The result has been devastating to say the least. David Aronson’s op-ed in the NY Times last summer details some of the unforeseen damage on the mining industry in the eastern part of the country:

The law has brought about a de facto embargo on the minerals mined in the region, including tin, tungsten and the tantalum that is essential for making cellphones. The smelting companies that used to buy from eastern Congo have stopped. No one wants to be tarred with financing African warlords — especially the glamorous high-tech firms like Apple and Intel that are often the ultimate buyers of these minerals. It’s easier to sidestep Congo than to sort out the complexities of Congolese politics — especially when minerals are readily available from other, safer countries.

While a recent UN report acknowledges some successes of the legislation, it notes that the falling production due to the law has led to “”rising unemployment and worsened poverty among the tens of thousands of people who depend on artisanal mining, with a consequent sharply negative impact for the economies of the affected regions as a whole.” (para. 368)

Indeed, Prof. Laura Seays of Morehouse College, in her recent paper on the effects of the bill, notes that

Local civil society activists engaged in the mining sector estimate that 1-2 million Congolese artisanal miners and those who work in other aspects of the mining sector are currently out of work.  Multiplied by the 5-6 direct dependents that each miner has, section 1502 has inadvertently and directly negatively affected up to 5-12 million Congolese civilians. Many miners cannot feed their children, their children are not in school this year because they cannot pay tuition fees, and those who are ill cannot afford medical treatment.

Eric Kajemba, director of Observatoire Gouvernance et Paix (OGP), a local NGO based out of Bukavu, DRC, believes that while good-intentioned, the law did not take consideration of on-the-ground dynamics. He notes some of the problems of implementation in an interview with Jason Stearns last summer:

No. The motivation behind the law is very good – to impose transparency. But the implementation has been the problem. We are not in a country with a functioning government, you cannot just assume that certification and due diligence can spring up overnight. Plus, there were efforts under way already by other actors to impose transparency; ironically, the Dodd-Frank law slowed these efforts down, as they were financed by the minerals trade.

No, I agree with the law, but it should have been implemented in stages, over two or three years. It was too strict, too abrupt: no tagging, no sale! But there were initiatives like that of the German Federal Institute for Geosciences (BGR) and the International Tin Research Institute (ITRI) – and other initiatives at the local level that may actually have been undermined in the short term by the law.

With the ability to make laws that have such an immense impact on the lives of ordinary Congolese citizens, this issue perhaps highlights the disproportionate power lawmakers in the US wield over people to whom they hold no loyalty, and the deadly costs that individual misjudgement on their part can have on communities thousands of miles across the ocean.

Given the overly simplistic manner in which the issue was framed (“the purpose of this bill is to cut off funding to people who kill people”) in order to garner support amongst the public and Congress it is perhaps not surprising that the provisions turned out so unfit – the requisite measure of meticulousness and caution was simply not applied. a bill with such far-reaching implications deserved a far more comprehensive analysis than was actually committed , including input from all actors involved, particularly representatives for the local communities in the Eastern Congo who were going to feel the brunt of its effects. Indeed, the OGP and the BEST have sent a letter to the SEC recommending just this, in addition to several other prudent measures before the provision properly comes into force.

It remains to be seen whether these efforts will have any substantive effect on the implementation of Section 1502.

On November 30, the Montreal resident was finally removed from the United Nations Security Council 1267 List. The blacklist imposes an asset freeze, travel ban and arms embargo on alleged associates of Al Qaida and the Taliban.

But despite his new freedom, Abdelrazik’s fight is far from over.

Still outstanding are a $27-million lawsuit against the Canadian government, a constitutional challenge to the legislation implementing the 1267 list sanctions, and an apology from the Canadian government for its role in Abdelrazik’s almost decade-long saga that could have been written by Kafka.

Arriving in Canada as a refugee, Abdelrazik was given Canadian citizenship in 1995. He returned to Sudan, where he is a dual citizen, to visit his sick mother in 2003. There he was arrested, imprisoned, interrogated, and tortured. He was never charged with any crime and was eventually cleared by both the Sudanese government and Canada’s RCMP and CSIS of any criminal wrongdoing.

However the Canadian government refused to issue Abdelrazik a passport to return to Canada, using the 1267 List as an excuse. Abdelrazik’s name had been added to the list in 2006 at the request of the United States.

Abdelrazik spent the next 14 months sleeping on a cot in the Canadian embassy. Finally in 2009, Federal Court of Canada judge Russel Zinn ordered the Canadian government repatriate him immediately.  Zinn found Abdelrazik’s rights had been violated and that CSIS was complicit in his detention by Sudanese officials.

The government reluctantly obeyed, but imposed the asset freeze sanctions on Abdelrazik when he got back to Canada. Under the regime, he was unable to travel or apply for a job and simple tasks such as withdrawing money from the bank were laborious.

After CSIS and the RCMP cleared him of allegations of terrorism in 2007, the Canadian government applied to the UN to have Abdelrazik removed from the list but the request was denied.

When Abdelrazik applied again last January, the Canadian government refused to support him. However, the list’s new ombudsperson recommended he be delisted, which then received the necessary unanimous approval from the Security Council, the same group that adds people to the list in the first place.

The 1267 List has been widely criticized for its lack of transparency and oversight. Council of Europe Commissioner for Human Rights Thomas Hammarberg said, “Blacklisting’ is indeed a striking illustration of how human rights principles have been ignored in the fight against terrorism.”

There have been some improvements to the original regime including the right to appeal and the introduction of an ombudsperson.  The list however remains a secret list based on secret evidence.

In his judgment ordering Abdelrazik’s repatriation, Justice Zinn provided the following stinging criticism:

“I add my name to those who view the 1267 Committee regime as a denial of basic legal remedies and as untenable under the principles of international human rights. There is nothing in the listing or de-listing procedure that recognizes the principles of natural justice or that provides for basic procedural fairnesss …. It can hardly be said that the 1267 Committee process meets the requirement of independence and impartiality when, as appears may be the case involving Mr. Abdelrazik, the nation requesting the listing is one of the members of the body that decides whether to list or, equally as important, to de-list a person.  The accuser is also the judge.”

Abdelrazik’s lawyer, Paul Champ, compares the list to McCarthyism and notes there are many innocent people still on the list who haven’t benefited from Abdelrazik’s support network. He urged the international community to push for an abolishment of the blacklist.

At the same time, Abdelrazik is still waiting for his justice from the Canadian government.

“You abandoned me for seven years – and you caused me all this suffering,” he said after learning he was removed from the 1267 list.

“Now I am a free person. Not because of your support, but because of the support of Canadians,” he said, acknowledging the outpouring of support from people who have risked imprisonment to provide him financial assistance and who have lobbied and supported his struggle for justice.

The shameful actions of the Canadian government must be acknowledged by giving Abdelrazik at least the very basic things he is asking for and deserves: an apology, compensation, and the abolishment of the unjust regime that has caused him unthinkable suffering.

“A recent testimony of Ms. Mariela Contreras is at the root of the present affair. Ms. Contreras declared before the Colombian justice system in 2002, and before the Inter- American Court on Human Rights (IACHR), in 2005, that she had lost her husband and two sons in the massacre perpetrated by paramilitaries in July 1997 in the village of Mapiripán, with the complicity of regular military forces. On October 25th, 2011, she testified at Court that she had in fact lied and fraudulently benefited from the monetary compensation paid by the Colombian State as a result of the historical ruling in this case.”[i]

LWBC has not been personally involved in the case, so critics were not aimed at the organization in particular. LWBC is however closely linked to the Colectivo de abogados « José Alvéar Restrepo » (CAJAR), with whom they are partners in several projects. CAJAR is a Colombian human rights law firm, and they were representing some victims in the Mapiripan case in front of the IACHR, Ms. Mariela Contreras being one of those alleged victims. LWBC has thus expressed solidarity to their partners, especially considering the apparent unfairness of the critics.

It is very important to mention that there is no doubt about the actual events of the “Mapiripan Massacre” and the involvement of the Colombian government.[ii]

Some Colombian officials are criticising CAJAR for having represented the false victim. Now this raises the question, does a lawyer have to be 100% sure of the version of his/her client when representing them? Can he/she ever actually be sure? What means could possibly be reasonably expected from a lawyer to confirm the facts?

On the bases of these critics, Colombian officials are asking for punitive sanctions to be imposed on CAJAR.

This is interesting, considering that even before CAJAR started representing Ms. Mariela Contreras (2003), the Office of the Attorney General for Columbia had already recognised her as a victim of the massacre. One could think the Office has a much heavier responsibility – and the according means – to verify facts than the victims’ lawyer. One would not necessarily think lawyers hire investigators to verify every mandate they are given.

What should be inferred from this insistence on punishing the human rights lawyers by members of the Colombian government? It can hardly be seen as protecting human rights lawyers and allowing them to do their work.

The other problematic aspect is the damage it could do to the IACHR ant the Inter-American Commission for Human Rights’ images. After all, they are the organisms bearing the burden on deciding on the facts and ordering compensations. The task of determining precisely who the victims are should not be underestimated, and the credibility of the institutions must be preserved.

The IACHR has called the parties to a special audience in San Jose to try to establish responsibilities on the 23^rd of November. The Colombian government started presenting evidence relating to the false testimonies, intending to prove it has paid compensation to false victims. The audience is closed to the public. [iii]

It will be interesting to follow the IACHR’s decision on the matter.

[ii] Center for Justice and International Law, Statement on the Mapiripan vs. Columbia Case, 1 November 2011. Electronic resource : http://cejil.org/en/comunicados/center-justice-and-international-law-issues-statement-mapiripan-v-colombia-case

[iii] Elespectador.com, Mapiripan, al Banquillo, 22 November 2011. Electronic Resource: http://www.elespectador.com/impreso/judicial/articulo-312796-mapiripan-al-banquillo

I was in Israel taking part in a program on law and internal diversity, a partnership of McGill and the Hebrew University of Jerusalem, so thankfully I was able to explore Israel’s refugee policies in greater detail in a course on migration and diversity. For conceptual clarity, an asylum seekers is a person who is making a claim under the Refugee Convention and and a refugee is one whose claim has been accepted by the receiving country. It is notoriously difficult to collect statistics on migration flows, which are extremely fluid, but the number of asylum-seekers may range from around17,000 to over 30,000, mostly from the African countries mentioned above.¹ The number of refugees recognized under the Convention by Israel since ratification in 1954? One-hundred and seventy (170). The bulk of these asylum seekers began to arrive in 2005 and although many have since left the country, there are still thousands who remain with precarious status in Israel.

These asylum seekers arrive in Israel by way of a treacherous journey through the Sinai desert and across the Egyptian border, but this is hardly the last barrier they face. Some are immediately sent back to Egypt (so-called “hot returns”), in violation of the peremptory norm of non-refoulement which intends to prevent refugees from being returned to the site of their persecution. This is particularly egregious as the abuse of these migrants by Egyptian authorities is well documented; last spring a principled company of Israeli Defence Forces (IDF) soldiers serving on the border refused to carry out the return of African refugees as they knew the Egyptian border police routinely shot at, sexually assaulted, and even murdered these migrants.

Provided they pass the border successfully, there is still the threat of detention: as of 2009, two thousand asylum seekers were detained in Israeli prisons for indeterminate periods of time, even as unaccompanied minors.² The government distinguishes between those asylum seekers who have contacted the UN High Commissioner for Refugees (UNHCR) to file a petition and those who are apprehended before doing do — the latter are arrested, detained indefinitely, and are eligible for deportation. This places those who arrive at the border and make a claim for refugee status at a disadvantage to those who are able to evade the authorities until they reach Tel Aviv to make a claim with the Commissioner.³

Israel began to assume control over its refugee status determination (RSD) from the UNHCR in 2002 and it now has full control over the system. This process is problematic as the country has no refugee law: asylum seekers have effectively no right representation, appeals must be made to the body responsible for the first decision, and issues of standards obviously arise in attempting to coordinate efforts amongst two bodies with divergent institutional interests.⁴ Asylum seekers’ rights to earn a livelihood and to move freely around the country are restricted: the conditional release documents given to the vast majority do not permit them to work and they often restrict the holder from traveling to or living in key labour market areas.⁵ They are also excluded from receiving social assistance.

What’s more, many asylum seekers are stamped as enemy nationals automatically upon arrival. Last March the Israeli parliament passed a first reading of a bill to update an old emergency measure that the government is currently using to restrict migration flows. The Infiltration Prevention Bill would reaffirm a policy that allows the government to detain “infiltrators”, defined as citizens of an enemy country, for up to seven years; anyone caught with a weapon, even a knife, could face 20 years. The Sudanese government is hostile to Israel and is therefore an enemy country, like most Arab states and Iran. This means that all of its nationals are automatically deemed a security threat and this law could be used to prevent their recourse to flee from the conflict in the region. This is in clear contravention of Article 3 of the convention which forbids receiving countries to discriminate against applicants on the basis of race, religion, or country of origin. Furthermore, anyone who would assist asylum seekers in easing their stay in Israel would also be subject to the same maximum penalties of 20 years behind bars. This means that the dynamic and committed Israeli citizens we met on a field visit with the Hotline for Migrant Workers in Tel Aviv could be potential criminals, all for working to promote the human dignity of refugees and migrant workers.

While Israel has ratified the Refugee Convention, it has not implemented it into its domestic law. Still, the country’s supreme court has affirmed has accepted the Convention as an interpretive guide and in El-Tai’i v. Minister of Interior the court affirmed that the principle of non-refoulement is binding.⁶ This case is yet another testament to the limits of international treaties and human rights standards. How Israel will deal with these asylum seekers is not a simple question of respect or non-respect of the Refugee Convention; the country has underlying identity issues that complicate matters greatly.

As Tally Kritzman-Amir of the Van Leer Jerusalem Institute reminds us⁷, Israel is unlike many other democracies in that to protect the Jewish character of the state, its immigration regime grants citizenship only to Jews and their relatives. Demographics cause the country a great deal of anxiety; it has an interest in maintaining a population advantage over the 20% Arab minority. The reception of African refugees, particularly those from the Sudan who are mostly Muslim (apart from the South Sudanese Christian minority), cannot be assessed without regards to these ethno-religious overtones. Since immigration regimes are governed by the sovereign will of the state, the policy of Jewish return is not in question here. However, this prerogative cannot seep into Israel’s commitments to the international refugee regime if it is to remain an institution based on the principles of non-discrimination.

This influx of migrants is, without a doubt, a massive destabilizing agent in a country of seven million. Still, Israel is actually under no international legal obligation to naturalize these asylum-seekers and refugees; indeed, many of the 170 who obtained refugee status were resettled to other countries like Canada.⁸ The country must only make good on its commitments to international refugee law by giving asylum seekers, regardless of origin, a fair chance at RSD. Donors would jump at the opportunity to fund Israeli efforts to integrate and resettle refugees and display their commitment human rights. And it costs nothing to grant the thousands of asylum seekers in the country the right to work legally and with dignity while their cases are reviewed. Israel describes itself as “the only democracy in the Middle East” and in keeping with this, it should aspire to develop a more cosmopolitan refugee regime, not one that would marginalize some of the most vulnerable people under the banner of security and sovereignty.

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

Before addressing those arguments, a little background.

What is RPM? RPM is when a manufacturer controls the prices at which distributors sell goods.  Minimum price-fixing is where the manufacturer sets the lowest price at which distributors can resell goods.

Is minimum price-fixing anti-competitive? The lawyer’s response: “it depends.”  Minimum price-fixing has anti-competitive effects when manufacturers or distributors (a) collude to police cartels or (b) exclude competitors by eliminating their ability to compete by lowering prices.  Minimum price-fixing can however have pro-competitive effects when used to help introduce products, encourage distributor promotions, ensure uniform distribution, enhance experience-related products, and reduce free-riding.

How does EU law approach minimum price-fixing? EU law is not a friendly venue for minimum price-fixing.  Article 101(1)(a) of the Treaty on the Functioning of the European Union (“TFEU”) broadly forbids price-fixing.  The EU Block Exemption Regulation 330/2010 includes minimum price-fixing as a hardcore restriction.  To survive, an agreement to set minimum prices must meet the four conditions set out in TFEU Article 101(3).  In its May 2010 Guidelines on Vertical Restraints, the EU Commission explains that courts are to presume that minimum price-fixing will not satisfy Article 101(3).  Thus, minimum price-fixing appears presumptively illegal under EU law.

How does North American law approach minimum price-fixing? North American law reaches the opposite conclusion.  In the U.S., the U.S. Supreme Court overturned almost a century of precedent in Leegin Creative Leather Products when it ruled that minimum price-fixing agreements are subject to the rule of reason.  This means that a plaintiff must now show that the agreement is an unreasonable restraint on competition, based on: the defendant’s market share, history, nature of the product, relevant industry, and effect on competition.  Similarly, in Canada, the legislature amended the Competition Act, only offering a civilly-enforceable measure against minimum price-fixing in the Competition Tribunal if it has an “adverse effect on competition.”

Despite what your competition expert tells you, this isn’t rocket science: a good comparative competition law class and a thorough Google search will teach you all that.

Now, let’s examine (1) reasons this difference may be healthy, and (2) reasons it may not be all that important in practice.

1. A healthy difference

Any rookie comparativist can tell you that legal rules do not exist in a vacuum.   In the present context, differences between EU and North American legal systems may explain these healthy differences.

a.  EU stakeholders can benefit from the presumptive advantage

In the EU, minimum price-fixing’s presumptive illegality may serve consumer interests.  On the Old Continent, overburdened competition authorities cannot police the vast majority of price-fixing agreements.  A presumption of illegality allows these authorities to combat cartels more easily.

Likewise, competitors who suffer from competition will not likely enjoy resources to pursue costly litigation.  After all, if a dominant power is hurting competitors’ revenues–or denying potential competitors entry to the market altogether–, these “little guys” won’t have the funds–or even the legal personality–to lawyer up and bring suits against the “big guys.”

What about private enforcement?  Well you see, a key difference in almost all EU countries is that class-action suits do not exist.  In addition, some member state courts still deny individuals the right to bring suits based on EU competition law–despite European Court of Justice’s decisions (see, Courage and Manfredi)–except through individual tort action.  Though consumers might go through consumer associations to bring these claims, these few associations also lack resources when compared to the class action regime.

In addition, professional rules in EU Member States may prohibit lawyers from covering the up front costs in hopes of a contingency fee.  Without strong private enforcement mechanisms, a tough minimum price-fixing stance might do a bit of good towards evening out the playing field.

Finally, suits by competition authorities, competitors, or associations are far less likely to hurt dominant manufacturers financially.  Compared to the US system of treble damages and attorney fee awards, competition law infringers face lower penalties in the EU, usually only amounting to the actual damage caused plus lost profits.  Otherwise stated, violators only have to put the cookies back in the cookie jar, offering a small deterrent.

In this climate, the tougher EU approach may make good sense by offering the EU market some enhanced protection.

b.  US stakeholders do not need a presumptive advantage

On the other hand, US consumers probably don’t need as much protection.  Class-action suits offer a powerful tool to enforce competition rules.  Armies of sharp attorneys scour statistics to identify a competition infringement.  Once they find it, these class-action chasers can set up a class-action suit–which class members have to opt-out of–to go after the dollars attached to settlements or decisions.

Regardless of who–class actions, competitors, or competition authorities–brings legal action, the “little guys” in the US also have access to larger awards with treble damages and fee awards.  This provides more incentive and resources to allow the “little guy” to evidence that the price-fixing amounts to an unreasonable restraint on competition.

For the “big guys,” US manufacturers’ lower legal liability allows them to test out minimum price-fixing’s benefits, which may in turn offer consumers the best of both worlds–benefits of increased competition in addition to access to large awards if manufacturers use price-fixing abusively.

As seen, minimum price-fixing’s presumptive legality may better serve the US markets.

2. The difference may not matter

All that said, the difference may not matter.

After all, minimum  price-fixing faces scrutiny under both systems and both parties will have to carefully analyze the issue.  When evidence of price-fixing comes to a court or competition authority’s attention, the potential plaintiff will necessarily have to consider the potential defendant’s market share, history, the nature of the product, the relevant industry, and effects of the price-fixing (i.e., the rule of reason!) in assessing whether the agreement is indeed anti-competitive.

From a transactional standpoint, manufacturers must still carefully consider their legal risks by implementing such agreements.  That is, a manufacturer will still have to call in its competition expert to determine whether the benefits of a minimum price-fixing scheme will outweigh its legal liability.  Manufacturers will thus better analyze whether such measures will actually create profits and stimulate competition.

Finally, under either system, potential plaintiffs will logically and practically (to show damages!) only attack minimum price-fixing that actually restrains competition.  In any case, the potential plaintiffs (and, in turn, defendants) will necessarily apply the rule of reason in market analysis.  Thus, at the end of the day, the rule of reason will apply on both continents.

In sum, all this digital ink may be spilling in vain.  That said, we will begin to see the results as cases in Leegin‘s wake arise and as the Block Exemption Regulation’s transitional period expires 31 May 2011.

Thank you to Mrs. Shawna Mihala for assistance on private enforcement of EU competition law. Thank you also to Me. Sebastien Goinard for assistance in his LL.M. competition law course in Paris through the Universite de Cergy-Pontoise.

In short, the Convention requires a court to return a child to the child’s previous habitual residence when someone–almost always a parent–abducts the child across borders.

While the Hague Abduction Convention most often provides a valuable and useful remedy, spousal abuse victims face particular difficulties when they leave a country with their child to avoid further abuse.

The Convention provides an exception to return under Article 13(b) when returning the child to the previous habitual residence will cause a grave risk of harm or an otherwise intolerable situation for the child.

While at first glance this would appear to provide safety for mothers who cross borders with their children to flee spousal abuse, this has not proved true in international case law.  Instead, courts have construed this exception so narrowly that in many cases courts have sent these children–and in effect their mothers as well– back to the previous habitual residence where the abuser lives to determine custody arrangements.

This practice can be observed in case law from around the world.  In applying the Convention, courts frequently render decisions which make spousal abuse victims’ lives more difficult and highlight the de facto system of private international legal precedent that has emerged between signatory courts.

Courts around the world have gradually developed this hurdle for spousal abuse victims with the best of intentions.  After all, a treaty whose purpose is to prevent parents from resorting self help and forum-shopping can hardly be effective if exceptions swallow the rule that courts in the place of habitual residence are best positioned to protect the best interests of the child.

With that principle in mind, in 1994 the Supreme Court of Canada handed down a seminal decision on the issue of exceptions to return.

In Thomson v. Thomson, the Supreme Court of Canada narrowly interpreted the grave risk exception.  It stated that “[t]he physical or psychological harm contemplated by [the Hague Abduction Convention] is harm to a degree that also amounts to an intolerable situation.”  Though seemingly innocuous, this language combined “grave risk” and “intolerable situation” as one sole exception under Article 13(b).  As a result, any grave risk must directly relate to the child’s physical or psychological well being.  This closed the window on a broader interpretation that would classify spousal abuse as an intolerable situation.  This opinion subsequently persuaded courts in the Hague Abduction Convention’s sister signatory courts.

For example, Thomson heavily influenced U.S. jurisprudence on this issue.  In the most-cited U.S. case Friedrich v. Friedrich, the Third Circuit Court of Appeals–in dicta–believed:

that a grave risk of harm for the purposes of the Convention can exist in only two situations. First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute — e.g., returning the child to a zone of war, famine, or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.

Some courts have elevated this standard, actually requiring a victim of spousal abuse to show that the courts in the previous habitual residence are unable or unwilling to protect the child upon return.  Other courts will order undertakings to protect the child’s interest upon return–orders that may have little or no enforceability after the return.

These practices, though widespread, ignore the Hague Abduction Convention’s plain text.  The Convention only requires a showing of grave risk of harm or an intolerable situation.  However, after thirty years of application, the standard for the 13(b) exception has taken on a life of its own.  In short, foreign precedent wields influence.

I will make two points here.  The first point pertains to this specific spousal abuse issue–courts should take a tougher stance against spousal abuse when the abducting parent demonstrates spousal abuse has occurred in a Hague Abduction Convention case.  Within the de facto system of international precedent, courts should ignore inefficient standards and create new precedent to better address future case.

Point in case: Judge Posner’s opinion for the Seventh Circuit Court of Appeals decision in Van De Sande v. Van De Sande.  In that case, Posner–as he is apt to do–wrote a compelling opinion that provides a better lens for examining the 13(b) exception in child abuse cases.  While undertakings upon return “can in some, maybe many, cases properly accommodate the interest in the child’s welfare,” the court took a firm stance against spousal abuse, noting that “in cases of child abuse the balance may shift against return plus conditions.”  Thus, the court created a standard under which “the safety of children is paramount.”  The court found there to be

sufficient evidence of a grave risk of harm to her children, and the adequacy of conditions that would protect the children if they were returned to their father’s country [was] sufficiently in doubt, to necessitate an evidentiary hearing in order to explore these issues fully.

In turn, the Seventh Circuit remanded the case to have an evidentiary hearing to best protect the child.  This kind of hearing could routinely ensure children’s safety, offering additional scrutiny in spousal abuse cases and shifting the burden to the abuser to show that undertakings would in fact protect the child.

Another coherent analytical framework for 13(b) exceptions would accept outright that proven incidents of previous spousal abuse, in and of themselves, pose a grave risk or intolerable situation to the child.  This is another acceptable way to support exceptions to return under the Hague Abduction Convention that would protect victims of spousal abuse.

My second point here pertains to the drafting of private international law treaties: treaty drafters should use more precise language.  While most signatories will rely on the civil law tradition’s legislative broad drafting techniques, this poses dangers when common law courts develop standards that drift from the drafter’s intent, snowballing into inefficient practices.

In the Hague Abduction Convention, the drafters would have been wiser to set out detailed uniform standards for addressing child abuse.  The Convention could have required evidentiary hearings or even allowed the petitioned courts to examine the child’s best interests once an abducting parent proves previous spousal abuse.

Unfortunately, the Convention was ill-prepared to deal with many of the cases to which it applies.  The drafters predicted that most abductions would occur by non-custodial fathers seeking friendlier venues for custody disputes.  In practice, most abductors have been mothers.  Some mothers have  courageously “abducted” their children in order to protect them in the face of abuse.

After thirty years, it is perhaps time to fully reconsider the spousal abuse issue.  Perhaps a protocol or new treaty could solve this problem.  Until then, courts must act to protect children in these dangerous situations.

Despite committing to the creation of a special tribunal for the post-election violence in December 2008, to date, the Kenyan government has failed to establish national trials and the special tribunal has yet to materialize.  Under pressure created by the Prosecutor’s application, Kenya is once again suggesting that it will create such a tribunal.  Even if the ICC’s Pre-Trial Chamber finds that there are reasonable grounds to believe that any or all of the suspects have committed the crimes alleged in the Prosecutor’s application and so grants the application,[2] the positions of the Kenyan administration and the AU seem sure to interfere with any further progress.

A point of particular interest in the ICC’s fraught relationship with the Kenyan government is the fierce opposition expressed by some within Kenya to the government’s alleged plan to finance the suspects’ defences, should they be called to answer charges before the ICC.  Kenya’s International Centre for Policy and Conflict, for example, has referred to the possible plan as the greatest insult to the Kenyan people, and to the victims of the post-election violence in particular.[3] Further, the Commissioner of the Kenyan National Commission for Human Rights, Hassan Omar Hassan, has said publicly that in a context where the government claims that it does not have the resources necessary to resolve the problems of internal displacement which arose in consequence of the post-election violence, and have persisted for more than three years since, it is unthinkable that the government should now be considering diverting painfully scarce resources to fund the suspects’ defences.[4] Commissioner Hassan’s position is strengthened by the fact that, in recognition of its statutorily enshrined fair trial rights, the ICC is equipped with a Registry-governed legal aid scheme, one which is attempting to earn its stripes on the proving grounds of the Court’s first three cases.[5]

However, problems of inequality of arms, whether perceived or real, which have afflicted previous and contemporary international and internationalized tribunals[6] remain relevant to the ICC.  Of particular concern are situations in which states are unwilling to provide defence teams with the level of cooperation required to produce an effective defence.[7] The Kenyan situation does not appear to be such a case.  Indeed, the government’s reticence[8] to try the suspects domestically, combined with its wish to defer the ICC investigation, suggests that in the event of a trial the Prosecutor is more likely to experience difficulties obtaining Kenyan cooperation than the ostensibly favoured defence.

The visceral opposition to the possibility of Kenya funding these defences may be understandable in light of the circumstances, but this is not to say that states should never finance the defences of their nationals before international criminal courts. In certain cases, governments may be pressed into funding the defences of citizens who have been indicted by an international criminal court for crimes alleged to have been committed in connection with actions carried out in the national interest.  Under such conditions, assuming the government is not subject to equally or more powerful pressures of dissuasion from external actors, it may prove politically imperative to foot the defendants’ legal bills.[9] Additionally, if an international criminal court’s legal aid scheme shows itself inadequate to the task of satisfying the fair trial rights of defendants a government will be able to make a forcefully credible argument that it is financing an accused’s defence in the interests of justice.[10]

Currently, it looks as though an end to the impunity which has reigned for more than three years may be drawing close.  Alternatively, this could be the continuation of another protracted dispute between an AU-supported African State and the ICC.  One hopes that the Kenyan government, if it cannot bring itself to play a constructive role in trying the suspected perpetrators, at the least begins to take more aggressive steps to address the continued suffering of the victims of the post-election violence.

[2] The Chamber will issue summonses to appear if it is satisfied that summonses are sufficient to ensure the appearance before the Court of those being summoned. If the Chamber is not satisfied that summonses are sufficient to ensure such appearance, it will issue warrants of arrest instead. See Art. 58 of the Rome Statute.

[3]http://www.icpcafrica.org/site/index.php?option=com_content&view=article&id=283:pulling-out-of-icc-and-funding-the-6-an-insult-to-kenyans-and-pev&catid=42:featured&Itemid=107

[4] http://www.capitalfm.co.ke/news/Kenyanews/State-plan-to-shield-ICC-suspects-faulted-11264.html

[5] Prosecutor v. Thomas Lubanga Dyilo ICC-01/04-01/06 (“Lubanga”), and Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui ICC-01/04-01/07.  Jean Pierre Bemba, the single defendant in the ICC’s third trial (Prosecutor v. Jean-Pierre Bemba Gombo ICC-01/05 -01/08) submitted a failed application for legal aid but, for various reasons, has in fact benefitted from legal aid.  For more on this, see the “Redacted Version of Decision on the Defence Application for Review of the Registrar’s Decision of 15 October 2010 on the Application for Adjustment of the Expenses and Fees of the Defence (ICC-01/05-01/08-1007-Conf)” available at: http://www.iclklamberg.com/Bemba.htm#Year_2010_TC

[6] See, for example Michael Bohlander, Roman Boed and Richard J. Wilson, Defense in International Criminal Proceedings: Cases, Materials and Commentary (Ardsley, NY: Transnational Publishers, 2006).  See also http://www.ibanet.org/Human_Rights_Institute/ICC_Outreach_Monitoring/Lubanga_case_Mr_Lubangas_requests.aspx for concerns raised by counsel for Thomas Lubanga Dyilo in Lubanga.

[7] Given that all three of the ICC’s current trials are the result of state referrals and feature defendants who are widely perceived as hostile to the governments whose cooperation is necessary to the provision of an effective defence the problem of state-defence cooperation should not be underestimated.  Naturally, in cases where the ICC attempts to try individuals who are close to or even apart of a state’s incumbent regime, the Prosecutor rather than defence counsel is likely to find it difficult to secure state cooperation.

[8] Three of those named by the Prosecutor as suspects are currently serving in government: Finance Minister Uhuru Kenyatta, Head of Public Service Francis Muthaura, and Postal Corporation of Kenya Chief Executive, Hussein Ali.

[9] Examples of this phenomenon can be seen in the cases of the Prosecutor v. Gotovina et al. IT-06-90-T, and the Prosecutor v. Haradinaj et al. IT-04-84-T, before the International Criminal Tribunal for the former Yugoslavia.  Though a combination of the ICC’s system of complementarity and realpolitik’s unquestionable influence make it hard to imagine, if a high ranking member of a Western state’s armed forces were tried by the Court, it seems unlikely that the defendant would be made to pay for her own defence or to rely upon the Court’s legal aid scheme.

[10] An interesting question, not addressed here, is whether or not the Kenyan government would see fit to pay the legal fees of any victim participants in the event that a confirmation of charges hearing was granted.