Author name: Branden Loizides

Content, Online Scholarship, Perspectives

The Justice Conundrum: Africa’s Turbulent Relationship with the ICC


By Jon Silverman

In Volume 59 of the Harvard International Law Journal, authors Courtney Hillebrecht and Alexandra Huneeus, with Sandra Borda, argue in “The Judicialization of Peace” that the International Criminal Court (“ICC”) and the Inter-American Court of Human Rights, in their positive engagements with Colombia’s long-running internal conflict, have “facilitated and hastened a change in the settled norms around transitional justice.” They posit that this hastening has been achieved through a long series of dialogues between courts—both internal and international—and government, and among non-state actors, such as NGOs, the media and academia. The authors use the term “shadow effect” to describe the engagement of the courts, particularly the ICC, with the peace process in a way which nurtured transition within a framework of legal accountability.

The authors point out that this outcome confounded expectations because, during four years of negotiations, many had predicted that the involvement of the two courts would impede the peace process. The Colombian experiment is certainly instructive, but can it be seen as a blueprint for changing “the settled norms of transitional justice?”  As the authors of the article point out, “Colombia has more stable institutions and a stronger domestic judiciary than any other situation before the ICC.” This post will query whether any of the lessons from Colombia are applicable to sub-Saharan Africa, where the ICC has focused all of its prosecutions, and whose states, in the main, suffer from weak institutions and destabilizing ethnic contestation.

I have drawn this post from qualitative research, funded by the British Academy, into the engagement of the ICC with two East African states, Kenya and Uganda, where the court has been seen as anything but a midwife of accountability. My research included some thirty semi-structured interviews with civil society representatives, including judges and advocates, about the ICC and the so-called “impunity gap” in Africa. I supplement this ethnography with more general observations about the performance of the ICC’s Office of the Prosecutor (“OTP”) over a decade and a half.

Sparring with the ICC

A plethora of explanations have been offered for Africa’s growing disaffection with the ICC. Mueller suggests that initial support for the court was strong as long as its investigations centered on non-state actors such as the Lord’s Resistance Army, but when the focus shifted toward ex-heads of state and even serving presidents, self-preservation became the dominant response. This ICC challenge to the principle of immunity from prosecution for leaders and senior officials for genocide, war crimes and crimes against humanity is anathema to the African Union (“AU”) and was condemned by the Assembly of the AU, meeting in Equatorial Guinea in July 2014.

For Evelyne Owiye Osaala, primary responsibility lies with the UN Security Council (“UNSC”) for being “selective in the recognition and waiver of immunities for international crimes in favour of the interests of its permanent members.” This argument is commonly voiced on the African continent by those who believe that U.S. President George W. Bush and U.K. Prime Minister Tony Blair should have been held to account legally for the invasion of Iraq in 2003. For many, the thesis that the UNSC demonstrates partiality was strengthened by the capture of the former Ivory Coast president, Laurent Gbagbo, by French and American troops in 2011 when Paris and Washington demonstrably threw their weight behind Gbagbo’s election opponent, Alessane Outtara.                 

By contrast, Nel and Sibiya point out that the ICC has opened preliminary investigations in Iraq, Colombia, Afghanistan and Georgia, “thereby dispelling the myth that the ICC only focuses on situations in Africa.”

The Bashir Effect

All of these assessments have merit, but the real issue is whether a subtler approach by the OTP, relying on a “shadow effect” rather than confrontation, might have done more to challenge long-cherished presumptions of the inviolability of presidents on the continent. It is undeniable that the March 2009 issuing of an ICC warrant for the arrest of Sudanese president, Omar al-Bashir, began the process of framing the court as an instrument of Western colonialism, a viewpoint summed up by the Gambia’s then Information Minister, Sheriff Baba Bojang, who reportedly called the ICC “an international Caucasian court for the persecution and humiliation of people of colour, especially Africans.”

The indictment did not deter Bashir from successfully testing the concept of impunity by visiting Nigeria for an African Union summit in 2013 and South Africa in 2015. The visit which provided the impetus for this research study was Bashir’s visit to Uganda in 2016, when he attended the re-inauguration of President Museveni. At the ceremony, the Ugandan leader’s attack on the ICC as “a bunch of useless people”, provoked a walkout by the ambassadors of the US and Canada.

Like South Africa, Uganda had once been a proponent of the ICC and, indeed, was the first country to refer a case—that of the Lord’s Resistance Army leader, Joseph Kony—to the court, after it came into being in 2002. Announcing the referral, Museveni and the ICC Prosecutor, Luis Moreno-Ocampo appeared at a joint press conference in London, which an opposition member of parliament in Uganda criticized as a misstep because it gave the impression that the OTP was doing the bidding of the Ugandan president. As if to assert his independence, Ocampo followed this up with a visit to Kampala at which he declared that he would “interpret the referral as concerning all crimes under the Rome Statute committed in Northern Uganda, leaving open the possibility of investigating alleged atrocities by government forces.”

It is true that Ocampo’s dealings with Colombia also opened up the possibility that the army, as well as the FARC rebels, might come under investigation from the court but crucially, the Colombian government eschewed a strategy of confrontation with the OTP for one of “judicial diplomacy.” This entailed cooperating with all requests for information and for meetings with the OTP during field visits and in 2009, adopting the Rules of Evidence and Procedure of the ICC and ratifying the Agreement on the Privileges and Immunities of the Court.

This deft legal courtship between Colombia’s institutions and the OTP made it unnecessary for one side to be seen as a supplicant and the other as a potential punisher. By contrast, in East Africa, a civil society with far shallower roots used the ICC indictment against Sudan’s Bashir to lock horns with leaderships determined to uphold the immunity of heads of state, with predictable consequences. When Bashir made a return state visit to Uganda in November 2017, the Uganda Victims Foundation could have had little hope of success when filing an application at the International Crimes Division of the High Court for enforcement of the outstanding arrest warrants. The court duly declined to issue a provisional warrant and instead fixed the hearing to a later date, “effectively quashing any attempts to arrest the Sudanese president.”

The Kenyatta/Ruto Prosecution

As the “Judicialization of Peace” makes clear, the OTP could plausibly present the opening of a preliminary investigation in Colombia as a means of facilitating and nurturing the peace process. In Kenya, by contrast, the OTP failed to persuade the then-government to voluntarily refer the post-election violence of 2007 to the ICC and so the prosecutor, for the first time in the court’s history, had to use his proprio motu powers to initiate an investigation. The danger of thus “owning” the intervention—which led to indictments against President Uhuru Kenyatta and his deputy, William Ruto—was that the OTP would be as much on trial as were the defendants.

In 2007, Kenyatta and Ruto were bitter opponents and their tribal communities—Kenyatta’s Kikuyu and Ruto’s Kalenjin—engaged in bloodshed which led to more than one thousand deaths, mainly in the Rift Valley. But, for the 2013 election, while under indictment from the ICC, they formed an alliance which effectively subverted the notion of “victim-centered justice,” so central to the ICC’s mandate. A report by the civil society alliance, Kenyans for Peace with Truth and Justice, put it like this:

In a strange ironical reversal, Mr Kenyatta and Mr Ruto now presented themselves as victims, the hapless targets of an imperialistic plot against Africans. A plot, moreover, that would ultimately undermine democracy in Africa by blocking reconciliation efforts, such as those that the political alliance headed by Uhuru, representing the Kikuyus, and Ruto, representing the Kalenjins was purportedly trying to achieve. In turn, the ICC was cast as the pliant tool of a Western conspiracy against Kenya’s sovereignty.

The Weakness of the Office of the Prosecutor

When the trial began in The Hague, it became apparent early on that the OTP was struggling. The prosecutor, Fatou Bensouda, later complained that over half the witnesses in the case against William Ruto withdrew or retracted their initial testimony, and others were killed or bribed in the Kenyatta case:

The level of interference with those witnesses was such that it started before; it was maintained throughout the cases; and even after. My office was trying to find various ways to protect and preserve the evidence and bring it before the judges This was a huge challenge, including their own protection as well as that of most of their families. We were having to protect witnesses even against their own communities; it became very complicated in the end. Not only were the witnesses pulling away from the case, but there were even attempts at interfering with their family members.

Lawyers interviewed for this research argue that the OTP should have expected this level of non-cooperation, which makes its determination to go ahead with the prosecution all the more surprising (a similar interpretation can be made about the case against Laurent Gbagbo which also collapsed at trial in early 2019). Here again, by exercising its “shadow effect,” the ICC may have a more potent, if less showy, weapon than by prosecuting. After all, faced with an unwillingness to cooperate by a state, the OTP has none of the resources available to a domestic prosecutor, such as subpoenas, surveillance and policing, and cannot visit the scenes where the crimes were perpetrated without the acquiescence of national state authorities.

In the Kenyatta case, requests for information from the Kenyan authorities went unanswered and the Attorney-General refused to hand over phone, land and asset records. But lawyer Gary Summers, who was part of the Kenyatta defense team from August 2011 onwards, believes the OTP can’t escape blame for the failure of the prosecution:

It was amateurish. You can’t just rely on human rights NGOs to find witnesses and interview them.  You needed trained investigators on the ground in Kenya to check the sources of some of the allegations. The OTP relied far too heavily on the report of the Waki Commission [the commission set up by the Kenyan government in 2008 to investigate the post-election violence of the previous year] to find witnesses. Indeed, the case against Kenyatta started with a single informant, Witness, no 4. The ICC needs a prosecutor who is ruthlessly focused on the target. This wasn’t the case with either Ocampo or Fatou Bensouda

(Interview with author, October 29, 2016).

Edigah Kavulavu of the International Commission of Jurists, Kenya Section, supported the prosecutions but remains disappointed by the way they turned out:

The general mood here was that we would get justice through the ICC. And that the Kenyan case would be an example to the rest of the world. But the OTP only had a small outreach office in Nairobi, from where witnesses were interviewed. And there was no proper profiling of victims. The OTP based its judgements about witnesses/victims almost entirely on information from civil society NGOs. And when the case finally opened in court, it was obvious that Ocampo was not trial-ready

(Interview with researchers, November 1, 2016).

Searching for any positive legacy of the Kenyatta/Ruto prosecution, it should be noted that it was the catalyst for discussions leading to the setting up of an International Crimes Division in Kenya’s High Court to make good on the promise of complementarity.

Likewise in Uganda, following the 2008 Juba Peace Agreement between the government and the Lord’s Resistance Army, a war crimes division was established in the High Court (later rebranded, when Uganda adopted the International Criminal Court Act, as the International Crimes Division). Nevertheless, the performance of the ICC in Africa has been a poor one, as it continues to grapple with the ongoing geo-political turbulence of internecine and inter-state rivalries.

The Individual or the Community?

This post has sought to examine the fractious relationship between the ICC and Africa through the prism of the “judicialization of peace” achieved in Colombia. It has pointed out the significant differences between a state with relatively stable institutions underpinned by a self-confident civil society and countries where the impunity of leaders may have been challenged but not overturned. But there is another distinction which has to be considered.

The ICC was established to try crimes committed by individuals rather than states, and in prosecuting Uhuru Kenyatta, the ICC addressed his individual criminal liability for crimes committed during the 2007 post-election violence rather than putting the state of Kenya on trial. However, within Kenyan society, Kenyatta’s individuality is intimately bound up with a heritage of Kikuyu patrimonial obligations. Historically in this patron-client arrangement, there is “a shared understanding of the appropriate relationship between leaders and their communities that gave rise to complex moral economies in which rulers were expected to provide for their followers in return for their support.”

In Uganda, Museveni, from the Bahima tribe, is seen as a bulwark against the “troublesome” Acholi of the northern region (from which the Lord’s Resistance Army sprang). In other words, in these East African countries, a criminal prosecution of the patron can be presented as an attack on the clan, raising the possibility of all those dependent on the patron being deprived of material benefits and political influence if he is brought down. In these circumstances, it was all too easy for the embattled Kenyatta to make a case that, as the representative of the largest ethnic group, he embodied the nation, standing resolute against an alien, Western-backed institution, the ICC. With the African Union implacably opposed to the court, the post-Enlightenment notion of individual responsibility and culpability is steadily being reinterpreted on the African continent as a concept of collective condemnation and the ICC made to look like the cuckoo in the nest.


Jon Silverman is Professor of Media and Criminal Justice at the University of Bedfordshire (UK), where his research projects have included media coverage of war crimes trials in Sierra Leone and Liberia and the relationship between the International Criminal Court and Africa. He is about to embark on research into the impact of social media on ethnic relationships in Sierra Leone and Liberia. In 2017, he was an international election observer on behalf of the National Democratic Institute for the second round of the Liberian presidential election.

Content, Perspectives

ECtHR Orders Permanent Ban: Can international courts impose disciplinary measures on legal representatives?


By Leyla-Denisa Obreja

On December 12, 2018, the European Court of Human Rights (ECtHR) issued a press release announcing its decision to “permanently” prohibit Ukrainian lawyer, Nataliya Yevgenivna Tselovalnichenko “from representing or otherwise assisting applicants in both pending and future applications.” This unprecedented decision contains questionable legal arguments to justify a permanent ban. The ECtHR has not made public any information regarding the Court’s reasoning, nor the deliberative process, which led to this disciplinary sanction. As such, we do not know the facts of the case that led to the ban. Although the ECtHR may have banned representatives in singular proceedings before, this decision was unexpected. Is the Court acting within its competence when it applies lifelong disciplinary sanctions? This post will analyze the legality of this action in two respects. First, it will examine this action in the specific context of the ECtHR’s legal regime. Second, it will consider the decision of an international court to ban a legal representative in the general context of existing international rules and practices.

What we know about the ban

The ECtHR claims to have reached this decision out of “concern not to prejudice applicants” and in light of the “fraudulent and abusive behaviour” of Ms. Tselovalnichenko. Specifically, the Ukrainian lawyer has allegedly “submitted documents which had obvious signs of forgery, while in several [other cases] she had lodged applications on behalf of deceased applicants without informing the Court of their deaths.” These are the only facts the ECtHR mentions with respect to the alleged misconduct of the Ukrainian lawyer. Press reports indicate that Tselovalnichenko is a human rights activist and, as of 2016, Chairwoman of the NGO “Luhansk Human Rights Initiative.” These reports suggest that she is known by experts in the field for trying to “flood” the European Court with applications related to the Donbas hostilities. In the aftermath of Euromaidan and the 2014 Ukrainian revolution, Donbas has seen escalating conflicts between the Ukrainian government and separatist, pro-Russian forces.

The procedural rule acting in support of this ban is Rule 36(4b) of the Rules of the European Court. It states that “[i]n exceptional circumstances and at any stage of the procedure, the President of the Chamber may, where he or she considers that the circumstances or the conduct of the advocate or other person appointed under the preceding sub-paragraph so warrant, direct that the latter may no longer represent or assist the applicant and that the applicant should seek alternative representation.”

The ban in the context of ECtHR rules

Rule 36(4b) contains three requirements that must be met in order for a ban to be imposed on a legal representative: exceptionality, authority, and procedure. Each of these elements will be examined in turn.

Exceptionality: It is unclear what constitutes “exceptional circumstances” under the Rules of the Court. If the “exceptional” nature of the conduct was based on the allegation of forgery, it then begs the question as to whether the Court is invested with the capacity and authority to declare that the document is forged in the first place. It is also unclear whether the Court conducted an investigation in cooperation with the Ukrainian authorities and how the Court came to conclude that these documents were forged. Despite the fact that European laws vary in how they conceptualize and sanction forgery and other types of fraud, it appears that in most States, this conduct would be subject to an investigation and sanction. The ECtHR is not authorized to investigate, nor to institute, criminal proceedings against individuals. Nevertheless, under Rule 36, it can impose a ban on the applicant’s counsel, with or without prior or subsequent criminal proceedings in Member States.

Authority: Under Rule 36, the President of the Chamber orders the ban. According to Rule 1, “the term Chamber means any Chamber of seven judges […] and the expression President of the Chamber means the judge presiding over such a Chamber.” The press release does not identify the Judge who ordered the ban, nor does it provide any details about the Chamber in question.

Procedure: Once banned, Rule 36 states that the legal representative may not continue to assist or represent the applicant. Further, the ban can be declared at any point in the proceedings. This rule, combined with the fact that it is the President of the Chamber who orders the ban, suggests that the ban can only be imposed within a specific and singular procedure. The use of the word “applicant” further implies that the ban extends to the representation of an applicant in a singular proceeding. Neither Rule 36, nor any other rule of the Court, mentions the possibility of a permanent ban. In exercising such a measure, the Rules of the Court do not indicate how the representative in question can appeal a ban. Since a permanent ban is not provided for in the Rules of the Court, following the principle of legality, the decision of the Court is likely ultra vires, or not sufficiently justified by the existing Rules of the Court.

However, several other Rules of the Court could act in support of this decision. These are Rules 44B and 44D. Rule 44B suggests that the “President of the Chamber may take any [appropriate] steps” if the parties fail to abide by the orders of the Court. Rule 44D underlines that in the case of “abusive, frivolous, vexatious, misleading or prolix submissions,” the President of the Chamber can ban a representative from the proceedings, “refuse to accept all or part of the submissions or make any other order which he or she considers it appropriate to make.” A broad interpretation of Rule 44D could indeed justify the ban, as the President of the Chamber maintains the authority to “make any order he or she consider[ed] appropriate.” Admittedly, these actions are permissible during a singular proceeding. Yet they do not extend further, affecting future acts of representation before the Court.

The ban in the context of human rights law

What makes this ban surprising is the fact that it was declared by a human rights body. It is imperative to briefly examine whether this ban has indeed followed the very spirit of the norms the Court is called to defend and enforce. A similar ban by any international judicial or quasi-judicial body would be worth examining, but the operative area of the ECtHR, specifically the defense of human rights, makes this paradox particularly worthy of our attention. This ban implicates the right to reputation, the freedom to exercise a profession, and the right to an effective remedy. 

It is easy to see how the right to reputation, which falls under Article 8 of the European Convention of Human Rights (and Article 12 of the UDHR), might have been jeopardized by the ECtHR’s press release. It is common for the right to reputation to clash with the freedom of expression. The proper balance between these competing rights is often hard to maintain, a problem that the Court has had to address in several cases. Previously, the Court has drawn the line at the commission of a criminal offense: “Article 8 cannot be relied on in order to complain of a loss of reputation that is the foreseeable consequence of one’s own actions such as, for example, the commission of a criminal offence.” By claiming that the Ukrainian lawyer was “fraudulent, abusive” and forged documents without instituting criminal proceedings or otherwise cooperating with the Ukrainian authorities to uncover the authenticity of these documents, the ECtHR might have overstepped its bounds. Moreover, it appears that the involvement of the Ukrainian government came only after the Court reached its decision. Nevertheless, because many of the facts surrounding this ban are still unknown, it may be premature to claim that the ECtHR has violated Mrs. Tselovalnichenko’s rights. Many elements must be met for a violation of the right to reputation to exist, among which are the seriousness of the attack on the person’s reputation and a “prejudice to personal enjoyment of the right to respect for private life.” 

It is also necessary to consider the freedom to exercise a profession and to seek a remedy. In 2000, the Council of Europe adopted a series of recommendations for Member States that seek to guarantee the freedom of exercise of the profession of lawyer. Principle VI dictates that disciplinary proceedings must give lawyers the opportunity to participate in the proceedings and apply for judicial review. Further, Principle I stipulates that decisions to practice as a lawyer “should be subject to a review by an independent and impartial judicial authority.” In support of these principles, the Council of Europe recalls various instruments, including the European Convention on Human Rights and UN Basic Principles on the Role of Lawyers. It is unclear whether the Ukrainian lawyer has had the opportunity to participate in these proceedings and justify her actions and the legality of the documents she submitted. From the press release, it is apparent that these safeguards were not respected.

How other international courts impose disciplinary bans

Appearing before an international court requires a certain level of decorum, preparation, and professionalism. The stakes are high and the risk of misconduct can arise. In anticipation of these risks, other international courts have adopted rules and procedures to clarify the disciplinary measures that can be taken against legal representatives.

In the case of the International Court of Justice (ICJ), procedural rules do not regulate exclusions or bans for legal counsel and advocates. Despite this fact, Chen argues that the ICJ has permissive rules of admissibility of evidence. The author suggests that the ICJ might not have excluded evidence obtained illegally in certain cases, including the Corfu Channel Case. Examining the ICJ’s practices with respect to forged, privileged, and confidential evidence, Chen argues the Court should promulgate a set of rules to regulate its exclusionary discretion. The ECtHR exercises a similar amount of discretion in the imposition of bans. In fact, the ECtHR has developed a fair trial doctrine that states “a trial is not necessarily corroded by the use of illegally obtained evidence.” Given the ECtHR’s discretion to exclude evidence, it is necessary to ask whether the exclusion of evidence, rather than the exclusion of a representative, would have been more suitable in the case of the Ukrainian lawyer. Comparative legal practices suggest that illegally obtained evidence might be declared admissible under exceptional circumstances. It remains unclear why the ECtHR opted for a ban instead of declaring the alleged forged evidence inadmissible and allowing the representative to continue the proceedings.

The International Criminal Court (ICC) has a Code of Professional Conduct for Counsel. Chapter IV regulates disciplinary measures and establishes the forms of misconduct, the counsel’s liability, the procedure to file a complaint of misconduct, the limitation period, and the authority of the Disciplinary Board to take action. Counsel has a right to participate in the proceedings and submit a response. There, certain standards of equitability are in place and the disciplinary regime is more coherent and organized.

The Inter-American Court of Human Rights does not have regulations regarding the possibility of applying disciplinary measures, but it does refer to incomplete or illegible evidence in Article 59 of its Rules of Procedure. Article 59 permits the Court to allocate supplementary time to the parties to “correct [the] defects or to submit relevant clarifications” related to the evidence brought before the Court. A failure to comply with this rule could lead to the Court dismissing the evidence in question.

The rules of the Court of Justice of the European Union (CJEU) provide for the possibility of exclusion of a representative. Article 46 of the Rules of Procedure of the Court of Justice state that “the Court may at any time, having heard the person concerned and the Advocate General, decide to exclude an agent, adviser or lawyer from the proceedings by reasoned order. That order shall have immediate effect.” These rules also incorporate the necessity of a hearing before proceeding with a declaration of exclusion. The International Bar Association has drafted a Guide for Establishing and Maintaining Complaints and Discipline Procedures (2007), that underlines the importance of giving a lawyer “reasonable opportunity and time to respond to the complaint” in disciplinary procedures.

Not all international courts and quasi-judicial bodies have rules in place for declaring bans and exclusions. Yet when they exist, they usually incorporate a review system and some type of procedural safeguards.

Discussion

Given the massive caseload of the ECtHR and the enhanced risk of misconduct by the applicant’s counsel, the Court should codify rules on the procedures and safeguards of temporary or permanent bans and other disciplinary measures. There have not been many public cases involving bans at the ECtHR, which has denied experts the opportunity to scrutinize the Court’s lack of safeguards and guarantees for legal representatives in the Court’s procedures. One author notes, however, a pressing need for international courts to adopt common ethical standards for lawyers in light of “issues of dishonesty and documentary evidence” in the practice of the CJEU and the ECtHR.

However, the case of Tselovalnichenko’s ban raises several questions as to the limits of an international court’s authority and the relationship between the court’s actions and the competence and jurisdiction of a State party.  First, can an international court permanently prohibit a legal representative from appearing before a court without a prior investigation in cooperation with the relevant Member State? Second, how can and should an international court signal to a State party that it suspects forgery has taken place while maintaining the court’s impartiality? Laws and regulations that guarantee the independence and freedom of counsel in an international context must be put in place to guarantee that State actors do not try to exercise pressure over lawyers when their interests are implicated in a dispute.

Lastly, how can international courts sanction legal representatives if the ability and competence to practice law stems, not from the mandates of international courts themselves, but from the national bar associations and government institutions that regulate the legal profession. It follows, therefore, that future reforms might be needed to clarify the rules and conditions that legal representatives must satisfy to carry out their activities before these courts. In Europe, many have called for the adoption of a European Convention to Protect Lawyers, underlining increased risks in Eastern Europe. Future rules should regulate the disciplinary procedures under which lawyers are suspended or banned at a domestic and national level, and how the consequences of these bans inform each other and limit the representative powers of lawyers. 


Leyla-Denisa Obreja is a human rights scholar and lawyer. She recently completed a PhD program at Bond University (Australia) on the topic of States’ due diligence obligations to prevent intimate partner violence.

 

Content, Essays, Online Scholarship

Measuring Transformation: At the 50th anniversary of the American Convention on Human Rights, a move to maximize its structural impact

By Flávia Piovesan and Julia Cortez da Cunha Cruz

Latin American and Caribbean countries are among the most violent and unequal nations in the world. Only 8% of the global population, the region accounts for 37% of the world’s homicides. At the same time, of the twenty most unequal countries in the world, six are located in Latin America. While democratization has strengthened the protection of citizens’ rights, countries in the region still need in-depth institutional reforms to consolidate the rule of law, end impunity, and fulfill human rights.

The Inter-American Human Rights System could play a role in addressing these challenges. Over the past 50 years, both the Inter-American Commission and  Court of Human Rights have turned the emancipatory promises of human rights law into concrete social change. They have destabilized dictatorial regimes, commanded an end to impunity during democratic transitions, and contributed to the protection of vulnerable groups. However, in order to overcome today’s challenges, the system can learn from its past: Which cases were the most successful in transforming national realities? Which ones were not? What can we do to foster the implementation, effectiveness, and impact of its decisions?

Inter-American institutions have taken steps in this direction, seeking to improve case monitoring and producing knowledge about implementation. In 2017, the Commission signed a cooperation agreement with Paraguay to develop a regional system that systematizes its recommendations and monitors their implementation. That same year, the Commission created the Special Program to Monitor IACHR Recommendations with the aim to develop roadmaps for compliance. Among other proposals, the Commission is looking into adopting indicators to monitor the implementation process, as well as scaling up the strategy of in loco missions.

As a complement to these initiatives, the system should start measuring the impact of its decisions over the region. It could approach this issue from different angles – for example, one could count the number of public ceremonies in which states publicly recognized their responsibility for human rights violations, or calculate the total value that states have paid as compensation to victims of abuse. Among these possibilities, our suggestion focuses on a form of measurement that captures the unique role played by the Inter-American System in advancing structural human rights reforms. This form of measurement will demonstrate that the system not only saves individual lives, but also fosters long-lasting changes.

In response to the abovementioned challenges and needs, we champion the creation of an Observatory of Structural Impact fostered by the Inter-American Human Rights System. The Commission has unanimously approved the idea and will launch the observatory later this year. It will be a participatory and dynamic platform, dedicated to identifying structural transformations triggered by the system. The observatory will encompass both normative changes and the adoption of human-rights-based public policies. This type of impact is measurable – and once the observatory starts analyzing it, we may be able to identify drivers of structural transformation. The system can then use this information to maximize the positive impact of its decisions, strengthening democracy, the rule of law, and the protection of human rights in the region.

In the 50th anniversary of the American Convention on Human Rights, we believe there is no better tribute to its founding ideals.


Flávia Piovesan, member of the Inter-American Commission on Human Rights and Professor of Law at the Catholic University of São Paulo

Julia Cortez da Cunha Cruz, human rights lawyer at the NGO Conectas

Comment, Content, Online Scholarship

Some Reservations Concerning the Judicialization of Peace

[Click here for PDF]

By Roberto Gargarella*

Responding to Courtney Hillebrecht, Alexandra Huneeus, with Sandra Borda, The Judicialization of Peace, 59 Harv. Int’l L.J. 279 (2018).

In their recent article, The Judicialization of Peace, Courtney Hillebrecht and Alexandra Huneeus, with the collaboration of Sandra Borda, made an impressive contribution to the discussion of the role of international courts in domestic politics. This Comment engages in  this conversation about the role of international tribunals in Colombia’s peace process, challenging some of the views presented by the authors, and suggesting some alternatives to the authors’ approach. In particular, the Comment objects to the way in which they understand the working of international tribunals, with the help of a theory of democracy that significantly differs from the one the authors seem to be assuming in their article.

Introduction

In their recent article, The Judicialization of Peace, Courtney Hillebrecht and Alexandra Huneeus, with the collaboration of Sandra Borda, made an impressive contribution to the discussion of the role of international courts in domestic politics. Their analysis is focused on the case of Colombia and the still-ongoing peace process. Local authorities launched this process in 2016, under the supervision of two international courts, namely the Inter-American Court of Human Rights (“IACtHR”) and the International Criminal Court (“ICC”). Drawing on empirical data, the Article examines the actual influence of the international courts on the construction of peace and offers “a more nuanced approach” to the question, thus challenging alternative and “too simplistic” views on the subject. In addition, the authors distinguish three different paths through which international courts engage with, and are engaged by, local actors, in the construction of peace: a “top-down” path, through which international courts let locals know about their expectations regarding the peace process; a “shadow” path, which refers to the way in which state and non-state actors negotiate “in the shadows of the law,” using international law to legitimate their policy preferences; and a “bottom-up” path, through which local actors push back, usually against courts, trying to persuade courts about their own views.

In what follows, I shall take part in this conversation about the role of international tribunals in Colombia’s peace process, challenging some of the views presented by the authors, and suggesting some alternatives to the authors’ approach. In particular, I shall object to the way in which they understand the working of international tribunals, and do so with the help of a theory of democracy that significantly differs from the one the authors seem to be assuming in their article.

In order to advance my arguments, I shall proceed as follows. First, I shall present the ideal democratic theory—a dialogic approach to democracy—that I shall use as my normative standpoint. Then, I shall examine some practical implications derived from the use of this theory, which should be relevant for recognizing some of the difficulties affecting the article on which I am commenting. Finally, I shall focus my attention on the working of the Colombian Constitutional Court during the peace process, and study it from the aforementioned dialogic perspective.

I. Why Should We Care About Deliberation? What Kind of Democratic Dialogue Could We Propose?

At one point in their article, the authors assert that “the terms of Colombia’s peace were produced through—not despite—the international courts’ ongoing deliberative engagement with the peace process” (p. 329). More specifically, in a section called “Judicialization as Deliberation,” and after having reviewed the “three main paths by which [international] courts engaged with, and were engaged by, domestic actors” (p. 294) the authors state:

These multiple modes of interaction were an important part of the four-year process that resulted in the 2016 peace agreement. They remind us that the impact of international courts does not happen in a top-down directive manner alone. Judicialization, by this telling, took the form of deliberation. The impact of the courts’ jurisdiction was to make the ongoing peace debate more infused with references to the guidance and constraints provided by international law, to make more actors at the domestic level aware of the international courts and laws, and, ultimately, to allow the manner in which these international norms were debated and understood to shift.

(p. 316).

These judgements seem to me problematic. The problems I am thinking about derive from the lack of precision they show concerning how to understand the ideas of democracy and deliberation. To recognize what I am saying, we can think about the following example. Imagine that most normative decisions about Colombia’s peace process resulted from orders, comments and suggestions coming from an empowered group of Colonels, now in charge of the three Armed Forces. Those facts would not justify us describing the “participation of the Armed Forces as deliberation.” More significantly, that kind of participation by the Armed Forces in the peace process would be in any way attractive for those of us concerned about democracy; after their intervention, the process did not become more  “deliberative.” In sum, democracy is not improved when deliberation is reduced to a procedure that is fundamentally structured by the pressures and decisions of actors that have limited democratic legitimacy

In my view, a theory of democratic dialogue—like the one I have tried to advance in my writings on the subject[1]—does not demand that we consider all kinds of dialogic instances or examples as valuable or positive (positive, I mean, in moral, political, or legal terms). Rather, this theory encourages us to pay attention to the specific characteristics of such decision-making process and recognize whether certain basic requirements about public discussion and social inclusion are being properly considered. In addition, a dialogic theory requires us to reflect about some basic questions concerning the who, how, what, and for what purpose of the dialogue: Who are debating? Why? About what and for what reason?.

Given that I have written substantially about these issues, let me just illustrate what an adequate deliberative process would demand, through a few brief points and examples:

Equality. First, a valuable debate requires the different actors to be situated in positions of relative equality. Thus, for instance, a debate organized by the pater familias, where the authoritarian father has the “final,” unquestioned authority would not be interesting for our purposes. The same could be said regarding a deliberation between “We the People”[2] and their representatives; and even—and more relevant for our analysis—regarding a “conversation” between different branches of power, or a “dialogue” between national and international authorities. For example, if the local judiciary decided one thing, but an international court decided the opposite with “final” authority, then it would seem odd to suggest that those institutions engaged in a “conversation”: what kind of conversation would this be, if the local authorities had no real possibility to contradict what the international court decided, or the latter had the “last say” in all matters related to human rights law?

Non-Discretional Procedures. In connection with the previous point, I would also stress that public debates should be structured in ways that are respectful to the interests of their participants; they should be based on procedures that, for example, limit the risks of manipulations or abuses by one or part of the participants. Debates should be structured around justified procedures that, among other things, prevent participants from operating discretionally. In that respect, and as an illustration, one could maintain that public hearings like those organized by different Latin American courts, in recent years, failed the proposed test: participants in those hearings never came to know, after the end of the debates, what happened with the arguments that presented at the hearings (whether they had influenced the court’s decision or were ignored altogether); which arguments mattered to the court; which were discarded and for what reasons, etc. In each case, it was for the judges to decide, with complete discretion, when and how to call for a public hearing, and what to do with the arguments that were voiced in those hearings.[3]

The Limits of Public Dialogue. Public debates should be limited to matters of “public morality.” In other words, they should not deal with issues related to how people live or should live their own lives. In a proper democratic order, individuals should be allowed to live their own lives as they wish, without external, perfectionist intrusions.[4] In fact, a deliberative theory assumes that each person must be “sovereign” in what concerns her own private life, in the same manner that a community should be “sovereign” concerning issues of public morality.[5] For instance, for this theory, an ordinance as the one that was declared unconstitutional in the case Romer v. Evans,[6] would be out of order: democratic politics should not interfere with issues related to the individual’s most intimate decisions.

All the “Potentially Affected.” Deliberative democrats assume that the chances to adopt more impartial resolutions are maximized when “all those potentially affected” take part in their discussion. For similar reasons, they assume that the risks of improper biases augment when only a few or only a small segment of society becomes in charge of making such public choices. The established legal practice in the Americas, however, does not seem to follow these criteria. For instance, in most cases, criminal law decisions (that is, decisions concerning what conducts are going to be criminalized and in what way) tend to be reserved or transferred to expert commissions, and the citizenry at large are prevented from intervening in those relevant discussions. A good illustration of this criterion appears in article 39 of Argentina’s 1994 Constitution, which establishes that “Bills referring to constitutional reform, international treaties, taxation, budget, and criminal legislation shall not originate in popular initiatives.”

Dialogue Inclusive of the Public. In line with the previous comment, I would add that public dialogue should not be restricted to a communication or exchange of arguments among national or international authorities. More specifically, a proper dialogue should always be open to “We the People” and, in particular, be sensitive to the voices of individuals and groups that we can reasonably assume find serious difficulties for having access to and influence in the decision-making process. Consequently, dialogues that were limited to public agents should not be seen, in principle, as attractive expressions of what I have been here calling a proper, possible dialogue.

Particularly, in the context of the legitimacy problems that characterize the Judiciary, both at the national and international level, and also in light of the crisis of representation that affects the political system, the prospective of a “dialogue between the branches” does not look like a particularly exciting proposal. Of course, for many of us who have been criticizing traditional forms of judicial review during decades, the emergence of institutional alternatives that, in one or another way, dilute the power of the judges’ “last word,” represents good news.[7] However, in an institutional context like the one I suggested (which also includes profound and unjustified inequalities; a concentrated media; political campaigns that are financed by rich corporations, etc.), the perspective of promoting more “dialogue” between the branches loses much of its potential attraction: for advocates of a deliberative democracy, a dialogue between elites and high public officers produces highly unattractive results.

Genuinely Deliberative. Participants in the conversation should exchange and discuss their viewpoints, be sensitive to the others’ ideas and motivated to modify their own viewpoints when they realize that they were wrong in all or part of their arguments, or recognize that the others’ viewpoints were more persuasive. The point I want to make here has two main dimensions: one is motivational, and the other is more structural. The motivational aspect of the matter is crucial: participants need to be sensitive to “the force of the better argument,” according to Habermas’s formulation.[8] However, here I want to stress the structural aspect of deliberation, particularly in the face of an institutional system that has been built around the idea of “checks and balances”. This system, in my view, was directed to prevent “mutual oppressions,” but not equally well-prepared for the promotion of dialogue. In fact, the Madisonian thrust behind the proposal for a system of “check and balances” was to provide each of the branches with “defensive tools”: each part of the government had to prepare to resist the foreseeable attacks coming from the other branches. As Madison put it, in Federalist 51, it was necessary to give“those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” Of course, “public debate” may also emerge from the peculiar institutional structure that was then chosen,[9] but it seems clear to me that the system of “checks and balances” was directed at preventing or channeling “civil war,” rather than to encouraging a collective conversation of any kind.[10]

Participation and Deliberation. For this view, instances of political participation should, in principle, be promoted and encouraged (see the point above). However, this approach also assumes that, if such instances of political participation are not preceded by politics of transparency; diffusion of information; opportunities for discussion, confrontation of viewpoints, mutual correction, etc., the entire process of consultation becomes suspect. Think, for instance, about the Brexit experience and how that process was carried out—in a hurry, without a previous and proper distribution of information, with few opportunities for public exchange of arguments, and so on.[11] Or think about a case like that of Bolivia and the ratification process that followed the writing of the new 2009 Constitution. The Bolivian Constitution was composed of by 411 articles, and hundreds of sub-clauses, and the citizenry was invited to ratify or deny the validity of the document. What would the people’s ratification or rejection mean, in such a context? In that opportunity, people were forced to say “yes” or “no” about hundreds of different, important, and sometimes contradictory issues. In sum, there seems to be something deeply wrong in processes of popular consultation of the revised kind (that is, concerning how the deliberative process is structured), which threatens to undermine the meaning and worth of having a popular consultation.[12]

II. Practical Implications

The previous considerations may help us understand what makes a dialogic process attractive and what makes it unworthy. More specifically, those considerations may help us recognize what kind of dialogue could result worth pursuing in the area of International Human Rights Law. In what follows, I shall briefly illustrate these claims through three examples taken from the The Judicialization of Peace article.

A. Gelman v. Uruguay

Let me begin with the example of a decision by the Inter-American Court of Human Rights (IACtHR) in Gelman v. Uruguay.[13] The case plays an important role in the context of the article I am commenting. In fact, the authors claim that they want to offer “a more nuanced mapping of when and how international accountability courts can affect peacemaking processes” (p. 287). This fine-tuned approach would differ from alternative views that tended to “make general statements about the effects of international justice mechanisms on peace processes” (p. 287).[14] In part, this “more nuanced approach” is advanced against what different skeptics and reformers—including, among others, Ariel Dulitzky, Jorge Contesse and myself—wrote on the subject, particularly after the Gelman v. Uruguay decision.[15] In my view, our disagreements on the matter refer not so much to the form in which we describe the working of international tribunals, but rather to the way in which we understand the nature of those tribunals and the scope of their work.[16] More particularly, I believe, our disagreements originate in our different approaches to democracy.

For instance, if I were required to summarize my criticisms to the Gelman decision in just one line, I would say that the decision was wrong for not being properly “nuanced,” this is to say not sufficiently sensitive to the different democratic character or pedigree of the different amnesty laws passed in Latin America in recent years.[17] This was the main conclusion of my analysis, after revising different amnesty laws in the region, and recognizing that these diverse amnesty laws had extremely diverse democratic origins and legitimacy.[18] Taking a dialogic or deliberative conception of democracy as my standpoint, I objected to the decision of the IACtHR after considering that given the relatively weak democratic credentials of the IACtHR, the international court should have better calibrated the strength, modes, and scopes of its intervention.

Perhaps, it is there—in how we understand and define our basic normative standpoints—where our main differences with the authors reside. For instance, in their article, the authors claim that, in the realm of transitional justice, “the reality is that international courts sometimes hinder peace, sometimes foster a better peace, and sometimes are indifferent” (p. 286). The authors seem to be saying that international courts, in general, are doing a pretty good job in the area. This general conclusion would be grounded on the fact that international courts have neither proposed “too punitive” solutions, nor became “spoilers of peace and democracy” (p. 330). Now, claims as such express normative assumptions that the authors do not—but should—clarify. Unfortunately, without a better idea of what democracy or penal moderation means, it becomes almost impossible to determine whether a certain decision or practice favors rather than undermines democracy. Similarly, the authors praise the international courts’ contribution to political deliberation. But, again, we need certain previous conceptual clarifications before concluding that international or domestic court are favoring rather than preventing the achievement of those desired goals. We need to know, for instance, how the idea of political deliberation is defined, or we need to have a clearer notion about how a deliberative democracy should work.

B. The Colombian Peace Agreement

A second, relevant example concerns the debate that was launched in Colombia around the peace agreement. That debate may become of little or no interest if the voices of all those “potentially affected” are not consulted; if participants do not participate in the dialogue from a relatively equal position; if the established procedures for debate are not structured in ways that are respectful to the different participants; if the voices of those affected are not seriously considered; etc.

And what would a democratic approach say concerning the alleged contribution of international courts to the Colombian peace process? Perhaps, one could partially agree with what the authors claim in the Article and assert, with them, that “the terms of Colombia’s peace were produced through—not despite—the international courts’ ongoing deliberative engagement with the peace process” (p. 329). But immediately then we should pose a question like the following: Why would this result be attractive from our chosen deliberative perspective? The presence of more “veto points,” more “interest groups,” or more international actors taking part of this conversation says very little about the chance of achieving more impartial decisions, or about the possibilities of improving our democratic decision-making process. As Carlos Nino once put it: “There is no guarantee that the results of this cumbersome mix of different decisions centers reflect the present, majoritarian conclusion of all the people concerned following a free and open debate.”[19]

C. Constitutional Interpretation

Finally, the deliberative view sketched above may also be important in order to improve our thinking about questions of constitutional interpretation. For many of us, advocates of a dialogical democracy, constitutional interpretation requires an open and ongoing discussion about the meaning of the Constitution, where all the Constitution’s subjects intervene in an equal footing.[20] This view about legal interpretation seems to greatly differ from the one that the authors take as given in their article. In their piece, legal interpretation seems to refer, not to norms that belong to all, and whose meaning needs to be defined collectively by all, over time, but rather to an extremely complex process that calls for the intervention of experts, who are supposed to help other agents (non-experts) to understand the intricacies and complexities of international law.

In a section named “Engaging the International Courts Through Legal Interpretation,” the authors claim:

International law and international courts possess a highly specialized vocabulary and language. Further, the courts have a strategic advantage in that they possess insider knowledge of their own workings, and the extent of their resources and capacity. To engage with international courts effectively, actors must gain knowledge of this language and institutional structure.

(p. 311). I tend to disagree with this approach. In contrast to it, a deliberative perspective would suggest, first, that in order to properly participate in the collective conversation about the content and meaning of the law—a conversation that fundamentally belongs to local actors—international tribunals and authorities have to recognize the limited democratic legitimacy that they have, and also the particular institutional place they occupy in this dialogue.[21] It seems clear that, as a result of their expertise and experience, international tribunals and authorities can make an important contribution to the collective conversation about the scope, contents and limits of the law. But, again (and I am not interested in making a nationalist or parochial point about this), they have to understand that they are not supposed to come into the collective conversation so as to “teach” the rest of the participants what they do not understand about the law; or assume that their role in this conversation is to “reveal” to the rest how to rightly understand the meaning of international law (a meaning that, supposedly, would be incomprehensible to lay people).

III. The Colombian Constitutional Court

The previous considerations about deliberation, democracy, and legal interpretation may also help us to improve our analysis about the working of domestic courts in the construction of peace. In their approach to this specific topic, the authors state, for example: “International law and the [intentions of international tribunals] were used—and usurped—within the domestic political and judicial debate over peace, imbuing those debates within the narrative of law and judicialization” (p. 302). In my opinion, this claim manifests some of the difficulties that characterize the authors’ approach to the subject. The phrase suggests a view that is based, among other things, on a controversial understanding of what “the law” is and how it should be interpreted. The authors seem to be assuming that international law represents an important “portion” of the law to be applied in these circumstances, and that domestic political and judicial authorities “import” that “portion” of the law, sometimes “using” it as they should, and sometimes “usurping” it as they should not. This understanding of the relationship between international law and domestic law seems problematic, both as a description of the legal practice, and as an indication about how this entire process should work. More specifically, the authors’ description of the three paths through which the peace debate became thoroughly judicialized (“top-down,” “bottom-up,” and “shadows”) does not properly capture how non-political actors use and should use international law and international court’s decisions. In fact, the Colombian Constitutional Court (CCC) demonstrated, at least in some fundamental decisions related to the peace process, that it perfectly understood what role it was supposed to play, in the context of a dialogic democracy. Unfortunately, the authors’ approach seemed both unable to properly capture these virtuous decisions by the Court, and also incapable of recognizing the reasons and dimensions of the CCC’s failures in other similar circumstances. Let me try to illustrate and justify these claims.

According to the view that I have here advanced, “the law” is composed of local, national, and international dispositions (which include well-established legal practices) that are (as it should be) collectively interpreted and re-interpreted by the different members of the legal community, in an ongoing, unfinished process. Of course, it seems clear that international decisions appear, in many occasions, abused, misused, manipulated, or “usurped” by local authorities. However, and after acknowledging this, one should immediately recognize that domestic authorities (and the citizenry, in general) have to actively participate in the discussion about the meaning of the law that is going to be applied at the local level.

This alternative, deliberative understanding of the law helps us to better understand how the “judicialization of peace” has actually been working in Colombia, and at the same time offers useful tools for advancing a critical examination of such practice. For instance, in the article, the authors demonstrate that, in certain rulings, the CCC made an extensive use of decisions coming from international authorities, while in other occasions it did not; and also that, in occasions, the CCC quoted a certain international tribunal much more than the other, but immediately then tended to do the opposite thing without properly justifying its shifting foundations (p. 309). I understand that these oscillations by the CCC may suggest a certain misuse of “external” sources. However—I would suggest—in order to present a proper description and analysis of what the Constitutional Court has actually been doing, we need to do a different exercise, where “counting” citations of decisions by international courts would not help us much. What we need to know is how the Court processed those external antecedents; how it engaged with the arguments offered by international authorities; how it integrated certain ideas and interpretations proposed by international courts in its own reasoning; in sum how it carried on the “ongoing conversation” about the meaning, content, scope and limits of the law. Those are the relevant questions, I believe, and are also questions whose answers promise to help us improve both our description and critical evaluation of the Court’s work.

In my view, and contrary to what the authors suggest, the Colombian Constitutional Court demonstrated, in crucial occasions, to be well aware of its juridical duties and also about the nature of its duties. In particular, the CCC showed it was aware of the fact that it was participating in an ongoing collective conversation about the meaning of the law—a conversation that includes many actors and voices (coming from above and below) different from the same CCC. Moreover, the Court recognized that public decisions had to be taken in a deliberative manner, and that its own decisions had to honor this objective. Many of the Court’s most relevant decisions confirm those assumptions and show its commitment to the ideals, forms and procedural requirements of a deliberative democracy.[22]

In what specifically concerns the peace process, some of the Court’s most recent decisions illustrate how important this deliberative understanding of the law was, for the same Court; and when and how the Court failed in the application of that understanding.

Take, for instance, the decision made by the Court in May 2017, when it examined the norm allowing the government to “fast-track” laws related to the 2016 Peace Agreement (Constitutional Amendment 1, 2016).[23] The government had promoted these procedural reforms—the “fast track”—in order to accelerate the implementation of the Agreement (and particularly the amnesty law that the members of the guerrilla demanded). Through its decision on the case, the tribunal considered that two basic parts of the “fast track” mechanism created by Congress were unconstitutional. According to one of the objected clauses, all changes to each of the laws developing different aspects of the Agreement had to be approved by the government before coming to a congressional vote. According to the second objected clause, Congress could only vote to approve or deny the law, implementing the peace process without the possibility of debating and voting on each of the articles individually. For the Court, implementing those two clauses would have implied replacing the Constitution by altering the deliberative and decision-making powers of Congress.[24] In the words of the President of the Constitutional Court at that time, Luis Guillermo Guerrero, the ruling was not aimed at undermining the force of the Peace Agreement, but rather to “open up spaces for democratic deliberation.”[25]

From a democratic perspective, the Court’s strict scrutiny of the “fast-track” law seemed totally justifiable: the government needed to show that it was doing its very best in order to “build democratic legitimacy,” but instead showed that it was willing and ready to circumvent the constitutional and procedural requirements of democratic deliberation. The Colombian Constitutional Court reasonably resisted the government’s ill-fated initiative, and in that way reaffirmed its commitment to deliberative democracy.

This interesting judgment of the Court contrasts with another, more recent decision, where the tribunal, in my view, failed to understand what the same deliberative concerns that it had employed once and again before, required it to do, in the new case.[26] On that occasion, the Court upheld a Congress-approved legislation, which established that the Peace Agreement between the government and the FARC could not be amended for the next twelve years (Constitutional Amendment 2, 2017). This is to say, the following three governments would be unable to modify approved parts of the accord. The short-term purpose of the political initiative was obvious: it was directed to shield the Agreement from potential changes to be introduced by the incoming government. According to the norm that was upheld on that occasion, “institutions and authorities of the state have the obligation to comply with what is established in the final accord in good faith . . . until the end of three complete presidential periods following the signing.” For the Court, that article incorporated a “principle of stability and security that is deferential to the purposes of the Agreement.” Unfortunately, on this occasion, and against what its own legal discourse usually suggested, the Court limited rather than encouraged democratic deliberation: it accepted an unreasonable limit to the collective conversation about how to deal with one of the most important and serious problems in Colombia’s history. Fearing that the incoming government would promote a political decision (about the peace agreement) that the Court anticipated as mistaken, the Court validated the decision by (now ex-) President Santos to prevent the coming generations from continuing to reflect about a difficult matter that affects the life of the vast majority of Colombians.

Conclusion

In this Comment, I revised some of the arguments that appear in The Judicialization of Peace, and offered some alternatives to them. In particular, I suggested that the authors’ analysis would be enriched if they clarified their own views about democracy, deliberation, and constitutional interpretation. I also offered some ideas about what a deliberative theory could look like and suggested that this alternative approach could help us to better explain and critically evaluate the development of the Colombian peace process and the intervention of international and domestic tribunals.


   Suggested citation: Roberto Gargarella, Some Reservations Concerning the Judicialization of Peace, 59 Harv. Int’l L.J. Comment (Feb. 3, 2019), https://journals.law.harvard.edu/ilj/2019/02/reservations_peace/

*   Professor at the University of Buenos Aires and the University Torcuato di Tella. Senior Researcher at the National Research Council, CONICET (Argentina).

[1]   See, e.g., Roberto Gargarella, Deliberative Democracy, Dialogic Justice and the Promise of Social and Economic Rights, in Social and Economic Rights in Theory And Practice 105 (Helena Alviar et al., eds. 2014); see also Roberto Gargarella, Full Representation, Deliberation, and Impartiality, in Deliberative Democracy 260 (Jon Elster, ed., 1998).

[2]   U.S. Const., pmbl.

[3]   See, e.g., Miguel Benedetti & Jimena Saenz, Las Audiencias Publicas Ante La Corte Suprema [Public Hearings before the Supreme Court] 280–81 (2016) (Arg.).

[4] Carlos Nino, The Ethics of Human Rights (1991).

[5]   For a general analysis on the subject see, for example, id.

[6]   517 U.S. 620 (1996) (invalidating a state constitutional amendment passed in Colorado, which prevented protected status based upon homosexuality or bisexuality).

[7]   See, e.g., Mark Tushnet, Weak Courts, Strong Rights (2008); Jeremy Waldron, Law and Disagreement (1999).

[8]   See 1 Jurgen Habermas, Theory of Communicative Action, 24, 25, 28, 36, 42 (1984).

[9]        See generally Cass Sunstein, The Partial Constitution (1993).

[10]     I have defended this view, for example, in Roberto Gargarella, We the People Outside of the Constitution: The Dialogic Model of Constitutionalism and the System of Checks and Balances, 67 Current Legal Probs. 1, 22–23 (2014).

[11]      See Thomas Colignatus, The Brexit Referendum Question Was Flawed In Its Design, LSE Brexit (May 17, 2017),  http://blogs.lse.ac.uk/brexit/2017/05/17/the-brexit-referendum-question-was-flawed-in-its-design/ [https://perma.cc/V4GM-7WBA].

[12]      See European Union Observation Mission, Final Report on Bolivian Constitutional Referenedum of January 25, 2009, at 35 (2009), http://eeas.europa.eu/archives/eueom/missions/2009/bolivia/pdf/eueom_bolivia_2009_final_report_en.pdf [https://perma.cc/EX5G-WQL8].

[13]      Gelman v. Uruguay, Merits and Reparations, Judgment, Int-Am. Ct. H.R. (ser. C) No. 221 (Feb. 24, 2011).

[14]     Seemingly, for these “simplistic” views, international courts would constrain national policy-making “in a top down manner” (p. 286), and push for “punitive” solutions, in ways that spoiled “peace and democracy” (p. 330). In the realm of transitional justice, the authors claim, “the reality is that international courts sometimes hinder peace, sometimes foster a better peace, and sometimes are indifferent” (p. 286).

[15]      For instance, right before presenting their “more nuanced approach,” the authors quote Dulitzky’s and Contesse’s writings, and their suggestions saying that the IACtHR should become more deferential to national actors (p. 285). See, e.g., Jorge Contesse, Contestation and Deference in the Inter-American Human Rights System, 79 L. & Contemp. Probs. 123 (2016); see also Ariel Dulitsky, An Inter-American Constitutional Court?, 50 Tex. Int’l L.J. 45 (2015); Ariel Dulitzky, The Inter-American Human Rights System Fifty Years Later: Time for Changes, 127 Quebec J. Int’l L., (Special Edition) 127 (2011). In addition, they quote my own criticisms to the Gelman decision, when I claimed that the IACtHR’s decision was “not sufficiently respectful of democracy” (p. 285).

[16]      In fact, Ariel Dulitzky and Jorge Contesse have advanced very moderated and well-balanced criticisms to the functioning of international courts. In other words, I would not consider their analyses to be “non-nuanced.”

[17]      Actually, this was exactly what I wrote in the more complete piece I presented on the subject. See Roberto Gargarella, No Place for Popular Sovereignty. Democracy, Rights, and Punishment in Gelman v. Uruguay, 2013 SELA (Seminario Latinoamericano De Teoría Constitucional Y Política [Latin American Seminar On Constitutional And Political Theory]) Paper, 3, 16. In that opportunity, I stated: “the [IACtHR] assumed a vision of democracy that was not only based on distrust of the citizenry but moreover . . . completely insensitive to relevant nuances as regards the robustness or legitimacy of popular decision-making.” Id. at 37. Earlier in the paper, I asserted: “the approach adopted by the IACtHR in Gelman belied a schematic structure lacking any nuance.” Id. at 15. In other words, rather than condemning the overall work of the IACtHR, I basically challenged one decision by the Court for not having a “more nuanced approach” in relation to democracy and human rights.

[18]      More specifically, I complained about the tribunal’s resistance to differentiate between the amnesty law that had been enacted in Uruguay, after a long and profoundly deliberative, democratic process, and other amnesties conceded in the region out of non-democratic or hardly democratic decision-making processes. See id. at 15.  In my article, I distinguished four main cases, related to four main examples: 1) the self-amnesty proclaimed by the National Reorganization Process in Argentina (Argentina’s last dictatorship) before surrendering power; 2) the self-amnesty proclaimed by the regime of Alberto Fujimori in Peru following the massacre at Barrios Altos, and after he had shut down the democratic Congress; 3) the pardon laws passed by the democratic government under President Raúl Alfonsín in Argentina putting an end to the trials of persons responsible for the serious human rights violations that took place in Argentina starting in 1976; and 4) the Expiry Law passed in Uruguay and reaffirmed in two instances by popular vote. See id. 7–11.

[19]      Carlos Santiago Nino, The Constitution of Deliberative Democracy 166 (1996).

[20]     I have advanced this view, for example, in Roberto Gargarella, La interpretación y el diálogo democrático [Interpretation and Democratic Dialogue], Revista Del Centro De Estudios Constitucionales [Journal. Ctr. for Const. Stud.], enero – junio, 2017, at 169 (Mex.)

[21]      A crucial point emerges, but one which I cannot properly address within the context of this paper. The discussion concerns the question about who should be allowed to participate in these particular conversations. My intuition is that the Habermasian notion of “those potentially affected” would mainly, although not only, refer to local participants, who have a special stake in what concerns the violation of rights of local authorities. See Habermas, supra note 8.

[22]     See Leonardo Garcia Jaramillo, Constitucionalismo Deliberativo [Deliberative Constitutionalism] (2015). See generally Roberto Gargarella, Latin American Constitutionalism (2013), Roberto Gargarella, The Legal Foundations of Inequality (2010).

[23]     Corte Constitucional [C.C.] [Constitutional Court], mayo 17, 2017, Sentencia C-332/17 (Colom.), http://www.corteconstitucional.gov.co/relatoria/2017/C-332-17.htm [https://perma.cc/G9Q7-EYL7?type=image] (examining the constitutional status of the “fast-track” mechanism created by Congress in order to accelerate the implementation of the peace agreement).

[24]     Juanita León, Las dos caras del golpe al fast track [The two sides of the blow to Fast Track], La Silla Vacía (May 18, 2017) (Colom.), https://lasillavacia.com/historia/las-dos-caras-del-golpe-al-fast-track-60989 [https://perma.cc/XKF7-VGWF].

[25]     Corte Constitucional [C.C.] [Constitutional Court], octubre 11, 2017, Sentencia C-630/17 (Colom.), http://www.corteconstitucional.gov.co/relatoria/2017/C-630-17.htm [https://perma.cc/NC43-3M87?type=image] (referring to the purpose of fast track authority) (translated from “abriendo espacios para la deliberación democrática”).

[26]     See id. (examining the constitutional status of a law shielding the peace agreement from political reforms in the following twelve years).

Content, Essays, Online Scholarship

What Counts as a Crime Against Humanity?

By Gerald L. Neuman

The International Criminal Court (ICC) makes headlines around the world when it issues its occasional judgments. But most of the work of fighting impunity for severe crimes condemned by international law depends on national enforcement. Two separate efforts are currently underway to strengthen international cooperation in ensuring national prosecution: 1) a multi-year project of the International Law Commission (ILC) to draft articles for a future convention on the prevention and punishment of crimes against humanity, comparable to the existing Genocide Convention and Convention Against Torture; and 2) an episodic state-led initiative to draft a mutual legal assistance treaty for the most serious international crimes. The Human Rights Program at HLS recently convened a private workshop to discuss the vitally important ILC project.

A key issue in establishing state obligations to prosecute international crimes involves the choice of a definition that is appropriate to the obligations that are being imposed. The notion of “crimes against humanity” has a long history, but its definition has evolved over the years. The definition negotiated for the Rome Statute, which created the ICC—an international tribunal with a limited capacity to prosecute and adjudicate—may not provide the right definition for an obligatory system of consistent national prosecution.

The Rome Statute enumerates (section 7) ten offenses amounting to crimes against humanity, plus a residual category for comparable inhumane acts. Some of these offenses are self-evidently atrocious, like extermination, while others cover a broad range of conduct, like imprisonment and deportation. The whole enumeration is subject to a “chapeau” element intended to justify regarding them as severe, namely that the action is performed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.  A particular defendant need only have performed a single instance of the conduct to be guilty of a crime against humanity; much of the opprobrium for low-level perpetrators arises from the fact that they have participated in a large-scale attack on civilians.

Unfortunately, the pivotal term “attack” received a seemingly formalistic definition in section 7. Taken literally, no physical violence is necessary for an attack, but merely multiple instances of any conduct on the list, pursuant to a state policy. Commentators have pointed this out, but the ICC has not had occasion to give a narrowing interpretation. After all, only extreme situations come before the ICC. Not only is the Court’s capacity limited to a small number of cases—the Rome Statute also restricts the pool by requiring a finding that the case is of sufficient gravity to justify the Court’s attention.

What works for a court of such limited jurisdiction may not be suitable for a treaty obligating states to pursue comprehensive enforcement. The issue is not worrisome in regard to the offense of extermination, but it becomes problematic in regard to the offense of imprisonment in violation of fundamental rules of international law. Past decisions have read such language broadly, to include detention that complies with national law if the national statute violates an international human rights norm. International tribunals have had little incentive to restrict this definition when the detention occurs in connection with a genuine violent attack on civilians. The criminal code of Australia spells out the standard for imprisonment as met by any violation of articles 9, 14, or 15 of the International Covenant on Civil Rights. The result could be that a disproportionate policy of pretrial detention, which is common in many countries, amounts as such to a crime against humanity and that states are obliged to prosecute the judges and jailers who implement it.

The designers of a future treaty on crimes against humanity need to deal explicitly with this definitional issue and its consequences. One possibility would be to clarify or revise the definition of an “attack” for purposes of the treaty. Similarly, other safeguards could be adopted to countervail against the borrowed definition. One cannot simply rely on prosecutorial common sense to eliminate the problem in practice, for several reasons. First, the ILC project would also enable nonnationals to raise the risk of falling victim to a crime against humanity as an absolute defense against removal. And in some countries (though not Australia), the criminal justice system will enable private prosecution of crimes against humanity. This important new treaty needs a solution appropriate to its context.


Gerald L. Neuman is the J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law, and the Co-Director of the Human Rights Program at HLS. He teaches human rights, constitutional law, and immigration and nationality law. His current research focuses on international human rights bodies, transnational dimensions of constitutionalism, and rights of foreign nationals. He is the author of Strangers to the Constitution: Immigrants, Borders and Fundamental Law (Princeton 1996), and co-author of the casebook Human Rights (with Louis Henkin et al., Foundation Press).

Content, Online Scholarship, Perspectives

Does the United Nations Convention Against Torture Oblige States Parties to Criminalize Torture in their Domestic Laws?

By Ezéchiel Amani Cirimwami

In their recent paper, “Torture by Private Actors and ‘Gold-Plating’ the Offence in National Law: An Exchange of Emails in Honour of William Schabas,”  Professors Paola Gaeta and Andrew Clapham discussed whether States Parties to the United Nations Convention Against Torture (UNCAT) are obliged to make torture a separate criminal offense under domestic law. This question has been met with different answers over time. While some scholars believe the UNCAT itself does not specifically say there must be a distinct offense or definition named “torture” in domestic law, the UN Committee Against Torture (CAT) has consistently stated, including in a General Comment, that the introduction of a separate offense of torture in national law is preferred. The main opposing arguments to this interpretation of the UNCAT may be found here, here and here.

The debate concerning the criminalization of torture in domestic law centers on Article 4 of the UNCAT, which imposes on states parties an obligation to “ensure that all acts of torture are offences under [national]…criminal law.” The same obligation also applies “to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.” Moreover, each state party is required to make these offenses punishable by “appropriate penalties” that reflect “their grave nature.”

The CAT has stressed the importance of fulfilling this obligation so as to avoid possible discrepancies between the crime as defined in the Convention and the crime as addressed in national law:

Serious discrepancies between the Convention’s definition and that incorporated into domestic law create actual or potential loopholes for impunity. In some cases, although similar language may be used, its meaning may be qualified by domestic law or by judicial interpretation and thus the Committee calls upon each State party to ensure that all parts of its Government adhere to the definition set forth in the Convention for the purpose of defining the obligations of the State

See Official Records of the General Assembly, Fifty-eighth Session, Supplement No. 44 (A/58/44), chap. III, consideration of reports submitted by States parties under article 19 of the Convention, Slovenia, para. 115 (a), and Belgium, para. 130.

Professor Gaeta, however, appears to disagree in part with the above interpretation, stating: “[S]tates parties, although they are obliged to make acts of torture ‘punishable’, are not also obliged to criminalise in their domestic laws acts amounting to torture as a separate offence under the UN Convention Against Torture.” Phrased differently, Professor Gaeta believes UNCAT does not require state parties to criminalize torture, since states can use other domestic criminal laws to impose punishment for torture. Hence, she concludes that “[i]t is therefore not surprising that some states parties to the UN Convention Against Torture have not (yet) introduced in their legal order a specific crime of torture, arguing that acts amounting to torture are already punishable using charges under other domestic laws.”

Professor Clapham, by contrast, observes that “the special place that torture has in the human rights catalogue (or ‘Decalogue’) suggests that the label of torturer should attach to someone convicted of this offence. Labelling something a human rights crime could have knock-on effects.”

State practice in this regard is inconsistent. Without specifically naming torture, some states, such as Canada, Panama, Ethiopia, and the Netherlands, have introduced legislation on international crimes in which torture is specifically provided for as a war crime and as a crime against humanity. While these states may maintain the obligation in Article 4(1) of UNCAT does not include a specific, separate offense in national criminal law, several other states, most notably Belgium, Colombia, Qatar, Australia, and the Democratic Republic of the Congo (DRC), have provided for a specific offense of torture, distinct from all other offenses, in their domestic laws. The DRC, for example, adopted Law No. 11/008 of 9 July 2011 on the Criminalization of Torture, which introduced an “autonomous offense” of torture in its penal code. Furthermore, in the law’s Preamble, the DRC clearly explains its view of the scope of the Article 4 of the UNCAT, stating that under the UNCAT, it was obliged to criminalize the crime of torture as a specific criminal offense.

I agree with the position of the DRC. There are two reasons why their position reflects the current state of international law. First, by situating Article 4 within the UNCAT’s broader framework, it becomes clear that this provision binds state parties to criminalize in their domestic law the crime of torture. Second, compelling insights have emerged from the Draft Articles on the Prevention and Punishment of Crimes Against Humanity, which the International Law Commission (ILC) adopted on first reading. As it will be demonstrated, from the ILC’s perspective, the obligation set forth by the UNCAT is to criminalize torture as a separate offense in domestic law.

Clarifying the scope of Article 4(1): Views from the ICJ and the ILC

ICJ

Reading Article 4 in isolation from the other provisions of UNCAT cannot properly capture its full meaning. In accordance with Article 31(2) of the 1969 Vienna Convention on the Law of Treaties, to clarify the scope of obligations arising from Article 4 of UNCAT, one must read this provision in its context, which includes, inter alia, the text of the UNCAT as a whole. First, the reader must identify which provisions of the UNCAT should be read together to form a single source of meaning. In this regard, the ICJ has already laid the groundwork for Article 4.  When determining the scope of obligations arising from Article 7(1) of UNCAT, the ICJ found:

The obligation to prosecute…is normally implemented in the context of the Convention against Torture after the State has performed the other obligations provided for in the preceding articles, which require it to adopt adequate legislation to enable it to criminalize torture, give its courts universal jurisdiction in the matter and make an inquiry into the facts. These obligations, taken as a whole, may be regarded as elements of a single conventional mechanism aimed at preventing suspects from escaping the consequences of their criminal responsibility, if proven.

Questions relating to the obligation to prosecute or extradite (Belgium v. Senegal) ¶ 91 (emphasis added).

According to the ICJ, to fulfill the Article 7 obligation to extradite or prosecute, states parties must adopt the necessary national measures to criminalize torture (Article 4) and to establish jurisdiction (Article 5). These are the “basic elements” or “logical prior steps” that lead to the implementation of the aut dedere aut judicare principle with respect to torture. This Latin legal maxim imposes a legal obligation on the states to extradite or prosecute a person found in its territory if the person is suspected of certain crimes. Accordingly, the state having the custody of a suspect has to either extradite the person to another state having jurisdiction over the case or to instigate its own judicial proceedings. The object of the principle is to avoid crimes being left unpunished because there is no extradition or prosecution. Thus, if an alleged offender of foreign nationality comes into a state’s territory and is not extradited to another state, the state must be able to exercise criminal jurisdiction to prosecute the acts of torture that he or she allegedly committed, regardless of where the alleged acts took place or against whom they were perpetrated. When it comes to this obligation, states parties that do not criminalize torture are confronted with two issues. First, there is the problem of classification: states parties cannot establish universal jurisdiction unless they can point to a statutory offense in their domestic law that encompasses the crime of torture.  Second, it is unclear which statutory authority may be used to initiate the prosecution of persons who have perpetrated torture elsewhere. This is an important issue, since the obligation to prosecute or extradite is not applicable to all serious offenses—only grave breaches of the four 1949 Geneva Conventions and the 1977 Additional Protocol I. It is also inapplicable to charges under national law like simple assault offenses, abusive treatment or breach of military discipline. Thus, Gaeta’s reading of Article 4 of UNCAT, which asserts that states are not legally obliged to criminalize torture because criminalization can be done by using “other charges” under domestic laws, cannot be supported. As the ICJ acknowledges, the obligation to prosecute or extradite provided for in Article 7 of UNCAT is only applicable to torture. Hence, it is not applicable to these “other charges.” One could say that the obligation to prosecute or extradite is applicable to charge of war crimes if a state chooses to criminalize torture under the latter charge. However, this reading is not without its problems. War crimes that oblige prosecution or extradition are grave breaches, and the grave breaches provisions apply only to international armed conflicts. The other major limitation is that on its face, those grave breaches provisions apply only to “protected persons” under each Geneva Convention and, therefore, do not apply all the time, everywhere, nor necessarily to everyone. Finally, the criminalization of torture under war crimes charges tends to reduce the scope of Article 4 to the context of armed conflict, which is a major element of war crimes. This is a problem because torture is a crime under UNCAT regardless of whether it is committed during an armed conflict or not.

ILC

In 2017, the ILC adopted, on first reading, the Draft Articles on the Prevention and Punishment of Crimes Against Humanity as well as the accompanying Commentaries. The ILC had been engaged in the consideration of this topic since 2014, with Mr. Sean D. Murphy as the Special Rapporteur. In addition to Draft Article 6(1) being written in the same manner as Article 4(1) of UNCAT, the ILC’s Commentary on the Draft Articles notes that:

Draft article 6 sets forth various measures that each State must take under its criminal law to ensure that crimes against humanity constitute offences, to preclude certain defences or any statute of limitation, and to provide for appropriate penalties commensurate with the grave nature of such crimes. Measures of this kind are essential for the proper functioning of the subsequent draft articles relating to the establishment and exercise of jurisdiction over alleged offenders.

ILC Commentary on the Draft Articles p. 61, ¶ 1 (emphasis added).

The ILC also observed that if there are discrepancies between the definitions provided for in the future Crimes Against Humanity Convention, and those incorporated in domestic laws, loopholes could be created that could lead to impunity. Therefore, in an effort to avoid such loopholes with respect to crimes against humanity, “draft article 6, paragraph 1, provides that each State shall take the necessary measures to ensure that crimes against humanity, as such, constitute offences under its criminal law.” (Emphasis added.)

Hence, reading Article 4(1) of the UNCAT in light of Draft Article 6(1) on Crimes Against Humanity helps to assert that, from the ILC’s perspective, the obligation set forth by the UNCAT is to criminalize torture as a separate offense in domestic law.

Concluding Remarks

This post analyzed whether the UNCAT obliges states parties to criminalize torture in domestic law. With respect to the scope of the obligation arising from Article 4 of the UNCAT, I disagree with Professor Gaeta. Not only does the UNCAT establish a clear obligation upon states parties to ensure that all acts of torture are offences under their criminal law, this author also contends that Article 4 of the UNCAT obliges states parties to criminalize, in their domestic law, the crime of torture as such.


Ezéchiel Amani Cirimwami is currently completing a joint PhD at the Vrije Universiteit Brussel and the Université Catholique de Louvain on the procedural obligation to extradite or prosecute for core international crimes and the role human rights law plays when considering this obligation. Beginning in March 2019 he will be a visiting researcher at the Max Planck Institute for International, European and Regulatory Procedural Law as part of their Guest Program. In addition, Ezéchiel Amani is a sitting judge in the Democratic Republic of the Congo after having served as a deputy public prosecutor for a number of years.

 

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