded the centres of State power in Zimbabwe’s capital Harare although insisting that the actions were not a military takeover of government. The centres of state power are contained in a few colonial era-buildings clustered around the Anglican (Church of England) Cathedral of St Mary’s and All Saints in Harare, the proximity to the Church bearing testimony of the country’s colonial past. The buildings that were barricaded include the President’s and Cabinet meeting offices at Munhumutapa Building (Executive); the High Court, Supreme Court and Constitutional Courts mainly housed in the Mapondera Building opposite Munhumutapa (Judiciary) and the Parliament Buildings (Legislative). The ZDF military action was code-named “Operation Restore Legacy” and resulted in the eventual resignation of President Robert Gabriel Mugabe and the nomination of former Vice President Emmerson Dambudzo Mnangagwa as Mugabe’s successor.

The ZDF relied on the preamble to the 2013 Constitution of Zimbabwe to justify military intervention in politics. General Chiwenga indicated that people who had participated in the liberation struggle were being targeted by “counter-revolutionary elements” and hence the Zanu-PF purges signified disrespect for liberation struggles and violated the constitution. The constitutional preamble included the following phrase: “Exalting and extolling the brave men and women who sacrificed their lives during the Chimurenga/Umvukela and national liberation struggles and honouring our forebears and compatriots who toiled for the progress of our country” (ZDF Statement, 13 November 2017) (Constitution of Zimbabwe, preamble, 2013). This was mainly meant to pre-empt other constitutional provisions such as Section 211(3): “The Defence Forces must respect the fundamental rights and freedoms of all persons and be non-partisan, national in character, patriotic, professional and subordinate to the civilian authority as established by this Constitution.” (Constitution of Zimbabwe, 2013)

In place of usual protestations aimed at usurpations of democracy and human rights, that usually accompany a coup d’état elsewhere in the world (See for instance the UN statement on the 2009 coup in Honduras), the ZDF military action was seemingly met with reasonable popular support and sighs of relief around the world and in Zimbabwe. The opinion would not be meant to serve as either a vote of confidence or no confidence in the military action, but to make a constitutional and political realist analysis of the ZDF’s actions. The analysis will seek to balance the context of the Zimbabwean political realities and liberation legacies with the dictates of an era of democracy, constitutionalism and human rights.

2.    POLITICAL REALITY, DEMOCRACY AND THE END OF THE MUGABE ERA

At both domestic and international level, there was general acceptance of the November 2017 military action. This was mainly as consideration for the unique status of affairs in Zimbabwe where the one-man Robert Mugabe rule has been a feature for the 37 years between 1980 and 2017. On 18 November, thousands of Zimbabweans took to the street in a solidarity march with the ZDF. In addition, in the House of Commons of the United Kingdom, the country’s erstwhile colonial power, the Foreign Secretary issued a statements that “Honourable Members on all sides of the House have taken a deep interest in Zimbabwe for many years – and I pay tribute to the courage and persistence of the Honourable Member for Vauxhall, who has tirelessly exposed the crimes of the Mugabe regime, visiting the country herself during some of its worst moments… Every Honourable Member will follow the scenes in Harare with goodwill and sympathy for Zimbabwe’s long-suffering people”. (Oral statement to Parliament- Situation in Zimbabwe: Foreign Secretary Boris Johnson’s statement, 15 November 2017). Subsequently the leader of Zimbabwe’s neighbour, Republic of Botswana’s President Ian Khama clearly said that: “I don’t think anyone should be President for that amount of time. We are Presidents, we are not monarchs. It’s just common sense” (Reuters)

The November 2017 military action also exposes a number of realities about Zimbabwean politics, or indeed about the politics of post-colonial and post-liberation states. The events invite an analysis of the character and outlook of a liberation army turned into a national defence force as well as the growing acknowledgements of social and economic problems faced by the people of Zimbabwe. The November events reveal the following:

2.1.    Identity of the Zimbabwean Defence Forces as a liberation militia

The November 2017 military action highlighted the ZDF as a perennial liberation army that still beholds itself as a continuous product of a political and ideological process. In reality though, the ZDF was crafted from both military and political processes at the end of the Zimbabwean liberation struggle in 1979-80. At independence, the ZDF was built up from two main liberation armies, namely the Zimbabwe National Liberation Army (ZANLA) and Zimbabwe People’s Revolutionary Army (ZIPRA), which were military wings of Zanu-PF (and of the Zimbabwe African Peoples Union, ZAPU, which eventually joined Zanu-PF). Some units of the Rhodesian security forces were also amalgamated into the ZDF whilst extreme units of the Rhodesian army such as the Selous Scouts were immediately disbanded. Even during the integration of the armies with professional support from the United Kingdom, there was “some conflict between the agreed nature of the new force under training with Mugabe, whose ZANLA forces had been trained by the Chinese and who wished to adopt a people’s militia model on one side, and the British who wished to create a more conventional, professional army” (Jackson: 2011)

Therefore, having originated in Zimbabwe’s liberation struggle, the ZDF leadership still views itself as involved in political and ideological warfare against neo-colonialism, as the ZDF Statement of 13 November 2017 shows. The ZDF posture had problems in a democracy where the army was supposed to be a professional entity subordinate to the civilian government. The ZDF desire to be on a footing with the militaries of countries such as the People’s Republic of China where the People’s Liberation Army owes its founding to, and was under the control of, both the state and the Communist Party of China, was a bit misplaced. The ZDF was no longer the Zimbabwe African National Liberation Army for starters. Rather the 2013 Constitution of Zimbabwe clearly provided that: “Neither the security services nor any of their members may, in the exercise of their functions act in a partisan manner or further the interests of any political party or cause.” (Constitution of Zimbabwe, Section 208 (1) and (2))

2.2.    Political justifications of defending “the gains of the liberation struggle” and Anti-colonialism

The ZDF statement justifying interference in Zanu-PF politics, on 13 November 2017, stated that “…the Zimbabwe Defence Forces remain the major stockholder in respect to the gains of the liberation struggle and when these are threatened we are obliged to take corrective measures.” This statement conjured memories of past instances when the ZDF command evoked links to the liberation struggle to justify political involvement. The most comparative moment was on the eve of the 2002 Presidential Election when President Robert Mugabe and Zanu-PF were facing their toughest electoral challenge since 1980 at the hands of Morgan Tsvangirai and the newly formed Movement for Democratic Change (MDC) party. At that time the then ZDF Commander General Vitalis Zvinavashe issued a statement: “We wish to make it very clear to all Zimbabwean citizens that the security organisations will only stand in support of those political leaders that will pursue Zimbabwean values, traditions and beliefs for which thousands of lives were lost in the pursuit of Zimbabwe’s hard-won independence, sovereignty, territorial integrity and national interests. To this end, let it be known that the highest office in the land is a straitjacket whose occupant is expected to observe the objectives of the liberation struggle. We will therefore not accept, let alone support or salute, anyone with a different agenda that threatens the very existence of our sovereignty” (ZDF Statement, 9 January 2002) (Tendi: 2013).

On the day of the November 2017 military action itself however, contrary to the statement of two days earlier, further reference to the liberation struggle was markedly absent in the ZDF statement read out on the morning of the military action. The ZDF instead justified military intervention in an anti-corruption tone. They stated that their action was targeted at allegedly corrupt cabinet ministers who were mostly pro-Grace Mugabe and these ministers had long been reportedly involved in the corrupt handling of public funds, allocations of public lands and interference with the operations of local governments. In the second ZDF statement therefore, the mission of the military action was stated as: “…targeting criminals around him (President Robert Mugabe) who are committing crimes that are causing social and economic suffering in order to bring them to justice” (ZDF Statement, 15 November 2017). This highlighted that the ZDF was beginning to balance its own interests with the anti-corruption sentiments and interests of the majority of the people.

The ZDF also initially indicated that they were going to take action against “neo-colonialism”. It is widely argued and accepted that Third World countries such as Zimbabwe suffer from unfair economic and political relations with super powers as highlighted by the compositions of multinational institutions such as the United Nations Security Council, World Bank and International Monetary Fund among others. The military action and statements however gave no further helpful or tangible links of evidentiary value between “neo-colonialism” and the perceived “criminal elements” (i.e. cabinet ministers) who were allegedly detained at the KGVI (King George the Sixth) military barracks for interrogation.

2.3.    Acknowledgment of Social Economic Problems

In addition to addressing internal Zanu-PF politics, the November 2017 military action events partly sought to acknowledge socio-economic problems faced by the ordinary people. The ZDF 13 November statement stated that “As a result of squabbling within the ranks of Zanu-PF, there has been no meaningful development in the country for the past 5 years. The resultant economic impasse has ushered-in more challenges to the Zimbabwean populace such as cash shortages and rising commodity prices”.

This part of the statement was bound to evoke popular/grassroots support at a time where the country was facing economic and social problems such as cash shortages and administrative onslaught upon vendors and the urban poor. The ZDF addressed issues of concern such as “cash-shortages” and “rising commodity prices.” Throughout the action they also acknowledged the importance of various sectors of Zimbabwean society such as the civil service, the judiciary, the legislators and the youths. These gestures were calculated at endearing the majority of the populace to the military action and judging by the mass marches of 18 November, the tactic worked.

3.    EFFECTS OF THE NOVEMBER MILITARY ACTION ON THE FUTURE OF DEMOCRACY AND HUMAN RIGHTS IN ZIMBABWE

The November 2017 military action was still unfolding at the time of the writing. However, events surrounding the action have revealed a number of lessons and insights for the democracy and human rights movements in Zimbabwe and beyond. These include the need for an ever-vigilant and vibrant opposition and civil society sector, the need for clear-headed watchdogs for human rights and constitutionalism during the heady moments of a “revolution” and the need to check the implications of partisan military involvement on the future of democratic politics.

3.1.    The failure of mainstream opposition to develop alternative pro-poor economic policies

The main concern for people within Zimbabwe has been on organising around socio-economic challenges. In that regard Zimbabwe had had significant civil society, trade union and students’ movements at various stages of its post-colonial history. However, in the decade since 2005, there has been a marked failure by mainstream opposition parties and most of the civil society to develop pro-poor alternative economic plans. Instead these sectors have developed neo-liberal manifestos and pro-business policy briefs that have never resonated with the majority of the working class populace. In the absence of a pro-people civil society and opposition sector, the ordinary people saw the November military action as the clear salvation against the years of President Robert Mugabe’s economic and policy blunders.

3.2.    The palace coup that ended an era and the 2018 elections

The November military action was definitely a palace coup, in that it sought to replace a leader with another member of the elite, namely expelled Vice-President Emmerson Dambudzo Mnangagwa who had the support of the military. The long awaited ouster of President Robert Mugabe would likely remain the major contribution of the action. The military action, was however worrisome considering that the country was going for elections in mid-2018, and as in key Presidential elections in 2002 and 2008, there would likely be tacit support by the military for a Presidential candidate, namely Emerson Dambudzo Mnangagwa. In the past years that involvement was very problematic for the outcomes of the elections and resulted in reports of the military being involved in torture and human rights violations of political opponents to the army’s preferred associated, with in the past has been Robert Mugabe.

3.3.    Human rights, democracy and personalisation of the liberation struggle

As indicated before, Zimbabwe remains a product of the liberation struggle. In that regard, the mainstream opposition parties’ reluctant efforts to acknowledge that history has continued to be their downfall especially at elections and mass mobilisation.

The liberation legacy has therefore been personalised by the Zanu-PF elite, and of late by the military elite. In essence the liberation struggle legacy presupposes any opponent to be a “counter-revolutionary” devoid of human rights. Hence the worrisome military style raids and detentions of cabinet ministers who were deemed to be G40.

4.    CONCLUSION

In conclusion, the November 2017 “Operation Restore Legacy” military action in Zimbabwe, highlight a state that was going through a social and economic crisis in addition to political uncertainty. These were fertile grounds for elite infighting within the ruling Zanu-PF party where military intervention unwittingly led to the end of the 37 years of the Robert Mugabe presidency, something which democratic elections and protest have failed to do. This was widely welcomed as a small but significant step towards a better and more democratic Zimbabwe. The November 2017 military action, no matter how it would play out to the end, will continue to be an interesting reference to the necessity of balancing demands for human rights, constitutionalism and democracy with an open-minded understanding of political reality.