Options for Protecting Refugees in South Asia

September 2, 2019

By Nafees Ahmad

South Asia is home to over 2.5 million refugees (75,927 in Afghanistan, 932,209 in Bangladesh, 197,122 in India, 21,467 in Nepal, 1,393,132 in Pakistan, and 820 in Sri Lanka). This poses unprecedented challenges to a region ill-equipped to deal with the contemporary refugee crisis. Conflicts in China, Iran, Myanmar, and other neighboring states have contributed to the displaced population. Also, a large number of refugees fleeing ethnic and racial conflicts in Afghanistan—the nation with the second largest population of refugees after Syria—pass through the region as they move towards Europe, with many choosing to settle in South Asia.

This Post examines the genesis, current scenario, and options for protecting refugees in South Asia in a legally-binding regional framework. Primarily, it focuses on the South Asian Association for Regional Cooperation (“SAARC”) as a forum to address the legally and socio-politically complex issues of refugees’ resettlement in South Asia.

The idea of refugee protection in South Asia is fluid and complex. Generally, the international refugee law (“IRL”) framework consists of international human rights law (“IHRL”), customary international law (“CIL”), international humanitarian law (“IHL”), and United Nations High Commissioner for Refugees (“UNHCR”) guidelines, along with the 1951 UN Convention relating to the Status of Refugees (“Refugee Convention”) and 1967 Additional Protocol. There have been many attempts by the SAARC scholars to establish regional refugee protection frameworks to manage the tide of refugee migration in South Asia. However, all such efforts have been stalled due to national security concerns, far-right nationalist propaganda, and religious discrimination, all of which undermine human security imperatives. Thus, there is clear need for a regional governance structure for refugee protection.

Global Refugee Protection Instruments

Nation-states have extended protection to people fleeing persecution since antiquity. The post-World War-II UN framework, as well as IHRL, aims to protect refugees. Article 14 (1) of the Universal Declaration of Human Rights (“UDHR”) stipulates the right to seek and enjoy asylum in other countries. Subsequently, regional refugee protection arrangements like Article 22 (7) of the American Convention on Human Rights and Article 12 (3) of African Charter on Human and Peoples’ Rights have extended similar protections.

Nevertheless, the Refugee Convention remains the principal international instrument that offers a dominant refugee definition. The Refugee Convention also establishes the core principle of non-refoulement, which prohibits states from returning refugees to their home countries if they are likely to face threats to their life or liberty. Furthermore, regional human rights treaties and national legislation have developed refugee status determination (RSD) procedures. However, these refugee instruments have their limitations, as every legal question in international refugee law has political ramifications.

The recent adoption of the Global Compact on Refugees (“GCR”) has presented many challenges to developing countries, which presently host 84% of refugees. SAARC countries already observe many IHRL instruments like the Convention on the Elimination of All Forms of Discrimination Against Women, Convention on the Rights of the Child, and Convention on the Elimination of All Forms of Racial Discrimination, all of which protect refugees in specific categories. The time has come for SAARC nations to also accede to the UN Convention Relating to Status of Stateless Persons and UN Convention on the Reduction of Statelessness.

Furthermore, no SAARC member state—other than Afghanistan—has become a party to the Refugee Convention and many of them wrongly perceive the Refugee Convention as an inappropriate imposition of a western model of refugee protection that does not fit well with South Asian refugee dynamics. The refugee scenario in South Asia does have distinct characteristics. South Asia witnessed a mass influx/exodus of refugees following the partition of Indian sub-continent in 1947 and that, subsequently, induced cycles of religious riots.

However, the current refugee situation requires the immediate ratification of the Refugee Convention by all SAARC states. The Convention remains the most comprehensive collection of international refugee norms in a legally-binding instrument. SAARC countries have been improperly treating refugees by not acceding to the Refugee Convention.

There are some challenges associated with ratifying the Refugee Convention. Ratification would necessitate a massive infrastructural build-up for refugee protection obligations. Some also argue that the radicalization of refugees has become the most visible challenge and that refugees have abused the Refugee Convention in the Global North by raising funds and building terror networks in their countries of origin. Further, Global North countries have arguably neglected the core principles of refugee protection due to the emergence of the right-wing nationalism. Citing these arguments, SAARC states contend that ratification to the Refugee Convention would not improve refugee protection.

However, several prominent scholars in South Asia have publicly called for ratification, including B.S. Chimni—who changed his old position of opposing the Refugee Convention in its current form and now advocates for ratification. He argues that acceptance of the Refugee Convention will boost refugee protection in the wake of India’s signing the GCR. Chimni is correct that the Refugee Convention, while imperfect, should be part of the refugee protection regime in South Asia.

A New Regional Instrument

There is also an urgent need for a focused, balanced, and diversified South Asia-specific regional refugee protection framework, focused on human rights and regional solidarity. It must incorporate the experiences of other regional structures on refugees. In South Asia, refugees are often discussed as a political issue rather than a humanitarian issue, making them vulnerable to targeted religion-driven hatred from a variety of actors. Therefore, I argue that such a regional legal framework must provide a South Asian-specific definition of refugee:

Any person who is rendered homeless or stateless owing to well-established fear of being persecuted or displaced, on the grounds or reasons of gender, age, caste, creed, ethnicity, race, religion, social origin, language, nationality, political opinion, regionalism, natural calamities, indigenous existence, membership of a minority or a social group, socioeconomic ostracism, economic status or environmental conditions, militancy, insurgency, terrorism, organised & generalised violence, cultural intolerance, communalism, internal & external armed conflicts or external aggression, massive or serious violations of human rights, foreign domination or international intervention, or other events profoundly disrupting public order in either part or whole of his or her country of origin, nationality or homeland, out of country of origin or domicile, shall be a refugee.
A person shall be a refugee if abused or deprived of life and personal liberty and rendered homeless or stateless contrary to his/her free will except according to the procedure and due process established by law.

There are a number of existing instruments in South Asia that could serve as building blocks for a broader regional framework. Many SAARC states have entered bilateral agreements, including the Rohingya refugee repatriation agreement between Bangladesh and Myanmar, a contract between India and Bangladesh on Chakma refugees, and a 1993 agreement between Afghanistan and Pakistan on Afghan refugees. Further, regional consultations on refugee protection were initiated in the 1990s by an Eminent Person Group (“EPG”) headed by late Chief Justice of India P.N. Bhagwati. These discussions resulted in a draft regional framework called the South Asian Declaration on Refugee and Migratory Movements in South Asia (“SADRMM”) in 2004. Unfortunately, SAARC governments did not show any serious interest in the SADRMM. Thus, they have been dealing with refugee protection needs under ad hoc and temporary arrangements, which hinders their ability to adhere to global standards of human rights.

I propose the development of a new refugee protection instrument, modeled off the SADRMM, entitled the South Asian Regional Framework Convention on Refugees (“SARFCR”).

Such an instrument could be based off of those adopted in other regions. For example, the Asian-African Legal Consultative Organization adopted the non-binding Bangkok Principles on Status and Treatment of Refugees in 1966. The Council of Europe System comprises relevant provisions of the European Convention on Human Rights, case law developed by the European Court of Human Rights, and EU Asylum Regulations and Directives collectively known as the Asylum Acquis. In Latin America, the 1984 Cartagena Declaration was adopted as a non-binding instrument for refugees.

The SARFCR should take into account the following recommendations.

SARFCR must involve non-governmental organizations (“NGOs”), civil society organizations (“CSOs”), academics, governments, and other stakeholders in the process of researching and developing policies to protect all classes of refugees.
SARFCR should combine elements of the Refugee Convention and GCR to create a hybrid model that addresses the regional peculiarities of South Asia. The Refugee Convention talks only of the rights of refugees and obligations of states, whereas GCR fills the gaps in the Refugee Convention by institutionalizing the core principles of humanity, global solidarity, burden-sharing, and supporting host countries.
Under SARFCR, there should be a proactive review process to ensure protection of all classes of refugees, which should be carried out by a new South Asian Refugee Consultation & Review Group. This process must also be annually evaluated to document the success of protection practices.
By utilizing academic expertise in IHRL, IRL, IHL, and CIL, SARFCR should also encourage the development of refugee leadership programs that provide specialized outreach tools to refugees of all classes.
SARFCR should create a South Asian Regional Refugee Database that follows international data protection policies and is accessible to refugee rights stakeholders.
Refugee protection research should be funded in institutes and universities in South Asia, with the aim of producing findings that are applicable both within and beyond South Asia.

Reforming Domestic Laws

In addition to ratifying these regional and global instruments, South Asian countries should also reform their domestic refugee protection laws. There is a growing global trend of negative, far-right perceptions about refugees, and South Asia is part of this phenomenon. Many South Asian governments have adopted religiously discriminatory refugee policies. Refugees from religious minorities are branded as a threat to internal security, political stability, and majority communities in SAARC states.

It is national protection that guarantees the human dignity of refugees under IHRL. In principle, a comprehensive and consolidated National Refugee Protection Act must address the plight of all displaced persons, including climate refugees. In the 1990s, several steps were taken at the NGO level when UNHCR formed the EPG for South Asia in 1994. UNHCR also started Annual Regional Consultations to develop the contours of a regional refugee regime. The aims and objectives of these regional consultations were to provide a platform for members of South Asian states to deliberate regional and national approaches for bolstering refugee protection.

At the 1996 Consultation in New Delhi, EPG made a case for a Model National Law (“MNL”) on refugees. At the 1997 Consultation in Dhaka, EPG approved the MNL as a stepping-stone for building a consensus to resolve the plight of refugees in the SAARC region. The MNL envisaged fair treatment to refugees based on the Third World Approaches to International Law, expansion of asylum grounds, and the emplacement of implementing machinery. The MNL improved significantly upon the 1951 Refugee Convention by incorporating additional grounds from other regional frameworks. The MNL also provides an enforcement body for refugee protection headed by the Refugee Commissioner and an appellate body called the Refugee Committee, as well as rules for RSD.

The MNL contemplates the rights and duties of refugees and provides appropriate procedures for managing the mass influx of refugees. It is imperative that all SAARC countries adopt the MNL.

Conclusion

SAARC states have historically opposed providing refugee protection under the Refugee Convention. As a result, South Asian refugee policy suffers from multi-layered protection gaps due to refugee policy volatility. This increases the urgency for adopting a new regional refugee protection framework, which I have laid out here as the SARFCR. Both the Refugee Convention and GCR must be regarded as blueprints for achieving SARFCR. Moreover, SAARC states need to reform their domestic laws to protect refugees by adopting the MNL put forward by the EPG.

The enormity of the refugee crisis in South Asia has been increasing daily and is likely to become a permanent feature of South Asian society. However, with these challenges come the potential for changes that might provide a better life for refugees in the region. NGOs and CSOs have been spearheading refugee protection leadership in the SAARC region. By engaging with SAARC governments, they could institutionalize their refugee protection vision through the adoption of SARFCR.

Nafees Ahmad is a Senior Assistant Professor in the Faculty of Legal Studies at South Asian University, New Delhi.

Online Scholarship, Perspectives

German Telemedicine for an American Patient: The Validity of Forum Selection and Choice-of-Law Clauses in International Telemedical Contracts

August 30, 2019

By Mindy Nunez Duffourc and Matthias Haag

Introduction

In May 2018, the General Assembly of German Physicians voted to lift the ban on remote treatment that was previously contained in Article 7(4) of the Model Professional Code for Physicians in Germany. The earlier rules prohibited a doctor from diagnosing or treating a patient until an in-person examination was conducted. Lifting this restriction promises to put German doctors on an equal footing with their European counterparts, many of whom are legally permitted to provide cross-border telemedical treatment within the European Union pursuant to the EU directive on the application of patients’ rights in cross-border healthcare (2011/24/EU). In addition, German providers can join the growing global telemedicine market and contribute to the international goal of using telemedicine to increase healthcare access and quality while lowering cost. Of course, increased use of telemedicine comes with the potential for increased malpractice liability. Cross-border provision of telemedicine adds additional complexity to liability concerns.

The European Union provides some legal uniformity for medical malpractice disputes arising from cross-border healthcare through Directive 2011/24/EU. For example, the Directive provides, as a default rule, that the laws of the member state providing treatment govern the underlying medical malpractice disputes. It further clarifies that the member state providing treatment is the state where the healthcare provider is established. Unfortunately, no such guidance exists for disputes arising out of cross-border treatment between telemedicine participants in the United States and Germany.

To avoid liability in a foreign state or under foreign law, healthcare providers might include forum selection and choice-of-law clauses in international telemedicine contracts. To explore questions regarding whether these clauses are valid under American and German law, I consider the following hypothetical scenario:

An American patient seeking a second opinion regarding a differential diagnosis of myocarditis discovers a telemedical service in Germany that provides second opinions from physicians at a renowned German medical center headquartered in Munich. The medical center’s website advertises international telemedicine services, which can be obtained by filling out an online form. The second opinion is not covered by the patient’s insurance and the cost of a second opinion from Germany is less than half the cost of one in the United States. As instructed by the German medical center, the patient sends her electronic medical records and radiographs to Germany for evaluation. The second opinion diagnoses the patient with stress-induced cardiomyopathy. After reading about stress-induced cardiomyopathy online, the patient decides to wait a few months before agreeing to undergo an endomyocardial biopsy to confirm the myocarditis diagnosis. Ten weeks later, the patient suffers from a stroke resulting in severe disability. A myocarditis diagnosis is later confirmed. The patient files a lawsuit in a U.S. federal district court against the German medical center and the physician who rendered the second opinion, seeking more than $75,000 in damages. The German providers ask the court to dismiss the lawsuit in favor of a German venue and/or decide that German law governs the litigation pursuant to the following language in the contract: “Any and all claims and causes of action arising out of or relating to this Agreement, whether sounding in contract or tort shall be governed by the law of the Federal Republic of Germany. The exclusive place of jurisdiction shall be Munich in Bavaria, Federal Republic of Germany.” The plaintiff claims that the choice-of-law and forum selection clauses are invalid.

Discussion

Does the U.S. court have jurisdiction to decide the validity of the choice-of-law and forum selection clauses?

The court will likely have subject matter jurisdiction over the dispute under 28 U.S.C. § 1332 because it involves U.S. citizens and foreign citizens and the amount in controversy exceeds $75,000. The court will also likely have personal jurisdiction over the German defendants under McGee v. International Life Insurance Co. because the German providers voluntarily contracted with a U.S. citizen and received a benefit and because the United States has an interest in protecting its citizens. Finally, the forum-selection clause does not divest the court of jurisdiction to determine the choice clauses’ validity.

Which law governs the validity of the choice-of-law clause in the United States?

U.S. law will govern the validity of the choice-of-law clause because validity is a threshold issue that should be decided, not under the law specified in the clause, but by the law of the forum state. Pursuant to Klaxon Co. v. Stentor Electric Manufacturing Co., a federal court sitting in diversity will likely apply state law to determine the validity of the choice-of-law clause.

Is the choice-of-law clause valid under American law?

Preliminarily, note that the hypothetical choice-of-law clause is broad enough to cover tortious and contractual medical malpractice claims. As Coyle discusses in detail, a narrower clause, only designating law to govern the agreement, would not apply to tortious medical malpractice claims in several U.S. jurisdictions.

Twenty-nine states will apply §187(2) of the Restatement (Second) of Conflict of Laws to evaluate the validity of the choice-of-law clause. Under §187(2)(b), the choice-of-law clause will not be valid if the chosen law is “contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which . . . would be the state of the applicable law in the absence of an effective choice of law by the parties.” In the absence of a choice, the Restatement calls for the “law of the consumer’s habitual residence.” As a result, one must evaluate the public policies of the U.S. state in which the hypothetical patient resides to determine the validity of the choice-of-law clause.

In any state, one must consider policies advancing consumer protection since the hypothetical contract is a consumer contract. Ruhl and Hall & Schneider note that consumers, and especially patients, have “inferior bargaining power” compared to their professional contracting partners, which compels many legal systems to protect consumers by restricting their freedom to choose the applicable law. In the United States, the Federal Trade Commission’s Bureau of Consumer Protection acknowledges that “many U.S. courts refuse to uphold such clauses because it would be contrary to the fundamental public policy of the consumer’s home jurisdiction.” As a result, the strength of a state’s consumer protection record will usually correspond with the likelihood that a court will invalidate a choice-of-law clause to protect a consumer in that state.

Ultimately, I agree with the Second Circuit, who, relying on Piper Aircraft Co. v. Reyno, found that the validity of a foreign choice of law clause depends on “whether the application of the foreign law presents a danger that the . . . [plaintiff] ‘will be deprived of any remedy or treated unfairly.’” The hypothetical plaintiff is not deprived of a legal remedy because §§ 823 and 280 of the German Civil Code recognize legal causes of action for medical malpractice in tort and contract, respectively. Although the lack of uniformity in U.S. jurisprudence and consumer protection laws makes it difficult to predict the validity of choice clauses in consumer contracts, I find preliminarily that the application of German law alone would likely not violate the public policy of the hypothetical patient’s home state.

Which law governs the validity of the forum-selection clause (“FSC”) in the United States?

There is a possibility that a U.S. federal district court would apply German law to determine the validity of the foreign FSC. Both the Fourth and Tenth Circuits have applied foreign law designated in a choice-of-law clause to determine whether a foreign FSC was mandatory or permissive. However, since my hypothesis challenges the validity, not interpretation, of the FSC and additionally challenges the validity of the choice-of-law clause, I predict that U.S. law will govern FSC validity.

Next, I consider whether state or federal procedural common law governs FSC validity. Though there is a circuit split and the Supreme Court has not addressed the question in a diversity case, the Court did indicate in Stewart Organization, Inc. v. Ricoh Corporation, The Bremen v. Zapata Off-Shore Co., and Atlantic Marine Construction Co. v. U.S. District Court that federal law triumphs. Even Kincaid, who provides an in-depth analysis of these two possibilities and argues that an Erie vertical choice-of-law analysis calls for the application of state law, admits that “[a] majority of circuits uses federal law to govern validity.” I thus conclude that federal law would govern the validity of the hypothetical FSC.

Is the forum selection clause valid under American law?

In Bremen, the Supreme Court presumes foreign FSCs in international contracts are valid unless the clause is unreasonable or unjust, contravenes a strong public policy of the forum state, or was the product of fraud or overreaching. This presumption stems from a hesitance to interfere with the “smooth functioning and growth of global commerce” as well as general principles of international comity and respect for foreign tribunals.

As noted above, many states further the public policy objective of protecting consumers by limiting their freedom to pre-select a forum. Though Bremen highlighted the existence of “an arm’s-length negotiation by experienced and sophisticated businessmen” in upholding the validity of a foreign FSC, the Court later in Carnival Cruise Lines, Inc. v. Shute found that the FSC on a ticket was valid and enforceable against a cruise ship passenger in a personal injury lawsuit. The Court explained that the defendant’s cruise line had an interest in limiting the fora in which it might be sued and avoiding costly litigation related to forum disputes. It also noted that the defendant’s savings from a valid FSC benefited passengers through reduced fares.

Following Carnival, the inclusion of an FSC in a consumer contract, even one of adhesion, is not enough to invalidate FSCs. Federal case law reveals that exceptions to the presumptive validity of FSCs are usually limited to cases in which the selected forum is unsafe for travel (8^th Circuit), the plaintiff would be deprived of a legal remedy (9^th Circuit, E.D. La.), the parties would be forced into multiple or piecemeal litigations (D.N.D., N.D. Ill., D. Minn.), the parties and the dispute have no connection to the chosen forum (W.D. Tenn.), enforcement would violate statutory venue provisions (7^th Cir., W.D. Tex., N.D. Ill., M.D. Ga.), the chosen state’s consumer protection laws do not apply to the plaintiff (S.D. Texas), and the plaintiff is deprived of a right to jury trial (C.D. Cal.).

The hypothetical case does not require travel to a dangerous country; the patient would not be deprived of a legal remedy or forced into multiple or piecemeal litigations; and the dispute has a clear connection to Germany. Conversely, she would be deprived of a jury trial. More importantly, all U.S. states have regulated in the area of telemedicine to protect patients. Although only Louisiana’s telemedicine law provides a statutory venue provision, there is a compelling argument that all states have expressed a strong public policy interest in protecting patients and regulating medical practice in their jurisdictions.

Additionally, state telemedicine regulations can be considered a measure of consumer protection unavailable in Germany because a provider’s violation of telemedicine laws could support a negligence finding against the provider. Like one California federal court, I find it persuasive that the combined effect of a choice-of-law clause and FSC would deprive the plaintiff of the protection that the states’ telemedicine policies aim to provide. While it is most likely that federal courts in Louisiana and California would invalidate the hypothetical FSC as violating public policy, it is also possible that the post-Carnival exceptions to the presumptive validity of FSCs might expand to include cases involving telemedicine consumer contracts in all states, given the universal regulation of telemedicine.

Nevertheless, a complete analysis requires a consideration of these questions under German law as well.

Does the court in Munich have jurisdiction to decide the validity of the choice-of-law and forum selection clauses?

German law, which includes EU law, governs jurisdiction in Germany. Article 4 of Brussels I Recast vests jurisdiction in German courts because the defendant’s providers are domiciled in Germany. Additionally, there is a sufficient connection between the actions giving rise to the lawsuit and Germany as discussed in Recital (16). Finally, §§12, 13, and 17 of the German Code of Civil Procedure give the Munich court power to decide this dispute.

Which law governs the validity of the choice-of-law clause in Germany?

Rome I Article 3, in conjunction with Articles 10 and 11, provides the law for determining the validity of a contractual choice-of-law clause. Under Article 10, German law determines the clause’s material validity with the caveat that U.S. law applies to determine valid consent. In addition, Article 11 requires the application of U.S. law to govern the formal validity of the choice-of-law clause in a consumer contract.

Is the German choice-of-law clause valid under German law?

The principle of supremacy of EU law indicates that Rome I governs contractual obligations and Rome II governs non-contractual obligations. Rome I Article 6 provides special rules for consumer contracts. I will assume that the professional medical services in the hypothetical sufficiently targeted the United States. The hypothetical choice-of-law clause is allowed under Article 6.2, but the choice cannot deprive the patient of mandatory protections afforded by U.S. law, as that is the law of her habitual residence. As a result, if the applicable U.S. law would invalidate the choice-of-law clause, thereby not allowing the patient to derogate from the law of her habitual residence, then the German court would find that Rome I does not allow the patient to choose German law to govern her contract claims. Of course, as discussed above, it is difficult to predict a U.S. court’s position on the validity of the choice-of-law clause in this contract and this difficulty would likely lead a German court to find that the application of U.S. law is not mandatory and thus to honor the parties’ choice of German law.

For tort claims, Rome II Article 14 only allows a consumer agreement to a choice-of-law clause “after the event giving rise to the damage occurred.” In the absence of a choice, as in the hypothetical, Article 4 designates the law of the country where the damage occurs to govern tort claims. However, because the hypothetical parties entered into a contract that is “closely connected with the tort/delict in question,” German law would likely govern the tort claims as well.

Which law governs the interpretation of the forum selection clause in Germany?

According to Article 25 of Brussels I Recast, German law would govern the FSC’s substantive validity.

Is the forum selection clause valid under German law?

German Code of Civil Procedure §38 governs the substantive validity of the FSC. Parties can agree to a German forum when: (1) one of the parties is not a German resident, (2) the agreement is concluded or confirmed in writing, and (3) the chosen forum is the place of the German party’s residence or administrative center. The FSC’s formal validity is governed by Brussels I Recast, Article 25, under which the electronic agreement in the hypothetical satisfies the writing requirement. Furthermore, as noted, one of the parties is not German and the chosen forum corresponds with the German party’s residence. Thus, the hypothetical FSC is valid under German law.

Conclusion

The substantive laws governing medical malpractice in the United States and Germany are similar – both have fault-based medical negligence systems and apply similar standards of care – but differences in the countries’ procedural laws make a forum choice significant. For example, the lack of jury trials, use of uniform damage award tables, and cost-shifting rules in Germany lead to significantly lower awards for pain and suffering compared to those in the United States.

The increasing availability and use of telemedicine across international borders raises questions regarding the proper law and forum for international telemedicine disputes, especially those concluded outside of the European Union. Although American and German courts have not yet encountered such a dispute, the hypothetical considered here suggests that a direct telemedicine interaction between a German provider and an American patient could be subject to the jurisdiction and laws of the United States even when choice clauses designate German law and jurisdiction.

Mindy Nunez Duffourc is currently a Ph.D. candidate at the University of Passau and attorney at Burglass Tankersley in Louisiana. She served as an Alexander von Humboldt German Chancellor Fellow from 2016-2017. She received her J.D. from the University of North Carolina in 2008.

Matthias Haag is an 9^th semester German law student at the University of Passau. He also works as a research assistant at the Chair of Public Law, Media and Information Law at the University.

Online Scholarship, Perspectives

Is EULEX a Step Back for International Rule of Law Missions?

August 23, 2019

By: Drini Grazhdani

Introduction

International development efforts to build functional rule of law systems around the world are often faced with two impediments: reforming old deep-rooted systems, and changing the mindset and behaviors of the people who work within those systems. However, the case of Kosovo was somewhat different. In 1999, when the United Nations established its peacekeeping mission in Kosovo, the country had neither a rule of law system, nor people working within it—including judges, prosecutors, and police. Because Kosovo’s legal system was essentially a “tabula rasa,” or blank slate, rule of law development in Kosovo had a chance to succeed. Moreover, over the past 19 years, the international community has exercised decision-making power at all levels of the rule of law system in Kosovo, which is unique amongst its rule of law efforts. First the UN Mission in Kosovo (“UNMIK”), and now the European Union Rule of Law Mission in Kosovo (“EULEX”), have deployed international police, investigators, prosecutors, and judges to ensure that Kosovo fights corruption, as well as organized and interethnic crime. The mandate of EULEX is coming to an end in 2020. How successful has EULEX been? What lessons can be learned for the future deployment of similar missions? Finally, how will this legacy affect the development of international law?

Kosovo under UNMIK

In June 1999, the UN Security Council adopted Resolution 1244, which authorized an international civilian and military presence in Kosovo by establishing UNMIK. The Special Representative of the Secretary-General (“SRSG”) represented UNMIK. Resolution 1244 directed UNMIK to demilitarize Kosovo, ensure the return of refugees and displaced persons, create democratic institutions, organize free and fair elections, and prepare Kosovo for its final political status — which at the time was envisioned as either statehood or some other form of autonomy. Regarding the establishment of a rule of law system, the resolution focused on “maintaining civil law and order, including establishing local police forces and meanwhile through the deployment of international police personnel to serve in Kosovo.”

By 2003, UNMIK had deployed 4,389 international police officers, and it had recruited and trained 5,247 Kosovo police officers. According to a United States Institute of Peace (“USIP”) Special Report, UNMIK “established a program of international judges and prosecutors (“IJP”) that was the first of its kind in the world.” Following the example of Kosovo, IJP were “also appointed in East Timor, and later to the Special Court of Sierra Leone and the Special Panel of the State Court of Bosnia and Herzegovina.”

However, while IJP subject matter jurisdiction in these countries was usually limited by law to prosecuting war crimes, IJP in Kosovo had full jurisdiction. As the USIP report noted, the IJP in Kosovo had jurisdiction over “new cases and cases already assigned to Kosovan jurists.” Nevertheless, UNMIK’s efforts to establish a functioning rule of law system immediately encountered serious problems, such as: (1) the question of what should be the applicable law in Kosovo; (2) a lack of judicial infrastructure and personnel; and (3) the inability of UNMIK to deal with war crimes.

As one article argued, UNMIK’s “failure to establish a responsive and efficient judicial system as part of the transitional administration in Kosovo eroded local support for UNMIK and the international community at a time when it was most needed.” For the next five years, political developments stagnated in Kosovo. UNMIK lacked a clear exit strategy, which contributed to increased interethnic tensions and a lack of public support for the UN mission. The March 2004 surge in attacks on minorities revealed that UNMIK and the North Atlantic Treaty Organization (“NATO”) peacekeeping force had, to some extent, failed to provide security in the north of Kosovo.

The Ahtisaari Plan and Kosovo’s Declaration of Independence

The violent unrest in March 2004 made clear that the final political status of Kosovo must be determined in order to maintain peace in the Balkans. In 2005, the United Nations appointed Kai Eide, a Norwegian diplomat, as a Special Envoy to undertake a comprehensive review of Kosovo. Following the recommendations of Kai Eide, the UN Secretary-General appointed Martti Ahtisaari as the Special Envoy for the Future Status Process for Kosovo. Prishtina and Belgrade were expected to negotiate the final status of Kosovo However, Serbia did not want to be part of any agreement that guaranteed Kosovo’s independence. Following the stalemate of the negotiations, Martti Ahtisaari continued his work and drafted the Comprehensive Proposal for the Kosovo Status Settlement (“CSP”), informally called the “Ahtisaari Plan.”

The Ahtisaari Plan outlined the process of transitioning Kosovo to an independent country, as well the structures of the main institutions in Kosovo, with a focus on creating a constitutional and legal framework where ethnic minorities living in Kosovo would have their rights protected. While Prishtina accepted the plan, Belgrade strongly refused it. Russia’s political opposition to the Ahtisaari Plan, and any other plan that included the option of an independent Kosovo, made it clear to the international community that efforts to endorse the Ahtisaari plan at the UN Security Council would have been futile. Russia’s position was a function of the historical, cultural, and religious ties that Russia has with Serbia, as well as Russia’s ambition to become a political leader in the Balkan region. These failed attempts to reach an agreement pushed Kosovo, with the support of its American and EU partners, to start the process of declaring its independence. In this declaration, the Ahtisaari Plan served as the basis of Kosovo’s constitutional, legal, and political framework. The Parliament of Kosovo declared Kosovo’s independence on February 17, 2008. The UN Security Council could not reach an agreement on the Ahtisaari plan’s proposal for supervised independence in Kosovo. Because of this stalemate, UNMIK adopted a position of neutrality and re-configured its presence in Kosovo.

The Establishment of EULEX

Days before Kosovo’s declaration of independence from Serbia in 2008, as part of its assistance
to ensure a professional and independent rule of law, the EU deployed a new mission in Kosovo: EULEX. EULEX is the largest Common Security and Defense Policy (“CSDP”) mission to date, and the first of its kind outside the EU. With the largest budget of any EU mission, EULEX had adequate resources to succeed. Given Kosovo’s newly built institutions were at that time unreliable, both at handling sensitive criminal cases and at operating free from political influence, Article 12 of the Ahtisaari Plan foresaw the EU mission as the best solution for helping the newly independent country strengthen its rule of law.

The need to strengthen Kosovo’s justice system was crucial after it declared independence. The provisional institutions of Kosovo and UNMIK were not able to solve crimes committed during and after the war. In addition, they did not have the stamina to tackle high profile corruption cases. This is where EULEX was supposed to come in. Nevertheless, in the past ten years, EULEX has failed to achieve its goals and objectives. This failure has had significant consequences for Kosovo. Corruption is pervasive, and voters have lost hope that high-level politicians can be prosecuted either by EULEX or by the local authorities. Because of this, Kosovo is lagging behind in the European integration process and is the only country in the region which is denied the Schengen visa liberalization regime. One of the main conditions for visa liberalization that the EU imposed on Kosovo is a reduction in organized crime and corruption.

The Failures of EULEX

The following list describes the main areas where EULEX has failed in the past ten years:

1.1. Inability to garner public support

According to a survey conducted by the Kosovo Center for Security Studies in 2012 and 2015, the approval rates for EULEX have been dropping each year. In 2015, 54 percent of the respondents stated that they did not trust EULEX. In addition, EULEX is listed below Kosovo’s domestic prosecution system and courts when it comes to citizens’ perceptions and their faith in these judicial institutions. According to this study, Kosovars did not believe that EULEX could combat corruption in Kosovo.

1.2. Inadequate and insufficient staffing

Staffing has been one of EULEX’s biggest problems. The mission largely relied on seconded staff, representing 80 percent of the entire mission. The seconded staff came from both EU and non-EU States. The EU States seconded their staff for short periods with inflexible contracts. For the seconded judges, this meant that they did not have sufficient time to investigate organized crime and other cases of criminal justice. According to the Kosovar Institute for Policy Research and Development, which published a comprehensive analysis of EULEX, some of the seconded staff did not meet the professional requirements of the positions filled. These personnel issues compromised the ability of EULEX to fulfill its mission.

1.3. Failure in northern Kosovo

According to the European Court of Auditors, EU interventions in the north of Kosovo “have been very limited and there has been almost no progress in establishing the rule of law.” These issues stemmed from EULEX’s inability to move freely throughout the northern municipalities. In 2011-12, local Kosovo Serbs in the north, influenced by the Serbian Government, raised barricades in order to disrupt the movement of people and goods throughout northern Kosovo. As a result, EULEX was not able to ensure the enforcement of the rule of law, leaving the population of that area free to violate numerous laws, including smuggling and interethnic crime.

Despite EULEX’s failure to enforce the rule of law in this region, it is worth mentioning that EULEX successfully facilitated the integration of the Kosovo Serb police forces into the Kosovo police and the integration of the judiciary of northern Kosovo into Kosovo’s national judiciary. This integration of the police and the judiciary was made possible by the first agreement of principles governing the normalization of relations between Kosovo and Serbia in 2013.

1.4. Corruption scandals that damaged public image beyond repair

The allegations that EULEX was involved in corrupt activities in Kosovo became public in 2014. The British Prosecutor who was serving with EULEX, Maria Bamieh, publicly announced that she was forced from her job as a prosecutor after she claimed that she “found evidence senior staff had taken bribes and were colluding with murderers.” EULEX denied these claims, stating that Prosecutor Bamieh was fired because she revealed secret information to the Kosovo daily newspaper, Koha Ditore. The European Commission reacted to these allegations by appointing an independent legal expert to investigate. This expert found no issue with the way EULEX treated Bamieh and concluded that the allegations were unfounded. In November 2017, Chief Judge Malcolm Simmons resigned from EULEX. He accused the mission of corruption and the British Foreign Office and the EU for not taking action against such corruption. EULEX responded by stating that Chief Judge Malcolm Simmons himself was the subject of an investigation for corruption. These allegations were widely reported in the Kosovo press and gravely eroded the image and the credibility of EULEX.

UN Peacekeeping Missions, EULEX, and the Future of International Rule of Law Deployments

The purpose of UN peacekeeping missions is broader than the development of the rule of law. Currently, there are 14 UN peacekeeping missions around the world. These missions also focus on, among other things, civilian protection, conflict prevention, promoting human rights, empowering women, and delivering field support.

However, EULEX’s main objective was to establish and strengthen the rule of law in Kosovo. Unlike other UN missions, which focus on building the capacities of rule of law institutions, EULEX had full jurisdiction and responsibility for restoring rule of law. Moreover, EULEX did not have to start from scratch, as it inherited a system and staff from UNMIK’s rule of law department. For these reasons, many anticipated that EULEX would succeed. Some commentators expected Kosovo’s rule of law institutions to meet EU standards within a decade.

The European External Action Service, an organization which helps the EU’s foreign affairs chief carry out the Union’s Common Foreign and Security Policy, has deployed other rule of law missions around the world. However, these missions are non-executive. This makes Kosovo the only country where the most prominent international rule of law organizations have deployed missions that possess judicial and governing authority. Despite the narrow focus of both the United Nations and the EU on Kosovo’s rule of law system, the results achieved by these organizations have fallen short.

The failure of EULEX calls into question the capabilities of every current and future international rule of law mission which falls under the competences of the UN Security Council and the EEAS. The next country which may require a similar mission is Syria. The first indictments for war crimes in the Syria war are already taking place. However, international tribunals, such as the International Criminal Tribunal for the Former Yugoslavia, function outside the country and do not have the same framework and mechanisms as a deployed rule of law mission. Opposition from the Assad government will also likely hinder the ability to establish such a mission within Syria.

Nevertheless, future missions in Syria and elsewhere should be built on the lessons learned from Kosovo, reflecting objectively on what worked and what did not. While UNMIK and EULEX were considered unbiased and thus seemingly had an advantage working on issues that involved interethnic conflicts, the lack of accountability mechanisms and corruption inhibited these missions from realizing their goals.

Conclusion

On June 8, 2018, the Council of the EU extended EULEX’s mandate until June 2020. This decision ended EULEX’s executive powers over the Kosovo judiciary. With this new mandate, EULEX will monitor selected cases and trials. The main reason for the extension of EULEX’s mandate is related to the work of the Kosovo Specialist Chambers (“KSC”) and Specialist Prosecutor’s Office (“SPO”). The KSC, established in 2015, is a Kosovo court which is based in The Hague and will deal with the allegations that Dick Marty, a former member of the Parliamentary Assembly of the Council of Europe, raised. In a report, Dick Marty highlighted “that serious crimes had been committed during the conflict in Kosovo, including trafficking in human organs.” Article 28 of Kosovo Law No.05/L-053 on KSC and SPO also gives the head of EULEX the competence to appoint judges. While the indictments that the SPO brought against the former members of the Kosovo Liberation Army are still pending, the success of this office remains uncertain.

For Kosovo’s rule of law system to improve, it was essential for EULEX to succeed in its initial 10-year mandate. EULEX, and previously UNMIK, exercised executive power over the judiciary of Kosovo. This marked a new phase in international law. However, despite this development, Kosovo’s rule of law system is the weakest link in the institution-building process. EULEX’s shortcomings need to be analyzed objectively to guide the planning of future missions in post-conflict societies. In the wake of EULEX, future international rule of law missions need to focus on (1) appointing judges and prosecutors that have high integrity and experience, (2) establishing a high security clearance system for individuals appointed to work within the mission, and (3) establishing an efficient accountability mechanism for the mission’s staff before the missions deploy.

Drini Grazhdani works as a Legal Specialist for Millennium DPI Partners L.L.C. in the USAID-funded Justice System Strengthening Program in Kosovo. In addition, he taught courses on international business law, criminal law, and introduction to law at private colleges in Prishtina. Drini Grazhdani holds an advanced LL.M. degree in International Civil and Commercial Law from Leiden Law School.

Online Scholarship, Perspectives

A Vision for the Future of Private International Law and the Internet – Can Artificial Intelligence Succeed Where Humans Have Failed?

August 4, 2019

By Dan Jerker B. Svantesson

There are countless news stories and scientific publications illustrating how artificial intelligence (AI) will change the world. As far as law is concerned, discussions largely center around how AI systems such as IBM’s Watson will cause disruption in the legal industry. However, little attention has been directed at how AI might prove beneficial for the field of private international law.

Private international law has always been a complex discipline, and its application in the online environment has been particularly challenging, with both jurisdictional overreach and jurisdictional gaps. Primarily, this is due to the fact that the near-global reach of a person’s online activities will so easily expose that person to the jurisdiction and laws of a large number of countries. Thus, online users ranging from individuals to the largest online companies are subject to unpredictable legal consequences when using the Internet. It also places stress on courts and regulators as jurisdictional claims frequently exceed relevant enforcement capabilities. Indeed, broad jurisdictional claims may force regulators to be selective in terms of targets to pursue, which will arguably undermine the rule of law principle that all are treated equally before the law. Despite intensive work by some of the world’s brightest legal minds, we are seemingly still far from solutions to these difficult situations.

This Post outlines the ways in which AI might help solve some of these challenges in private international law, as well as some issues that must be considered before getting to that stage. In doing so, the Post focuses explicitly on private international law as applied to Internet activities, though the general discussion is relevant to private international law more broadly.

What is AI?

The Council of Europe defines AI as “a set of sciences, theories and techniques whose purpose is to reproduce by a machine the cognitive abilities of a human being. Current developments aim, for instance, to be able to entrust a machine with complex tasks previously delegated to a human.”

The Council also notes the distinction between what has been termed “strong” AI, with the ability to “contextualize very different specialized problems completely independently,” and “weak” to “moderate” AI, with the ability to “perform extremely well in their field of training.”

“Strong” AI is generally beyond the reach of current technologies. Fortunately, none of the tasks outlined below that AI may perform for private international law require “strong” AI; thus, the required technology already exists. All that remains is to:

construct suitable modeling of private international law;
ensure access to the required data; and
feed the modeling and data into an appropriate AI system.

While the idea sounds relatively simple on paper, clearly much work lies ahead.

Private International Law Modeling – Finding the “Correct” Point of Departure

For “weak” to “moderate” AI, the starting point for utilizing AI to help address the concerns expressed above is to create an appropriate model of private international law applicable to the Internet world. Like pioneering scholars such as Phan Minh Dung and Giovanni Sartor, I propose doing so based on modular argumentation:

“Modular argumentation offers itself as an appropriate platform for representing private international laws and different national laws as it allows knowledge to be split in separate modules. Moreover, it enables the different knowledge modules (which may represent legal systems or part of them) to be used by referring to each one of them specific issues. This is done by calling the relevant module and asking it to answer specific queries.”

The limited modeling that has been done of private international law has focused on assessing whether a given country can: (1) claim jurisdiction (and which domestic court is competent), and (2) apply its laws to a given scenario. This approach is natural given that this is also very much the focus of private international law as a discipline (in addition to matters of declining jurisdiction, as well as recognition and enforcement). Yet it is not the emphasis of the task discussed here.

The number of laws a person is expected to comply with when engaging in online activities is not static; rather it varies depending on a range of factors and is context-specific. Imagine, for example, that person X in Canada sends an email to a person in China, relating to the activities of a person in Romania. In this example, primarily three countries’ laws (Canada, China, and Romania) are relevant. Imagine further that the same person X also posts information on a US social media site on which she has “friends” in 100 different countries. In the context of this latter activity, person X is exposed to the laws of a vast number of countries due to the great reach of the posting. Thus, for any specific activity, we can speak of a “contextual legal system” consisting of the norms of all relevant states’ laws that the person in question is expected to abide by.

Knowledge of the number of applicable laws can be a useful diagnostics tool to highlight situations of “hyperregulation” in which:

the complexity of a party’s contextual legal system amounts to an insurmountable obstacle to legal compliance; and
the potential for legal enforcement of (at least parts of) the laws that make up the contextual legal system is more than a theoretical possibility.

However, knowledge of the number of applicable laws does little to provide legal predictability unless we also know the countries to which the acting person is exposed. The obvious difficulties include accessing the relevant laws, getting over language barriers, and identifying which states’ laws may claim to be part of the relevant contextual legal system in the first place. Here, predictability requires nothing less than an examination of all the laws of all the states in the world, including their respective private international law rules – perhaps humanly impossible, but just the sort of task at which AI thrives.

As a clarifying point, there is a distinct difference between the domestic legal systems and the contextual legal systems discussed here. While the former typically seek to avoid contradictory norms, each contextual legal system is made up of norms from multiple states’ legal systems – norms that typically are neither coordinated nor harmonized. Thus, unsurprisingly, a contextual legal system to which a person is exposed may contain clashing norms; that is, the norms of one state may demand performance of actions that the norms of another state forbid, or the norms of one state may outline duties that directly contradict rights provided for by the norms of another state.

Where norms within a contextual legal system conflict with others, an advanced AI system could be equipped to prioritize some norms over others based on agreed criteria. A range of traditional private international law tools, such as forum non conveniens, might be applicable in this context. Other methods, such as recent work on value-consistency, will also prove valuable. Taken one step further, legal concepts from other fields of law such as competition law may prove useful in addressing clashes of norms.

In any situation involving clashing norms, it is not just a matter of determining which country’s laws shall be applied to the situation at the expense of all other laws, nor is it a simple matter of assessing whether a certain country’s laws apply to the situation. An advanced AI system could analyze a contextual legal system with norms stemming from several legal systems, all applying at once. After all, we should not restrict ourselves to something as crude as assessing whether a given country’s laws apply to the situation, because not all laws of a country are relevant in any given situation.

Imagine that legal person Y from state A enters into a purchase contract with natural person Z from state B. If state B wants to apply its consumer protection laws to the situation, those laws of state B need to have a substantial connection to the matter and state B must have a legitimate interest in applying those consumer protection laws. However, if state B, based on the same set of facts, wants to apply its corporate governance laws to Y, the connection is weaker and the interest in doing so is less legitimate. To take this example to the extreme, imagine that based on the mentioned scenario, state B wants to apply its marriage laws to all employees of legal person Y; then both the connection and the interest is non-existent.

Thus, any assessment of whether state B’s laws shall apply hinges on what norms that state seeks to apply. It is the applicability of individual norms of a certain state, rather than all its laws in their entirety, that should be in focus. This increased granularity ought to be reflected in private international law rules, and their modeling alike.

At the most basic level, the assessment of claims of jurisdiction, as well as the questions of which norms apply and how clashes between applicable norms are addressed should be guided by the following three criteria that may be seen as the jurisprudential core of the concept of jurisdiction, namely:

Substantial connection – is there a substantial connection between, on the one hand, the matter and, on the other hand, the given state seeking to exercise jurisdiction and the norms it seeks to apply;
Legitimate interests – does the given state seeking to exercise jurisdiction and apply some of its norms have a legitimate interest in the matter; and
Interests balancing – is the exercise of jurisdiction and application of those norms reasonable given the balance between the state’s legitimate interests and other interests?

The modeling must take all of this into account.

The Data Needed and How to Get It

Not least due to the successes of the Free Access to Law Movement and the work, and international outreach, of organizations such as the Australasian Legal Information Institute (AustLII), a significant number of states make their laws available online, although often in their local languages.

For those states that currently do not make their laws freely available online, the laws can and ought to be digitized. This is an important step not just for the AI system envisaged here. It is arguably a necessity for any state wishing to have credibility in claiming that its laws apply to the online conduct of foreigners; after all, laws that cannot be accessed arguably are less legitimate. Further, accessibility is a prerequisite for the international influence of any given legal system.

Language differences, as well as differences in the meaning of legal concepts, will no doubt place heavy demands on any AI system constructed to meet the goals envisaged in this post. However, although in the past language barriers were substantial hurdles for humans seeking to access foreign laws, AI systems provide a promising chance to get over these barriers, now or in the near future.

Furthermore, while in an ideal world the AI system would be fed all the laws (including both primary and secondary sources) of all the countries in the world, a useful system could be devised with a considerably more limited dataset. For certain purposes, it may be sufficient that the AI system is fed a subset of laws of particular importance. These subsets may be identified in numerous ways, including by reference to specific states, specific areas of law (e.g. consumer contracting, defamation, or copyright), or specific sectoral needs (e.g. the laws particularly affecting social media or the laws particularly affecting online news publishers). At least for these more limited systems, work ought to commence immediately.

The Envisaged AI System and Its Uses

Once the modeling discussed above is completed, and the AI system has been fed the required data, the system will be capable of:

Identifying the norms from multiple legal systems that together make up the relevant contextual legal system for a given activity; and
Reconciling – or at least balancing – those norms in a manner that makes for a coherent system even where individual norms clash.

The question then arises of the specific uses for such a system. In answering that question there is no need to be prescriptive. However, it is possible to point to at least four such uses:

Predicting Legal Risks. An AI system such as that proposed above may help both natural and legal persons predict their legal risk exposure when engaging in online activities. In other words, it stands to benefit many different participants in the online ecosystem from the average Internet user to large companies such as Facebook, Google, Microsoft, and Apple.
Assisting lawyers and legal education. The AI system envisaged here may help lawyers construct informed and evidence-based arguments by, for example, highlighting clashes within their clients’ respective contextual legal systems. Such an AI system could also be used for legal education purposes: both as a tool for constructing and analyzing real legal cases, and for constructing hypothetical scenarios to which students have to apply their legal knowledge.
Law reform. An AI system such as that called for may further help law reform initiatives, of which there are many in the field of private international law (consider for example the work of numerous International Law Association Committees). The system could, for example, help identify instances of hyper regulation and propose formulations to minimize instances of conflicting laws.
Court support. At the extreme end of the scale, the type of AI system discussed may even be utilized by courts either to inform the court, or indeed, to directly or indirectly decide disputes.

It goes without saying that the requirements placed on the envisaged AI system, such as transparency, explainability, consistency, accountability, and fairness, may vary depending on the use to which the system is put. Clearly, for example, such factors would be paramount for a system used by courts.

Conclusion

Any time one writes about the future, the line between optimism and naivety is a thin one. On the one hand, one shouldn’t downplay the challenges of embarking on the mission to construct an AI-driven system to help revolutionize private international law. On the other hand, however, it would be a missed opportunity not to start envisioning what may be achieved when the technology makes such a mission more feasible.

Sufficiently advanced AI technology exists and is developing further at great speed. If humans are about to entrust their lives to AI as the driver of cars, and if AI is believed to have the ability to disrupt the legal industry, AI should also be utilized to solve some private international law challenges.

Professor Svantesson is a Professor in the Faculty of Law at Bond University in Australia. He is also an Associate at the Swedish Law & Informatics Research Institute and a Visiting Professor at Masaryk University in the Czech Republic.

Content, Online Scholarship, Perspectives

The Case of Naït-Liman v. Switzerland Before the European Court of Human Rights: Where Are the Limits of the Global Fight Against Torture?

March 15, 2019

By Daniel Rietiker^*

Introduction

On March 15, 2018, in the case of Naït-Liman v. Switzerland, the European Court of Human Rights (“ECtHR”) held that there had been no violation of the right to access a court within the meaning of Article 6, § 1 of the European Convention on Human Rights (“ECHR”). The case concerned the refusal by the Swiss courts to examine the applicant’s civil claim for compensation for the non-pecuniary damage arising from acts of torture allegedly inflicted on him in Tunisia in 1992.
I offer a critical discussion of this important case with an attempt to define the limits in the global fight against torture. In Part I, I present the facts of the case, as well as the reasoning and the main conclusions of the Court; in Part II, I critically assess the judgment from three different angles. In the final Part, I add several personal conclusions.

I. The ECtHR Decision

The applicant, Abdennacer Naït-Liman, born in 1962, is a Tunisian national who has acquired Swiss nationality during the proceedings before the Swiss tribunals.

He was arrested in April 1992 by the police in Italy and taken to the Tunisian consulate in Genoa. He was then taken to Tunis by Tunisian authorities. He alleges that, from April 25, 1992 to June 1, 1992, he was detained and tortured in Tunis in the premises of the Ministry of the Interior on the orders of A.K., the then-Minister of the Interior. In 1993, he fled Tunisia for Switzerland, where he was granted asylum in 1995.

On July 8, 2004, the applicant lodged a claim for damages with the courts of the Canton of Geneva against Tunisia and against A.K. This claim was not successful and rejected by all courts, in last instance by the Federal Supreme Court, which dismissed it on May 22, 2007. The latter court held that it lacked territorial jurisdiction and that the Swiss courts did not have jurisdiction under the “forum of necessity” in the case at hand, owing to the lack of a sufficient link between, on the one hand, the case and the facts, and, on the other, Switzerland. A forum of necessity is a subsidiary forum, enshrined in Article 3 of the Federal Law on Private International Law, which reads as follows:

Where the Act does not provide for any forum in Switzerland and proceedings abroad prove impossible or it cannot reasonably be required that they be brought, the Swiss judicial or administrative authorities of the locality with which the case has a sufficient connection shall have jurisdiction.

On November 20, 2007, the applicant lodged an application with the Court, whose second section delivered a Chamber judgment on June 21, 2016, holding, by four votes to three, that there had been no violation of Article 6 of the ECHR. On November 28, 2016, a panel of five judges accepted a request to refer the case to the Grand Chamber.

Regarding the merits of the case, the Court applied the traditional test, namely whether the limitation of the access to a court pursued a legitimate aim and was proportionate. It identified several legitimate aims pursued by the restriction on the right of access to a court, which were all related to the proper administration of justice, particularly in terms of the problems in gathering and assessing the evidence, the difficulties linked to execution of a judgment, the State’s wish to discourage forum-shopping, the risk of attracting similar complaints, which could create an excessive workload for the domestic courts, as well as the risk of potential diplomatic difficulties entailed by civil jurisdiction in such circumstances.

With regard to the proportionality of the restriction on the right to access to a court, the Grand Chamber identified two concepts of international law that were relevant for the present case: universal jurisdiction and the forum of necessity.

With regard to a possible international custom in the field of universal jurisdiction, although the States’ practice was evolving, the prevalence of universal civil jurisdiction was not yet sufficient to indicate the emergence, far less the consolidation, of an international custom which would have obliged the Swiss courts to find that they had jurisdiction to examine the applicant’s action. As it currently stood, international treaty law, in particular Article 14 of the UN Convention Against Torture also failed to recognize universal civil jurisdiction for acts of torture, obliging the States to make available civil remedies in respect of acts of torture perpetrated outside the State territory by the officials of a foreign State.

The Court concluded that international law had not obliged the Swiss authorities to open their courts to Mr Naït-Liman on the basis of universal civil jurisdiction for acts of torture.

The Court had then to determine whether international law had imposed an obligation on the Swiss authorities to make a forum of necessity available to the applicant. As the forum of necessity was not generally accepted by the States, it could not be concluded that there existed an international custom rule enshrining the concept of forum of necessity. The Court further noted that there was also no international treaty obligation obliging the States to provide for a forum of necessity.

It followed that international law did not impose on the Swiss authorities the obligation to open their courts with a view to ruling on the merits of the applicant’s compensation claim. Therefore, Switzerland enjoyed a wide margin of appreciation in this area. In other words, its freedom to decide whether or not it considered appropriate to grant to the applicant access to court was not restricted by international law. In order to determine whether the Swiss authorities had exceeded their margin of appreciation in the present case, the Court was required to examine, in turn, Section 3 of the Swiss Federal Law on Private International Law and the decisions issued by the Swiss courts.

The Court concluded that by introducing a forum of necessity with the criteria laid down in Section 3, the Swiss legislature had not exceeded its margin of appreciation. Moreover, it was reasonable to not to take into account the links to Switzerland that the applicant has created since he was awarded asylum in Switzerland because those links did not exist at the moment of the alleged acts of torture.

In conclusion, the Court considered that the Swiss courts’ refusal to accept jurisdiction to examine Mr Naït-Liman’s action seeking redress for the acts of torture to which he was allegedly subjected had pursued legitimate aims and had not been disproportionate to them. It followed that there had been no violation of the right of access to a court within the meaning of Article 6 of the ECHR.

Judge Wojtyczek expressed a partly dissenting opinion. Judge Dedov and Judge Serghides each expressed a dissenting opinion. The latter argued, inter alia, that the majority opinion had not sufficiently taken into account the principle of effectiveness, one of the key principles in the Court’s jurisprudence.

II. Assessment of the Judgment

In part II, I will critically assess the reasoning and main conclusions of the Court. The Part is divided into three sections. Section A will deal with the right of the victims of torture to remedy and reparation; Section B will be devoted to one aspect of the Court’s interpretation methodology in the present case, as well as to its impact on the proportionnality of the restriction to the right to access to court, and Section C, finally, will examine the question whether the erga omnes effect of the prohibition of torture compelled Switzerland to open its courts to the applicant.

A. Remedy and Reparation for Victims of Torture

Without doubt the most important achievement of the judgement lies in the fact that the Court, in several paragraphs, clearly confirmed and highlighted the right for victims of acts of torture to obtain appropriate and effective redress, and that States are encouraged to give effect to this right by endowing their courts with jurisdiction to examine such claims for compensation, including where they are based on facts with occurred outside their geographical frontiers. The following paragraph is a quotation from the “general conclusions” of the Court’s judgment:

[¶] 218. [I]t should be reiterated that this conclusion does not call into question the broad consensus within the international community on the existence of a right for victims of acts of torture to obtain appropriate and effective redress, nor the fact that the States are encouraged to give effect to this right by endowing their courts with jurisdiction to examine such claims for compensation, including where they are based on facts which occurred outside their geographical frontiers. In this respect, the efforts by States to make access to a court as effective as possible for those seeking compensation for acts of torture are commendable.

The Court further stated that the right to obtain such redress is firmly embedded in international law and, in particular, Article 14 of the UN Convention Against Torture, which had been ratified by Switzerland on December 2, 1986. Indeed, Article 14 states, “Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.”

In addition, the Court rightly referred to the UNGA Resolution 60/147, adopted on December 16, 2005, containing in its annex the “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law,” which enshrine in their section VII the right of victims to equal and effective access to justice, adequate, effective and prompt reparation for harm suffered, as well as access to relevant information concerning violations and reparation mechanisms.

Furthermore, the Grand Chamber, in the logic of the ECHR as a “living instrument which…must be interpreted in the light of present-day conditions,” one of its most prominent interpretation principles, expressed the opinion that States are under the duty to follow the potential developments in this dynamic area of law and update their laws and practices accordingly:

[¶] 220. Nonetheless, given the dynamic nature of this area, the Court does not rule out the possibility of developments in the future. Accordingly, and although it concludes that there has been no violation of Article 6 § 1 in the present case, the Court invites the States Parties to the Convention to take account in their legal orders of any developments facilitating effective implementation of the right to compensation for acts of torture, while assessing carefully any claim of this nature so as to identify, where appropriate, the elements which would oblige their courts to assume jurisdiction to examine it.

In other words, the Court accepted and reiterated without hesitation the existance of the right of victims of torture to redress and compensation and left open the door for future developments in the field. The exact scope of this right, however, and in particular the question whether States are obliged to guarantee this right even for acts of torture that were inflicted outside their territories by foreign officials, as the applicants submitted, was more disputed.

B. The Court’s Refusal to Read the ECHR as a Whole
and Its Impact on the Proportionality of the Restriction

Interpreting an international treaty is not a precise, mathematical exercise, but rather an art of identifying those rules among others whose application seems appropriate in a certain situation.^† In the present case, the Court made strong use of the comparative element in order to determine the (broad) margin of appreciation on which Switzerland could rely. This comparative approach is appropriate and in line with international law, deriving from Article 31 § 3 (c) of the Vienna Convention of the Law of Treaties (“VCLT”), according to which “relevant rules of international law” have to be taken into consideration in treaty interpretation. On the other hand, other important interpretation principles, flowing directly from Article 31 § 1 of the VCLT, the so-called general rule of treaty interpretation prescribing that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose,” are not mentioned in the legal analysis of the Grand Chamber.

In particular, the Court did not refer to the principle requiring a treaty provision to be interpreted in light of the entire text of the treaty, a principle raised by one of the third party interveners, Citizens’ Watch, and applied by the Court, inter alia, in ¶ 68 of Klass v. Germany and ¶ 48 of Stec v. United Kingdom (“The Convention must also be read as a whole…”). From my point of view, the lack of consideration of this method of interpretation had important repercussion on the proportionality of the restriction to the right to access a court for the following reasons.

In the instant case, a lot of energy has been used by the Court to determine the width of the margin of appreciation on which Switzerland could rely as a result of the absence of a consensus in this domain. If this is as such not wrong, that the margin of appreciation, as interpreted by the Court in ¶ 78 of Dickson v. United Kingdom and ¶ 68 of Emonet v. Switzerland in a given situation is not determined exclusively by the existence (or absence) of consensus of the Member States of the Council of Europe, but also by the nature and importance of the right at stake, the intensity of the interference, as well as the nature and importance of the aim pursued.

In particular, the Court did not consider the absolute nature of the prohibition of torture within the meaning of Article 3 of the ECHR, as a norm of jus cogens. In the leading case in the field of extraordinary rendition El-Masri v. the former Yugoslav Republic of Macedonia, the Grand Chamber of the Court held:

[¶]195. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation …. The Court has confirmed that even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned ….

The Court chose not rely on this strong language, supposedly because the main question that it had to decide was whether Switzerland had committed a violation of the right to access a court within the meaning of Article 6 of the ECHR. In other words, not confronted with an explicit torture complaint within the meaning of Article 3 of the ECHR, the Court concluded almost automatically from the broad margin of appreciation in the instant case due to lack of consensus concerning universal civil jurisdiction and forum necessitatis to the proportionality of the restriction without pondering the competing interests at stake.

As a result, while the Court heavily—perhaps too heavily—considered how the questions of forum of necessity and universal civil jurisdiction for victims of torture was dealt with abroad, it took a narrow approach towards its own instrument, the ECHR, and did therefore not take into account the broader picture of the case, namely that Mr. Nait-Liman had endured serious acts of torture. From my point of view, this fact could have played a certain role in the question of whether the restriction of the applicant’s right to access a court has been proportionate.

C. The Erga Omnes Effect of the Prohibition of Torture
Did Not Compel Switzerland to Open Its Courts to the Applicant

The prohibition of torture is, as the Court itself has recognized in, for example, ¶ 61 of Al-Adsani v. the United Kingdom, one of the rare norms of jus cogens and an obligation erga omnes. The ICJ, in ¶ 33 of its Barcelona Traction Case, held that, by their very nature, certain obligations are the concern of all States and that, in view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omens. In ¶ 34 of the judgment, the ICJ gave some examples for such obligations, such as the outlawing of acts of aggression, and of genocide and to “the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.”

This has been confirmed later within the Articles on the Responsibility of States for Internationally Wrongful Acts. In accordance with their Article 48 § 1(b), “[a]ny State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if…the obligation breached is owed to the international community as a whole.” Moreover, paragraph 2(b) of the same provision adds that “[a]ny State entitled to invoke responsibility under paragraph 1 may claim from the responsible State…performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached” (emphasis added).

Within the ECHR, a special mechanism establishes, at least in theory, an erga omnes obligation allowing States Parties to file inter-State complaints. In accordance with Article 33 of the ECHR, “[a]ny High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party” (emphasis added). It derives from the wording of this provision that a State Party to the ECHR does not have to be directly injured by a breach of the Convention rights in order to rely on this mechanism.

Practical and concrete examples, however, where States that were not directly affected by a violation of international law intended to invoke responsibility of another States for the safeguard of interests of the international community are very rare, if not inexistance. Antônio Augusto Cançado Trindade, former president of the Inter-American Court of Human Rights and now judge at the ICJ, argues that while the concept of obligation erga omnes has certainly entered in the international case-law, in particular the jurisprudence of the ICJ, that court had, in spite of those references, not yet extracted the consequences of the affirmation of the existence of the concept.^‡

The same can basically be argued for the ECHR, where the examples of inter-State complaints, in particular the successful ones, are very rare. Moreover, the more recent applications do not contain an erga omnes logic, but have been filed by States Parties pursuing the protection of the interests of their own nationals, in the logic of the traditional “diplomatic protection” exercised by States in favour of their nationals. Examples include Georgia v. Russia I in 2014 and subsequent applications (all pending), and Ukraine v. Russia (several applications since 2014, all pending).

To sum up this section, whereas the ECHR is very tough on States Parties when they commit torture on their own territory, States Parties to the ECHR and the Court seem to care less when the impugned facts happen abroad, without obvious link to one of the States Parties to the ECHR. This is understandable and justifiable considering the weakness of the concept of obligation erga omnes in international law, which remains ineffective in practice. The result reached by the ECHR also expresses the clear quantitative difference between a well-integrated regional system of human rights protection, such as the ECHR system, on the one hand, and a universal system, where the same solidarity between members and strong institutions are often lacking, on the other.

Conclusion

Having regard to what precedes, the detailed and well researched judgement explains, in general, convincingly why there was no violation of the right to access a court. It contains some very positive aspects, in particular the confirmation of the existence of the right of victims of torture to remedy and compensation. Moreover, the Court did not shut the door for similar claims in the future by emphazising that this area is dynamic and subject to change and, in the same logic, by inviting the States Parties to the Convention to take account in their legal orders of any developments facilitating effective implementation of the right to compensation for acts of torture.

As a result, it can be argued that the Court struck a defendable balance between the arguments and interests at stake. In particular, even if the concept of obligation erga omnes is more than wishful de lege ferenda, it is not a reality on the global scale yet. As a result, Switzerland, as a State Party to the ECHR, was not compelled, based solely on the prohibition of torture as an obligation erga omnes, to open its tribunals in the sense claimed by the applicant, who had been tortured in Tunisa by Tunisian officilas and who had only Tunisian nationality at the material time.

On the other hand, I argue here that, once it concluded that Article 6 ECHR is applicable to the present case, the Court had certain elements to consider the restriction to the applicant’s right to access a court disproportionate. In terms of judicial policy, it could have done so in a narrow, case-specific manner, without admitting a general duty to establish universal jurisdiction for all future cases of civil actions for reparation of torture. A broader and effective interpretation of Section 3 of the Swiss Federal Law on Private International Law, in light of the special nature of the prohibition of torture in international law (jus cogens), would not have constituted a revolutionary development, but could have enabled the applicant to seek remedy and reparation for the crimes that he had endured in Tunisia. In the same time, it would have constituted a discrete, but significant step for the rights of future victims of torture. To recall and stress the right to an effective remedy and to reparation in favor of victims of torture, on the one hand, but not to find a violation of Article 6 ECHR in the very particular situation of the applicant, on the other, looks, from my point of view, somehow half-hearted and runs at odds with the—generally—very effective and practical protection of human rights guaranteed by this unique Court that has, in the past, so much contributed to the peace and rule of law on the European continent.

* PhD., Senior Lawyer at the ECtHR (Strasbourg), international law lecturer at Lausanne University, member of the adjunct faculty of Suffolk University Law School (Boston MA). He was a visiting fellow at Harvard Law School in 2014. The views expressed in this post are strictly personal.

† See Int’l Law Comm’n, Rep. on the Second Part of Its Seventeenth Session 3–28 January 1966 and on Its Eighteenth Session 4 May–19 July 1966, U.N. Doc. A/6309/Rev.1, at 50, cmt. 4 (1966).

‡ A.A. Cançado Trindade, International Law for Humankind: Towards a New Jus Gentium 313 (2nd ed., 2010).

Content, Online Scholarship, Perspectives

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

February 18, 2019

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.

Perspectives

Options for Protecting Refugees in South Asia

Global Refugee Protection Instruments

A New Regional Instrument

Reforming Domestic Laws

Conclusion

German Telemedicine for an American Patient: The Validity of Forum Selection and Choice-of-Law Clauses in International Telemedical Contracts

Introduction

Discussion

Does the U.S. court have jurisdiction to decide the validity of the choice-of-law and forum selection clauses?

Which law governs the validity of the choice-of-law clause in the United States?

Is the choice-of-law clause valid under American law?

Which law governs the validity of the forum-selection clause (“FSC”) in the United States?

Is the forum selection clause valid under American law?

Does the court in Munich have jurisdiction to decide the validity of the choice-of-law and forum selection clauses?

Which law governs the validity of the choice-of-law clause in Germany?

Is the German choice-of-law clause valid under German law?

Which law governs the interpretation of the forum selection clause in Germany?

Is the forum selection clause valid under German law?

Conclusion

Is EULEX a Step Back for International Rule of Law Missions?

Introduction

Kosovo under UNMIK

The Ahtisaari Plan and Kosovo’s Declaration of Independence

The Establishment of EULEX

The Failures of EULEX

1.1. Inability to garner public support

1.2. Inadequate and insufficient staffing

1.3. Failure in northern Kosovo

1.4. Corruption scandals that damaged public image beyond repair

UN Peacekeeping Missions, EULEX, and the Future of International Rule of Law Deployments

Conclusion

A Vision for the Future of Private International Law and the Internet – Can Artificial Intelligence Succeed Where Humans Have Failed?

What is AI?

Private International Law Modeling – Finding the “Correct” Point of Departure

The Data Needed and How to Get It

The Envisaged AI System and Its Uses

Conclusion

The Case of Naït-Liman v. Switzerland Before the European Court of Human Rights: Where Are the Limits of the Global Fight Against Torture?

Introduction

I. The ECtHR Decision

II. Assessment of the Judgment

A. Remedy and Reparation for Victims of Torture

B. The Court’s Refusal to Read the ECHR as a Whole and Its Impact on the Proportionality of the Restriction

C. The Erga Omnes Effect of the Prohibition of Torture Did Not Compel Switzerland to Open Its Courts to the Applicant

Conclusion

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

Sparring with the ICC

The Bashir Effect

The Kenyatta/Ruto Prosecution

The Weakness of the Office of the Prosecutor

The Individual or the Community?

B. The Court’s Refusal to Read the ECHR as a Whole
and Its Impact on the Proportionality of the Restriction

C. The Erga Omnes Effect of the Prohibition of Torture
Did Not Compel Switzerland to Open Its Courts to the Applicant