Dec 9, 2016 | Content, Student Features
By Julio Manuel Rivera Ríos
“¡Todo mundo tiene su precio!” (“Everyone has his price!”) If you ask most people in Mexico about the judiciary, this is what you’ll hear. The prevalent opinion is that cash equals justice. Under these circumstances, we attorneys must heed the call to action. To that end, we need robust and efficient institutions to discourage and fight corruption, and we have the very particular duty of reestablishing and reinforcing people’s trust in our noble profession and in the judicial system.
Since 1994, the management, supervision and discipline of Judicial Power in Mexico, with the exception of the Supreme Court of Justice, have been entrusted to the Federal Judicial Council, but its performance has left much to be desired.
From May 13th-23rd, 2001, a Special Rapporteur from the United Nations Commission on Human Rights undertook a mission in Mexico after receiving several complaints, pointing out the impunity of judicial misconduct. As a result of the visit, an alarming report was presented, part of which is stated here:
“From 1995 to 1999 the Disciplinary Commission of the Federal Judicial Council attended to 2,274 complaints, resulting in 327 sanctions of magistrates, judges or secretaries, ranging from warnings to dismissal (an average of seven sanctions per month).”
“The Special Rapporteur was given estimates of 50 to 70 per cent of all judges at the federal level being corrupt. However, no federal judge has ever been sanctioned for corruption by the Judicial Council.” [1]
Little has changed since then. The Federal Judicial Council has failed to investigate judicial corruption effectively, which has resulted in its disrepute. The reason is simple: the Federal Judicial Council is part of the Judicial Power, lacking impartiality and independence. Here is the big question. Who should supervise and investigate judicial misconduct?
The Council of Europe’s Recommendation on the Independence, Efficiency and Role of Judges has established the requirements for the judicial disciplinary mechanisms, including the existence of a special body other than a court:
“Where measures [on discipline] need to be taken, states should consider setting up, by law, a special competent body which has as its task to apply any disciplinary sanctions and measures, where they are not dealt with by a court . . . .” [2]
In addition, the European Charter on the statute for judges establishes the right of individuals to easily file a complaint against judicial misconduct before an independent body:
“5.3. Each individual must have the possibility of submitting without specific formality a complaint relating to the miscarriage of justice in a given case to an independent body.” [3]
Moreover, when the United Nations Human Rights Committee analyzed a judicial corruption case in Georgia, it stated that the investigation and supervision of judicial misconduct should be handled by an independent agency:
“The State party should also ensure that documented complaints of judicial corruption are investigated by an independent agency and that the appropriate disciplinary or penal measures are taken.” [4]
In light of the aforementioned, the Federal Judicial Council should be dissolved to make way for an autonomous, specialized, impartial, collegiate body with operational, budgeting and decision-making autonomy, in charge of the management, supervision and discipline of Judicial Power.
In conjunction, a law should be issued based on the international principles of judicial independence and accountability,[5] where the new entity would be responsible for implementation and enforcement. The purpose of this law would be to ensure that disciplinary proceedings for investigation and adjudication on complaints are fair, transparent and impartial.
It is my conviction that through a body with these characteristics, judicial accountability would have a good chance to succeed in Mexico. Disciplinary procedures would be conducted in accordance with requisite high standards, respecting procedural guarantees. There would be nowhere to conceal unethical behavior. The public confidence in the judicial system and, more importantly, in the integrity and moral authority of the judiciary, would be greatly restored. Constitutionalism and the rule of law would be upheld, while strengthening Mexican democracy.
* Julio Manuel Rivera Ríos is a 2017 L.LM. Candidate at Harvard Law School and a Feature Editor for the Harvard International Law Journal.
[1] Commission on Human Rights, Civil and Political Rights, Including Questions of: Independence of the Judiciary, Administration of Justice, Impunity. United Nations document E/CN.4/2002/72/Add.1, 24 January 2002.
[2] Council of Europe, Recommendation No. R (94) 12 of the Committee of Ministers to Member States on the Independence, Efficiency and Role of Judges, 13 October 1994.
[3] Council of Europe, European Charter on the statute for judges, DAJ/DOC (98) 23, 10 July 1998. See also Concluding Observations of the Human Rights Committee on Georgia, United Nations document CCPR/CO/74/GEO, paragraph 12, 19 April 2012.
[4] Concluding Observations of the Human Rights Committee on Georgia, United Nations document CCPR/CO/74/GEO, 19 April 2012.
[5] See the Bangalore Principles of Judicial Conduct, adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices at The Hague, 2002. See also Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.
Dec 2, 2016 | Content, Student Features
By Jesse Lempel
International law speaks softly on the question of force-feeding prisoners who deliberately starve their bodies for the sake of protest. Feeding them against their will is neither banned outright as a form of torture nor mandated for the preservation of life: in fact, states across Europe and North America come out on opposite sides as to whether it is a legitimate practice altogether. On an issue plagued by such disagreement and ambivalence, one might expect that the force of international law—a shaky proposition in any context—would be terrifically meek.
Yet a September decision of the Israeli Supreme Court upholding a law permitting authorities to force-feed hunger-striking prisoners demonstrates the unlikely avenues through which even fuzzy international law can bend a country’s legal landscape, entering the Court’s constitutional jurisprudence through the backdoor and clearing the way for creative reshaping of a legislative act.
This influence of international law on the Court’s decision may be seen as an instance of what Professor Anne-Marie Slaughter has branded “transjudicial communication”—a term that encompasses dialogue in horizontal channels, between courts of different nations, as well as vertical channels, between national and international courts.[1]
The ruling also offers a fascinating glimpse into the workings of Israel’s highest court as it seeks to weave the law through the web of fears over security and terrorism, respect for human rights and dignity, medical ethics, the norms of international law, and the nation’s own constitutional values as a “Jewish and democratic” state.
I will first analyze the international legal precedents on the topic, then discuss how the Court situates Israeli law in that context and applies the weight of international law to shift its own constitutional interpretation.
The CPT and the European Court of Human Rights
On the European continent, the norms of international human rights law are promulgated and policed by two distinct yet related bodies emanating from the Council of Europe: The Committee for the Prevention of Torture (CPT) and the European Court of Human Rights (ECtHR).
The CPT, in its 1993 3rd General Report, acknowledged that European states have divergent approaches toward a hunger-striking prisoner: “In the event of a hunger strike, public authorities or professional organisations in some countries will require the doctor to intervene to prevent death as soon as the patient’s consciousness becomes seriously impaired. In other countries, the rule is to leave clinical decisions to the doctor in charge, after he has sought advice and weighed up all the relevant facts” (para. 47).
In Germany, for example, Section 101 of the 1976 Prison Act explicitly permits force-feeding prisoners even when they refuse nutrition of their own free will, provided there is a serious danger to the prisoner’s life or health. The same is true in France (Code of Penal Procedure, Art. D.364) (link in French) and several other countries.
By contrast, England has adopted a stance of deference to the prisoner’s autonomy, even at the cost of her own death by starvation. In a landmark 1994 ruling, the Family Division of the High Court held that Derek Robb, a 27-year-old prisoner, was within his rights to starve himself to death (Secretary of State for the Home Department v. Robb [1995] 1 All ER 677). Despite having received a diagnosis of “disorder of personality,” including having declared himself a “master manipulator” to the doctor and suffering from what the court described as “heroin dependence, a history of self-injury and ambivalence as to his sexual orientation,” Robb was deemed to be of sound mind. As such, the court ruled, the “right of the defendant to determine his future is plain.” (The decision reversed a nearly century-old precedent, Leigh v. Gladstone [1909], in which the court held that a suffragette who was force-fed while on a hunger strike in prison could not sue for assault, since the Crown had a duty “to preserve the lives and health of the prisoners.”)
The European Court of Human Rights took up this issue in Nevmerzhitsky v. Ukraine (2005). Nevmerzhitsky was detained on suspicion of financial fraud, and after passing a year in prison awaiting trial he began a series of hunger strikes. The Ukrainian authorities force-fed him, citing a local law permitting the practice when the prisoner’s life is in danger. Nevmerzhitsky later sued the government in the ECtHR, alleging that he was subjected to “inhuman and degrading treatment” in violation of Article 3 of the European Convention of Human Rights.
The ECtHR, after citing both the CPT’s language and the WMA’s Declaration of Malta, held that force-feeding is not torture, provided there is genuine medical necessity: “The Court reiterates that a measure which is of therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading. The same can be said about force-feeding that is aimed at saving the life of a particular detainee who consciously refuses to take food” (id. para. 94).
The ECtHR held that the decision to force-feed Nevmerzhitsky was “arbitrary,” not being based on any specific medical assessment, but in so doing established the principle that international law allows a state to force-feed a hunger-striking prisoner whose life is in jeopardy, provided other procedural safeguards are in place and the treatment is not too severe.
This holding was reiterated several years later in Rappaz v. Switzerland (2013) (link to case in French; official press release in English). Bernard Rappaz was incarcerated for a variety of marijuana-related offenses, and embarked on a widely publicized hunger strike. During a long saga in which he was repeatedly released from prison temporarily only to renew his hunger strike upon his return, the Swiss court ordered the doctor to feed him against his will or face criminal proceedings, an order the doctor fought in court. Although the force-feeding never materialized, Rappaz sued the Swiss government in the ECtHR for allegedly endangering his life by not releasing him during his hunger strike.
The ECtHR dismissed the suit and, relying on its precedent in Nevmerzhitsky, reaffirmed that the Swiss court’s order to force-feed the hunger-striking prisoner was legitimate in a case of medical necessity. As for the doctor’s ethical objections, the Court noted that the various professional declarations of medical ethics eschewing the practice of force-feeding prisoners, such as those of the WMA, “do not by themselves create legal norms” (id. para. 74).
Guantanamo Bay and International Norms
In the U.S., much like in Europe, jurisdictions are divided on the question of force-feeding prisoners on a hunger strike.[2] Despite the difference of opinion, however, the decisive majority of courts permits the practice under certain conditions.
A three-judge panel of the D.C. Circuit Court of Appeals recently weighed in on this topic in Aamer v. Obama (D.C. Cir. 2014). Shaker Aamer, a detainee in Camp Delta at the U.S. naval base in Guantanamo Bay, Cuba, is a Saudi national and British resident who organized several mass hunger strikes of Guantanamo prisoners over the years—as a leader among incarcerated comrades and a fluent English speaker, the guards nicknamed him “the Professor.” Although Aamer was cleared for release even before President Obama took office, he was still being held in 2013 (he was finally released in late 2015, following advocacy campaigns from the likes of then-British Prime Minister David Cameron and Sting, the English rock icon). Aamer launched a hunger strike in protest of his confinement and was subsequently force-fed.
Aamer sued President Obama and other government entities seeking an injunction against his continued force-feeding. The D.C. Circuit declined to intervene, however, explaining that force-feeding is “reasonably related to legitimate penological interests” and may therefore abridge a prisoner’s rights. The government’s legitimate interests here, the Court reasoned, are “preserving the lives of those in its custody and maintaining security and discipline in the detention facility.”
The D.C. Circuit acknowledged a June 2013 letter by Sen. Diane Feinstein, then-Chairwoman of the Senate Intelligence Committee, to then-Secretary of Defense Chuck Hagel imploring him to end force-feeding at Guantanamo. Feinstein’s letter cited both the particular harshness of its application at the U.S. base and the various declarations of international medical and ethical bodies decrying the practice in all circumstances, from which Feinstein concluded that force-feeding is “out of sync with international norms.” (Just two days after receiving Feinstein’s letter, a lawyer for the Defense Department wrote in an internal memo, leaked to Vice News, that the force-feeding of prisoners at Guantanamo is “solidly supported” by U.S. law but contravenes “international law and certain medical ethical standards.”)
Nevertheless, the D.C. Circuit waved away these scruples. “This is a court of law,” the Court announced, echoing the ECtHR in Rappaz, “not an arbiter of medical ethics.” And the law as it stands does not recognize force-feeding a prisoner on a hunger strike as inhuman or degrading. This same logic would likewise prevail in the Israeli Supreme Court.
The Israeli Law
Turning now to Israel, the 2015 law “Prevention of Hunger-Strike Injuries” is the Israeli government’s response to a series of mass hunger strikes by Palestinian prisoners, notably in 2012 when over 2,000 Palestinian prisoners went on a month-long hunger strike protesting the conditions of their confinement—including the fact that many were held without trial as threats to public safety, a practice Israel calls “administrative detention.” The strike attracted intense, and very unwelcome, international political pressure toward the Israeli government, and was viewed by many politicians as a threat to Israel’s ability to hold dangerous individuals and effectively combat terrorism. The law passed in the Knesset, Israel’s parliament, by a vote of 46-40, supported by the right-wing coalition led by Prime Minister Benjamin Netanyahu’s Likud party.
Technically, the legislation is an amendment to the prison code that permits feeding a hunger-striking prisoner against her will, including via insertion of a nasal feeding tube if necessary. But that extreme measure may only be invoked under a strict set of conditions that include a medical assessment of imminent danger to the prisoner’s life or a risk of irreversible harm, a hearing before the district court with input from the detainee’s representative and a special medical ethics committee, and a decision by a judge subject to appeal.
Most controversially, § 19d(e) of the statute further instructs the court, in determining whether to permit the force-feeding, to “weigh considerations of a tangible concern of severe harm to national security, inasmuch as relevant evidence has been presented.”
According to the statute, no doctor may be ordered to perform the force-feeding. It is also noteworthy that despite being on the books for over a year, during which there were multiple incidents of near-death hunger strikers, the law has never been applied in practice. All cases have been resolved by other means.
The International Law and Constitutional Questions
In the case recently decided, Israel Medical Association et. al. v. Knesset et. al., HCJ 5304/15 (Sep. 11, 2016) (link in Hebrew), petitioners were the Israel Medical Association and various human rights NGO’s who sued a host of state actors seeking an injunction striking down the force-feeding law as unconstitutional and in violation of international law. The case was heard by a panel of three Supreme Court Justices, sitting as the High Court of Justice, in which the Supreme Court hears cases of original jurisdiction typically involving suits against the government.
The Israel Medical Association (IMA) argued that the statute violated international laws against torture, such as the United Nations’ 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and Article 7 of the 1966 International Covenant on Civil and Political Rights, stating: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Israel is a signatory to both of these UN agreements.
The World Medical Association (WMA), in both the 1975 Declaration of Tokyo (revised Oct. 2016) and the 1991 Declaration of Malta on Hunger Strikers, declared force-feeding “a form of inhuman and degrading treatment,” clearly implicating the UN’s Convention Against Torture and Article 7 of the International Covenant. The law permitting force-feeding prisoners, according to the IMA, is therefore at odds with international law against torture that Israel itself adopted.
Furthermore, the IMA alleged (link in Hebrew), the law thwarts Israel’s own constitutional principles. Although Israel lacks a formal constitution, the Knesset has enacted a series of Basic Laws that serve a constitutional role. One such law is the Basic Law: Human Dignity and Liberty (1992), which forbids, among other things, “violation of the life, body, or dignity of any person as such” (Art. 2). Any law that conflicts with this Basic Law may be struck down by the Supreme Court as unconstitutional.
This Basic Law does, however, acknowledge exceptions: it explicitly allows for a person’s dignity and liberty rights to be curtailed by “a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required” (Art. 8).
The IMA and other petitioners challenged the statute as unconstitutional because its purpose is not “proper,” and therefore not within the scope of the Basic Law’s exception. “The amendment portrays itself as legislation concerned with saving the life of a sick person on a hunger strike,” the IMA argued (link in Hebrew) in its brief to the Court, “but its essence and ra[ison] d’etre is to break the hunger strike and silence their protest.”
In support of this claim, the IMA pointed to numerous explicit statements to that effect by prominent Israeli legislators and ministers who supported the law, as well as the statutory provision instructing the court to weigh concerns of national security in determining whether to allow the force-feeding. What does national security have to do with the well-being of the prisoner, and why is that provision included in an ostensibly humanitarian-minded law? Rather, the IMA insisted, the law was essentially political, not humanitarian, and as such “this purpose in no way justifies a severe infringement of the prisoner’s human dignity.”
The Decision
The Court unanimously rejected the petitioners’ arguments and upheld the law as both constitutional and in compliance with international law. In a lengthy opinion by Justice Elyakim Rubinstein, the Court held that the force-feeding law passes the tripartite constitutional test set out in the Basic Law for a law that curtails human dignity.
Furthermore, the Court relied on precedents in international case law establishing that feeding a hunger-striking prisoner against her will is neither inhuman nor degrading.
The National Security Wrinkle
Justice Rubinstein, in his IMA v. Knesset opinion, surveyed the international and comparative law and finds ample precedent in the CPT and the ECtHR holdings to establish that force-feeding prisoners on a hunger strike does not amount to torture. Nevertheless, he noted a striking anomaly in Israel’s statute: wherever force-feeding prisoners is allowed in democratic countries, Justice Rubinstein observed, the exclusive consideration is the prisoner’s well-being. Whereas in Israel, alone among the nations, the statute instructs the court to also consider “severe harm to national security.”
This is a curious observation for two reasons.
First, it seemingly ignores the U.S. case law, embodied in Aamer v. Obama, that explicitly authorizes force-feeding prisoners in part on the grounds of “maintaining security and discipline in the detention facility.” This would suggest that Israel is not quite as alone on the matter as the Israeli Supreme Court fears.
Second, and far more interesting, Justice Rubinstein did not treat this anomalous statute as a problem of international law on its own terms. Rather, he folded the issue into his analysis of Israeli constitutional law, granting the international norm a certain gravitational pull on the Court’s constitutional interpretation. To appreciate this maneuver it is necessary to briefly dive into the substantive constitutional question before the Court.
“Proper Purpose” and International Norms
Israel’s Basic Law: Human Dignity and Liberty, Art. 8, allows for another law to curtail an individual’s dignity rights only if it meets a tripartite test: 1) the law is “befitting the values of the State of Israel,” articulated earlier in the Basic Law as the values of a “Jewish and democratic state”; 2) it was “enacted for a proper purpose”; 3) the curtailment of rights is proportionate to the need.
The major challenge here centers around the “proper purpose” prong. Is it proper to consider national security when deciding whether to force-feed the prisoner, or must the sole consideration be preserving the prisoner’s life? This, it turns out, is a complex question—and one in which the Court allowed international law to encroach upon its constitutional jurisprudence.
The Supreme Court had previously adopted the view of its celebrated former President, Justice Aharon Barak, that a law’s purpose should be judged proper or not on its own terms, without regard to the means taken or the right with which it conflicts—weighing the value of the purpose against the right infringed is left to the proportionality prong.[3] But in IMA v. Knesset Justice Rubinstein cited a law review article by Professor Barak Medina (link in Hebrew), former dean of the Hebrew University Faculty of Law, critiquing Justice Barak’s standard.[4]
Professor Medina advocated for a stricter threshold, arguing that the Proper Purpose clause sets “‘red lines’ denying from the outset the legitimacy of certain arrangements that infringe constitutional rights.” In other words, a purpose may be proper in the abstract, but not under specific conditions and therefore out of bounds. For example, it is unconstitutional to imprison a terrorist’s family as a means of applying pressure on the terrorist, even though pressuring a terrorist may well be a proper purpose in the abstract. This, Professor Medina argued, is not primarily because the cost outweighs the benefits in the third-prong proportionality calculus (as Justice Barak might maintain), but rather because applying pressure on a third party is not the kind of purpose that justifies violating an individual’s constitutional right to liberty. “The inquiry must be,” Professor Medina claimed, “whether the purpose in violating this right is the kind of purpose recognized as proper in a democratic society.”
Well, is national security recognized in democratic societies as a proper purpose for which to force-feed prisoners on a hunger strike? The Court held it is not. The reason for this, Justice Rubinstein suggested, is twofold.
In the first place, there must be constitutional limits on what national security can permit. “National security is not a magic phrase,” he wrote, invoking the words of former-Justice Tova Strasberg-Cohen from a 1995 opinion. Justice Rubinstein alluded to a history of serious mistakes and abuses by the country’s security and intelligence agencies, a history he described as flashing a “red light” of “caution” before blindly following their recommendations to trample constitutional rights (para. 124).
Second, Justice Rubinstein unhappily noted that Israel’s law is “quite unique” on the world stage in basing the decision whether to force-feed in part on non-health concerns of national security. (It’s worth repeating that the U.S. law, which also recognizes security concerns as legitimate factors in the decision to force-feed, is peculiarly absent from this discussion and might have eased the Court’s anxiety about Israel’s “unique” law.) Justifying the law primarily on the basis of national security would place Israel awkwardly at the far edge of the world stage—and that, Justice Rubinstein reasoned, indicates that national security should not by itself constitute a “proper purpose” in the context of violating a prisoner’s human dignity.
The Statutory Somersault
The security rationale would not do. Yet the Court upheld the force-feeding law anyway, finding that its “dominant purpose” was the humanitarian one, not the national security one. In order to survive the constitutional test, then, the legislation originally conceived and crafted as a national security measure must be reimagined as a humanitarian health law. And that’s exactly the somersault that the Court performed, or at least understood the Knesset to have performed.
This interpretation of the law likely puzzled not only the petitioners, but also many of the legislators and ministers who sponsored and voted for the bill primarily as a means of neutralizing the political weapon of a mass hunger strike by Palestinian prisoners. As Justice Noam Sohlberg wrote in his concurrence, “the security consideration was among the primary factors driving the legislation of the amendment; an examination of the law’s Commentary and transcripts of the various debates throughout the legislative process leave no room for doubt about that” (para. 3).
Nevertheless, Justice Sohlberg maintained that the factors which the law takes into account virtually all pertain to the prisoner’s health: the doctor’s assessment begins the process, and the judge’s determination is based primarily on the risk to the prisoner’s life. These humanitarian considerations, Justice Sohlberg argued, “‘overtook’ the security considerations during the legislative ‘journey’ and outweighed them” (id.). Indeed, Justice Rubinstein made much of the fact that in the bill’s original draft the security concerns were an integral part of the judge’s consideration—whereas according to the bill’s final form, passed by the legislature, the judge would consider them only if specific evidence is presented. This proves, the Justices reasoned, that the humanitarian purpose ultimately carried the day.
Conclusion
The current international law, as expressed in the CPT and ECtHR case law, does not unequivocally ban force-feeding a prisoner on a hunger strike who is at risk of death or lasting harm. It accepts that democratic countries have different views on the matter. Yet the recent Israeli law goes further than that of the European countries, joining the prevailing U.S. doctrine in considering not only the prisoner’s well-being but also security concerns in deciding whether to force-feed the protesting detainee. Before upholding the law, the Israeli Supreme Court had to rework it: the “dominant” purpose, it held, must be preserving the prisoner’s life, with worries of national security playing only a supporting role.
The upshot is that, while the Court felt comfortable enough to tiptoe beyond the ECtHR precedent of allowing force-feeding of prisoners on exclusively humanitarian grounds, it did so uneasily. Unsettled by incongruous international norms, the Court was nudged toward a narrower reading of its own constitutional text—as though the Justices parsed the law with one eye on the Israeli code and the other on the rest of the world.
* Jesse Lempel is a 2019 J.D. candidate at Harvard Law School and a Feature Editor of the Harvard International Law Journal.
[1] See generally Anne-Marie Slaughter, A Typology of Transjudicial Communication, 29 U. Rich. L. Rev. 99 (1994); Y. Shany, How Supreme is the Supreme Law of the Land?: Comparative Analysis of the Influence of International Human Rights Treaties upon the Interpretation of Constitutional Texts by Domestic Courts, 31 Brook. J. Int’l L. 341 (2006). On Israel specifically, see Aharon Barak, International Human Rights Law and the Israeli Supreme Court, 47 Isr. L. Rev. 181 (2014); Markus Wagner, Transnational Legal Communication: A Partial Legacy of Supreme Court President Aharon Barak, 47 Tulsa L. Rev. 437 (2011).
[2] See, e.g., Mara Silver, Note, Testing Cruzan: Prisoners and the Constitutional Question of Self-Starvation, 58 Stan. L. Rev. 631, 642-61 (2005).
[3] See, e.g., Aharon Barak, Proportionality: Constitutional Rights and their Limitations 248-49 (2012).
[4] See B. Medina, On ‘Infringement’ of Constitutional Rights and on ‘Proper Purpose’, 15 Mishpatim v’Asakim [Law and Business] 281, 311 (2012).
Nov 21, 2016 | Student Features
By: Maitê de Souza Schmitz
In the period of twenty months that I have served on this Court, I have been privileged to consider the interpretation and application of five treaties in cases before the Court. But I dare say that, were I to examine another fifty treaties in the rest of my term, none would be, by virtue of the existential threat to mankind posed by nuclear weapons, as critically important for the work of the Court and the interests of the international community as the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) that is the subject of the Marshall Islands v. United Kingdom case. (Judge Robinson, Dissenting Opinion)
Earlier this month, the International Court of Justice (ICJ) dismissed the cases submitted by the Marshall Islands on the Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament. With the narrowest possible majority (8-8, with the President’s casting vote), the ICJ concluded that there was no legal dispute between the Marshall Islands and the United Kingdom. The cases against India and Pakistan, which are not parties to the NPT, had slightly different voting patterns, but the same result and similar arguments and reasoning.
To dismiss the case, the majority departed from the Court’s previous case law on the definition of a legal dispute by introducing a new element to its analysis: the respondent’s “awareness” that “its views were positively opposed by the applicant”. What appears to be a simple technicality has in fact at least two systemic implications. Legally, it raises the bar for accessing the ICJ. Politically, it makes advancing the nuclear disarmament agenda through international litigation more unlikely.
The Case
In April 2014, the Republic of the Marshall Islands instituted proceedings against nine states for their alleged breach of obligations regarding the cessation of the nuclear arms race and nuclear disarmament. Of these nine states, three (India, Pakistan and the United Kingdom) had recognized the compulsory jurisdiction of the ICJ.
The Marshall Islands claimed that the United Kingdom was in breach of Art. VI of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), which states that Parties have an obligation to negotiate in good faith “on effective measures” for the “cessation of the nuclear arms race at an early date” and nuclear disarmament. It added that India and Pakistan, though not party to the NPT, were bound by similar obligations as a matter of customary international law. The NPT is not new for the ICJ. In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996), the Court recognized the importance of Art VI and interpreted it as containing an “obligation to achieve a precise result – nuclear disarmament in all its aspects.” In the Marshall Islands cases, the ICJ had an opportunity to effectuate its prior dictum and revisit its position on nuclear weapons in light of developments in international law.
The dispute about having a dispute
Respondents converged on four major arguments in their preliminary objections to the case: i) the non-existence of a legal dispute; ii) the absence of “indispensable parties” in the proceedings; iii) reservations in their respective declarations accepting the Court’s jurisdiction; and iv) the lack of a practical consequence of a judgment on the merits. Pakistan also made an argument on the Marshall Islands’ lack of standing to pursue the claims.
It was unsurprising that respondents challenged the Court’s jurisdiction. It is a common litigation strategy, particularly in cases founded on optional declarations and compromissory clauses. The surprise, instead, was the reasoning adopted to dismiss the claim: non-existence of a dispute. The ICJ has well-established jurisprudence on the criteria for determining the existence of a legal dispute. In his Separate Opinion, Judge Owada refers to 19 Permanent Court of International Justice (PCIJ) and ICJ cases where the matter has been discussed. For those familiar with the Court’s jurisprudence on jurisdiction, it is a well-trodden path: start with the Mavrommatis definition of a dispute as being “a disagreement on a point of law or fact a conflict of legal views or of interests”, then add that a Party’s claim must be “positively opposed by the other” (South West Africa cases, 1962), and finally stress that this is “a matter for objective determination” (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, 1950). More recently, the ICJ has also clarified that the existence of a dispute is a matter of substance and not of form (Application of the International Convention on the Elimination of All Forms of Racial Discrimination, 2011).
The ICJ went a step further in the present case by introducing a subjective criterion: the respondent’s awareness of the existence of a disagreement. This is a major departure from previous case law, which focused solely on objective criteria. As Vice-President Yusuf points out, “the function of the Court is to determine the existence of a conflict of legal views on the basis of the evidence placed before it and not to delve into the consciousness, perception and other mental processes of States (provided they do possess such cerebral qualities) in order to find out about their state of awareness”. He adds that this “formalistic requirement” actually defeats the purpose of judicial economy, because it requires the applicant to file a new case now that the respondent is certainly aware of the dispute.
Though the majority does not give a detailed legal reasoning for this change, it mentions that “awareness” is “reflected in previous decisions of the Court” and cites two cases to support its view: Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (2016) and Application of the International Convention on the Elimination of All Forms of Racial Discrimination (2011). However, the references of the latter case do not contain any articulation of subjective awareness as they were essentially dealing with evidence to prove the existence of a dispute as traditionally understood by the ICJ – a disagreement on a point of law or fact with respect to the issue of the proceedings on the date of the Application (Paragraph 31). The same was true in the former case; the excerpt relied upon by the majority mentions “the specific circumstances” of the case and affirms that “[g]iven the public statements made by the highest representatives of the Parties, Colombia could not have misunderstood the position of Nicaragua over such differences” (Paragraph 73).
The majority argues that declarations cited by the Marshall Islands to support its claim are of “general content”, and not directed to the specific respondents. Hence, they conclude that none of the statements articulate an alleged breach by each of the respondents “of the obligation enshrined in Article VI of the NPT”. In the majority’s view, the respondent states could not be aware that the Marshall Islands were making a claim on their potential breach of obligations towards nuclear disarmament. Statements from Marshall Islands’ representatives in multilateral conferences, e.g., saying that “States possessing nuclear arsenals are failing to fulfill their legal obligations,” were not deemed sufficient. Nor was the fact that the parties held opposite views on the legality of the United Kingdom’s improvement and extension of its nuclear weapons system sufficient. In fact, regarding the United Kingdom, the majority disregarded one of the Marshall Island’s declarations because it was made in a conference on the humanitarian impact of nuclear weapons at which no British representative was present. It seems hard to believe that in a globalized world, with easy access of information, the United Kingdom would not become aware of this statement.
It is understandable that courts will be cautious about frivolous litigations. At the same time, they must balance this concern against the international community’s interest in providing access to justice and promoting the peaceful settlement of disputes. This is all the more important at the ICJ given how difficult it is to seize its jurisdiction. After this case, the Court has shifted from a “tradition of flexibility” (Judge Crawford, dissenting opinion) to a “formalistic approach” (Judge Cançado Trindade, dissenting opinion), adding another obstacle to accessing international adjudication.
The ICJ and nuclear weapons
One of the critiques made in the dissenting opinions is that the judgments failed to give persuasive reasons for departing from the ICJ’s jurisprudence on the characterization of a dispute. Some might wonder whether the subject matter of the case played any role in this shift.
The relationship between the ICJ and issues pertaining to nuclear weapons appears to be marked by firsts. In the Nuclear Test cases (1974), the Court for the first time gave binding effect to unilateral declarations made outside of a specific context (e.g., negotiation or litigation).[1] As a consequence, the ICJ refrained from deciding whether France’s nuclear tests in the South Pacific Ocean were consistent with international law following French public declarations stating its intention to abstain from future tests.
Some twenty years later, in another first, the World Court refrained from providing a definite answer on a crucial aspect of a legal question submitted to it by the UN General Assembly. In the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996), the ICJ affirmed that it could not “conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense” (operative paragraph 2E). This controversial statement is the only declaration on non-liquet to date (i.e., the ICJ implied that there is no applicable law on the question).
Now, after another two decades, the ICJ again had the opportunity to decide on issues pertaining to nuclear weapons. And, again, the ICJ evaded the question. This majority’s novelty in assessing the existence of a dispute did not pass unnoticed by other judges. As highlighted by Judge Tomka in his Separate Opinion, “for the first time in almost a century of adjudication of inter-State disputes in the Peace Palace, the “World” Court (the Permanent Court of International Justice and the International Court of Justice) has dismissed a case on the ground that no dispute existed between the Applicant and the Respondent prior to the filing of the Application instituting proceedings”.
Just as the Nuclear Tests case is associated with the doctrine on unilateral declarations, so does the present dispute run the risk of being known solely for new requirements in determining the existence of a dispute. However, a more accurate reading might be to see the Marshall Islands cases as another instance in which the ICJ was asked to address the question of nuclear disarmament but found new technical arguments to avoid dealing with its substance.
In an enlightening post about the decision, Nico Krisch points out that six out of the eight judges who dismissed the case against the UK were nationals of nuclear weapons States, while the other two were nationals of countries that benefited from the cooperation of a nuclear weapon State. Could it then be that the dismissal of the cases resulted not from the willingness of the majority to reinterpret what a legal dispute is, but rather from their views on nuclear disarmament?
In 1927, the Committee of the PCIJ, while reviewing its Rules, made a strong argument on the powerful influence of nationality. In fact, debates as to whether nationality could influence a judge’s opinion feature prominently in the travaux preparatoires of the PCIJ Statute. The Procès-Verbaux of the meetings show that the need for each party to have a national judge on the bench was extremely controversial.
This controversy continued in the process of creating the ICJ. In the end, however, the Statute retained the traditional rules on this matter. The ICJ is composed of a body of independent judges who vow that they will act impartially and conscientiously. This does not necessarily mean that nationality will be irrelevant in considering a judge’s position. Previous empirical research indicated that national and ad hoc judges voted in favor of their own countries in 80% to 82% of the cases.[2]
In the ICJ’s 1996 Advisory Opinion, the distribution of votes on the most controversial holding (OP 2E) did not show a clear division between possessor and non-possessor states. In the view of the ICJ President at the time, this was “a mark of the independence of the Members of the Court” (Separate Opinion, Judge Bedjaoui). A reading of the individual opinions might give a different impression. Nationals of nuclear weapon states disagreed on the best approach for the Court to deal with the issue, not on the legality of the use of nuclear weapons.
It might be said that the split in the Court merely reflected divergent views of States on nuclear disarmament. However, if the ICJ’s composition proportionally reflected State positions on this matter, the vote would likely have tended against the legality of nuclear weapons and in favor of effective disarmament.
Given consistent failed attempts to seize the ICJ on this relevant and urgent matter, one might question whether international litigation is a viable strategy for nuclear disarmament. The Marshall Islands judgment provides insight about the majority’s views on this topic. When tracing the historic background and role of the United Nations in disarmament, the judgment enumerates three bodies with “a role in international disarmament efforts”: the UNGA, the UNSC, and the Military Staff Committee. Notably missing from this list: the ICJ itself.
Although the foregoing judgments expose serious limitations to addressing nuclear disarmament at the ICJ, resort to international tribunals could remain a viable option in the long run. A slightly different composition of the Court could have led to different results, as the votes were evenly split both in the 1996 Advisory Opinion (for OP2E) and in the case between the Marshall Islands and the UK. Nevertheless, international litigation should not be regarded as the main avenue to secure progress for nuclear disarmament. Instead, it should be seen as complimentary to multilateral negotiations. Since the ICJ decision, UN Member States adopted a landmark resolution to convene a multilateral conference in 2017 to negotiate a treaty that would prohibit nuclear weapons. This significant step in multilateral negotiations may have a much more far-reaching impact on disarmament than bilateral litigation.
* Maitê de Souza Schmitz is a 2017 LL.M. candidate at Harvard Law School and an Article Editor of the Harvard International Law Journal.
[1] The previous case on unilateral declarations (Eastern Greenland, PCIJ) was specific about declarations made in the context of a negotiation. See also Rubin, Alfred P., The International Legal Effects of Unilateral Declarations. The American Journal of International Law, 1 January 1977, Vol.71(1), pp.1-30. P. 4-7
[2] SAMORE, William. National Origins v. Impartial Decisions: A Study of World Court Holdings, Chicago-Kent Law Review, v. 34, 1956. p. 193; SUH, Il Ro. Voting Behavior of National Judges in International Courts. American Journal of International Law, v. 63, 1969, p. 224-236. p. 230.
Nov 4, 2016 | Student Features
By Phillip Takhar*
Georgia has hoped, for some time, to join the European Union (EU). While progress towards this goal has been slow, Georgia has been working with the EU on a visa free travel agreement that is seen as an important step toward further integration with Europe. At the same time, the European Commission has used these negotiations to push for significant changes in certain areas of Georgian law. Specifically, the Visa Liberalisation Dialogue and Action Plan for Visa Liberalisation has led to significant liberalization of laws relating to stateless individuals and antidiscrimination. These legal changes, however, are only likely to last if the EU is willing to keep its side of the bargain and extend visa free travel to Georgians in a timely manner.
Background
Georgia, like other former Soviet Republics, is in a difficult geopolitical position. While the country would like to join the EU (although popular support is less strongly in favor than in the past), Russia vigorously opposes integration and has used propaganda, and other forms of soft power, to further diminish the idea’s popularity. For its part, Europe has been cautious about developing its relationship with Georgia so as to avoid provoking Russia. Some have argued that this may lead Georgia to move closer to the Kremlin. Pro-Russian groups have formed in Georgia over the last few years and, in 2016, even gained some seats in parliament. Still, the country’s reelection of the Georgia Dream, a pro-EU membership party, is an indication that pro-Russian sentiments have not yet met with widespread approval.
Georgia sees visa free travel status as a concrete step towards developing a stronger economic bond with Europe that will hopefully be part of its path to eventual EU membership. Georgia and the EU have been negotiating visa liberalisation since June 2012. As part of these negotiations, Georgia was required to implement an Action Plan for Visa Liberalisation (VLAP) which consisted of numerous legal, political, and bureaucratic reforms that needed to be undertaken in order for a visa agreement to be reached. Compliance with the VLAP has been assessed through four progress reports and focused on four areas: passport and travel document security, border management, internal security, and fundamental rights for its residents. Areas that have been of particular note include the status of stateless individuals and anti-discrimination against minorities in Georgia.
The Status of Stateless Individuals
In 1961 the United Nations signed the Convention on the Reduction of Statelessness to give stateless individuals certain rights to establish nationality. Most European Union member states are signatories of the Convention and the European Commission used the Convention as a standard for Georgian reform in the VLAP.
Given that Georgia shares a border with Turkey, it receives around one hundred asylum seeking applications every year. There are currently an estimated 770 stateless individuals in the country, a number that has been reduced from around 1670 over the past seven years. While the issue of statelessness is clearly important in Georgia, prior to the VLAP the President would only grant asylum to stateless individuals in “exceptional cases.”
In the first VLAP progress report, the Commission noted approvingly that Georgia’s Commission on Migration Issues Working Group on the Reduction of Statelessness had prepared a draft law on Georgian citizenship that used the 1961 UN Convention as a benchmark. Georgia had not yet signed the 1961 UN Convention, but it was considering doing so.
In the second progress report the Commission reported that Georgia had passed the Law on the Legal Status of Aliens and Stateless Persons, which recognized rights and established legal guarantees for stateless individuals in compliance with the VLAP. In particular, this legislation created a process for stateless individuals to obtain residence permits and temporary identification cards. It also guaranteed equal legal protection for stateless individuals. In addition to these domestic reforms, Georgia also resolved to ratify the 1961 United Nations Convention on the Reduction of Statelessness and passed a Law on Georgian Citizenship to match the Convention’s principles.
The third and fourth progress reports noted that these reforms fulfilled Georgia’s VLAP benchmark for freedom of movement for aliens and stateless individuals.
Anti-Discrimination against Minorities
The European Commission also used the VLAP to change Georgian anti-discrimination law. Georgia has long had issues with protection of minority rights. After the Soviet Union fell, feelings of nationalism, a lack of political representation and protection for ethnic minorities, and massive poverty created a dire situation for the Kurdish, Armenian, Azeri, and other minorities in Georgia. Unfortunately, employment and education discrimination, as well as more general public xenophobia, has historically been acceptable in Georgia. While the country did eventually create anti-discrimination laws, they did not apply to private parties. In a 2010 report, the European Commission against Racism and Intolerance stated that there were no recorded cases in which an individual was legally compensated for suffering racial discrimination.
In the first VLAP progress report, the European Commission noted that Georgia was working on a new piece of legislation intended to combat discrimination based on several categories in line with Council of Europe recommendations, including race, sex, citizenship, nationality, and religion. The Commission noted, however, that it was unclear whether the law would apply only to the public sector.
In the second progress report, the Commission reported that the Law on the Elimination of All Forms of Discrimination had been passed. This law implemented the previously noted features and was very broad in scope. It contained protections for both direct and indirect discrimination and introduced proactive measures to enhance gender equality. Despite concern that the law might only apply to government action, these protections were also extended to the private sector. In addition, this law gave the Public Defender of Georgia the responsibility to monitor issues related to discrimination for the purpose of eliminating it. The Public Defender has a number of enumerated duties, including working with international organizations and increasing awareness of the anti-discrimination law amongst those who could use it to protect their rights.
While the third progress report noted that the Anti-Discrimination law was an important step, it asserted that more work had to be done. It particularly recommended continued efforts to raise awareness of the law among its citizenry and civil servants and train legal professionals in the new law’s provisions.
In the fourth progress report, the Commission noted that the Public Defender had started an information campaign to fulfill part of its responsibility under the Anti-Discrimination Law. This campaign used a variety of media to educate the public about diversity and equality, in line with the Commission’s third progress report recommendations. Additionally, Georgia adopted a Strategy for Civic Equality and Integration that aimed to politically empower ethnic minorities. Assessing these developments as a whole, the Commission concluded that Georgia’s anti-discrimination benchmark had been achieved.
Aftermath of the Visa Liberalisation Action Plan
The fourth VLAP progress concluded that Georgia had met its benchmarks in every area of concern. It remarked that, while there would still be a need to continually monitor implementation of new laws and policies, Georgia had made remarkable progress in the areas of rule of law and justice reform.
However, despite achieving these benchmarks, Germany, France, and Italy voted against granting Georgia visa free travel status at an EU ambassador’s meeting in June of this year. Germany argued that the number of burglaries in Georgia needed to be investigated further before allowing unrestricted travel into the EU and requested that a suspension mechanism be put into any visa free agreement with Georgia, allowing the EU to freeze the agreement if it were abused by individuals staying in EU member states pass the 90-day limit.
This vote was a disappointing delay for Georgia, which had met the EU Commission’s legal requirements and hoped for a positive resolution of the issue this summer. Nevertheless, Georgian Prime Minister Kvirikashvili stated that Georgia had made impressive progress and was still committed to the visa liberalisation process and, more generally, eventual EU membership. In September, the European Parliament Committee on Civil Liberties, Justice and Home Affairs, approved visa free travel liberalisation, and this past month the European Commission approved Georgia’s bid. Georgia now must wait for the European Parliament to agree on an appropriate suspension mechanism before the visa agreement can take effect. It is expected that the plan will be approved by the end of the year.
Conclusion
The Law on the Legal status of Aliens and Stateless Persons and the Law on the Elimination of All Forms of Discrimination are both major developments in Georgian law. However, these changes are resisted by some Georgians who would prefer to turn back towards Russia. Progressive laws can only be maintained in the face of this opposition if there is stability in Georgia’s regional partnership with the EU. The EU’s goal of promoting human rights in the region would be well served by encouraging the continuation of these Georgian laws. Though Georgia has been in compliance with VLAP benchmarks since last December, implementation of the visa liberalisation agreement has already been delayed by four months. Hopefully, the EU won’t delay much more in rewarding Georgia for its efforts.
* Phillip Takhar is a 2019 J.D. candidate at Harvard Law School and a Feature Editor of the Harvard International Law Journal.
Sep 30, 2016 | Content, Student Features
By Kelsey Jost-Creegan*
This article is the first of a series of articles to be published on the Colombian Peace Process over the course of the next weeks. We hope to offer in-depth and substantive analysis to an English-speaking and international audience, reflective of the many rich debates that are currently taking place in Colombia.
This Sunday, Colombian citizens will decide whether to approve the Peace Agreement reached on August 24th between the Colombian government and the Revolutionary Armed Forces of Colombia – People’s Army (FARC). The Agreement was signed on Monday, September 26th in Cartagena, Colombia, but a favorable vote is essential for the Peace Process to move forward.
Background: The Colombian Conflict
The Colombian Conflict is the longest-running armed conflict in the Western Hemisphere, and the only one that continues to be active. The conflict has left over 260,000 people dead, 45,000 people disappeared, and 6.6 million people displaced. The conflict is highly complex and involves a number of actors that have evolved over time, including leftist guerrillas, right-wing paramilitaries, and national armed forces.
Atrocious crimes—murder, disappearance, displacement, sexual violence, torture, and massacres—have been committed at different points in the conflict by all parties involved. The Latin America Working Group explains, “[r]ural, impoverished, and marginalized communities—including Afro-Colombians, indigenous, and women—were disproportionately affected by the violence.”
The current conflict has its roots in the formation of armed leftist guerilla movements that spread across Latin America in the 1960s, opposing political elites and extreme socioeconomic and regional inequality. While these movements were in some ways novel, political violence revolving around issues of land rights and rural inequality had been a reoccurring problem since Colombia’s founding. Conflicts in the 1920s between landowners and small-scale farmers in Colombia’s coffee region, the 1948 assassination of presidential candidate Jorge Eliécer Gaitán, and the subsequent ten years of conflict known as “La Violencia” are just a few examples of this unrest.
Revolutionary Armed Forces of Colombia – People’s Army (FARC)
The FARC, formed in 1964, was one of these guerilla groups. It follows a Marxist-Leninist ideology, and has its roots in campesino (peasant farmer) advocacy for land rights. It began as one of a number of campesino groups fostered by the Communist Party (PCC) that declared “independent republics” in the countryside, where the government’s institutional presence had always been weak. The FARC’s campesino forebears declared an independent “Republic of Marquetalia” in 1964. When the government responded with heavy military force—sending nearly 2,000 soldiers to counter a settlement with less than 100 members—the campesinos retreated into the jungle. Two months later, the 48 remaining campesinos signed the Agrarian Program of the Guerrillas, effectively establishing the FARC.
Beginning in the 1970s, and increasing significantly in the 1980s, the FARC became involved in drug trafficking and kidnapping to finance their movement. Their involvement with drugs began by imposing taxes on farms growing drugs, but with time escalated to include direct production and export. Right-wing paramilitary groups also consolidated and expanded during this period, prompting a severe escalation in violence.
Over time, the FARC transformed significantly. In 1982 the organization “transformed . . . from a defensive group to an offensive national entity.” In the 1990s it broke off from the PCC, although it continued to preach Marxist-Leninism. It was around this time that the FARC developed the highly hierarchical structure under which it has operated to this day.
It is estimated that, at its peak, the FARC had nearly 20,000 members, though that number has diminished to between 6,300 and 7,000 active members today. The FARC is also believed to have an affiliated militia; estimates for the number of militia members vary anywhere from 5,800 to 13,000 and there is little consensus as to their role and whether they are armed.
The New Peace Agreement: 4 Years of Negotiations, 6 Parts, and 300 Pages
The current Peace Agreement is the result of nearly four years of negotiations held in Havana, Cuba. Formal negotiations, which began on November 19, 2012, followed two years of preliminary negotiations to determine negotiation process.
This is not the first time that the Colombian government has tried to negotiate with the FARC. Presidents Belisario Betancur (1982–1986) and Andrés Pastrana (1998–2001) both oversaw negotiations. However, both attempts failed and the violence continued. This is the first time the groups have reached a full agreement and, accordingly, the first time such an agreement will be put to a vote.
The Final Agreement for the End of the Conflict and the Construction of a Stable and Lasting Peace is lengthy and complex—composed of Six Parts and totaling nearly 300 pages, it covers topics ranging from land reform to drug policy to transitional justice. Later articles in this series will provide a detailed breakdown of each Part.
Given the Agreement’s length and complexity, there have been concerns about the extent to which the voting population will be able to make an informed decision, particularly given the quick turnaround between its release and vote (just over a month). To this end, the Colombian High Commissioner for Peace established a website summarizing the Agreement’s main points in both Spanish and a variety of indigenous languages. Civil society organizations have also made audio recordings, online videos, and Whatsapp groups to cover main takeaways and answer questions.
The Approval Process: Where are we now?
A multistep approval process began to unfold once the Agreement was announced.
Developments to Date
- August 24: The Colombian government and the FARC announce they have reached agreement.
- September 24: The FARC announces that its members have unanimously approved the deal through a Congress of Block Leaders, each block being a regional unit of the rebel army. The FARC has used similar Congresses to make important decisions since its inception, though most were held earlier in the FARC’s history. This Congress of Block Leaders was held in Llanos de Yarí, and was the first open to civilians and the press.
- September 26: President Santos and FARC leader Rodrigo Lodoño—alias Timochenko—sign the Agreements in Cartagena, the first formal part of the Peace Process to take place on Colombian soil. Note that President Santos signed the Agreement before the Plebiscite, likely a political decision made in the hopes of building momentum going into Sunday’s vote.
The Plebiscite
The Plebiscite will ask: Do you support the agreement to end the conflict and construct a stable and lasting peace? A simple majority of at least 13% of registered voters is needed to pass the agreement (approximately 4.4 million votes).
The Plebiscite’s legal standing is complex. In Colombia, a plebiscite is a form of political participation similar but not identical to a referendum; while a referendum generates a binding decision about a piece of legislation, a plebiscite aims to gauge whether there is support for presidential action. According to the Colombian Constitutional Court, the Plebiscite has three goals: (1) obtain democratic legitimacy; (2) make the Agreement more lasting (on the theory that future politicians would be more likely to uphold it); and (3) accordingly, offer the parties guarantees in moving forward with the Agreement’s terms. Officially, it is only binding on the President, meaning that, in theory, Congress could independently move forward with the deal even if voters turn it down, and may even be able to restore the President’s power to implement the Agreement. Conversely, a majority vote in favor of the agreement would also not be legally binding—the government will still need to pass its ‘Legislative Act for Peace,’ which includes amendments to five Constitutional articles. However, it seems unlikely that other government organs will move forward if the Agreement is not approved by the Plebiscite, as it would lack a public mandate. Theoretically the President could also negotiate another agreement, but the parties have said that they would not return to negotiations if this one doesn’t pass, potentially pushing the possibility for peace further into the future.
The Political Landscape: Support and Opposition
The weeks leading up to the Plebiscite have been rife with political tensions as political leaders on both sides of the issue press their case to the public.
Public polling on the agreement have been mixed, but several recent surveys suggest that the agreement will pass. When asking how citizens would vote if the Plebiscite were tomorrow, Cifras & Conceptos found that 54% would vote yes and 34% no, Opinómetro found that 55.3% would vote yes and 38.3% would vote no, and Ipsos found that 72% would vote yes and 28% no. However, even these three most recent polls indicate that the gap has narrowed since July.
The government has been campaigning in favor of the agreement, claiming that the deal represents a critical opportunity for peace and the best deal possible in light of four years of intensive negotiation. Americas Society/Council of the Americas argues that, “the burden of proof is on the Yes campaign, which some say has the burden of convincing us to choose peace—a hypothetical concept for many of the country’s 48 million who’ve lived their own lives under the 52-year conflict.” The government has also emphasized that the Agreement prohibits amnesty for crimes against humanity and war crimes and provides a process for victim rights.
Opposition to the Agreement continues to be voiced by important political leaders, including Presidents Álvaro Uribe (2002–2010) and Andrés Pastrana (1998–2002) and former Inspector General Alejandro Ordóñez. The opposition has focused on crimes committed by the FARC and argues that the FARC would effectively be granted impunity for those crimes. They also argue against provisions that would allow FARC members to participate in the political process.
International Involvement
The international community has been heavily involved in the lead-up to the Plebiscite.
On Tuesday, September 13th the United Nations Security Council approved the creation of a political mission, composed of “450 observers and a number of civilian,” to monitor and verify a future ceasefire. That mission is already on the ground, ahead of schedule. The U.N. Mission also supported a seven-day training session on monitoring the ceasefire in early September.
A number of international organizations, including UNICEF and the International Organization for Migration, are also participating in coordinated action agreed upon in Havana to oversee the demobilization of minors recruited by the FARC.
Looking forward
While most media coverage has framed this Agreement as the end of Colombia’s internal armed conflict, in reality it is only an essential first step towards achieving an end to the war and constructing a lasting peace. The demobilization of the FARC and the implementation of other measures outlined by the Peace Agreement would be an enormous achievement in deescalating the conflict. However if the Agreement passes it will be necessary to stay alert to the power vacuum that dismantling the FARC would create and the different actors that could be waiting to fill that vacuum. Ultimately, achieving peace with the remaining leftist guerrilla group—the National Liberation Army (ELN)—and dismantling successor paramilitary groups and other criminal organizations will be essential to building peace. Later articles in this series will explore these dynamics.
* Kelsey Jost-Creegan is a 3L at Harvard Law School and a former Article Editor with the Harvard International Law Journal. During law school she completed a semester exchange at the Universidad de Los Andes in Bogotá and interned at the Centro de Estudios de Derecho, Justicia y Sociedad – Dejusticia and the Centro de Estudios para la Justicia Social – Tierra Digna.
Jun 8, 2016 | Content, Student Features
By Iris Goldner Lang and Samuel H. Chang
For the past several months, the UK electorate has been engaged in a fierce political debate over a single question: “Should the United Kingdom remain a member of the European Union or leave the European Union?” British voters will head to the polls on Thursday, June 23, 2016, for a referendum on UK membership in the European Union. By now, much ink has been spilled on the political backdrop, the sequence of events preceding the referendum, and its potential effects on the United Kingdom. Yet the decision to hold a referendum also has significant consequences for the other side of the Channel. Independent of its outcome, the referendum is already having visible effects on the functioning of the European Union in the pre-referendum stage. Two crucial consequences in particular can be discerned on the EU side: first, the creation of a political precedent and, second, the aggravation and diversion of energies from the EU’s internal challenges.
Political Precedent
The United Kingdom’s contemplation of leaving the European Union represents an extraordinary occasion against the historic flow of European integration. For the past sixty years, the economic, political, and social advantages of EU membership have been a magnet to European states, transforming the initial European Economic Community of six states into a Union of 28 Member States and 500 million inhabitants. EU enlargement policy has frequently been credited as the Union’s most successful foreign policy, stimulating positive changes in newly acceding countries and deeply affecting the European Union itself. While the UK voted on EEC membership in 1975, the British Government’s present commitment to a referendum marks the first time in EU history that one of its Member States has seriously opened the possibility of leaving the Union. In this sense, the referendum creates a political precedent for other EU Member States.
More importantly, the creation of a political precedent is driven by the unpredictable nature of a referendum and the EU’s response to such uncertainty. In an effort to accommodate Prime Minister Cameron’s concerns and to gain the UK public’s support, EU leaders have agreed to grant several concessions to the United Kingdom. These concessions—which might not have been possible absent the uncertainty of the referendum or the simultaneous crises facing Europe—will take the form of several amendments of existing EU law in the event of a UK vote to remain.
Against this background, there is a well-founded fear that the UK referendum and the Union’s response to it will not only give impetus to anti-EU sentiments across the continent, but that it might also create a political precedent for leaders from other Member States to begin asking for concessions under the threat of leaving the Union. This fear is echoed by European Council President Donald Tusk, who recently expressed his concern that the UK referendum might serve as a “very attractive model for some politicians in Europe to achieve some internal, very egotistic goals.” He further added, “It is not only my intuition. I know in fact that some politicians in Europe are ready to use this political model, to underline that they are really independent towards Brussels and the EU. It is the most popular political melody in some capitals.”
Indeed, one may question the incentives behind existing calls for referenda on EU membership and wonder whether they are motivated by national politicians’ sincere concerns about the long-term interests of their citizens, or whether they are better viewed as short-sighted, populist moves in line with the famous words of Groucho Marx: “Why should I care about future generations? What have they ever done for me?” Hungarian Prime Minister Victor Orban’s announcement of an anti-immigration referendum on EU refugee quotas, which were adopted last fall as legally binding decisions by the Council of the European Union, serves as one example of such developments across Europe. The UK referendum has also prompted discussions about leaving the European Union in the Czech Republic and France. Such debates are likely to continue in other Member States as well.
Aggravation of EU challenges
The second consequence of the Brexit campaign, already visible in the pre-referendum stage, is the delay of addressing certain challenges until after the British vote. This has resulted in the aggravation of the EU’s internal problems and the diversion of its energies away from political solutions. The potential of Brexit is yet another one of the many internal crises the EU has been experiencing in the past decade. European leaders have long pointed to the positive effects of crises on European integration, perhaps the most famous being Jean Monnet’s statement that “Europe will be forged in crises, and will be the sum of the solutions adopted for those crises.”
However, there has been a visible escalation of the magnitude of EU crises in the 21st century, as each new crisis surpasses the preceding one in its complexity and profoundness. The 2005 failure of the Constitutional Treaty, triggered by its rejection at the French and Dutch referenda, marked a constitutional and institutional crisis concerning fundamental disagreement over the Union’s future identity. It also demonstrated the fragility of leaving the European project to a direct public vote. The immediate crisis was eventually resolved by the adoption of the Lisbon Treaty, but its root causes were not addressed, the most prominent being problems in the EU decision-making procedure (including its remoteness from the average EU citizen) and the existence of conflicting motivations among Member States. Likewise the sovereign debt crisis has still not been entirely resolved, while the most recent crisis over the mass influx of refugees into Europe is in full swing, dismantling a number of EU rules, principles, and values. Both the financial and the refugee crises created political and social tensions across Europe and have brought to the surface the problems of inter-state solidarity. Though the refugee influx is the proximate cause of the current crisis, the actual crisis is not about refugees or their numbers, but rather the Union’s inability to respond to the influx in an organized, united, and human rights compliant manner. Thus, the “refugee crisis” might be more aptly described as an EU institutional, political, moral, and humanitarian crisis.
Amidst the ongoing crises, the UK referendum further accentuates the divisions currently existing among Member States. It brings to the spotlight Member States’ inability to speak with one voice, show mutual trust and understanding, or find solutions to mounting problems. The UK referendum has diverted the Union’s energies from existing problems toward discussions related to EU membership and Brexit contingencies. Because the proponents of Brexit have tied the referendum to current EU challenges such as the refugee influx and Greek debt crisis, EU leaders are walking on eggshells in the final months before the referendum as to not exacerbate British public dissatisfaction with the situation in the Union. As a consequence, they have avoided politically contentious actions that may be necessary to reaching stable, definitive solutions. Along with the tensions from Germany’s internal politics, for instance, the UK referendum adds to Member States’ reluctance to discuss Greek debt relief in detail. In other respects, the referendum increases pressures to push forward with difficult stopgap measures such as the politically fraught deal with Turkey. In short, the potential of Brexit comes at the worst possible time in EU history. It sends a signal of insecurity both internally and externally, contributing to the further destabilization of the Union at its most vulnerable moment. Before any ballots are even counted, the referendum itself has already cast a symbolic vote of no confidence in the European project.
Iris Goldner Lang is a John Harvey Gregory Lecturer on World Organization and a 2015-2016 Fulbright Visiting Researcher at Harvard Law School. She is also a Jean Monnet professor of European Union law and UNESCO Chairholder at the University of Zagreb, Faculty of Law.
Samuel H. Chang is a 2016 J.D. candidate at Harvard Law School and an Executive Editor of the Harvard International Law Journal.
