Thank you for following Legal Frontiers this past year. We are proud to have successfully completed almost two years in publication. This year, we were proud to have initiated some new changes to the blog. In addition to our student contributors, we were able to solicit high calibre Guest and Special articles from external experts on international law.  Further, we increased our French language article contribution – an important step toward our vision of a truly international law blog. Recently, we also introduced an interview section to the blog that is aimed at illuminating the experiences of international legal practitioners. It has been an enjoyable year filled with many great reads and great comments.

On behalf of the 2010-2011 executive, I would like to welcome the new 2011-2012 Legal Frontiers Executive. This year we will have two Contributors-in-Chief, Keiran Gibbs and Raphael Girard.  Our Executive Contributor will be Kim Lee.  We look forward to exciting changes to come under their mandate.

Chers amis,

Nous avons été heureux d’apporter quelques nouveautés au blogue cette année. En plus des contributions étudiantes, nous avons eu la chance de publier des articles de haut calibre rédigés par des experts en droit international. De plus, nous avons augmenté le nombre de publications en français – un pas important vers la réalisation de ce qui constitue un blogue véritablement international à nos yeux. Nous avons aussi récemment ajouté une section «entrevues», qui relate les expériences inspirantes de praticiens de droit international. Ce fut une année agréable, remplie de contributions et de commentaires intéressants.

Au nom de l’équipe exécutive 2010-2011, j’aimerais souhaiter la bienvenue à l’équipe exécutive 2011-2012. Nous compterons cette année deux contributeurs en chef, Keiran Gibbs et Raphael Girard. Notre contributrice exécutive sera Kim Lee. Nous sommes impatients de voir quelles orientations seront données au  blogue sous leur direction.

With many thanks,

Yeniva Massaquoi

Emilie Conway

Martin Hetu

After Nuremberg but Before an International Declaration

Nacht und Nebel, a Nazi policy that disappeared civilians from occupied territory, is billed as the first instance of forced disappearance. At Nuremberg, Army Chief Keitel was sentenced to death partly because of his role in executing Nacht und Nebel. From Nuremberg onwards, case law has played an important role in shaping the normative principles of forced disappearances (here at 101).  Particularly in the absence of specific international instruments, international courts and committees filled the gap by tailoring general human rights treaties to forced disappearances. In Bleier v. Uruguay, for example, the Human Rights Committee found that the Uruguayan government had breached ICCPR articles 7 (prohibition of torture), 9 (right to liberty and security) and 10 (1) (rights of persons deprived of liberty) as well  as serious  reasons  to  believe  that  there was an  ultimate  violation  of  article  6 (right to life).  So instead of treating forced disappearance as an umbrella right like the ‘right to development’, it took on a multi-pillared form with many rights being triggered by the act.

Outside the judicial beltway, a Working Group on Enforced or Involuntary Disappearances (WGEID) was set up in 1980 to facilitate communication between families of the disappeared and their Governments. Although WGEID meets twice a year, the network of cases they have built in their 30 year history was an important resource in the construction of international instruments specific to enforced disappearance.

Even with advent of various international instruments, WGEID and international courts continue to be important venues for victims of forced disappearances to be heard.

On Declarations and Conventions

The adoption of the 1992 United Nations Declaration on the Protection of All Persons from Enforced Disappearances is the first international human rights instrument to explicitly address key principles of forced disappearance. However, the Declaration is problematic on numerous grounds. It is not legally binding, does not fully define enforced disappearance and fails to detail the exact scope of States’ obligation to prevent, investigate of sanction forced disappearance – a position reiterated by Special Rapporteur Christos Pourgourides in 2005 (at para. 8).

Ostensible progress on this front was made in 2006 with the adoption of the legally binding International Convention for the Protection of All Persons from Enforced Disappearance (Convention).  Since its adoption, the Convention has been stuck in an interminable endgame. 20 ratifications are needed for the Convention to enter into force but since 2006, only 18 States have ratified it. Many countries expressed reservation to some key provisions including Articles 6, which commands responsibility and Article 18, which relates to minimum information.  However, I contend that it is perhaps the broad provision (absent exceptions) set out in Article 1 coupled with the deeply political agenda of a forced disappearance that has made ratification problematic.

With the Convention stalled, WGEID has attempted to strengthen the Declaration by adopting a General Comment on article 4 of the Declaration giving the minimum elements expected in national law for the crime of enforced disappearance. Another indication of some progress is that enforced disappearance is recognized as a crime against humanity in the Rome Statute.[1]

The 1994 Inter-American Convention on Forced Disappearances (IA Convention) illustrates another possible avenue of progress outside global legal instruments. Interestingly, Special Rapporteur Manfred Nowak has suggested that the IA Convention allows for universal jurisdiction between member countries (see report at para. 47). Essentially, these neighbour States have relaxed their sovereignty because of a communal fear of regressing into a troubled past filled with human rights abuses. Given the prevalence of forced disappearances in their collective pasts, the IA Convention is proof of the benefits of regionalization.

Who? Personifying the Victim

In Kurt v. Turkey, the ECHR found that Turkey breached article 3 (prohibition of torture/ inhuman or degrading treatment) of the European Convention toward the mother of a disappeared man. It is telling that unlike most of the other violations in the case which were settled by unanimous vote, this violation was a six to three vote. The right of families to know the fate of their relatives remains unsettled at international law (see here at 49 and here at 80) and is only explicitly recognized article 24(1) of the Convention.  (The Inter-American Court has been very progressive in granting sweeping reparations and broadening the concept of victim to include those with special ties to the material victim) – see here at 132.

Another difficulty surrounding the status of forced disappearance and consequently the plight of family members is reparations. In Kurt, the mother was awarded 10,000 pounds for her suffering. Arguably, the communal impact of a forced disappearance violates the social contract, and as such traditional monetary reparations are not always ideal. In some cases, States have been required to offer public apologies (Trujillo Oroza v. Bolivia) and some courts have gone so far as to order the naming of roads or schools in memory of the victim.

What? Nature of the Violation

The framing of the forced disappearance issue is significant because it dictates the extent to which there can be communal involvement. Should there be a ‘right not to be disappeared’? And if so, what would it look like?  Although, this is a difficult question, one thing would be certain; such a collective right would allow us to adequately capture the plurality of victims affected by a single disappearance.  From a theoretical perspective, perhaps the ultimate weakness in the struggle to legitimize forced disappearance is that it challenges human rights law through the tension between collective and individual rights.

Conclusion and Future Considerations

Forced disappearance has come a long way in international law but is now trapped on a path of sluggish progress. Its future trajectory will ultimately be determined by the way it is framed at the international level. Is it a collective right? Which victims are envisioned by forced disappearance project? Certainly, the Convention is a key piece in the puzzle, but regional instruments can also serve as a great basis for continued development in this area.  Further, forced disappearance continues to be reinforced through other human right instruments like the ICCPR, UDHR and even indirectly through the Rome Statute.

Amnesty International is working toward securing the two signatures necessary to bring the Convention into force. While a noble cause, I believe it is more important to focus on generating a global consensus regarding the exact definition of enforced disappearance. Indeed, the grammatical evolution of the word ‘disappear’ from verb to noun is an indicator of the difficulty we have in articulating exactly what transpires through this deeply disturbing act.

As we move forward, we would like to thank our outgoing Contributors for their efforts in making this blog a success. Furthermore, we thank the professors that have provided us with the advice and resources to make this blog possible. Finally, we would like to thank the following institutions and individuals for their financial support:  the McGill Law Students’ Association, the Dean’s Discretionary Fund, the Alumni Association Student Fund, the Rathlyn Foundation and Professor Kim Brooks’ International Tax Law Honorarium.

De plus, alors que le blog reprend son essor et que les anciens contributeurs passent le flambeau aux nouveaux, sans oublier ceux qui sont restés, pour l’année à venir, nous désirons inviter et encourager les lecteurs à participer activement à la vie du blogue, à commenter les articles et à faire part de leurs opinions. Toute discussion ou recherche du savoir n’avance que par le partage des idées et il s’agit précisément de ce que Legal Frontiers cherche à accomplir, permettre à des étudiants, professionnels et professeurs ainsi qu’aux lecteurs de présenter leurs idées et le fruit de leurs recherches et travaux.

Cette année, Legal Frontiers pourra justement compter sur l’apport et le soutien de professeurs et contributeurs spéciaux. Plusieurs sujets seront abordés, tels que la récente décision de la Cour internationale de justice sur l’indépendance du Kosovo, la question de la divulgation d’informations corporatives dans les sphères environnementale, sociale et de bonne gouvernance et la notion de citoyenneté pour les femmes sud-africaines après l’apartheid. Nos contributeurs seront par la suite invités à présenter leur point de vue et à élaborer sur ces thèmes.

Grâce à notre nouvelle équipe, nous sommes persuadés que Legal Frontiers sera amené à se surpasser durant les mois à venir et à s’établir comme un outil incontournable au sein de la communauté des juristes de droit international.

Encore une fois, merci et bienvenue à Legal Frontiers.

Best Regards,

Yeniva Massaquoi & Martin Hétu

All interested undergraduate and graduate law students are invited to apply for the following positions:

Executive Contributor (1)

Senior Contributors (8)

Junior Contributors (~10)

Publicity Coordinator (1)

Aucune expérience en blogage n’est requise! Ceux qui s’intéressent devraient (a) être enthousiastes pour la rédaction académique et (b) avoir un intérêt pour ce qui touche au droit international. The blog will focus on “academic blogging”, a new genre of legal discourse, and expose student writing to a wide audience. All positions involve a one-year commitment. All positions (except Publicity Coordinator) are open to students who will be on exchange this year.

For more information on the blog, you can visit: www.legalfrontiers.ca

1. Executive Contributor (1)

The executive contributor will:

- manage the blog’s finances: initial budgeting, allocation of funds, application for grants, and fundraising;
- extending invitations to potential distinguished guest bloggers;
- copy-editing entries submitted online;
- writing 1 blog entry every 3 weeks;
- moderating the comments written in response to the blog postings;
- preparing the semester’s blogging schedule;
- sending out an email at the beginning of each week of the blogging schedule for that week;
- help ensure the academic nature of the blog by raising concerns of diminishing academic quality with the Coordinating Editor and at general meetings.

2. Senior Contributors (8)

As the driving force of the blog, senior contributors are each responsible for writing at least one scholarly blog entry (400-1200 words) every two weeks for the duration of the academic year.

Les contributeurs supérieurs seront encouragés à se pencher sur un domaine particulier du droit international, contribuant ainsi au développement de leurs pensées dans ce domaine au courant de l’année. Toutefois, ils auront la liberté de soumettre un blog dans tout autre domaine du droit international.

Each senior contributor will receive a modest honourarium at the end the academic year.

Responsibilities:

• Write 1 blog entry every two weeks;
• Attend monthly meetings where they will help establish editorial priorities, provide updates, and brainstorm features; and
• Réviser les entrées et modérer les commentaires.

*This year, we shall be developing some thematic topics for publication. Depending on our numbers, Senior Contributors may be asked to commit to writing at most one article on a selected topic.

3. Junior Contributors (~10)

Junior Contributors will periodically post blog entries alongside those of the senior contributors. While they are not responsible for blogging according to a set schedule, they will be encouraged to:

• Write 2 blog entries per semester;
• Regularly assist with one of the blog’s special features (i.e. weekly “This Week in International Law” posting); and
• Copy-edit entries and moderate comments

They will be expected to attend monthly meetings in order to provide updates, brainstorm and discuss relevant issues.

4. Publicity Coordinator (1)

Le coordonateur de la publicité sera chargé de s’assurer que le blog soit lu par un grand nombre de lecteurs.

Responsabilités:

• réaliser une campagne publicitaire afin de faire connaitre le blog, par l’intermédiaire de divers moyens médiatiques, tels que des forums en ligne, des journaux de McGill, des affiches publicitaires à travers le campus, des courriels, et des annonces aux classes;
• Faire des liens avec d’autres forums de blog; et
• Attend monthly managerial meetings where she will be expected to provide updates on where the blog is being advertised as well as statistics on how the blog is being read, and discuss relevant issues.

The Publicity Coordinator will receive a modest honourarium at the end the academic year.1

APPLICATION PROCESS

Tous les candidats devront soumettre une copie de leur CV et une courte lettre de motivation (maximum de 400 mots). Candidates applying for Senior Contributor should also submit a scholarly writing sample of no more than 700 words (excerpts are welcome), and a list of three areas/topics that they are interested in blogging on. Les applications peuvent être rédigées en français ou en anglais.

DEADLINE FOR APPLICATIONS IS WEDNESDAY, SEPTEMBER 22nd AT 5:00 PM

Completed applications should be submitted electronically to: frontiers.mcgill@gmail.com

———————————

1 Pending available funds.

Article 16 – On Compromise and Politics

Article 16 represents a compromise between the SC and the ICC.  In its earlier form, Article 16 prevented the ICC from commencing a prosecution on any situation being dealt with by the SC unless the SC decided otherwise [here at 1509].  This broad provision would have jeopardized independence of the ICC and left it susceptible to the political motivations of the SC.  Viewed through a lens of compromise, the current version of Article 16 is a more palatable alternative. It arguably strikes an essential balance between recognition of the Security Council’s primacy over international peace and security and the Court’s independence. While the article still alters the independence of the ICC, it allows for investigations to continue unless the Council formally decides to stop the process. As such, one veto by a permanent Council member cannot halt ICC proceedings as was previously the case. Instead, only a “concerned effort” requiring a minimum of nine affirmative SC votes every 12 months can block the process [here at 1510]. Although Article 16 is a constructive result that limits the weakness of the ICC, the ICC’s continued dependency on the SC leaves the door open to a politicized judicial process.

Article 16’s ambiguity also engages key procedural questions. Ostensibly, the provision fails to consider what happens to an individual already in custody. What procedure should the ICC adopt if the SC were to suspend such an investigation? Is the individual de-criminated and set free thus negating justice for political ends? Certainly this would defeat the object of the ICC – to ensure that the most serious crimes do not go unpunished – and subsequently weaken the institution.  On the other hand, is the individual to be kept in custody indefinitely thus violating his human right to a trial without undue delay? The absence of a clear scope with regard to the SC capacity to suspend ICC investigations thus imperils the ICC’s objectives.

Some critics argue that Article 16 could interfere with a state’s right to exercise their treaty obligation as well as their erga omnes obligations. SC members that are party to the Rome Statute must negotiate between their Council political objectives and their treaty obligations. The ICC’s jurisdiction is arguably limited to jus cogens offences. As Judge Lauterpacht highlights, when a SC Resolution indirectly forces Members of the UN to become accessories to genocide, the Resolution ceases to be valid and binding in its operation [here at 1536]. The concern that Article 16 may therefore free genocidiares is compelling. However, I suggest that the SC’s power is not unlimited and it must therefore act within the purposes and principles of the UN Charter – including its requirement not to derogate from jus cogens norms [Tadic at 28].  While, instances may arise that arouse jus cogens fears, it is fair to say that the SC is limited in its exercise of power. A peripheral argument could also be made that, as in Lockerbie, states cannot invoke their customary-based rights to impede the Security Council in discharging this responsibility. Further, if a state violates the art. 53 VCLT, avenues of compromise exist through arbitration and referral to the ICJ [see VCLT 66]. The treaty and erga omnes critiques are however valid and subsequently endorse my proposition of a case-by-case assessment.

Resolution 1422: New Interpretation of Article 16?

The generality of the resolution broadens the scope of Article 16 thus threatening the credibility of the Court. The US’s intent to curtain off a segment of individuals and protect them indefinitely, limits the ICC’s capacity to carry out a case-by-case assessment. The SC is thus denying the ICC an opportunity to investigate heinous crimes. Of course, national courts can still prosecute these individuals/potential criminals. But what happens when national proceedings are ineffective or unavailable? [Rome Statute 17 & 20b] In the absence of recourse to the ICC, does this reversal in the ICC mandate not weaken the institution?

Ostensibly, the US indirectly lowered the nine affirmative votes threshold. The US secured the nine votes requirement by threatening to veto the renewal of peacekeeping operations in Bosnia and Herzegovina and potentially all other peacekeeping operations. Thus with one veto, the US overcame and lowered Article 16’s threshold. Admittedly the SC is an overtly political body so negotiations like this are not unusual. However, it does point to an instrumentalization of justice. A failure to reserve Article 16 for fragile situations where peace and justice are really in tension would transform the ICC into a mere tool of international governance as opposed to an arbiter of justice. As Prosecutor Moreno-Ocampo rightly underscores, a “business as usual” attitude will help perpetuate crimes. Further, this blanket resolution delays the project of international justice from becoming more systematic, predictable, and enforceable.  This arguably leads to a minimal interaction between rule of law and international criminal law.

Conclusion: Jekyll and Hyde

Article 16 is a sensitive provision with a capacity to be either Jekyll or Hyde. Subsequently, it requires constant monitoring. The ambiguities surrounding the SC’s ability to suspend ICC investigations mean that it is not ideal. However, in the interests of compromise, the article reflects a workable balance. The ICC’s unique mandate over crimes committed in ongoing conflicts requires sensitivity to the project of international justice. It is therefore important that both the SC and ICC avoid the instrumentalization of justice by recognizing the role of justice as end rather than a (useful) tool. In so doing, Article 16 will be valued as a positive aspect of the Rome Statute.

Amnesty and Ubuntu: Shared objective?

An interesting feature in the judgment was that Yogogombaye urged the Court to order that Senegal utilize the philosophical concept of ubuntu to develop a national “Truth, Justice, Reparations and Reconciliation” Commission for Chad on crimes committed between 1962 and 2008.[6] Ubuntu (or African Humanity) is a philosophy that attempts to capture the intersection of justice and humanity by essentially asking: how does one keep their humanity after being wronged? This was underscored in the South African death penalty case (Makwanyane)[7] which recognized that to be consistent with ubuntu, a society must not kill criminals just to get even with them. Ubuntu therefore yields amnesty as seen in the South African Truth and Reconciliation Commission.[8] But are the objectives of amnesty and prosecution truly conflicting when viewed through the lens of ubuntu? I suggest that they are not. Ubuntu encompasses both justice and forgiveness. As such, attaching the label of guilt through prosecution would not really take away from the dignity attained through forgiveness. Indeed, the conversation would merely shift from the pre-trial stage to sentencing. In AZAPO,[9] the Court contended amnesty was needed in order for a ‘historic bridge’ of transition (and truth) to be erected.[10] In a post-war/apartheid community, this is true without ubuntu. Whether Habré’s crimes fit within the historic bridge framework of healing peace after war would therefore have been an interesting discussion for the ACHPR to consider. Ultimately, given the difficulties confronted in defining ubuntu,[11] transposing the ubuntu concept onto the regional stage would be risky. 

Balancing Amnesty, Human Rights and the Crimes in Question

There is arguably a human right to a remedy blocking automatic amnesty through the ubuntu principle. Though due process rights are traditionally attached to the accused in domestic criminal law, at the international level the approach is more victim oriented. In AZAPO, the Court found that an amnesty grant violated a victim’s right to seek remedy.[12] Further endorsement comes from the Velasquez[13] case where Inter-American Court found Honduras to have violated Velasquez’s human rights by failing to seek a remedy on his behalf.[14] Thus an individual may seek remedy for violations by Habré independently or through the agency of Senegal.[15]

In weighing the seriousness of the crimes in questions, I contend that amnesty rooted in ubuntu would be insufficient. The prohibition against torture has jus cogens status and as such, States are under a duty to bring to justice those responsible.[16] Further, national grants of amnesty are incompatible with the duty of States to investigate torture.[17] (This is a tentative position as the SCSL noted in the Lomé Decision that the norm that a government cannot grant amnesty for serious violations of crimes under international law is “crystallizing”).[18] Indeed, I suggest that to grant Habré amnesty for crimes against humanity and torture would run counter to the spirit of ubuntu. This principle of accountability is highlighted by the fact that the ACHPR’s enabling statute, like that of the ICC, has no provision for a blanket prohibition on amnesty and such a provision would be antithetical to the purpose of the ICC.[19]

Horizontal vs. Vertical Amnesty

Though case law shows that national amnesties are not captured by international courts, there is still the outstanding question regarding national amnesties in national jurisdictions. To what extent can a regional or international court interfere with domestic grants of amnesty per Yogogombaye request? Can national amnesties within a national jurisdiction be disregarded based on international law? While the answer is unclear, I suggest that such a power would be very expansive. Further, given the Lomé Decision ‘crystallizing’ position, the separation between international and national amnesties seemingly persists. The interplay of the international and national has been much in the news as a result of the trial of Spanish judge Garzon’s application of international case law to national amnesties; this should soon provide some insight into opinio juris.

Conclusion

Although the ACPHR rendered a reserved decision, it seems clear that the future of the Court will involve weaving regional customs into international criminal law. The argument for use of ubuntu as the underlying principle for amnesty however struggles on grounds of varying definitions as well as a general mood at international law against amnesty for massive human rights violations. Regionalization should however remain an important objective for it is only through customization that a general consensus under the banner of impunity can be achieved.

[2] Ibid at para. 1

[3] Ibid at 18

[4] Ibid at 20

[5] Ibid at 37

[6] Ibid at 23

[7] Georgia State University, online:www.law.gsu.edu <http://law.gsu.edu/ccunningham/fall03/DeathPenalty-SouthAfrica-Makwanyane.htm at para. 130

[8] See ICRC “Azanian Peoples Organisation (AZAPO) and others v. President of the Republic of South Africa” online: www.icrc.org < http://www.icrc.org/IHL-NAT.NSF/39a82e2ca42b52974125673e00508144/067632d55386102cc1256b09003f0eac!OpenDocument >

[9] Ibid.                             

[10] Ibid. at 19

[11] Africa Journals Online “Ubuntu and the Law in South Africa” online : www.ajol.info <http://ajol.info/index.php/pelj/article/viewFile/43567/27090> at 2

[12] To be fair, the Court overrode this violation by stating that the grant was justified by the doctrine of the need of the State. Again, South Africa was in the midst of immediate transition at the time. It would have been interesting to see how the ACHPR characterized the Habré situation.

[13] University of Minnesota Human Rights Library “Velásquez Rodríguez v. Honduras”online:www.umn.edu  <http://www1.umn.edu/humanrts/iachr/b_11_12d.htm>

[14] Ibid. at 174.

[15] (if any Senegalese people were affected by Habré’s actions).

[16] Darryl Robinson, “Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court” (2003) 14 EJIL 482 (Robinson); see also Prosecutor v. Anto Furundzija (Furundzija);

[17] Robinson at 492.

[18] Prosecutor v. Moinina Fofana, Special Court for Sierra Leone, SCSL-2004-15AR72(E).

[19] Robinson supra note 17.

Revisiting old tensions: Horizontality

Incumbent head of state immunity hugs the boundaries of the verticality/ horizontality discourse. Although derived from customary international law, state immunity is rooted in the horizontal level through its objective of maintaining a peaceful coexistence[1] between States and ensuring states’ sovereignty. As underscored in Arrest Warrant[2], courts at the horizontal level cannot interfere with head of state immunity because such an action would hinder the effective performance of the official’s duties.  At this level, there is no exception for State official immunity – not even for derogation of jus cogens norms.[3] Although this may seem a high price to pay to grease the wheels of international camaraderie, some argue[4] that absence of immunity in relation to human rights violations is more likely to hinder international cooperation than it is to significantly increasing protection of human rights.[5]

Peeling back the layers: Ratione materiae and Ratione personae

Viewed through a human rights lens, the finding of absolute immunity in Arrest Warrant is contentious. However, I argue that in failing to make a clear distinction between ratione materiae and ratione personae, the Arrest Warrant judgement missed an opportunity to limit the polemic nature of its overarching judgment. Ratione personae (immunity attaching to the office) is much broader than ratione materiae (immunity attaching to official acts). Ratione materiae is narrower by definition but travels with the official after s/he leaves office. So while in office, the official is blanketed by both ratione materiae and ratione personae. Once the individual leaves office, his ratione materiae ‘protection’ may be peeled off by showing for example that certain acts are not official in nature (see generally Pinochet and the torture as an official act argument). The Arrest Warrant decision bases its finding of absolute immunity primarily on ratione personae. I find this significant because it moves the justification beyond ‘effective performance’[6] (which tends more toward ratione materiae) to the basic integrity of the state and its offices.  Though not explicit in Arrest Warrant, it must be this integrity that requires absolute immunity. No state should be able to jeopardize the integrity of another state by interfering with ratione personae.

(On a side note, I would be curious to see how the Arrest Warrant horizontal ratione personae argument would apply to a human rights violating president for life; it seems easy to make an immunity argument when the official’s period of office is finite but the reality is that most human right official violators are also abusers of power who will stay indefinitely. At this horizontal level, do immunity and impunity not then collide?)

Revisiting old tensions: Verticality

While a State cannot claim jurisdiction over another State’s incumbent head of state, an international tribunal can (see generally Prosecutor v. Charles Ghankay Taylor). In this way, heads of state and other high ranking officials do not enjoy impunity.[7] On this vertical level, international criminal justice is recognized as being more appealing than the competing ‘horizontal’ values it may trample (here at 34). However, this vertical claim of jurisdiction is subject to two conditions:[8]

(1) that the instruments creating the tribunals expressly or implicitly remove the relevant immunity of the official, and

(2) that the state of the official concerned is bound by the instrument removing the immunity.

Arguably, condition (1) forces ad-hoc tribunals to continually re-justify their verticality thus weakening international criminal law’s mandate.  In Prosecutor v. Charles Ghankay Taylor for example, the SCSL had to first justify that Charles Taylor was not subject to ratione materiae by proving that it was behaving vertically through customary international law. However, from a purely practical stance, this process allows accused officials to fully explore all avenues of defence.

The ICC fulfills condition (1) expressly through article 27 (of the Rome Statute).  With regard to condition (2), the Court has jurisdiction over parties to the Rome Statute and those the Security Council refers to the court (e.g. incumbent President al Bashir).

Referral of the situation to the ICC by the Security Council implicitly makes the Statute and Article 27 applicable to Sudan.[9]

How far can this go?

Is the removal of immunity merely factual? Arguably no state will hand over their Head of State if s/he is found guilty by an international tribunal. Can the ICC merely try the President in absentia or can an incumbent head of State be arrested?

Though the Court does not have independent powers to arrest, through Article 98, States are conferred the power to arrest a visiting head of state. Questions concerning the tensions in Article 98 and possible conflict of treaty obligations are outside the scope of this paper.

Conclusion

Incumbent head of state immunity presents an interesting snapshot of the horizontal/vertical dichotomy that exists in international criminal law. While absolute immunity reigns on the horizontal plain, international tribunals have managed to carve out a place of superiority using their enabling Statutes and customary international law. In this way, they reiterate the fact they are not peers of States and are therefore endowed with the capacity to fully render international criminal justice by stripping heads of state of their immunity.

[2] Democratic Republic of the Congo v. Belgium (Case Concerning the Arrest Warrant of 11 April 2000), [2002] I.C.J. Rep. 3 [Arresst Warrant].

[3] Ibid at para. 58.

[4] Dapo Akande, “International Law Immunities and the International Criminal Court” (2004) 98:3 AJIL 407 at 410 – 411 [Akande].

[5] Also see my previous short paper for policy arguments on the distinction between international justice and diplomatic peace.

[6] Arrest Warrant, supra note 2 at para. 53.

[7] Ibid, at para. 48.

[8] Akande, supra note 4 at 418.

[9] Dapo Akande, “The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities” at 348.

Background

The Endorois people are a sub-tribe from central Kenya that were evicted from their lands near Lake Bogoria in the 1970s. The government relocated them to an area that limited their access to a clean water source, central sites of worship and other daily requirements for their pastoral way of life. The Kenyan government failed to provide compensation for this eviction but still proceeded to develop a Game Reserve on the Endorois former lands.

After exhausting all domestic avenues for remedy, the Endorois – with the help of Minority Rights Group International – brought their case before the ACHPR. The ACHPR is a quasi-judicial regional body that renders non-binding decisions aimed at protecting human and collective rights in Africa as envisaged by the African Charter on Human and Peoples’ Rights (“African Charter”). Although non-binding, I believe that the decisions from the ACHPR can be viewed as a snapshot of general zeitgeist. Indeed, until the African Court on Human and Peoples’ Rights starts delivering decisions regularly, the Commission’s decisions will remain an important and indicative source of normative shifts.

The ACHPR found Kenya to be in violation of Articles 1, 8, 14, 17, 21 and 22 the African Charter which included the rights to free practice of religion, property, education, culture, natural resources and development. (An interesting documentary detailing exactly how the Kenyan government infringed each right can be found here). The case (Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya ), is a landmark decision in that it is the first time an international tribunal has recognized the right to development. The Commission seemingly utilizes Article 22 – the right to development – as an umbrella to safeguard numerous human rights including the right to property, religion and culture. In recent years, the right to development has remained a backdrop legal right, therefore this decision can be seen as a judicial indication of the direction of this debate in the global South.

The Right to Development

While the discourse surrounding developmental issues has traditionally taken a political and economic approach, the advent of documents like the Declaration on the Right to Development as well as the African Charter has allowed the discourse to take on a legal dimension.  However, the right to development remains a controversial tool because it is a group right designed to serve the collective. But does the ACHPR go too far regarding the right? Is this right to development too broad and subsequently is it in danger of collapsing upon itself? Or is this decision a recognition that collective rights are needed in communal societies?

The ACHPR grounded its finding of a violation of the right to development on the government’s failure to guarantee effective participation and to guarantee a reasonable share in the profits of the Game Reserve (or other adequate forms of compensation) to the Endorois. While the decision reflects the ideals of the African Charter, it continues to raise key questions regarding the right to development.  The basis for the decision seemingly moves this judicial organ beyond its conventional role into a politicized corridor. The broadness of the right to development allows it to touch upon the overall development process including largely political aspects like financial allocation. Ostensibly, as a result of this political aspect, the exact intersection between the right to development and human rights will continue to be illusive. Though the Endorois decision is a general step forward for the right to development, it seemingly reinforces the disconnect between the right and human rights.

The political dimension means that whether the decision will translate into concrete results remains to be seen.

Future considerations

The decision from the ACHPR requires the Kenyan government to compensate the Endorois and allow them to return to their lands. This decision, though not binding, has potential and precedential value. As Clive Baldwin, co-counsel for the Endorois, has stated:  “The Endorois decision, the first of its kind, can help many others across Africa who have been forced from their homes.”  He continues by stating that “the African Commission is clear: the land where the Endorois historically lived is their property and must be returned to them.” However, it is important to take a measured approach in ensuring that this decision does not slip through the cracks and disappear. All the key actors must be engaged. The Kenyan government, the larger African community, the Endorois and NGOs are equally important pillars that must cooperate to ensure that the decision rendered by the Commission is adhered to. Particularly, the decision takes the significant step of spotlighting an indigenous group as a stakeholder in the developmental project. An approach that continues to underscore the importance of indigenous groups as well as the more widely recognized actors will likely reinforce this decision and it will subsequently serve as a key step towards a legally recognized right to development.