The first lesson for the ICC is clear: more celebrities. The SCSL’s trial of former Liberian President Charles Taylor, which began in 2007, attracted little attention from the international media until recently, when actress Mia Farrow and supermodel Naomi Campbell appeared as witnesses. Since these ladies became involved in the trial, the Western media has become suddenly interested in war crimes committed in Liberia and Sierra Leone (though the movie Blood Diamond also helped make the subject matter sexier).

The ICC, meanwhile, has begun investigations into crimes in five countries – Uganda, the Democratic Republic of Congo, Central African Republic, Sudan, and Kenya – and the media still doesn’t know where those places are, let alone which non-celebrity was responsible for the mass murder of thousands of other non-celebrities. The ICC should start scouring its case to see if Sudan’s President Omar al-Bashir ever met with Britney Spears, or if any of Congolese rebel leader Thomas Lubanga’s child soldiers wound up as part of the cast of Glee. The court needn’t restrict itself to celebrity witnesses though; just look at Charles Taylor’s defence lawyer, the Grandmaster Flash-quoting Courtenay Griffiths. Perhaps general awareness of the ICC could be boosted by the addition to the bench of Judges Judy, Reinhold, and Simon Cowell?

But despite its A-list witnesses, the SCSL could follow the ICC’s lead in one respect: securing a more reliable budget. Although the SCSL has cut the number of charges Charles Taylor faces from 17 to 11, the trial continues to drag on four years after it began. Each year the SCSL is forced to turn to international donor countries to acquire its $18M budget. The ICC, by contrast, has a permanent funding structure (the largest source of funds being the European Union), over 500 permanent staff, and an annual budget over $100M. The SCSL’s tight budget has led some to call for reducing the list of charges against Taylor further, the logic being that even a few successful charges will be enough to secure a life sentence.

Though ad hoc tribunals may not have the funding to compete with the ICC, they have a better track record of actually gaining custody of those they lay charges against. Charles Taylor and Slobodan Milosevic, who died while in the custody of the ICTY, are only the most prominent examples. The ICC, by contrast, has only taken custody of four of the sixteen individuals who have been indicted (two others have died, and three appeared voluntarily).

Why such a poor track record? In part, it is because the ICC has aimed too high, laying charges against even current national leaders such as Sudan’s al-Bashir. The experience of ad hoc tribunals shows that it’s best to go after individuals only after they have fallen from power, and have little to offer to friends still in high places. It’s true that the SCSL indicted Taylor while he was still President of Liberia, but by that time (summer of 2003) he had lost control of much of the country, and would soon resign and be exiled. The ICC, by contrast, has gone after al-Bashir while he is still in full control of Sudan (notwithstanding the autonomous southern region).

The difficulty with attempting to charge those still in power, is that they are still in power, and so have the ability to influence other states. For this reason al-Bashir was recently able to visit neighbouring Chad, where he was welcomed by the government. Chad has ratified the Rome Statute which established the ICC, Article 59 of which requires member states to comply with ICC arrest warrants. However, Chad has justified its refusal to comply by referring to an African Union (AU) resolution urging African states to defy the ICC on the al-Bashir case – even though the AU had removed that clause from the resolution shortly prior to al-Bashir’s visit to Chad.

The tribulations of the trials at the SCSL and ICC demonstrate that international justice remains hugely dependent on politics. These bodies focus mostly on African conflicts which are of little interest to the international media, their budgets are dependent on Western donor countries, and arresting the accused requires cooperation from countries which are often ill-disposed towards the courts while the suspects are still in power. A permanent institution such as the ICC would seem to indicate that progress is being made towards a world in which international crimes are brought to justice. Yet in practice we seem no further along than when ex post facto victor’s justice was meted out in the Nuremburg trials after the Second World War. At the very least, the ICC and ad hoc tribunals should improve by learning from each other.

And if the odd supermodel pops up in the trials, who are we to complain?

INTERNATIONAL JUSTICE: SUDDENLY COMPELLING

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.

I. Defining Legal Pluralism

At its core, the concept of legal pluralism serves two purposes. The first purpose is to discredit the doctrine of legal centralism. Griffith’s seminal paper on legal pluralism defined the ideology of legal centralism as a claim that “law is and should be the law of the state, uniform for all persons, exclusive of all other law, and administered by a single set of state institutions”.[2] The state thus holds a monopoly over the administration of law, and is the sole source of legitimizing authority as to what constitutes “law”. Legal centralism follows a liberal conception where “state institutions operate according to strict principles of equality and neutrality”,[3] based on the assumption that state law is logically coherent.[4] According to legal pluralists, legal centralism is conceptually parasitic to the development of descriptive theories of the law, since it establishes an a priori notion of the desirable state of affairs.[5] As its second purpose, legal pluralism, by casting a shadow of skepticism on the deeply held centralist ideology, can then step in to offer an alternate paradigm that suggests the existence of several overlapping normative legal systems with exist in tandem with the state legal system. As Griffith famously wrote, “Legal pluralism is the fact. Legal centralism is a myth, an ideal, a claim, an illusion”.[6]

Legal pluralism generally describes a situation where two or more legal systems or legal orders coexist in the same social setting.[7] Legal systems include those beyond the state system, such as religious or customary legal systems.[8] Legal pluralism also recognizes that legal mechanisms can also be found in other social settings, such as villages, families or churches, where rules and conventions exist, inducing compliance.[9] This leads to a definition of legal pluralism as “the normative heterogeneity attendant upon the fact that social action always takes place in a context of multiple, overlapping ‘semi-autonomous social fields”.[10] This definition is not without its numerous criticisms and variations, as will be explored in more detail shortly. Nonetheless, by identifying the existence of ‘overlapping semi-autonomous social fields’, the definition breaks away from the legal centralism ideology, and opens up the possibility for other normative legal orders to stake a claim to authority.

II. Separating State Legal Pluralism and Deep Legal Pluralism

In attempting to more carefully craft out a meaningful definition of legal pluralism, some legal pluralism scholarship has found it useful to separate the notions of “state” legal pluralism and “deep” legal pluralism.[11] State legal pluralism is a direct product of colonialism, in which setting colonialist states attempted to accommodate customary law with the state system.[12] Under such a conception, the sovereign still commands authority through a unitary state legal system. Non-state laws exist insofar as they are ‘recognized’ by the state authority. Such a state system exhibits a level of internal plurality, as some of the laws contained within the overall system trace their origins to non-state legal normative orders, notwithstanding the fact that they are specifically state approved. State legal pluralism is not inconsistent with the notion of legal centralism. Rather, it represents “a particular arrangement in a system whose basic ideology is centralist”.[13] Such an arrangement is able to persist, due in part to the treatment of non-state law as imperfect, and thus in need of a centralizing authority’s supervision.[14]

The shortcomings of state legal pluralism are threefold. First, it is destructive to the aspirations of groups genuinely seeking to assert their own laws. Hinz frames this as the right to one’s own right – the right of individuals to be governed by that legal order they most closely associate with and thereby view as authoritative.[15] Second, and tied closely to the first point, is that state legal pluralism prejudices an individual’s standing before the law. An individual adhering to non-state laws will be perceived as adhering to imperfect, albeit acceptable, laws.[16] Third, as a pragmatic objection, state legal pluralism usually entails a high level of complexity.[17] While on one level, non-state laws are circumscribed to the extent that they will be recognized by the state, on another level, the very presence of multiple laws will necessitate that a choice of law rule be instituted. Such a rule may be necessary in instances where state and non-state laws apply to a given situation and the court must decide between the two.

Deep legal pluralism breaks free from the paradigm of state legal system, and posits that for any social group, two or more legal orders may coexist and not belong to a single unified system.[18] Deep legal pluralism is an attempt by legal scholars and anthropologists to chart the empirical reality of people’s state of affairs. It is sharply critical of the legal centralist dogma that social affairs, or even principles, are solely a function of state law. Rather, multiple and overlapping normative legal orders exert authority on social life. These multiple systems or orders are not unified under any single legal system. Rather multiple sets of laws may emanate from multiple sources.

Concluding Remarks

The present surge of interest in “legal pluralism” in the global legal domain calls for a deep exploration on what the term hope to bring into any particular discussion. Readers must be acutely aware that the term brings with it an eclectic of meanings and criticisms, and thus they would do themselves much justice by attempt to situation any particular discussion accordingly.

[2] John Griffiths, “What is Legal Pluralism?” (1986) 24 J. Legal Pluralism 1 at 3.

[3] T. W. Bennett, “Comparative Law and African Customary Law” in Mathias Reimann & Reinhard Zimmerman, eds., The Oxford Handbook of Comparative law (Oxford University Press: 2006) 641 at 666.

[4] Ibid.

[5] Griffiths, supra note 2 at 3.

[6] Ibid. at 4.

[7] S. E. Merry, “Legal Pluralism” (1988) L. & Society Rev. 869 at 870.

[8] Legal systems would also rise in such setting as to family, church, business, etc. See Griffiths, supra note 2.

[9] Bennett, supra note 3 at  667

[10] Griffiths, supra note 2.

[11] Merry, supra note 7. Also see Griffiths, supra note 1.

[12] Griffith refers to this as “weak” legal pluralism. It has since been referred to as “state” legal pluralism by Merry, Woodman and others. The term state legal pluralism seems more desirable given the potentially polemical connotations connected with “weak” legal pluralism.

[13] Griffiths, supra note 2 at 8.

[14] Ibid.

[15] Manfred O. Hinz, “Legal Pluralism in Jurisprudential Perspective” in Manfred O. Hinz, ed., The Shade of New Leaves – Governance in Traditional Authority: A South African Perspective (Berlin: Lit Verlag, 2006) 29 at 35.

[16] Woodman, however, he disagrees with the validity of this criticism. See Gordon R. Woodman, “Legal Pluralism and the Search for Justice” (1996) 40 J. African L. 152 at 160.

[17] Ibid. at 161.

[18] Griffith, supra note 2 at 8. Griffiths refers to this as “strong” legal pluralism.

Asylum applications for the last three months of 2009 were the lowest since the early 1990s. Net migration is down, and the new UK Border Agency is increasingly successful… We are making the UK a more hostile place for illegal immigrants by issuing foreign nationals with ID cards, checking those who apply for visas against watch lists and fining those who employ illegal workers.[2]

There is nothing inherently wrong with a dip in asylum applications occurring within the UK. In fact, the decreasing amount of refugees in the UK probably does correlate with a global downturn in the total number of refugees.[3] Yet, it is strange that this press statement focuses on this dip in correlation to the UK Border Agency’s (UKBA) attempt to create a more  “hostile” atmosphere for those seeking to migrate to the UK. The UKBA publishes accounts of its agents cracking down on illegal workers in urban restaurants right next to lists of useful information for asylum-seekers.

This conflation of refugee law with other forms of immigration law is indeed troubling, and might not be helped much by the fact that the two subjects are often taught in tandem in Western law faculties. The issue has also been given unfair and cursory treatment by the British press. It is often thought that Britain is ‘overrun’ with illegal immigrants.[4] While the UK may have an overall immigration problem, it is imperative to separate refugee and asylum law on the one hand, and immigration law on the other, in Britain.

Refugee law comes from a distinct body of international human rights law, stemming from the creation of the Universal Declaration of Human Rights in 1948 and the UN Convention on the Status of Refugees in 1951. Many other UN conventions, and regional treaties and conventions also bolster the rights of refugees.[5] Contrarily, immigration law and security matters are much more domestic in nature. While recent policy harmonization within a growing European Union has led to a more regional approach to immigration controls, the UKBA enjoys uninhibited control over the nation’s borders. The UK courts have said that the rights granted by the European Convention can be suspended, as this is sometimes “necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country.”[6] Again, this is not inherently a problem, so long as there is a realization by policymakers that they are dealing with two distinct bodies of law.

All three of the above issues highlighted in the Huang decision could be part of the reasoning behind the recent curtailment of refugee’s rights and the provision of services for them in the UK. Previous scholarship has shown that during times of economic decline in Great Britain, public attitudes towards refugees have become negative, and more governmental restrictions have been placed on the granting of refugee status.[7] As Prime Minister David Cameron has alluded to the fact that the UK is heading towards decades of economic austerity, what will be the fate of Britain’s long-held tradition of providing asylum to deserving candidates?[8]

According to a study of the opinions of the refugees themselves, the UK government and society have haphazardly conflated the situations of refugees with security threats.[9] This has created a feeling amongst refugees “that policy responses to terrorism, together with security measures and public attitudes, threaten to undermine Britain’s human rights culture and democratic rule of law.”[10]

Deborah Phillips has argued, “legislation has systematically curtailed the welfare and housing entitlements and choices of new arrivals through a series of increasingly stringent measures designed to deter and control the flow of asylum seekers to the UK and to manage their settlement upon arrival.”[11] This is particularly the case with the housing policies of the UK government. The policy of ‘dispersal’ has a variety of impacts on refugees in the UK, who are a particularly vulnerable segment of the population.

As a great proportion of Britain’s refugees come from predominantly Muslim nations, many of which are facing insurgencies tied to Islamic militants, it is of the utmost importance to deal with this issue in a sensitive manner. Refugees fleeing from these countries often leave because their human rights are being violated. The last thing they need is to be deterred from finding asylum in the UK for the very same reasons. This creates insecurity, not security!

While the media can play a valuable role in educating the public about the UK’s proud traditions of hosting asylum-seekers, it is evident that at least some government officials in the Home Office also require some tutelage on the matter, if the press statement above is of any indication. The British public and the UK government should be made more aware of the roots of refugee and asylum law in international law, and treat this body of law with the utmost care if they are to stay true to their ideals in trying political and economic times.

[The author completed the research for this article for an LLM seminar given by Professor Fatima Khan of the University of Cape Town Law Faculty. Special thanks also go to Shirin Taherzadeh.]

[2] February 2010 UKBA press statement, online: UKBA <http://ukba.homeoffice.gov.uk/sitecontent/newsarticles/2010/February/home-office-stats>.

[3] “Global refugees ‘at 26-year low’” BBC News Online (9 June 2006), online: BBC News <http://news.bbc.co.uk/2/hi/5061322.stm>.

[4] A full investigation of media trends is not possible due to the scope of this article. Yet stories on illegal immigration in the UK press are frequent, and tabloid publications dealing with the issue have stirred, or mirrored, the public’s concern, depending on one’s point of view. For example: James Slack, “Axing immigration staff ‘could see Dover overrun’” London Daily Mail (30 April 2010), online: Mail Online <http://www.dailymail.co.uk/news/article-1270183/Axing-immigration-staff-Dover-overrun.html?ito=feeds-newsxml>. Of course, media attention is also paid to the case of asylum-seekers, for example: Stuart Nicolson, “Asylum seekers ‘guilty until proven innocent’” BBC News Online (19 May 2010), online: BBC News <http://news.bbc.co.uk/2/hi/uk_news/scotland/8689955.stm>. Deborah Phillips comments on this issue, detailing how positive media can help ease integration of refugees into the population: Deborah Phillips, “Moving Towards Integration: The Housing of Asylum Seekers and Refugees in Britain” (2005) 21:4 Housing Studies 539 at 546 & 551. A report from the London Asylum Consortium echoes this call for media cooperation in educating the public about refugee and asylum issues: Michael Bell, Ian Ford & Duncan McDougall, A Warm Welcome? Public Services and Managing Migration in London: Scoping Research and Introductory Report (London: London Asylum Seeker’s Consortium, 2008) at 24. In sum, the approach of refugee advocates in the UK seems to be extremely media savvy. For an example, please visit: www.researchasylum.org.uk/.

[5] The European Convention on Human Rights of 1950 has in particular granted certain inalienable rights to those present on European soil.

[6] Huang and others v Secretary of State for the Home Department [2005] 3 All ER 435 at para 18.

[7] Liza Schuster, The Use and Abuse of Political Asylum in Britain and Germany (London: Frank Cass Publishers, 2003) at 82.

[8] Ibid. Schuster writes about Britain’s proud tradition of hosting asylum-seekers in her work.

[9]Anja Rudigar, Prisoners of Terrorism? The impact of anti-terrorism measures on refugees and asylum seekers in Britain (London: Refugee Council, 2007), online: Refugee Council <http://www.refugeecouncil.org.uk/policy/position/2007/prisoners_terrorism>.

[10] Ibid at 16.

[11] Phillips, supra note 4 at 540.

Nils Melzer, conseiller juridique au Comité international de la Croix-Rouge et auteur du livre Targeted Killing in International Law, définit un assassinat ciblé comme l’utilisation d’une force létale par un sujet de droit international et dirigée à l’encontre d’une personne individuellement sélectionnée n’étant pas détenue.  Cette force doit être intentionnelle (plutôt que négligente ou insouciante), préméditée (plutôt que simplement volontaire) et délibérée (dans le sens que la mort de la personne ciblée est le but ultime de l’opération, à l’opposé du cas où la mort bien qu’intentionnelle et préméditée demeure le résultat accidentel d’une opération poursuivant un tout autre but)[1]. Ces attaques posent d’épineux problèmes lorsque considérées en vertu du droit humanitaire international et du droit international des droits humains. La communauté juridique internationale est d’ailleurs divisée sur la question de la légalité de telles tactiques anti-terroristes et ne s’accorde pas sur les éléments déterminants et sur l’application d’un régime en particulier[2]. Des questions telles que la présence d’un conflit armé entraînant l’application du droit international humanitaire, la définition de ce qui constitue la participation directe par un civil aux hostilités, les implications de la souveraineté d’un État sur son territoire lorsque des attaques y sont commises et finalement l’applicabilité des paradigmes militaires et de mise en application de la loi doivent donc éventuellement être prises en compte afin de déterminer la légalité d’un assassinat ciblé en droit international.

Les assassinats ciblés entraînent possiblement une violation du droit à la vie, mentionné au sein de plusieurs traités sur les droits de l’homme et de déclarations universelles[3]. L’article 6(1) du Pacte international relatif aux droits civils et politiques prévoit notamment que tout être humain a un droit inhérent à la vie et que ce droit doit être protégé par la loi. Il est d’ailleurs reconnu dans le droit international relatif aux droits humains que l’on ne peut déroger à ce principe. L’utilisation d’une force mortelle à l’encontre d’un terroriste sans avoir préalablement rencontré les conditions du paradigme de mise en application de la loi (un traitement équitable, imminence et nécessité absolue) formerait donc fort probablement une atteinte arbitraire au droit à la vie[4]. Toutefois, selon le droit humanitaire international, les combattants participant directement à un conflit armé peuvent être tués sans qu’un État impliqué dans le conflit n’ait à respecter l’obligation de traitement équitable et autres obligations judiciaires. La Cour internationale de justice s’étant récemment penchée sur ce problème, a statué dans son Avis consultatif sur les armes nucléaires que le droit d’être protégé d’une atteinte arbitraire au droit à la vie ne cesse pas en temps de guerre. La Cour a cependant affirmé que le test permettant de définir ce en quoi consiste une atteinte arbitraire au droit à la vie est déterminé par la lex specialis applicable. Dans le cas d’un conflit armé, la lex specialis serait le droit humanitaire international et l’assassinat ciblé de participants à un conflit armé sans qu’il n’y ait eu tenue d’un procès pourrait donc être considéré légal si le droit et les principes gouvernant la conduite des hostilités sont respectés[5].

Les auteurs s’accordent pour reconnaître que le débat sur la légalité des assassinats ciblés doit être approché au moyen de deux paradigmes : mise en application de la loi et action militaire (auquel on réfère parfois comme le paradigme des hostilités)[6]. Le paradigme de mise en application de la loi est basé sur une perception des actions anti-terroristes comme ne faisant pas partie d’un conflit armé. Ces frappes calculées s’apparenteraient plutôt à de la répression criminelle[7]. Selon ce point de vue, les assassinats ciblés doivent donc avoir une base légale dans le droit domestique ainsi que le droit international des droits de l’homme. De plus, Nils Melzer, dans son livre, tente d’établir une liste de critères devant servir à la détermination de la légalité des assassinats ciblés vus sous l’angle de ce paradigme : les assassinats doivent être préventifs plutôt que punitifs, la protection de la vie humaine dans le cas d’une attaque éventuelle par la cible doit être l’unique objectif de l’opération, l’attaque doit être absolument nécessaire en termes qualitatif, quantitatif et temporel afin d’atteindre cet objectif et doit être le résultat indésirable d’une opération planifiée et conduite dans le but constant d’éviter l’utilisation d’une force mortelle[8]. Cet auteur avance donc que l’atteinte intentionnelle, délibérée et préméditée au droit à la vie en laquelle consiste presque toujours un assassinat ciblé serait illégale en vertu du paradigme de mise en application de la loi. De plus, selon l’article 2(4) de la Charte des Nations Unies, tout État a l’obligation de respecter la souveraineté territoriale d’un autre État et un assassinat ciblé commis sur le territoire d’un autre État pourrait être interprété comme une attaque contre cet État si ce dernier n’avait pas préalablement donné son consentement[9].

Si les assassinats ciblés semblent à prime abord paraître illégaux, une autre école de pensée s’en tient au paradigme militaire afin de proposer l’idée inverse. Elle perçoit les actions anti-terroristes plutôt comme des actions militaires faisant partie d’une lutte constante contre le terrorisme au sein d’un conflit armé et les assassinats ciblés seraient alors nécessaires à la prévention d’attaques futures[10]. Son analyse est dominée par le droit humanitaire international puisqu’un conflit d’une violence atteignant le niveau requis pour être qualifié de conflit armé entraîne son application. Cela étant vrai indépendamment du fait que le conflit soit de nature internationale ou pas[11]. Sous ce paradigme, le droit à l’auto-défense prévu à l’article 51 de la Charte des Nations Unies est bien souvent utilisé afin de justifier ces frappes ciblées. Toutefois, le principe fondamental de distinction, codifié et reconnu en droit humanitaire international, requière que les civils soient protégés à moins qu’ils ne participent aux hostilités et jusqu’à ce qu’ils arrêtent d’y participer[12]. Vu sous l’angle de ce paradigme, l’assassinat d’un civil prenant part au conflit serait donc légal. Cependant, la difficulté vient du fait que la participation directe aux hostilités n’ait pas encore été définie clairement au sein du droit international. Je ne peux me résoudre à accepter que toute action jugée être pour le bénéfice d’une cause terroriste puisse entraîner la permission d’assassiner légalement un individu partout dans le monde. Cela serait dévastateur pour la situation des droits de l’homme sur notre planète et cela même à une époque où les techniques et technologies de guerre ne cessent d’évoluer et d’être perfectionnées rendant de telles frappes beaucoup plus faciles qu’autrefois. Le principe du traitement équitable est un principe fondamental des droits de l’homme et je crois que cela serait s’aventurer sur une pente dangereusement glissante que d’assimiler la lutte contre le terrorisme à un conflit armé dans le seul but de faire disparaître certains individus.

Selon le paradigme militaire, les assassinats ciblés, pour être légaux, devraient tout de même être en accord avec les principes reconnus du droit humanitaire international, dont fait partie le principe de la nécessité militaire. Melzer se base donc sur ce principe pour avancer que bien que le droit humanitaire international permette les attaques sur des civils participant aux hostilités, il ne permet pas les assassinats gratuits et superflus même au  moment des hostilités[13].  Il est donc difficile de croire que l’assassinat d’une personne simplement soupçonnée (n’ayant pas fait l’objet d’une reconnaissance de culpabilité par un jugement) de terrorisme et pouvant possiblement être entourée de ses proches au moment de l’attaque puisse se conformer au principe de nécessité militaire. Toutefois, ce point de vue connaît bien des détracteurs, qui proposent que le droit devrait prendre un tournant différent puisqu’une norme internationale permettant les assassinats ciblés semblerait être en voie d’émerger en vue des récents événements et de l’utilisation massive de cette tactique par les États-Unis et les Forces de défense israélienne. Selon ces derniers, la communauté internationale devrait être appelée à définir précisément les limites d’une utilisation légale des assassinats ciblés[14]. J’avance plutôt que l’on devrait militer fortement en leur défaveur et contre l’utilisation de telles tactiques plutôt que de simplement les accepter comme une pratique établie. Cela serait tomber dans un raisonnement simpliste et irait à l’encontre de la protection que l’on a accordée au droit à la vie et au principe du traitement équitable après de nombreuses années de lutte pour la reconnaissance des droits de l’homme.

[2] W. J. Fisher, “Targeted Killing, Norms, and International Law”, 45 Columbia Journal of Transnational Law (2006-2007) 711 à la page 717.

[3] International Humanitarian Law Research Initiative, Program on Humanitarian Policy and Conflict Research, Harvard University, “IHL PRIMER SERIES Issue #3 Targeted Killings”, Mai 2008, en ligne http://ihl.ihlresearch.org/index.cfm?fuseaction=page.viewpage&pageid=1646, 27/05/10, à la page 1.

[4] Ibid. à la page 2.

[5] Ibid. à la page 1; supra note 2, à la page 720.

[6] Supra note 1 à la page 426; supra note 3 à la page 2.

[7] Supra note 3 à la page 2.

[8] Supra note 1 à la page 423.

[9] Supra note 3 à la page 2.

[10] Ibid. à la page 2.

[11] Article 2 Convention de Genève de 1949 et article 1 Protocole additionnel II; supra note 2 aux pages 722 et 727.

[12] Article 51(3) Protocole additionnel I

[13] Supra note 1 à la page 283.

[14] Supra note 2 à la page 717.

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.

South Africa signed and ratified the Convention on the Rights of Persons with Disabilities and its optional protocol in 2007. Furthermore, the South African Constitution specifically enshrines equality for persons with disabilities under Article 9(3). Yet, it is not clear how the current bill will take this nation closer to full implementation of the Constitution and the Convention. While the Deputy Minister of Foreign Affairs commented upon the coming into force of the Convention in 2008, that South Africa “has committed itself to removing all barriers faced by persons with disabilities,” this bill is easily assailable for not living up to this statement.

On its face, it is not evident that the new bill will meet its own objectives. Its stated aims are to more sharply define what a disability is, and speed up the appeals process. A parliamentary watch-dog group also noted that ministers were concerned with reducing the amount of persons who could receive government social assistance grants and wanted to combat fraud. The new bill defines a disabled applicant as a person with “a moderate to severe limitation to his or her ability to function as a result of a physical, sensory, communication, intellectual or mental disability rendering him or her unable to — (a) obtain the means needed to enable him or her to provide for his or her own maintenance; or (b) be gainfully employed.” Besides the fact that this bill uses the word disability to define disability, the definition still conveys a medical model approach as it only looks as to what the person lacks (means of self-maintenance or ability to be employed), and not how the person can be connected to society. The government has established that the largest problems in South African society for disabled persons are the threats posed by social exclusion, yet the bill does not address this fact. Also, the bill is adding another layer of appeal, and as it does not sharply define disability it does not seemed poised to dramatically lessen the amount of appeals. So how can South Africa take pragmatic steps towards achieving the goals laid out in this bill?

Professor Meryl du Plessis of the University of Cape Town, Faculty of Law, says that the government could start by beginning to look at disability as a “status” rather than viewing the definition through a needs-based lens.[1] While most South Africans are used to the acronym BEE (black economic empowerment), no similar widespread dedicated program or philosophy seems in place to empower disabled South Africans. As the UN Convention calls for “measures which are necessary to accelerate or achieve de facto equality of persons with disabilities,” the government could start from there.[2] For instance, it has been noted that the government has a very poor record of hiring persons with disabilities in the public sector. It could also move towards implementing the 2001 White Paper on Special Needs Education, which until now seems to be collecting dust. The government can curb the amount of disability social assistance grant-seekers in the future if it begins to educate and integrate them now. It is telling that the training of persons with disabilities called for in the Skills Development Act of 1998 fell significantly short of its target.

It is also telling that the whole of the debate around this bill focuses on diminishing the amount of persons on social grants (i.e. saving money), and not on progressing towards a social model of disability rights. It is indeed very hard in a country like South Africa to roll out the types of services such a model requires, as the country is overrun with refugees, faces poverty and unemployment, and its energy grid is plagued by a host of problems. However, the legislative framework is in place here to tackle the disability problem. Strong court challenges could prompt the government to get more serious about meeting its own targets and objectives. What is needed here is strong leadership. After all, South Africa is a country with functioning social institutions, nationwide schooling systems, a strong and independent media and reliable communications systems. It could tackle this issue by spending a fraction of the money it has invested in hosting the FIFA World Cup.

If the bill passes as is, it will not provide the clarity that campaigners are seeking. It is not evident how it will reduce the number of persons seeking or receiving grants because the definition is not clear. It also does not move South Africa towards a more progressive form of social inclusion in its approach to disability law. Disabled South Africans have equality on paper, but programs to educate and integrate them have fallen short of the mark. It is perhaps time that the government think of creating dedicated legislation to protect the rights of an estimated 6% of their population. By doing so they will create legislative cohesion and can more efficiently strive to reach the goals set by the Constitution and the Convention.

[Legal Frontiers Comment: Legal Frontiers thanks the Rathlyn Foundation for its support of blogs relating to Disability & the Law]

[2] Convention on the Rights of Persons with Disabilities, 30 March 2007, UNGA A/RES/61/106, Article 5(4).

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.

It is widely speculated that Bill 94 – proposed legislation that would bar the niqab from being worn in government offices, hospitals, and schools in Quebec – will face fierce legal challenges despite the overwhelming public support it receives in Quebec and the rest of Canada. There are three principle avenues by which one might pursue a legal challenge to this legislation.

The first is to sue the government in Quebec Superior Court, invoking the Canadian Charter of Rights and Freedoms. The Canadian Charter stipulates that everyone is fundamentally entitled to freedom of conscience and religion, subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society (as determined using the two steps outlined in the Oakes Test).

The second avenue is to bring a complaint to the Quebec Human Rights Commission alleging discrimination on the basis of the Quebec Charter of Human Rights and Freedoms. The Quebec Charter stipulates that every person is fundamentally entitled to freedom of religion (which includes the right to manifest it, according to the Bouchard-Taylor Commission), subject to proper regard for democratic values, public order and the general well-being of the citizens of Quebec, and that every person shall exercise his rights without distinction based on sex or religion.

In both of these concurrent scenarios the case would likely reach the Supreme Court of Canada, which may find the law to be constitutionally invalid and strike it down. If it does, the Quebec legislature will have the option to re-enact the law notwithstanding the relevant charter provisions, though this would be an extremely politically-risky move.

The third avenue is to bring a complaint before the UN Human Rights Committee alleging a breach of the International Covenant on Civil and Political Rights, as an Ontario man did in 1999 to challenge constitutionally-sanctioned religious discrimination in school funding. The ICCPR stipulates that everyone shall have the right to freedom of thought, conscience, and religion including the right to manifest his belief, and that he shall not be subject to coercion that would impair his ability to have or adopt a belief of his choice, subject only to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. A favourable ruling from the Human Rights Committee, while imposing a binding treaty obligation on Canada, would not be directly enforceable in domestic courts – though it too would generate strong political pressure.

Numerous arguments have been advanced in defense of Bill 94, of which I have encountered the following:

1. The niqab precludes social integration and cohesion;
2. The niqab promotes gender inequality;
3. The niqab is not in fact required by Islam, most Muslims do not wear it, and many Islamic theologians oppose its use;
4. The niqab is an archaic symbol of oppression that undermines the values of Quebec society;
5. The niqab could be used as a cover for criminal or terrorist activity;
6. The niqab poses a public security threat in situations where policy calls for one’s identity to be ascertained;
7. Immigrants should adopt the values of the society they move to;
8. We should not accommodate the practices of people from countries that do not accommodate ours.

That Quebec has a marked history of religious intolerance, and that many of these arguments may appear to be founded in anti-Muslim sentiment rather than in relevant law or public policy, provides a second, independent reason to be wary of attempts to ban the niqab. One should not ignore that this proposed legislation singles out Muslims and that it emerged within a social context noted for anti-Muslim sentiment, which in itself evokes memories of uglier periods in our history. Paul Waters, writing for the Montreal Gazette, likens the anti-niqab “bullying of outsiders to protect Quebec values” to the Duplessis-era persecution of Jehovah’s Witnesses.[1] In attempting to distinguish between legitimate opposition to the niqab and mere “bullying tactics”, I’ve identified six of the eight arguments above which I think should have absolutely no bearing on the discussion.

Argument #3 is irrelevant because the Supreme Court in Amselem affirmed that a religious practice is one that is sincerely, subjectively felt to be connected to the observance of one’s religion, regardless of whether or not the practice is universal, normative, or required by a religious authority.[2] It is not for the Canadian public, or the courts, or any given Islamic scholar to determine whether Muslim women are religiously-mandated to wear the niqab; it is for each Muslim woman to decide the extent of her obligation within the parameters of her faith.

Argument #4 is also irrelevant, because unless a religious practice infringes on someone else’s rights or freedoms the courts have no authority to pass judgment on it. Many Quebecers may subjectively perceive the niqab to be archaic and a symbol of oppression, but the same might be said of any religious practice. And regardless of what it symbolizes, as with all other religious practices, absent evidence of coercion we must presume that a woman who wears the niqab does so in free exercise of her personal autonomy.

Arguments #5 and #6 are merely diversionary. It is misleading to assert that security considerations form the basis of this legislation, and disingenuous to portray tolerance of the niqab and maintenance of habitual security practices as mutually exclusive. Accommodation will only exist to the extent that it is reasonable, as defined by the Supreme Court; it is clear, even absent specific legislation, that niqabis will have to show their faces for the purposes of obtaining ID cards, passing through security checks, etc., and there are no reported cases in Canada of niqabis refusing to do so. Nor are there documented cases of criminals disguising themselves in niqabs to avoid detection (which would hardly be inconspicuous). There is no indication that the bill is designed to, or that it would, improve Quebecers’ security.

Argument #7 is contrary to everything that is Canadian. The official policy of multiculturalism, adopted by the federal government close to 40 years ago, affirms that Canadians of all ethnic and national origins can simultaneously retain diverse cultural values and participate fully in Canadian society. Even declaring Quebec to be a “secular society” does nothing to change the entrenched legal norms of religious freedom.

Argument #8 is similarly un-Canadian; the Canadian Charter specifically prohibits allocating differential rights on the basis of national origin. Our judiciary does not punish individuals simply because we don’t like the laws of the countries they were born in.

If the government is called on to defend Bill 94 before a court or tribunal, I believe it will have to show either that the legislation is justified by the pressing policy objective of promoting social cohesion (argument #1) or that it is required to protect women’s equality rights, which are so important that they should be allowed to displace some religious freedoms (argument #2).

I believe that the second argument is likely to fail. For it to succeed would be to abruptly alter the understanding of religious freedom that has developed in Canada over the course of decades. Yes, for women to systematically don particular garb that men do not inherently suggests some element of gender inequality. But if the niqab violates the principle of gender equality, why wouldn’t the garb worn by religious Catholic and Jewish women? Why wouldn’t tube tops and miniskirts, for that matter? Despite the (ironically secular) Muslim Canadian Congress’ position that the practice of wearing the niqab marginalizes women,[3] I think the right to wear religious garb must be protected in any society that values freedom of religion. Some argue that the niqab inherently oppresses women because no reasonable person would freely choose to wear it, but we should be extremely wary about such a descent into paternalism when the stakes are as high of depriving people of fundamental freedoms. I don’t think wearing any sexually-differentiated religious attire, no matter how alien or uncomfortable, should give rise to an automatic presumption of male oppression; such a determination should only be made on a case-by-case basis. Moreover, it may be difficult to make the case that a law which singles out Muslim women in its application advances the cause of equality.

The first argument, in my opinion, has a slightly higher chance of success. According to the Oakes Test, the government would first have to show that it is acting to advance a particular pressing and substantial policy objective. I think that promoting social cohesion and integration would qualify as such an objective.

The government would then have to show that the means by which it is advancing this objective are proportional to their goal. This consists of three elements:

The government would have to show that the means are rationally connected to the objective. I believe it could meet this requirement. The full, physical separation the niqab entails promotes a reasonable apprehension among many Muslims and non-Muslims alike that wearing it precludes women from integrating into society, and that it acts as a barrier to communication which inhibits normal interaction. Many people feel intimidated or uncomfortable at the sight of the niqab, more so than other forms of religious garb, because of a fear of the unknown. Not being able to see one’s interlocutor in face-to-face encounters can be highly disconcerting, and Grey describes the niqab as “ghetto walls that a person wears” that make social participation impossible.[4] Conversely, a possible counterargument might be that it is anti-Muslim sentiment and not the niqab that is the greater threat to social cohesion, and passing a law rooted (or perceived to be rooted) in such sentiment would only push this objective further away. History has shown generally that it is the expansion, rather than the curtailment, of religious freedoms which most effectively promotes social integration. Another possible counterargument might be that the government has no authority to demand that citizens behave “sociably”.

The government would then have to show that Bill 94 infringes religious rights to the minimum extent necessary to advance its objective. This will be somewhat more difficult. If the government succeeds, in the previous step, in establishing that the niqab inherently inhibits social cohesion, than it would be reasonable to argue that banning the niqab from some public forums constitutes minimal impairment. However, it might be argued that banning the niqab from hospitals and schools goes further than necessary, and that since everyone requires access to healthcare and education (perhaps more so than other government-funded services), less coercive measures could be found to discourage the practice of wearing it. Denying medical treatment to those who would refuse to remove something essential to their religious identity seems to me extremely heavy-handed.

Lastly, the government would have to show that there is proportionality between the infringement of religious freedom and the objective being pursued. This is where I think the government’s case would most likely fall. Does the benefit of having a society which might be slightly more cohesive due to a reduced usage of the niqab outweigh the harm that would be inflicted on the small number of Muslim women who would otherwise wear it? I would argue that it does not. Any benefit that might result would be intangible and difficult to demonstrate, while the harm would be much more plainly evident. Aside from the curtailment of fundamental individual freedoms, it would send a distinct message of intolerance to and about Quebec society that could further erode constitutional protections.

Is Bill 94 targeted at the niqab, or at niqabis? Does it send the message that nobody in Quebec has the right to wear this particular religious garment? Or does it send the message that certain religious Muslim women in Quebec do not have the right to government services, healthcare, and education (which itself promotes religious and gender inequality)? Because religious freedom is so heavily entrenched in Canada, it seems to me that the two are heavily intertwined and the resulting message is ambiguous. Unless the Quebec government can disentangle the messages, and show that has an insurmountable problem with the niqab but not with those Muslim women who would wear it (and I don’t think it will be easy to show why a neutral piece of cloth is so much more repugnant to public order than, for example, the black hats worn by Hassidic Jews or the habits worn by Catholic nuns), I think its attempts to ban the niqab will fail.

Moreover, one of the driving forces behind Bill 94 is the desire to show that Quebec society is not like Iranian or Saudi societies, where women are forced to dress in certain ways. While those societies are oppressive, ours is open and protects individual rights, or so the argument goes. But I fail to see why a government that bars a particular form of dress is inherently any less oppressive than one which demands it. I think that for a government to ban certain forms of religious dress it should have to satisfy an extraordinarily high burden of proof to establish why such dress is harmful to society.

In sum, as things are now I don’t think that Bill 94 will be able to withstand legal scrutiny. While I do share some of the concerns many have expressed regarding the niqab’s potential to inhibit social cohesion, I am not entirely sure that it is categorically different from many other forms of religious practice in that regard. I tend to be less worried about the direct effects of Bill 94 than I am about the underlying societal realities it reflects. If Bill 94 is defeated, I have little doubt that the government will pursue other, less coercive, mechanisms for discouraging the wearing of the niqab and promoting a more secular, egalitarian form of Quebec identity.

To conclude, and to bring some international perspective to this analysis, it is worthwhile to consider the effects of similar laws enacted elsewhere. Turkey and Tunisia both ban the niqab from public institutions. Belgium and the Netherlands are considering similar proposals. France too has gone much further than Quebec in trying to eliminate religion from public life, banning all religious symbols from public schools and institutions. Such measures are based in what Grey calls “dogmatic secular radicalism”, and considerable jurisprudence shows the extent to which French constitutional values differ from Canadian ones. Nevertheless, despite much international criticism from human rights bodies, France’s secularism law has not been successfully challenged either under the ICCPR or the European Convention on Human Rights. One possible distinction between the French law and Bill 94, despite their similar purposes and ostensible neutrality, is that while the former primarily affected Muslim women, its effects were felt by every religious community in the same way; in contrast, the effects of the latter will be borne exclusively by Muslim women. As Canada’s Supreme Court noted in a landmark religious freedom case,[5] a law’s effects as well as its purpose can serve as the basis for a constitutional challenge.

[2] Syndicat Northcrest v. Amselem [2004] 2 S.C.R. 551 (Amselem) at para. 46. http://www.canlii.org/en/ca/scc/doc/2004/2004scc47/2004scc47.html

[3] http://www.thestar.com/living/religion/article/715872—people-think-you-re-oppressed-if-you-wear-the-niqab

[4] http://www.vancouversun.com/life/Most+Canadians+agree+with+bill+banning+burka+Poll/2727130/story.html

[5] R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295.

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.