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.

Dominic Ongwen on trial at the ICC

This guest blog is written by LLM graduate, Claire Raissian.

The trial of Ugandan former child soldier, Dominic Ongwen commenced before the International Criminal Court (ICC) on December 6, 2016. In light of significant evidence of state-sponsored violence and governmental negligence which contributed to the destruction of communities in Acholi-land, the Ongwen case has sparked international debate on various issues, including the politics involved in the ICC’s intervention in Uganda, and the one-sided nature of this particular fight against impunity.

The Office of the Prosecutor successfully expanded the charges against Ongwen in early 2016 and he now stands accused of seventy counts of war crimes and crimes against humanity before the ICC. The charges detail grave and extraordinary levels of violence, which he allegedly led as an adult and directed against his own people including inter alia, a series of attacks on Internally Displaced Persons (IDP) camps in Lukodi, Odek, Pajule and Abok between 2003 and 2004. He is the first known person to stand trial in an international court or tribunal, accused of crimes of which he is also a victim, specifically the war crimes of cruel treatment and conscription and use of a child soldier, and the crime of humanity of enslavement. The accused has pleaded not guilty to all of the charges and claims that he is a victim of the LRA, and does not personify the group.

The Ongwen case has not only prompted a questioning as to the effectiveness or otherwise of measures of international protection available to child soldiers, but has also led international legal actors to revisit the debate regarding the propriety of a prosecutorial response to perpetrators of mass atrocity in the context of transitional justice.  Revisiting this now requires a reframing of the debate in the context of child soldiers, specifically young abductees who were forcibly recruited into an armed group and used to participate in hostilities. Although Ongwen may be a unique defendant, he represents thousands of children in this respect. 

The significance of the international criminal law response to Ongwen’s case is further underlined in that it will contribute to what is known as a “paradigm of transitional jurisprudence”  and additionally set a sort of precedent in international law,  the implications of which may resonate in post-conflict  northern Uganda and beyond for many generations to come. The peace that exists in northern Uganda may be termed a ‘negative peace’ where the root causes of the conflict have not yet been addressed and no formal agreement has been signed to establish it. In fact, Joseph Kony remains at large today and the LRA continues to abduct children.

Whether the prosecution of Dominic Ongwen could factor in the establishment of positive peace in the region is unknown, however it is improbable that the law can play a constructivist role in rebuilding this particular rural society, where the legal response takes the form of an international criminal trial of a former child soldier, who many in the community consider to be a victim due to the fact of his abduction at a young age.

According to the facts of the case, Dominic Ongwen was approximately nine years old when he was abducted by the Lord’s Resistance Army (LRA), as he walked to school.  After a period of induction during which time he was tortured, enslaved and trained to fight, he was initiated into the group and afterwards rose through the ranks, eventually becoming a commander of the Sinia Brigade. His rapid ascension was due to the fact that he was an efficient killer, a loyal fighter, and because he survived when his superiors did not.  These promotions guaranteed him material advantages and personal security, while simultaneously diminishing the likelihood that he would ever return home. The LRA employed a mixture of cruelty and brainwashing to break down their abductees, at once subjecting them to slave labour, beatings and threats, while instilling their political ideology and convincing them that they were fighting, with their allies, to overthrow the Government and to improve the lives of the Acholi people.

Loyalty, Michael Wessells asserts, was used by the LRA as an incentive for rewards that would be received once the fighting was over. Kony was exceptionally skilled in his employment of tactics when breaking down the children, also drawing on the strong belief in the world of spirits that is inherent to the Acholi culture. For child abductees often, “the sense of survival does not necessarily dissipate and that dependence on the organisation never abates even when a commander moves up the ranks.”

Much later on, in 2007 Kony would order the murder of Vincent Otti, his second in command and Ongwen’s former teacher, or lapwony. Ongwen would not defect until 2015, when he surrendered to US forces in the Central African Republic (CAR) and was then taken into the custody of the ICC in The Hague.

Fatou Bensouda, in her opening statement as Chief Prosecutor, stated that the purpose of the Ongwen trial is to establish the ‘whole truth’ in relation to the crimes of which he stands accused. The binary nature of international criminal law cannot, however accommodate the nuances intrinsic to establishing the whole truth in this case. Ongwen is regarded by many to occupy a grey area in law by virtue of the fact of his abduction and initiation at a young age however, the need for the prosecution to establish his guilt as a perpetrator must mean that his more ambiguous status as a victim-perpetrator is thereby voided.

Erin Baines, who co-founded the Justice and Reconciliation Project (JRP) said that; “In Ongwen’s case, the morally superior concept of ‘child soldier as a victim’ collapses. But so too does the personification of evil into the image of a perpetrator.”

In a JRP Report it was noted that a failure by international legal interventions to formally address the truth and reality of the complex political victim in a post-conflict situation, and the consequent denial of their access to justice, may fuel the social exclusion and construction of “the other” which is the initial step in the creation of a dehumanised subgroup, and may lead back to violence. Neither the ICC, nor the government amnesty in Uganda make provision for such individuals, treating victims and perpetrators as “homogenous groups” and distinct from one another.

With this in mind, Baines expanded on Erica Bouris’ theory of victim agency when she wrote about Ongwen a year later, introducing the concept of a “complex political perpetrator” as someone who is forced to act within the parameters of an extremely violent rebel group, where they have grown up in such extreme devastation that their everyday life and surroundings are in a state of “chronic crisis.”

The exoneration of Dominic Ongwen is not however countenanced by the JRP, nor anywhere here. However, I concur with the observation that was made by them upon his indictment by the ICC, that in issuing the warrant for his arrest as one of the architects responsible for orchestrating the LRAs operations, the ICC cannot simply gloss over the fact that he was “[…] once a child who was unprotected, abducted, indoctrinated, brutalized and forced to commit heinous acts.” The temporal jurisdiction, limited as it is to crimes committed after 2002 probably means that, “[T]he culpability of Ongwen in the wider context of mass, collective victimisation of children in northern Uganda was likely not factored into the decision to issue warrants for his arrest.”

It is now for the Trial Chamber IX to decide whether Ongwen is guilty of his alleged crimes and whether he acted by his own volition as an adult, or whether he was subjected to such deeply entrenched duress, that as his defence team asserts, his “so-called rank was demonstrative of one thing: that he was surviving better than others while under duress.”

 

 

New Publication on the Laws Governing Humanitarian Assistance

Dug Cubie, The International Legal Protection of Persons in Humanitarian Crises: Exploring the Acquis Humanitaire (Hart Publishing 2017)

Dr Dug Cubie’s monograph examining the international legal protection of persons in armed conflicts, natural and human-made disasters and forced displacement will be published by Hart Publishing (Oxford) next month. In the book, Dr Cubie argues that the humanitarian imperative to support those in need, irrespective of geographic, cultural or religious links, is both facilitated and overwhelmed by the extent of information now available about the multiple humanitarian crises which occur on a daily basis around the world. Yet behind the images of devastating floods and earthquakes, or massive forced displacements resulting from armed conflicts, is the all too real suffering faced by individuals and families. From the 2004 Indian Ocean Tsunami to the on-going conflict in Syria, recent years have seen an increasing debate regarding the international legal mechanisms to protect persons in such humanitarian crises.

The International Legal Protection of Persons in Humanitarian Crises argues that an acquis humanitaire, or law of humanitarian assistance, is identifiable through the interconnected web of existing and emerging international, regional and national laws, policies and practices for the protection of persons caught up in humanitarian crises. Indeed, the humanitarian imperative to alleviate suffering wherever it may be found permeates various branches of international law, and is reflected in the extensive humanitarian activities undertaken by States and other actors in times of armed conflict, population displacement and disaster.

The book commences by interrogating the conceptual framework regarding humanitarianism and the protection of persons in international law, before examining the normative content of the acquis humanitaire. Specific chapters cover the binding and non-binding provisions in international human rights law, the law of armed conflict, international criminal law, international disaster laws, and refugee and displaced persons laws. The book concludes by noting that while a general legal right to humanitarian assistance may be in the process of crystallisation, its current status is contested. Nevertheless, over the course of the book, Dr Cubie argues that by clarifying the conceptual framework and normative content of the acquis humanitaire, gaps and lacunae can be identified and the overall protection of persons strengthened.

CCJHR-ISS21 seminar on climate migration

The CCJHR and the Institute for Social Science in the 21st Century (ISS21) Migration Cluster jointly hosted an inter-disciplinary seminar on climate migration on Thursday 2nd March 2017 in the School of Law, UCC.

Few people challenge the strong scientific evidence that anthropogenic climate change is a reality, and is negatively impacting many parts of the world. Indeed, one of the most oft-quoted consequences of global climate change is the possibility of large-scale human migration in response to rising sea levels, increased desertification, and intensification of natural disasters such as hurricanes and flooding.

Therefore, this seminar considered the human, social and legal implications of climate migration from an inter-disciplinary perspective, bringing together researchers from the fields of geography, philosophy and the law. Professor Robert McLeman from Wilfrid Laurier University Ontario and Trinity College Dublin, commenced by examining why people migrate and the different categories of climate-relating migration. Professor McLeman set out a variety of scenarios, including amenity migration (for example people in China migrating away from urban areas to avoid extensive smog and pollution), seasonal migration arising from seasonal floods in Bangladesh or dry season migration in India and central Asia, and climate extremes such as Hurricane Mitch which prompted a pulse of short-term evacuations and distress migration. Professor McLeman concluded by stressing that we should not fear floods of climate refugees but focus on addressing root causes, building adaptive capacity and creating basic legal protections and rights.

Next, Dr Cara Nine from the Department of Philosophy, UCC presented on her research into two key aspects of climate migration. First, Dr Nine examined the issues of territory and sovereignty in the context of disappearing states such as the small Pacific Islands that comprise Kiribati and Tuvalu. Applying John Locke’s proviso mechanism to territorial rights, Dr Nine queried when a state or people might become a candidate to gain sovereignty over new territory due to the disappearance of their original state. Dr Nine then examined the concept of place attachment, defined as the positively experienced bonds between persons and their environment, and identified specific interests including autonomy, self-esteem and personal identity that affect an individual’s personal interests.

Dr Dug Cubie from the School of Law, UCC addressed the legal categorisation of “climate refugees” and identified the lack of an accepted legal definition. In particular, Dr Cubie noted the multi-causal nature of migratory decisions and that, except in cases of catastrophic environmental degradation, attributing causation to climate change was challenging. Dr Cubie also highlighted the importance of considering potentially vulnerable people who remain in their homes due to ill-health, age or other reasons. The right to remain requires the application of human rights principles such as participation, empowerment and accountability to ensure adaptation with dignity. In particular, Dr Cubie noted the rights of access to information, participation in decision-making and effective access to justice arising from Principle 10 of the 1992 Rio Declaration on Environment and Development.

The seminar concluded with an open discussion with those in attendance on a variety of aspects, and the benefits of such inter-disciplinary events to share knowledge and experience across the university. For more information, see:

Book Review: ‘East West Street: On the Origins of Genocide and Crimes against Humanity’ by Philippe Sands

We are delighted to welcome this guest book review from Samantha Williams, PhD candidate at the CCJHR and School of Law, UCC.

East West Street: On the Origins of Genocide and Crimes against Humanity by Philippe Sands, Weidenfeld, 437 pp, £20.00, May 2016, ISBN 978 1 4746 0190 0

Within an ever-expanding body of literature concerning World War II (WWII), Philippe Sands’ latest publication is a welcome and unexpected addition. Flipping the genre on its head, East West Street is a beautifully crafted text, focusing on a series of extraordinary historical coincidences.

Professor Philippe Sands QC, a practising barrister and Professor of International Law at University College London, is well known internationally as a leading scholar of genocide and crimes against humanity. As a barrister, working from Matrix Chambers, he was involved in the creation of the International Criminal Court, as well as a number of high-profile cases relating to accusations of genocide.

East West Street weaves together a collective narrative which is focused on the interrelated lives of four men, Hersch Lauterpacht, Raphael Lemkin, Hans Frank and Leon Bucholz, the latter, Sands’ maternal grandfather.  Part family biography, part history, part memoir and with a hearty dash of legal thriller – Sands serves as both tour guide and detective as he effortlessly weaves together several interconnected narratives using the town of Lviv in Ukraine as a starting point. Representing a departure from his previous catalogue of academic works, Sands draws the reader into a work which is best described in his own words as “a tale of four men, two legal norms, one trial and one city.”

Through the first part of the book, Sands leads us through the lives of these four men with a keen and eagle-like precision, poring over the “muck of evidence” with the same dogged perseverance that he does when filling in gaps in his own family history. Forever delving and going to great lengths to piece together the background and context within the interconnecting lives of these four men.

The role of the infamous Nazi lawyer Hans Frank, the man responsible for the decrees instructing the rounding up and mass murder of Polish-Jews, is juxtaposed with Raphael Lemkin and Hersch Lauterpacht, two forefathers of international law and creators of the terms “genocide” and “crimes against humanity”. Frank is also the man also responsible for the murder of the entire families of Lauterpacht, Lemkin and Buchholz – all of whom were wiped out in places now seared into the pages of history, Treblinka, Warsaw and Auschwitz. It is no surprise that Sands chose to bookend the text with the trial of the Nazi war criminals – a stark reminder that beyond their similar upbringing in the town of Lviv the narrative of the story is intrinsically interwoven with the harsh realities of the Holocaust.

It is arguably this perseverance and unwavering determination which is most engaging and thrilling for the reader, who at times may be mistaken for forgetting that the emerging story is not in fact a thrilling detective story, but instead an all-absorbing mini-biography of Lauterpacht, Lemkin and Buccholz. Such detailed and masterfully executed detective work is the cornerstone which supports the magic of Sands’ work. This perseverance and evidence-based writing is where Sands’ strength as both a practitioner and as a writer come to fruition.

The second half of the book moves away from its biographical starting point to compare and contrast the conceptions of crimes against humanity and genocide and the opinions of the men who drafted these. For Lauterpacht, it was individuals who ought to be the focus of such a new crime and thus, crimes against humanity was conceived. For Lemkin, the atrocities of Nazi Germany had been aimed at individuals as members of distinct ethnic groups, Roma, Jews, and minorities in general – so for him this new crime needed to lend a previously unseen level of protection to such groups, thus genocide was created.

The apparently conflicting basis for these two new crimes are examined in depth within the book as Sands highlights both the thought process and advocacy that both men had to go through to have their terms included in the Nuremberg judgments. For Lemkin, this was much more of an uphill struggle than for Lauterpacht – Sands credits this fight for legitimacy as attributable to both Lemkin’s rather alienating personality and the wariness of the prosecutors to adopt such a radical new take on a state’s responsibility. Genocide signaled a clear departure from the ideas of state sovereignty, that a state can do whatever it wishes to those under its sovereign power and within its borders. While such reasoning is artfully explored, as one would expect of a barrister and Professor of International Law, Sands’ preference towards Lauterpacht is markedly clear:

I was instinctively sympathetic towards Lauterpacht’s view, which was motivated by a desire to reinforce the protection of each individual, irrespective of which group he or she happened to belong to, to limit the potent force of tribalism, not reinforce it … It was a rational, enlightened view.

This clearly marked bias serves somewhat to detract from the larger analysis of these two great men and the norms which they constructed. In a recent event held at UCL, On Law, Life and Literature, Sands was asked about such leanings, and answered frankly, arguing that the crime of genocide is now part of a hierarchy of international law norms, and its usage is often inexplicably (and perhaps mistakenly) favoured over crimes against humanity. For Sands, as both a practitioner and as an academic, this amounts to a huge oversight – “a direct consequence of the idea of a group having been elevated higher than that of the individual.”

This elevation is ultimately troubling for Sands as it “downplays the significant role that individuals play within international law.” However, in doing so it is suggested here that Sands somewhat oversimplifies the key differences between Lauterpacht and Lemkin’s approach to this rebirth of international law. Sands perhaps undersells the significance of what Lemkin was envisioning in his attempts to bring focus back to a renaissance or reimagining of previous incarnations of minority rights safeguards, such as the Polish Minority Treaty, also known as the ‘Little Versailles Treaty.’

This bias is also clear further on in the narrative when Sands notes that Lemkin’s approach was always likely to fail to win over the imaginations of the Allied Prosecutors. Sands attributes this to Lemkin’s flaws as an individual and general ‘unlikeability’. However, it is suggested that this was more likely to be due to the focus of his newly conceived idea. Particularly, as genocide’s focus was to protect the rights of minority groups from a repeat of the horrific atrocities of Nazi Germany.

A quick overview of the historical the context of the time, an era of civil unrest under Jim Crowe in America and the rise of unrest in the Colonies of the British Empire, highlights the dangerous that the idea of genocide with its protections afforded specifically to groups, could have caused. Specifically, as historically both the US and most notably the UK had treated minority groups in a way that the newly emerging crime of genocide could be applied to. Such opposition suggests the Lemkin’s idea might have been getting at something important and was ultimately widely applicable to the acts of the Allied Powers both prior to and post-WWII. Sands’ diminishing of historical context here suggests a slight oversight of the intrinsically institutionalised nature of ethnic and racial prejudice in most European States at that time.

It is also worth noting that weaving a personal, biographical story with an exploration of important legal norms and the figures behind these placed certain limitations upon the book and its relevance. Furthermore, Sands’ preferential treatment of Lauterpacht over the “less likeable” and “wayward,” Lemkin leads the book to descend dangerously close to hero worship (a point noted by Mark Mazower in his review of East West Street). However, such slight oversights ultimately do not detract significantly from what is a well-written and immaculately researched work.

In conclusion, East West Street is an impeccably detailed read, set within the historical context in a way which elevates it from other works focussed on the intricacies of international law and WWII literature. Part historical detective story, part family history, part legal thriller, Sands guides with a gentle hand and highly descriptive writing between past and present – as the stories of the men unfold in parallel. Unravelling this personal story, yet simultaneously weaving this into the lives of Lemkin and Lauterpacht – Sands keeps the reader engrossed throughout – even when discussing in great analytical detail certain elements of the Nuremberg Trials. For this, East West Street undoubtedly deserves the acclaim and literary accolades it has received since its publication in the summer of 2016. Yet one would expect nothing less from Sands.

Racial Stereotypes in Family Reunification Law: the case of Biao v. Denmark before the European Court of Human Rights

Dr Fulvia Staiano, former Irish Research Council Post-Doctoral fellow, CCJHR, School of Law, University College Cork

On 24 May 2016, the Grand Chamber of the European Court of Human Rights (ECtHR) identified an instance of indirect discrimination in the case of Biao v. Denmark. The case concerned the exclusion from family reunification of the applicants – a Danish citizen of Togolese origin and his Ghanaian citizen wife – on the grounds that they satisfied neither the so-called “attachment requirement” nor they fell within the scope of the “28-year rule”. As to the first, pursuant the 2000 Dutch Aliens Act only couples whose aggregate ties with Denmark are stronger than those with any other country may obtain a residence permit for the purpose of family reunification. The 28-year rule, however, exempts from such a requirement couples where one of the partners has been a Danish national for at least 28 years, or is a non-Danish citizen who was born and/or raised in Denmark and has lawfully resided there for at least 28 years.

Before the ECtHR, the applicants argued that the Danish family reunification regime generated indirect discrimination on the grounds of race and ethnic origin. They submitted that the majority of people who have been Danish citizens since birth are ethnically Danish, while those who acquire Danish citizenship later in life are more likely to be of other ethnic origin. Therefore, in their view the 28-year rule did not pursue a legitimate aim, and in any case it lacked a legitimate justification. The second section of the Chamber had not been receptive to this line of argumentation, choosing to frame the case merely as one of differential treatment between persons who had been Danish nationals for more than 28 years and persons who had been so for less than 28 years. The Grand Chamber, on the other hand, established that the core question posed by Biao was whether the 28-years rule amounted to indirect discrimination on the grounds of race and ethnic origin.

The ECtHR first assessed the existence of a disparate impact of the rules at issue on Danish citizens of non-Danish ethnic origin. Despite the unavailability of statistics on the allegedly disproportional prejudicial effect of the 28-year rule on this group, it established that it could be reasonably assumed that Danish citizens born and raised in Denmark would be of Danish ethnic origin – while those who acquired citizenship later in life would be of foreign ethnic origin. Thus, the 28-year rule indirectly favoured the former.

The ECtHR then moved on to consider the existence of a legitimate aim, considering that the burden of proof had shifted to the Government and that very weighty reasons would have to be put forward to justify the identified indirect discrimination. The ECtHR observed that the aim of the 28-year rule – as emerging from its preparatory works – was to allow Danish expatriates to return to Denmark and obtain family reunification there. Moreover, the extension of the attachment requirement to Danish citizens was justified in the preparatory works as a way to foster the integration of those among them who were originally of foreign extraction. In the Government’s view, indeed, the latter showed a tendency to marry persons from their country of origin, and this in turn allegedly hampered their integration. Recalling its landmark judgment of Konstantin Markin v. Russia, the ECtHR rejected such justifications as stereotypical. These biased assumptions therefore could not justify the difference in treatment at the disadvantaged of naturalised Danish citizens. Since it was not possible to identify other very weighty reasons unrelated to race and ethnic origin, the ECtHR recognised a breach of Art. 14 in conjunction with Art. 8 ECHR.

The Biao judgment constitutes an important deviation from the traditional reticence of the ECtHR to identify and reject stereotypical justification on the grounds of race and ethnicity within migration law. This feature was already observable in Abdulaziz, Cabales and Balkandali v. the United Kingdom, where the imposition of stricter conditions to obtain leave to remain in the United Kingdom exclusively to non-patrials was considered not “racist in character”. In the ECtHR’s view, the disparate impact of such norms on certain ethnic groups was simply due to the fact that “among those wishing to immigrate, some ethnic groups outnumbered others”.

In the case at issue, on the other hand, the ECtHR recognised the discriminatory character of racial stereotypes, arguing that the latter may not justify differential treatment. This type of reasoning is well established in the ECtHR jurisprudence in respect to gender stereotypes and sex discrimination (Marckx v. Belgium, the abovementioned Konstantin Markin, Vrountou v. Cyprus), but its application to race discrimination is a welcome novelty.

The effects of the Biao judgment on the Danish 28-years rule remain to be seen. Both concurring and dissenting opinions accompanying the decision highlighted the risk that the exemption from the general attachment requirement will be eliminated altogether. The possibility of further restrictions to the right to family reunification in Danish law in response to this judgment appears plausible. However, the principles established in Biao constitute an important limitation to the discretionary power of Council of Europe State Parties to grant preferential treatment to those born on their territory (as outlined from Abdulaziz onwards). The newly found awareness of the ECtHR that such differentiations can produce a disparate impact on the grounds of race and ethnic origin is a significant dent to this tenet.

Dr Fulvia Staiano’s recent book is now available: The Human Rights of Migrant Women in International and European Law (2016)

 

The Story of King Tex: A Modern Allegory

Dr Dug Cubie

1st February 2017

This blog presents a modern allegory (with apologies to Lon Fuller).

In Lon Fuller’s 1969 book The Morality of Law, Fuller set out the story of King Rex, as a cautionary tale of the need for clarity, consistency and predictability within legal systems. Profoundly influenced by the horrors of the 20th Century, in particular the Nazi regime in Germany and the Stalinist regime in the USSR, Fuller desired to establish certain benchmarks for legal systems based on his view of the “inner morality of the law.” Fuller argued that the inner morality of a legal system was based first on the morality of duty (the duty to provide basic rules for the ordering of society) and then the morality of aspiration (the aspiration of excellence within a legal system). Surprisingly little of Lon Fuller’s account of King Rex needs to be changed to fairly accurately reflect the start of President Trump’s administration…

So, as Fuller might have written: This story concerns the unhappy reign of a monarch who bore the convenient, but not very imaginative and not even very regal sounding name of Tex.

Eight Ways to Fail to Make Law

Tex came to the throne with the zeal of a reformer. He considered that the greatest failure of his predecessors had been in the field of law. For generations the legal system had known nothing like a basic reform. Procedures of trial were cumbersome, the rules of law spoke in the archaic tongue of another age, justice was expensive, the judges were slovenly and sometimes corrupt. Tex was resolved to remedy all this and to make his name in history as a great lawgiver. It was his unhappy fate to fail in this ambition. Indeed, he failed spectacularly, since not only did he not succeed in introducing the needed reforms, but he never even succeeded in creating any law at all, good or bad.

His first official act was, however, dramatic and propitious. Since he needed a clean slate on which to write, he announced to his subjects the immediate repeal of all existing law, of whatever kind. He then set about drafting a new code. Unfortunately, trained as a lonely property developer, his education had been very defective. In particular, he found himself incapable of making even the simplest generalisations. Though not lacking in confidence when it came to deciding specific controversies, the effort to give articulate reasons for any conclusion strained his capacities to the breaking point.

Becoming aware of his limitations, Tex gave up the project of a code and announced to his subjects that henceforth he would act as a judge via Twitter in any disputes that might arise among them. In this way under the stimulus of a variety of cases he hoped that his latent powers of generalisation might develop and, proceeding case by case, he would gradually work out a system of rules that could be incorporated in a code. Unfortunately the defects in his education were more deep-seated than he had supposed. The venture failed completely. After he had handed down literally hundreds of fabulous decisions within the confines of 140 characters neither he nor his subjects could detect in those decisions any pattern whatsoever. Such tentatives toward generalisation as were to be found in his opinions only compounded the confusion, for they gave false leads and alternative facts to his subjects and threw his own meagre powers of judgment off balance in the decision of later cases.

After this fiasco Tex realised it was necessary to take a fresh start. His first move was to subscribe to a course of lessons in generalisation. With his intellectual powers thus fortified, he resumed the project of a code and, after many hours of solitary labour, succeeded in preparing a fairly lengthy Executive Order. He was still not confident, however, that he had fully overcome his previous defects. Accordingly, he announced to his subjects on Twitter that he had written out a GREAT CODE and would henceforth be governed by it in deciding cases, but that for an indefinite future the contents of the code would remain an official state secret, known only to him and his family. To Tex’s surprise this sensible plan was deeply resented by his subjects, who took to the streets in their thousands to protest. They declared it was very unpleasant to have one’s case decided by rules when there was no way of knowing what those rules were.

Stunned by this rejection, Tex undertook an earnest inventory of his personal strengths (which were legion) and weaknesses (of which he had none). He decided that life had taught him one clear lesson, namely, that it is easier to decide things with the aid of hindsight and by reflecting on the good old days than it is to attempt to foresee and control the future. Not only did hindsight make it easier to decide cases, but – and this was of supreme importance to Tex – it made it easier to give reasons. Deciding to capitalise on this insight, Tex hit on the following plan. At the beginning of each calender year he would decide all the controversies that had arisen among his subjects during the preceding year. He would accompany his decisions with a full statement of reasons. Naturally, the reasons thus given would be understood as not controlling decisions in future years, for that would be to defeat the whole purpose of the new arrangement, which was to gain the advantages of hindsight. Tex confidently announced the new plan to his subjects over Twitter at 3am, observing that he was going to publish the full text of his judgements with the rules applied by him, thus meeting the chief objection to the old plan. Tex’s subjects received this announcement in silence, then quietly explained through their more enlightened democratic representatives that when they said they needed to know the rules, they meant they needed to know them in advance so they could act on them. Tex muttered something to the effect that they might have made that point a little clearer, but said he would see what could be done.

Tex now realised that there was no escape from a published code declaring the rules to be applied in future disputes. Continuing his lessons in generalisation, Tex worked diligently on a revised GREATER CODE, and finally Tweeted that it would shortly be published. This announcement was received with universal gratification. The dismay of Tex’s subjects was all the more intense, therefore, when his code became available and it was discovered that it was truly a masterpiece of obscurity. Legal experts who studied it declared that there was not a single sentence in it that could be understood either by an ordinary citizen or by a trained lawyer. Indignational became general; and soon a protest appeared before Tex’s gaudy palace of gold carrying signs that read, “How can anybody follow discriminatory immigration rules that nobody can understand?”

The GREATER CODE was quickly withdrawn. Reluctantly recognising for the first time that he needed assistance, Tex put a staff of experts who he hadn’t purged to work on a revision. He instructed them to leave the substance untouched, but to clarify the expression throughout. The resulting GREATEST CODE was a model of clarity, but as it was studied it became apparent that its new clarity had merely brought to light that it was honeycombed with contradictions. It was reliably reported by respected journalists that there was not a single provision in the code that was not nullified by another provision inconsistent with it. An even larger protest appeared before the golden palace, carrying signs that read, “This time the king made himself clear – in both directions.”

Once again the code was withdrawn for revision. By now, however, Tex had lost patience with his subjects and the negative attidude they seemed to adopt toward everything he tried to do for them. He decided to teach them a lesson and put an end to their carping. He instructed his remaining experts to purge the code of contradictions, but at the same time to stiffen drastically every requirement contained in it and to add a long list of new crimes such as practicing a different religion or being an immigrant. Thus, where before individuals summoned to the throne were given ten days in which to report, in the revision the time was cut to ten seconds. It was made a crime, punishable by ten years imprisonment to cough, sneeze, hiccough, faint or fall down in the presence of the king (he stressed that he was a germaphobe). It was made treason not to understand, believe in, and correctly profess that fossil fuels and human activity have no impact on climate change whatsoever.

When this GREATEST EVER CODE was sent out on Twitter a near revolution resulted. Leading citizens declared their intention to flout its provisions. Someone discovered in an ancient author a passage that seemed apt: “To command what cannot be done is not to make law: it is to unmake law, for a command that cannot be obeyed serves no end but confusion, fear and chaos.” Soon this passage was being quoted in a hundred petitions to the king.

The code was again withdrawn and a staff of experts chaired with the task of revision. Tex’s instructions to the experts were that whenever they encountered a rule requiring an impossibility, it should be revised to make compliance possible. It turned out that to accomplish this result every provision in the code had to be substantially rewritten. The final result was, however, a triumph of draftsmanship. It was clear, consistent with itself, and demanded nothing of the subject that did not lie easily within their powers. It was printed and distributed free of charge through social media.

However, before the effective date for the new GREATEST EVER CODE, REALLY had arrived, it was discovered that so much time had been spent in successive revisions of Tex’s original draft, that the substance of the code had been seriously overtaken by events. Ever since Tex assumed the throne there had been a suspension of ordinary legal processes and this had brought about a climate of uncertainty for the economy and institutions of the country. Accommodation to these altered conditions required many changes of substance in the law. Accordingly as soon as the new code became legally effective, it was subjected to a daily stream of amendments. Again popular discontent mounted; an anonymous blog appeared online carrying scurrilous cartoons of the king and a leading article with the title: “A law that changes every day is worse than no law at all.”

Within a short time this source of discontent began to cure itself as the pace of amendment gradually slackened. Before this had occurred to any noticeable degree, however, Tex announced an important decision. Reflecting on the misadventures of his reign, he concluded that much of the trouble lay in bad advice he had received from experts. He accordingly declared he was reassuming the judicial power in his own person. In this way he could directly control the application of the new code and insure his country against another crisis. He began to spend practically all of his time hearing and deciding cases arising under the new code.

As the king proceeded with this task, it seemed to bring a belated blossoming his long dormant powers of generalisation. His opinions began, indeed, to reveal a confident and almost exuberant virtuosity as he deftly distinguished his own previous decisions, exposed the principles on which he acted, and laid down guidelines for the disposition of future controversies. For Tex’s subjects a new day seemed about to dawn when they could finally conform their conduct to a coherent body of rules.

This hope was, however, soon shattered. As the online record of Tex’s judgments became available and were subjected to closer study, his subjects were appalled to discover that there existed no discernible relation between those judgments and the code they purported to apply. Insofar as it found expression in the actual disposition of controversies, the new code might just as well have not existed at all. Yet in virtually every one of his decisions Tex declared and redeclared the code to be the basic law of his kingdom.

Leading citizens from all walks of life began to hold private meetings to discuss what measures, short of open revolt, could be taken to get the king away from the bench and back on the throne. While these discussions were going on, Tex was impeached for nepotism and conflict of interests, old before his time and deeply unloved by his subjects.

The first act of his successor, President Hex, was to abolish the monarchy and introduce genuine democracy and the rule of law based on the values of non-discrimination and accountability of elected officials.

Coda: During their famous debates in the 1950s over the legality of the Nazi regime and so-called grudge informers, Lon Fuller and HLA Hart disagreed on the role of morality and the law. Hart was swift to point out that Fuller’s concept of the inner morality of the law, and his eight principles of legality, could actually uphold unjust laws. Hart argued that Fuller’s procedural natural law approach failed to engage with the substantive morality of flawed laws, as a legal system may be structurally sound yet still allow unjust laws. Fuller meanwhile countered that when people are ‘compelled to explain and justify their decisions, the effect will generally be to pull those decisions towards goodness…’ Both Hart and Fuller’s arguments have resonance today. The cautionary tale of King Rex was based on some of the most brutal regimes in history. One can only hope that these warnings are heeded over the next four years.

With thanks to my legal theory colleagues Patrick O’Callaghan and Natasa Mavronicola for their illuminating comments.

On World Refugee Day: a crisis of protection in Europe

REFUGEES: A CRISIS OF PROTECTION IN EUROPE  (Siobhán Mullally)

UNHCRThe crisis in Europe is more properly understood as a crisis of protection and of policy. It is fundamentally a crisis of human rights. Core protections provided to refugees and migrants by European and international law, including the right to seek and to enjoy asylum from persecution and protection against refoulement, have come under threat. Faced with forced displacement of almost five million Syrian refugees, the focus of responses has continued to be on deterrence, deflection and return. As Wendy Brown has noted, at a time when neoliberals, cosmopolitans and humanitarians fantasize a world without borders, nation-states continue to exhibit a passion for wall building. In the European Union, the ‘stark physicalism’ of walls and fences have been supplemented by the launching of a military operation, EUNAVFOR-Med, which includes among its stated aims, the prevention of loss of life at sea, preventing ‘illegal migration flows’ and disruption of the ‘business model of smugglers’.

The business model of smugglers, however, is closely linked to the limited accessibility of pathways to regular migration, and the absence of a comprehensive resettlement response to the humanitarian crisis triggered by millions of people forcibly displaced by conflict.  The reluctance to issue humanitarian visas, or to expand the scope of family reunification, combined with continued use of carrier sanctions underpins the very business model that the EUNAVFOR-Med operation seeks to disrupt. Within the context of the EU’s Common European Asylum System, the uneven sharing of responsibility for protection among Member States, and divergence in the protection afforded to refugees and asylum seekers, remain to be addressed. Against this background, core principles underpinning the EU’s foundational treaties – fair sharing of responsibility and solidarity – are not being met.

This crisis raises questions as to the limits and potential of human rights norms, when invoked by migrants and refugees. As such, it also raise questions as to the current state of play of both the theory and practice of international law, and the conflicting interests that underpin its shifting frontiers. These conflicts include legal reforms that reflect, as Brown notes, simultaneous opening and blocking, ‘universalization combined with exclusion and stratification’ – an apt description of the politics of the 2016 EU-Turkey agreement.   

Protection against refoulement

The Agreement – including its very legal status as an ‘Agreement’ – is now the subject of several challenges that raise questions as to its compatibility with the prohibition of refoulement. Recent judgments of the European Court of Human Rights have highlighted the positive procedural obligations on states arising from Article 4, Protocol no.4 to the Convention. In Klaifia and Others v Italy – (a case now pending before the Grand Chamber) – the Court held, by five votes to two, that the applicants had been subjected to a collective expulsion. The ‘mere introduction of an identification procedure’ was not considered sufficient in itself to rule out the existence of a collective expulsion. A number of factors led the Court to the conclusion that the impugned expulsion was collective in nature: There was no reference to the personal situation of applicants in the refusal-of-entry orders; there was no evidence that individual interviews concerning the specific situation of each applicant had taken place prior to the issuance of the orders; and perhaps, most tellingly, a large number of Tunisian nationals – the same nationality as the applicants – received the refusal-of-entry orders around the same time. Khalifia followed on from earlier judgments by the Court on collective expulsions, Hirsi Jamaa and Others v. Italy and Sharifi and Others v. Italy and Greecein which the absence of ‘sufficient guarantees’  demonstrating that the personal circumstances of each of the migrants concerned had been ‘genuinely and individually taken into account’ was critical.

These judgments of the Court weigh heavily on the legal issues arising under the implementation of the EU-Turkey agreement. The judgment of the Court in Khalifia is particularly instructive, given its references to ‘exceptional waves of immigration’, and its acknowledgment of the many duties assumed by the Italian authorities, including rescue at sea, and provision for the health and accommodation of migrants on arrival on the island of Lampedusa. In a particularly important statement, the Court noted, however, that those factors cannot exempt the State from its obligation to guarantee conditions that are ‘compatible with respect for human dignity to all individuals’.

The collective expulsion cases reveal a willingness on the part of states to test the limits of legality, including of the safe third country concept. In Khlaifia, Judge Keller, noted that the preliminary investigations judge of Palermo had invoked the state of necessity (stato di necessità) to justify the ‘immediate transfers’ of migrants. This argument, and related arguments concerning international law and state responsibility in times of ‘distress’, were rejected by Judge Keller.

The rush to conclude the Agreement is likely to come under continuing scrutiny, particularly given the trust placed in the Greek asylum determination procedures and capacity for reception. At the time its conclusion, the Committee of Ministers of the Council of Europe had not yet closed its supervision of execution of the judgment in M.S.S. v. Belgium and Greece.  Of particular note in the Court’s judgment, is the Concurring Opinion of Judge Rozakis, in which he took the opportunity to highlight the deficiencies of EU immigration policy, including the Dublin II Regulation (as it then was). The Regulation, he noted, did not reflect the present realities, or ‘do justice to the disproportionate burden that falls to the Greek immigration authorities.’ His comments were prescient, and have only increased in relevance subsequently. There was, he said, ‘an urgent need for a comprehensive reconsideration of the existing European legal regime.’ Despite this urgency, however, this comprehensive reconsideration has yet to be realised. Proposals for a fairer process of allocation of responsibility continue to be contested. Against the background of a ‘crisis situation in the Mediterranean’, even the limited ‘temporary and exceptional’ relocation decision adopted by the European Council in 2015 is facing legal challenges by Hungary and Slovakia.

In a carefully worded assessment of the legal considerations of returning asylum seekers and refugees from Greece to Turkey, UNHCR cautions that ‘sufficient protection’ must be ensured before the safe third country and first country of asylum concepts can be applied. The requirement of ‘sufficient protection’ is stated in Article 35 of the Recast Asylum Procedures Directive, and is considered by UNHCR to require more than a guarantee against refoulement.

The legislative reforms and the legal underpinning of the Agreement itself, however, was challenged by a decision of a Greek appeals tribunal, sitting in Lesbos, refusing to recognise Turkey as a safe third country. The tribunal decision found that the temporary protection afforded by Turkey to the appellant, as a Syrian citizen, ‘does not offer him rights equivalent to those required by the Geneva convention.’ The decision echoes concerns expressed with regard to the level of protection afforded in Turkey, and brings into question the EU’s presumptions as to the legality of its return and resettlement trade-off.

The position of children on the move, and in particular, unaccompanied minors, in Europe has attracted particular concern. In March 2016, the Council of Europe Secretary General wrote to all 47 Member States of the Council of Europe setting out a list of proposals for immediate action to ensure better protection of migrant and asylum seeking children. The GRETAletter cites the findings of the Council of Europe Group of Experts on Action against Trafficking (GRETA) that significant gaps in the protection of unaccompanied minors persist in most Council of Europe Member States, with often tragic consequences.[1]

The phenomenon of ‘missing migrant children’ is not new. However, the conceptual and practical challenges posed by increasing numbers of migrant children in Europe has brought the limits of state responses into sharp focus. Against this background, the question of how child and adolescent migrants can translate the principles of international law into meaningful human rights protections’ remains open.

Core norms of the Law of the Sea – obligations of search and rescue, of assisting persons in distress at sea and delivering survivors to a place of safety – have gained prominence in Europe’s crisis of protection. There have been significant failures of the maritime legal framework, including disputes as to the proper demarcation of Search and Rescue zones, and significant loss of life – tragically captured in Dutch MEP, Tineke Strike’s report on the ‘left-to-die’ boat incident. While the technical norms of the Law of the Sea have sometimes provided a comforting tool to allay fears of further dereliction of duty, moving beyond rescue has proven more difficult.

The EU-Turkey agreement marks a process of de-juridification, an enactment of limits. While legal challenges and the claiming of rights will persist, the fundamental reforms required to ensure safe passage to those seeking protection, and the expansion of pathways to lawful migration, remain elusive.

[1] Council of Europe Group of Experts on Action against Trafficking in Human Beings (GRETA), Fifth General Report on GRETA’s Activities, (2016)

Mellet v Ireland: Legal Status of the UN Human Rights Committee’s ‘Views’

MellettFollowing the UN Human Rights Committee’s decision in Mellet v Ireland, handed down on June 9th 2016, a number of questions have been raised as to the legal status of the Committee’s views. The Taoiseach Enda Kenny has noted that the Committee is not like the ‘European Court’. On this, he is, of course, correct. On his comment that the Committee’s views are ‘non-binding’ – it’s a bit more complicated.

This short post focuses on the questions raised as to the legal status of the Committee’s views, and the obligations that they give rise to for the State. While this may seem to be a point of limited interest to international lawyers, it is in fact a critical issue for the enforcement and implementation of international human rights law. Challenges to the competence of UN bodies, and the status of their findings in the human rights domain, are not infrequent. This challenge, and the consequent enforcement gap, is one that has been recognised by the UN Human Rights Committee.

Its General Comment no.33 “The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights” specifically addresses this challenge. As the Committee notes, its functions in considering individual communications are “not that of a judicial body,” However, they go on to point out that the views issued by the Committee under the Optional Protocol exhibit some important characteristics of a judicial decision, and are ‘arrived at in a judicial spirit’. That ‘judicial spirit’ includes, ‘the impartiality and independence of Committee members, the considered interpretation of the language of the Covenant, and the determinative character of the decisions.’ (para.11)

The legal basis for the Committee’s competence to issue ‘views’ on individual communications and State’s compliance, or lack thereof, with the Covenant, derive from the Covenant and the Optional Protocol themselves. On this, it is of interest to note that the Protocol is an optional extra. Ireland, has chosen not only to ratify the Covenant itself, but also the Optional Protocol, thereby specifically recognising the competence of the UN Human Rights Committee to give an authoritative interpretation of the State’s obligations under the ICCPR. Specifically, as noted by the Irish Supreme Court in Kavanagh v Governor of Mountjoy Prison,  [2002] IESC 13 (01 March 2002),the Optional Protocol enables the Human Rights Committee “to receive and consider …communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant …..” Article 1 of the Protocol provides that a “State Party that becomes a party to the …. Protocol recognises the competence of the Committee…” in respect of such individual claims.

The status of the Committee’s views and the competence of the Committee are linked to wider principles of international law, including those stated in the Vienna Convention on the Law of Treaties. The principle of pacta sunt servanda is enshrined in Article 26 of the VCLT: ‘Every treaty in force is binding upon the parties to it and must be performed in good faith.’

Linked to this general principle is a core norm of customary international law and one that is particularly relevant to the current debate in Ireland: A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. (Article 27 VCLT). This is without prejudice to the provisions of Article 46 of the VCLT, concerning the competence of states to conclude treaties. And, in the Irish context, the precise legal meaning of the reference to a provision of internal law regarding competence to conclude treaties has generated both litigation and debate, particularly with regard to Ireland’s relationship with the European Union, and to Anglo-Irish relations (See Crottey and McGimpseyin particular). (See Clive Symmons comments on this potential clash here).

Of relevance also to this debate is the characterization of an act as a ‘wrongful act’ under international law, and the International Law of State Responsibility. As noted by the International Law Commission, affirmed by the General Assembly, the characterization of an act as ‘internationally wrongful’ is not affected by the characterization of the same act as lawful by internal law.  It is of significance also that Article 1 of the ILC’s Articles on Responsibility of States for Internationally Wrongful Act, does not confine their scope to the responsibility of states towards other states, which, as James Crawford has noted,  would have significantly curtailed the scope of the obligations covered by the Articles and ‘could have stifled the development of international law.’

In the text of the ICCPR itself, it is important to remember the treaty obligation on all States Parties to provide an ‘effective remedy’ for a violation of the Covenant (article 2(3)(a)). This obligation is re-stated in the final paragraphs of the Committee’s views in Mellet v Ireland, and forms part of the consistent wording of its views. (See also General Comment no.33 para.14)

And so, although the Committee’s views are not those of a judicial body, and do not have a status equivalent to that of a judgment of an international court, they do have legal consequences and do give rise to legal obligations for the State. Indeed in Kavanagh v Governor of Mountjoy Prison, Justice Fennelly, speaking for the Supreme Court, commented that he was ‘prepared to assume that the State may, by entering into an international agreement, create a legitimate expectation that its agencies will respect its terms.’ (para.43)

The Irish Government has been slow in the past to give effect to views of the UN Human Rights Committee. This failure was the subject of the proceedings before the Supreme Court in the Kavanagh case, in which the appellant sought inter alia, a declaration that section 47(2) of the Offences against the State Act, 1939 was incompatible with the  Covenant on Civil and Political Rights and was repugnant to the Constitution ,in particular, Articles 29(2) and (3). The case followed on from the finding of a violation by Ireland of Article 26 ICCPR (guarantee of equality before the law) by the UN Human Rights Committee in Kavanagh v Ireland  concerning the role and scope of jurisdiction of the Special Criminal Court. The Committee upheld Kavanagh’s complaint of a violation of article 26 observing that:

“No reasons are required to be given for the decisions that the Special Criminal Court would be “proper”, or that the ordinary courts are “inadequate,” and no reasons for the decision in the particular case has been provided to the Committee. Moreover, judicial Review of the DPP’s decisions is effectively restricted to the most exceptional and virtually undemonstrable circumstances.”

The Committee went on to note that “the State Party [had] failed to demonstrate that the decision to try the author before the Special Criminal Court was based on reasonable and objective grounds.” It continued: “Accordingly, the Committee concludes that the author’s right under article 26 to equality before the law and to the equal protection of the law has been violated.”

Before the Supreme Court, Kavanagh argued that Article 29(3) of the Irish Constitution, effectively constitutionalises the general principles of international law, including the principles of equal treatment. Given the UN Human Rights Committee’s findings of a violation of Article 26 also in Mellett v Ireland, this argument takes on particular significance. In support of this argument, counsel for Kavanagh, Dr Forde, invoked the dissenting judgment of Judge Tanaka in the South West Africa Cases (1966) on “the essence and nature of fundamental rights ..[in the context of the United Nations Charter] … in which the principle of equality before the law occupies the most important part ….”

His argument, however, was not accepted by the Supreme Court. Invoking again its findings in In Re O Láighleis [1960] IR 93, the Court concluded that article 29 (3) confers no rights on individuals. While accepting that O’Láighleis  was ‘probably correct in its time’, Dr Forde had argued that the substance of the principles of international law had ‘changed so radically’ that the case would no longer be decided in the same way. Given, he argued, that these principles take effect in Irish law by virtue of article 29(3), there is thus no need for their enactment into Irish law pursuant to art 29 (6).

It was a nuanced argument, recognising the diverse sources of international law and seeking to move beyond the limits imposed by a strict dualist approach to the relationship between domestic and international law.  The Supreme Court was not to be persuaded. The O’Láighleis case, Fennelly J concluded, remains the law, having been followed in other cases: see, for example State (Sumers Jennings) v Furlong [1966] IR 183; State (Gilliland) v Governor of Mountjoy Prison [1987] 201. O Laighleis,  in his view, had ‘stood the test of time’,  because the words that it interpreted were, ‘clear beyond argument and do not admit of any other construction.’

Of interest is the somewhat different approach taken by the High Court and Supreme Court in cases concerning Ireland’s obligations under the 1951 Convention relating to the Status of Refugees. In Fakih & Ors v. Minister for Justice,[1]  the High Court held that a letter sent by the Minister for Justice to the UNHCR representative in London, Mr von Arnim, had given rise to a legitimate expectation on the part of the applicant that his asylum claim would be assessed in accordance with the procedures laid down in the 1951 Convention. In Gutrani v. Minister for Justice,[2]  the Supreme Court, speaking through McCarthy J, held that the same result followed, not because of any legitimate expectation that the letter may have given rise to, but simply because of the binding undertaking given by the Minister. Thus, the 1951 Convention, not yet incorporated into domestic law, was given indirect effect, circumventing the strict requirements of Article 29.6 of the Constitution.

(I have discussed these cases in the context of transnational judicial dialogue in asylum law in Goodwin Gill and Lambert eds. The Limits of Transnational Law (CUP: 2010) It may, of course, be of some relevance, that at the time of these judgments, giving effect to the requirements of the 1951 Refugee Convention, would have been considerably less controversial than questioning the role of the Special Criminal Court, or the interpretation of Article 40.3.3 of the Irish Constitution.)

Beyond and within the law, there is of course politics. And as the now President of the UN Committee on the Elimination of Racial Discrimination (CERD), Dr Anastasia Crickley, commented earlier this year, it is important to remember that the Irish Government in an exercise of its sovereign authority, has chosen to ratify the ICCPR and other UN human rights treaties. It has, simply by this act of ratification, incurred an obligation to ‘all those subject to its jurisdiction’ to give effect to the rights protected by the Covenant. Those rights include the right to be free from cruel, inhuman or degrading treatment, the right to be free from arbitrary interference with one’s privacy, and to equality before the law and equal protection of the law.

[1] Fakih & Ors v. Minister for Justice [1993] ILRM 274.

[2]Gutrani v. Minister for Justice [1993] 2 IR 427.

 

Forensics: ID to Intelligence

We are delighted to welcome this guest post from Eimear Moroney, IRC Postgraduate Scholar and PhD candidate at the CCJHR and School of Law, UCC

From Sherlock Holmes at the end of the 19th century, to the emergence in the early 2000s of CSI and its televisual progeny, to the current ‘true crime’ serialisation phenomenon, public interest in forensics has long been piqued. In practice, cold cases are being re-opened and long-condemned individuals have been exonerated on foot of forensic (especially DNA) evidence, owing to to: (a) heightened modes of scientific analysis; and (b) the likes of the Innocence Network, a global association of not-for-profit organisations, which strive to prove the innocence of the wrongly convicted (see further: Irish Innocence Project). Following the activation of Ireland’s DNA Database System in November 2015, the nexus between forensic evidence, guilt and innocence has never been more topical.

The forensic science of popular cognisance developed, in the aftermath of the industrial revolution, out of concern to identify criminals for the purpose of meting out appropriate punishment: differential punishment was accorded to first time offenders and recidivists. This focus on repeat offenders manifested in Ireland and England through the enactment of the Habitual Criminals Act 1869 and the Prevention of Crimes Act 1871, the latter of which prescribed the maintenance of a Habitual Crime Register, entailing the photographing and measuring of prisoners. This anthropometric system, which measured prisoners’ heads and limbs, subsequently incorporated fingerprint marks. Less cumbersome and ultimately more accurate, fingerprinting supplanted the metric system.

As forensic techniques developed, policing agencies realised the Locardian principle “every contact leaves a trace” could play a role in criminal investigations. This role was traditionally conceived as a corroborative one within a case construction model of policing: forensic evidence was used to build up a case against an identified suspect for prosecutorial purposes.

However, a move away from a reductive model of reactive policing towards proactive, intelligence-led policing is increasingly discernible, both internationally and more locally: see for example, An Garda Síochána Policing Plans 2014 and 2015. Concurrently, Williams has suggested that the true utility of forensic science lies in intelligence-led policing, “… in other words as information to further direct ongoing criminal investigations and disruptions, rather than as props in the dramaturgy of a criminal trial.”

In Ireland, a 2007 report entitled Review of Resource Needs in the Forensic Science Laboratory and the Wider Scientific Context in Ireland  averred that “[t]he work of a forensic laboratory does not only concern evidence for the courts but should also give impulses to the investigation. The findings of the laboratory can often give valuable information that can assist the investigation or can be used as intelligence.” This theme has grown roots in the context of Ireland’s long-gestated DNA database,  from the Law Reform Commission, who in 2005, described the proposed database as an “intelligence tool,” to the Minister for Justice and Equality, who in November 2015 described the database as “a high quality intelligence tool” and “a hugely significant development in assisting the Garda Síochána in the investigation of crime.”

The utility of any database is necessarily commensurate with the quantity of samples contained therein. Accordingly, the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 sanctions the sampling of detained suspects, so as to generate a profile for the reference index of the DNA database system, under the authorisation of a member of An Garda Síochána not below the rank of Sergeant. In turn, this profile may be compared with profiles held in the crime scene index and the missing and unknown persons index. The sole fact of detention for a “relevant offence” is sufficient to ground the taking of a sample for this purpose. However, in order for this profile to be used for evidential purposes, the authorisation of a member of An Garda Síochána not below the rank of Inspector is required. To authorise same, the member must have reasonable grounds for suspecting the involvement of the detainee in the commission of the offence for which they are detained, and furthermore, that the sample will tend to confirm or disprove the involvement of the detainee in the offence.

In acknowledging that information generated by forensic science can form part of the detection process notwithstanding that such data is not (or possibly was never intended to be) admitted into evidence, the 2014 Act arguably places intelligence-led policing on a statutory footing. It follows whilst forensic science was initially used to compile and maintain a record of criminal identity, this very record-keeping function has had a renaissance in the Digital Age.

However, it cannot be forgotten that forensically generated information is nonetheless “potential evidence.”  To quote Ashworth and Redmayne, “[t]he possible end result of the process is adjudicative: a trial. Whether a trial will result will depend on many other factors. …  But what matters is the potential of the probability. Criminal procedure is a process that may lead to trial.”

Notwithstanding that a minuscule fraction of offences proceeds to a contested trial, the criminal justice continuum, and any analysis thereof, must be ultimately trial-oriented. Whether providing the impetus to an investigation, or eliminating potential suspects, it is clear that forensic science can impact the course of a criminal case prior to trial. After all, to advance along the continuum from criminal investigation to trial entails traversing a number of preliminary stages: a negative determination with respect to the decision to prefer charges results in exodus from the continuum prior to trial. Hence, the very “evidential potential” attaching to forensic data, from fingerprints to DNA analyses, may impact, or indeed determine, decisions throughout criminal process, including those pre-trial decisions relating to arrest, prosecution and plea.

Having regard to the potential for forensic science to play a determinative role in the pre-trial process, there is a heightened need to ensure the reliability of forensic science throughout the low-visibility portions of the continuum. When tendered as evidence at trial, forensic data is, in theory at least, subjected to the checks and balances of the adversarial process: it must first be admitted into evidence before being subjected to robust cross-examination. However, there is no equivalent oversight of forensic evidence pre-trial.

This lack of scrutiny is all the more disquieting given that, internationally, forensic science has received bad press in recent years: for example, see Broeders (reference below); here; and here. However, caution must be exercised before extrapolating from other jurisdictions.

Two agencies conduct forensic analysis for the State in Ireland, Forensic Science Ireland (FSI) and the Garda Technical Bureau (GTB), both of which sought and achieved accreditation to International Organisation for Standardisation (ISO) 17025, the international laboratory standard for calibration and testing (FSI in 2002 and more recently, the GTB in 2016). Maintaining this status requires that the laboratories must pass annual, independent inspections, whilst all routinely used methods must be validated and proficiency trials must be conducted. The efforts of FSI and the GTB in this respect must be recognised not only as positive developments but also as necessary advancements, having regard to the advent of forensic databases and the newfound emphasis on proactive, intelligence-led policing.

 

Non-hyperlinked References

Ashworth, A. & Redmayne, M., The Criminal Process, 3rd ed. (Oxford: OUP, 2005)

Barnes, J.G., “History” in National Institute of Justice, The Fingerprint Sourcebook (Washington DC: US Department of Justice; Office of Justice Programs; National Institute of Justice, 2012)

Broeders, A.P.A, “Of earprints, fingerprints, scent dogs, cot deaths and cognitive contamination-a brief look at the present state of play in the forensic arena” (2006) 159 Forensic Science International 148

Cole, S.A., “Fingerprint Identification and the Criminal Justice System: Historical Lessons for the DNA Debate” in D. Lazer, ed. DNA and the Criminal Justice System: The Technology of Justice (MIT Press, 2004)

Cole, S.A., Suspect Identities: A History of Fingerprinting and Criminal Identification (Cambridge: Harvard University Press, 2009)

Finn, J., “Photographing Fingerprints: Data Collection and State Surveillance” (2005) 3(1) Surveillance and Society 21

Littlefield, M.M., “Historicizing CSI  and its Effect(s): The Real and Representational in American Scientific Detective Fiction and Print News Media, 1902-1935 (2011) 7 Crime Media Culture 133

McCartney, C., Forensic Identification and Criminal Justice: Forensic science, justice and risk (Devon: Willan, 2006)

Redmayne, M., Expert Evidence and Criminal Justice (Oxford: OUP, 2001)

Roberts, P., “Science in the Criminal Process” (1994) 14(4) Oxford Journal of Legal Studies 469

Schweitzer, N.J. & Saks M.J., “The CSI Effect: Popular fiction about forensic science affects the public’s expectations about real forensic science” (2007) 47 Jurimetrics 357

Thornton, J.I., “Uses and Abuses of Forensic Science” (1983) 69 ABA 289

Twining, W., Rethinking Evidence: Exploratory Essays, 2nd ed. (Cambridge, CUP, 2006)

Williams, R., “Policing and Forensic Science” in T. Newburn, Handbook of Policing, 2nd ed. (Devon: Willan, 2008)