Archive for
August, 2018

Is Sudan an Indispensable Party in the Al-Bashir Immunity Appeal? A Monetary Gold Question for the ICC

by Michail Vagias

[Michail Vagias is a Senior Lecturer in Law and the Program Manager of ProCuria 2017-2018 at The Hague University of Applied Sciences.]

The problem: Discussing Sudan’s immunities in the absence of Sudan

On 29 March 2017, Sudanese President Al-Bashir made an official visit to Jordan for the 28th Arab League Summit. Jordan neither arrested nor surrendered him to the International Criminal Court, pursuant to the arrest warrants issued against him in 2009 and 2010. In light of these events, Pre-Trial Chamber II proceeded to issue on 11 December 2017 a decision of non-compliance against Jordan and referred the matter to the Assembly of States Parties and the Security Council.

So far, there is nothing new under the sun. The issuance of the arrest warrants against President Al-Bashir failed to prevent his international travels. The Jordan decision is therefore only the latest in a string of non-compliance decisions issued by the Court against states – such as the Democratic Republic of the Congo, Uganda, Chad and South Africa – where Al-Bashir travelled officially but was not arrested.

The new development in this saga was Jordan’s decision to appeal the non-compliance decision of the Pre-Trial Chamber. On 21 February 2018, the Pre-Trial Chamber granted leave to appeal three issues, as formulated by Jordan. The first issue questions whether the Chamber erred as regards Jordan’s duty to respect the immunity of Al-Bashir according to the Rome Statute and the 1953 Convention on the Privileges and Immunities of the Arab League, the second whether the Chamber erred in the interpretation of UN SC Resolution 1593 (2005) and the corresponding state obligations flowing therefrom, whereas the third is whether the Chamber abused its discretion by referring the non-compliance to the UN Security Council and the ICC Assembly of States Parties.

So far, in response to the Court’s call for submission, beyond the Prosecutor and Jordan, academics and the League of Arab States filed submissions debating the merits of these issues. However, one question that has remained at the fringes of this rich discussion, is whether this appeal should actually take place even though Sudan and President Al-Bashir are absent. After all, one of the main issues of the litigation is the immunity of the President of Sudan under international law and its effect in the ICC context.

The Appeals Chamber has tried to address this issue by inviting Sudan to participate, although the latter has not participated in the process within the time limit set for that purpose (16 July 2018). In its invitation decision, the Appeals Chamber acknowledged that Sudan and Al-Bashir are ‘concerned in the legal questions presented in the appeal’. In this context, an interesting question is whether this ‘concern’ is significant enough to have the appeal declared inadmissible by applying in the ICC context a variation of the ‘Monetary Gold’ principle well-known from ICJ litigation. In a nutshell; Are Sudan and President Al-Bashir indispensable parties for the purposes of the Appeals Chamber proceedings?

Indispensable Party Doctrine in ICJ Jurisprudence

The indispensable party doctrine became well known from the jurisprudence of the International Court of Justice. In light of the fundamental significance of state consent for the jurisdiction of that Court, the question soon emerged whether the Court could adjudicate cases involving the rights and duties of states that do not participate in the relevant proceedings.

In its 1953 decision in the case of the Albanian Monetary Gold, the Court held that Albania’s participation was indispensable for the adjudication of a case, where Italy had filed an application against France, UK and the US concerning the fate of the Albanian Monetary Gold in Rome after World War II. The Court highlighted that “in the present case, Albania’s legal interests would not only be affected by a decision, but would form the very subject-matter of the decision. In such a case, the Statute cannot be regarded, by implication, as authorizing proceedings to be continued in the absence of Albania.” (Monetary Gold, p. 32).

Beyond this laconic and somewhat cryptic statement of law, international lawyers had little by way of guidance as regards the nature and the scope of the legal threshold, beyond which a party became ‘indispensable’ for the purpose of the relevant proceedings. It is therefore unsurprising that subsequent jurisprudence fluctuated considerably as regards the degree of interest required to transform an absent litigant to an ‘indispensable party’ and thus preclude judicial proceedings before the Court. In Nicaragua v. US (para. 88), the United States tried unsuccessfully to invoke Monetary Gold, claiming that the rights and duties of Honduras and El Salvador constituted the ‘very subject-matter’ of that case and therefore the case could not proceed without them. In East Timor (para. 29), on the other hand, Monetary Gold was successfully invoked, insofar as the Court refused to adjudicate a case involving the validity of the 1989 East Timor Gap Treaty between Indonesia and Australia in the absence of Indonesia. In Croatia v. Serbia, the respondent argued Monetary Gold due to the absence of Yugoslavia from the litigation involving allegations of genocide against Croatians; the Court rejected the argument, explaining that “such a state no longer possesses any rights and is incapable of giving or withholding consent to the jurisdiction of the Court” (para. 116).

It would seem that the Court pays particular attention to state consent as the foundation of its jurisdiction. Therefore, in the absence of such consent, it refuses to engage with the subject-matter sub judice. In this context, the Monetary Gold rule can be seen as a procedural obstacle to litigant’s attempts to bypass state consent as a requirement to ICJ jurisdiction.

Sudan and Al-Bashir: Are they indispensable parties in the Appeals Chamber immunity litigation?

In the current Al-Bashir litigation, the formulation of the first and second ground of appeal put squarely before the Court questions concerning Sudan’s right to respect for the immunity of its Head of State, as well as the scope of Sudan’s obligations under SC Res 1593.

In this situation, Jordan, governmental organisations and academics are arguing the immunity afforded by international law to Sudan and its president and its applicability under the ICC Statute and general international law – in the absence of Sudan and Al-Bashir. To compound the situation, this happens without any indication that Jordan – or anyone else for that matter – is acting on behalf of Sudan or Al-Bashir. Sudan’s entitlement to international respect for the immunity of its head of State appears inextricably intertwined with the question of Jordan’s obligation to disregard it, arrest and surrender him to the Court. Equally, an adverse interpretation of SC Res 1593/2005 may lead to the imposition of important obligations upon Sudan. In a situation where the rights of one state and the obligations of the other appear to constitute two sides of the same coin, can it be said that the litigation is inappropriate in the absence of one of them?

Beyond the state level, President Al-Bashir has human rights relating to a fair trial. In that context, an Appeals Chamber decision declaring that the immunity of the Sudanese President is not applicable before the Court may be issued soon. Such a ruling made in his absence may prove of considerable importance, if the suspect is one day arrested and brought before the Court. Against that backdrop, should the appeal be declared inadmissible in the absence of the suspect to avoid prejudice to his eventual defence?

The argument against using Monetary Gold – or a variant thereof – in the ICC Context

To begin with, critics would suggest that Monetary Gold or indispensable party considerations are inapplicable in the ICC context. The Statute provides that no trial may take place in absentia and to that extent, it may be said to make the presence of an accused indispensable for the trial process. However, the drafters did not choose to add such requirement for the pre-trial process. Therefore, since such requirement is not explicitly included in the Statute, it cannot be devised, lest the Court usurp the role of the ASP in the formulation of the Rules of Procedure.

Secondly, the analogy between ICJ and ICC proceedings is inapposite, as far as the principle justification for the transposition of Monetary Gold is concerned. The foundation of ICJ jurisdiction is consent. The Statute and the Rules provide the details through which such consent can be given to the Court. The same, however, is not necessarily true as regards ICC jurisdiction in the case of SC referrals. The two-tier ICJ approach to jurisdiction was proposed by the ILC in its draft ICC statute in 1994 but was rejected by the drafters in Rome. It is true that the Court’s creation is due to state ratification. However, the Court also acts as a substitute for ad hoc tribunals, insofar as the Rome Statute allows for a Security Council referral under Chapter VII. In the Al-Bashir case specifically, the Court is acting pursuant to a Security Council resolution adopted under Chapter VII of the UN Charter. In these circumstances, its function is not that much different to that of a fictional ‘International Criminal Tribunal for Sudan’, in the tradition of the ICTY and the ICTR. In this context, the discussion on consent can proceed no further than the admission of Sudan to the UN and its obligation to abide by binding SC Resolutions.

Third, even if Monetary Gold or a variant thereof did apply, it is not clear whether the rights of Sudan and its President constitute the ‘very subject-matter’ of the litigation. The main issue properly defined is whether Jordan failed to uphold its obligations under the ICC Statute and the UN Charter. These are obligations owed to the Court. Therefore, the Court has a clear legal interest in seeking legal redress to their purported violation. Jordan’s justifications for failing to do so are relevant; however, they are only incidental to the discussion. The final decision will concern Jordan’s failure to respect its international obligations owed to the Court. Sudan’s immunities will be incidental, but not the main issue. For example, if Jordan presented a different excuse, the main subject-matter would remain the same, regardless of Sudan’s rights or duties (e.g. inability due to a natural disaster). This can only be an secondary issue due to the adoption of article 98 of the Rome Statute.

Fourth, there is no human right under international law to choice of jurisdiction. Considerations of fair trial therefore are not relevant, to the extent that they would be argued in a ‘forum shopping’ in criminal matters type of exercise.

The argument in favour of using Monetary Gold – or a variant thereof – in the ICC Context

At the same time, however, there is also an argument to be made in favour of using Monetary Gold or a variant thereof in the present proceedings.

First, under general international law, immunities are a right of a state. In this case, the immunity of Sudan and its head of state constitute international rights of Sudan. Therefore, no other state in the world has the same legal interest as Sudan in a finding that such immunities do not exist or are not applicable in the ICC context. It is the right of Sudan that generates an obligation for Jordan, which the latter is bound to respect. Therefore, in this case, Jordan’s claim of an obligation is directly connected to Sudan’s sovereign rights. Arguably, the source of such obligations is not only customary law, but also treaty law (the 1953 Arab League Treaty). Therefore, in the same way the ICJ refused to discuss the validity of the Timor Gap Treaty between Australia and Indonesia in the absence of Indonesia in East Timor, the ICC should also refuse to discuss the legal effect of a treaty in the absence of the key party before it. It is not possible to make a determination in this litigation without ruling on Sudan’s international rights, in its absence. Finally, it is worth noting that Sudan never authorised Jordan or the Arab League or the African Union to act on its behalf and represent it before the ICC on the adjudication of its rights (immunities) and obligations (under UNSC 1593/2005).

Secondly, the proceedings under consideration would in effect render meaningless article 19(2)(a) and (b) of the Rome Statute. Under these provisions, Sudan and Al-Bashir have the right to raise a challenge to the jurisdiction of the Court. It does not take much imagination to contemplate an immunity challenge to jurisdiction, once the suspect is in custody. However, the present litigation may result issue a final decision on point, albeit clothed in the typical ‘without prejudice’ language. Be that as it may, however, it is difficult to see how this decision will not pre-empt and render meaningless any possible challenges to jurisdiction on the basis of immunity. It is true that decisions of the Chambers are not binding; it is also true that such decision does not mean that the suspect cannot bring other types of challenges to jurisdiction. However, a final decision by the Appeals Chamber on point would pre-judge an important right of the suspect under the statute and his state of nationality and in their absence to boot.

Third, the ICC is no stranger to procedural innovation, when it felt that it was needed. It has adopted procedural novelties as an expression of its implied or inherent powers, for example as regards its authority to stay proceedings or to decide no-case-to-answer motions and declare a mistrial. Making a decision on the inadmissibility of this appeal – at least as regards the first two grounds – in order to preserve the judicial process could be argued therefore as a matter within the scope of its judicial duties. After all, it is the Court’s responsibility to satisfy itself of its jurisdiction under article 19(1) of the Statute; this duty cannot be outsourced to anyone else.

Concluding Remarks

This blog post offered some brief thoughts on the application of the Monetary Gold rule in the Al-Bashir immunities litigation. The Appeals Chamber seems aware of the difficulties. It has already invited Sudan and President Al-Bashir to submit observations – to no avail. It has acknowledged that they are ‘concerned in the legal questions’ of this appeal.

As things stand presently, we are faced with an ICC litigation where Jordan, the Arab League, the AU and certain academics are arguing for Sudan’s immunities and its obligations under SC Res. 1593/2005 in Sudan’s absence. The Court is required to balance safeguarding the integrity of the eventual subsequent process against the need to send a clear message to states that Al-Bashir must be arrested. It remains to be seen which way the balance will finally tilt. In this delicate exercise, the Court’s final decision is anticipated with interest.

The Kafkaesque “Diciotti” Case in Italy: Does Keeping 177 People on a Boat Amount to an Arbitrary Deprivation of Liberty?

by Massimo Frigo

[Massimo Frigo is a Senior Legal Adviser of the International Commission of Jurist’s Europe Programme.]

In these days, the world saw unfolding before its eyes the absurd (yet not isolated) and Kafkaesque situation of an Italian Government trying to prevent a boat of the Italian coastguard to board an Italian harbor.

What is worse is that the ship of the Italian coastguard was carrying 177 people on board rescued in the Mediterranean Sea.

The boat in question is called “Ubaldo Diciotti” and was anchored at the port of Catania (Sicily), but the 177 persons on board could not get to land for five days, blocked by order of the Minister of the Interior, Matto Salvini. They were finally allowed to disembark in the night between Saturday 25 and Sunday 26 August. Matteo Salvini had earlier threatened that he would not let anyone land until he got any agreement from “the EU” about their relocation in other countries.

Setting aside the many questions with regard to the duties of rescue and the current EU laws and political implications surrounding migration, this case highlights what would appear to be a set of violations of the right to liberty of the persons aboard.

As correctly identified by Italy’s National Prevention Mechanism, the 177 people aboard were “in a condition of de facto deprivation of liberty” and this may amount to violations of articles 5 of the European Convention on Human Rights, and 12 of the Italian Constitution, i.e. the right to liberty, enshrined as well in article 9 of the International Covenant on Civil and Political Rights.

Indeed, it is established, under the international law of the sea and under international human rights law, that when a person is on a boat flying the flag of one State, it is under such State’s jurisdiction. And of course when that boat is a boat of the State’s coastguard they are under the effective control of the State, which in itself is a basis for juridiction. In the landmark case Hirsi Jamaa and others v Italy, the European Court of Human Rights ruled that:

  1. … by virtue of the relevant provisions of the law of the sea, a vessel sailing on the high seas is subject to the exclusive jurisdiction of the State of the flag it is flying. This principleof international law has led the Court to recognise, in cases concerning acts carried out on board vessels flying a State’s flag, in the same way as registered aircraft, cases of extraterritorial exercise of the jurisdiction of that State …. Where there is control over another, this is de jurecontrol exercised by the State in question over the individuals concerned.

  2. The Court observes, furthermore, that the above-mentioned principle is enshrined in domestic law in Article 4 of the Italian Navigation Code and is not disputed by the Government … . It concludes that the instant case does indeed constitute a case of extraterritorial exercise of jurisdiction by Italy capable of engaging that State’s responsibility under the Convention.

The 177 people aboard the Diciotti were therefore already in Italy for all purposes of international and national law. Any action aimed at preventing their disembarkment was therefore pointless, from a legal point of view, if aimed at preventing them from reaching Italy, but effective to influence public perceptions.

The 177 people were already entitled to access an asylum procedure in Italy as well as to be ensured the enjoyment of their human rights by the Italian Government.

Because the passengers were already under Italy’s jurisdiction, the Italian Government must respect, protect and fulfil their human rights, including the right to liberty.

This entails that no one may be deprived of his or her liberty save under certain circumstances “in accordance with a procedure prescribed by law” (article 5.1 ECHR, article 9.1. ICCPR) and that, even in such cases, they should “be informed promptly, in a language [they] understand, of the reasons of (their) arrest and of any charges against [them]” (article 5.2 ECHR, article 9.2 ICCPR) and are entitled to challenge the lawfulness of their deprivation of liberty before before a court that must decide speedily about it (article 5.4 ECHR, article 9.4 ICCPR).

The first question to answer is whether preventing 177 people aboard an Italian coastguard boat from disembarking qualifies as a deprivation of liberty.

Under international human rights law, a deprivation of liberty is not defined with reference to the classification imposed by national law, but rather takes into account the reality of the restrictions imposed on the individual concerned. As the European Court of Human Rights pointed out in 1980 in the case of Guzzardi v Italy,

  1. … in proclaiming the “right to liberty”, paragraph 1 of Article 5 … is contemplating the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. … the paragraph is not concerned with mere restrictions on liberty of movement … . In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5 …, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question … .

  2. The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 … depends.

There is little doubt that, when 177 people are confined on a boat and cannot disembark (for already two days if we count only the time spent at the docks of Catania) for order of the authorities of a country, the intensity of the restriction of liberty is such as to qualify as deprivation of liberty, as correctly identified by the Italian NPM.

In this case, there is one important element to be recalled: any deprivation of liberty must have a legal basis in national (or international if directly applicable) law that must be clear, precise and foreseeable, and ordered in accordance with a procedure established by law. As held by the European Court of Human Rights in the similar case of Medvedyev and others v France:

  1. .. where deprivation of liberty is concerned it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic and/or international law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to avoid all risk of arbitrariness and to allow the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances of the case, the consequences which a given action may entail … .

Furthermore, even if a lawful basis were to be established under domestic law, detention could still be arbitrary under article 9 ICCPR. The UN Human Rights Committee has indeed highlighted

An arrest or detention may be authorized by domestic law and nonetheless be arbitrary. The notion of “arbitrariness” is not to be equated with “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality. (General Comment no. 35, para. 12)

With all the contentiousness that have surrounded the case of the “Diciotti” as known in Italy and internationally, the Government has yet to clarify on what legal grounds the detention has been ordered, nor has it produced a detention order, that in Italy can be issued only by judicial authorities according to article 13 of the Constitution. News reports say that a public prosecutor in Agrigento has started an investigation on unlawful deprivation of liberty.

It seems quite clear that one of the more basic guarantees of human rights and of the rule of law that no one may be deprived of his or her liberty arbitrarily, has been bypassed in this case without even the stroke of a pen. And, what is even more Kafkaesque, this has been done in order to avoid the disembarkment onto Italian territory of 177 people who are already under Italian jurisdiction.

What is certain is that this cruel set of actions is once more setting Italy outside of the boundaries of international law and the rule of law with no real practical benefits apart from a storm of media attention.

Now that everyone has been disembarked, the case seems to be over in the news. However, this is certainly not the end of the story, from a legal point of view, before Italian, and, possibly, international courts. And sadly, not the last of these cases.

The Cartagena Declaration and the Venezuelan Refugee Crisis

by Alonso Gurmendi Dunkelberg

[Alonso Gurmendi Dunkelberg is Professor of International Law at Universidad del Pacífico, in Peru.]

After the social, political, economic, and humanitarian collapse of Venezuela at the hands of Nicolás Maduro’s dictatorial government, Latin America (and South America in particular) is facing an unprecedented migratory crisis it does not seem to be ready for. As of 2017, the International Organization for Migration estimated that a total 1.6 million Venezuelans had left their country, but information reported by immigration authorities in just four countries (Brazil, Colombia, Ecuador, and Peru) already adds up to 1.15 million, which means numbers are probably much higher than most estimates, potentially reaching a scale resembling the Syrian refugee crisis.

The hardships faced by Venezuelans originally sparked a wave of support throughout the region. However, after an increase in tabloid reports excessively focusing on Venezuelan crime, and fears of job loss by the host countries’ displaced unskilled workers, tensions and xenophobia began to rise as well. In the Northern Brazilian state of Roraima, a group of upset Brazilians set fire to a Venezuelan camp, forcing them to flee. In Peru, a candidate to the Lima City Hall in the upcoming October elections surged in the polls after uploading a xenophobic tirade to his social media platform.

Since this change in social mood, a few governments slowly started to implement measures aimed at reducing the flow of people coming into their countries. On August 16th, Ecuador officially announced it would require Venezuelans seeking entry to present a passport – a document that is currently almost impossible to obtain – with Peru rapidly following suit the very next day. While the Ecuadorean measure has been put temporarily on hold by the courts, Peruvian immigration authorities reported Venezuelan entries had been halved within 24 hours of implementation.

These policies fly in the face of the region’s prior international commitments, particularly in the field of refugee law. While some have argued that the specific case of most Venezuelan nationals fleeing their country would not grant them protected status as refugees under the 1951 Refugee Convention and its Protocol, this is not the case in Latin America. The 1984 Cartagena Declaration, devised at the outset of the Central American civil wars of the 1980s, specifically expands the definition of refugee to include “persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order”.

The current crisis in Venezuela certainly meets this “Cartagena definition”, which should allow a considerable proportion of fleeing Venezuelans greater opportunity for protection. On April 2017, the OAS Permanent Council adopted Resolution No. CP/RES. 1078 (2108/17), declaring the existence of an alteration of constitutional order in Venezuela, under the terms of the Inter-American Democratic Charter. A few months later, on September 2017, the OAS Secretary General presented its Fourth Report on Venezuela, stating that the Maduro government’s break with democracy was “established on a systematic strategy of human rights violations”. Specifically, the OAS Secretariat stressed that “[t]he government has denied the Venezuelan people the right to life, physical integrity, and freedom of assembly and association”, responding to protests with “repression and terror”. To the Secretariat, Venezuela experiences “the absence of rights” and “the annihilation of human dignity”. Because of this, on May 2018, the Secretariat recommended State Parties to the Rome Statute to refer the situation of Venezuela to the Office of the Prosecutor of the ICC, for an investigation into crimes against humanity. Recently, Argentina, Colombia, Chile, Paraguay and Peru decided to heed the recommendation and refer the situation. In addition, with galloping hyperinflation, Venezuela is facing a severe shortage of medical supplies and food. Human Rights Watch reports that in 2016 “maternal mortality increased 65 percent, infant mortality increased 30 percent, and cases of malaria increased 76 percent”. According to Caritas, there are parts of Venezuela where “68 percent of children show varying degrees of malnutrition and 48 percent of the selected expectant mothers are at risk of malnutrition”. Hence Venezuela is facing a situation of generalized violence and massive violation of human rights that has seriously disturbed public order, meeting the legal requirements for triggering refugee protection.

The “Cartagena definition” has been incorporated into the domestic law of almost all Latin American states (sometimes with even broader protective definitions), including, specifically, the key destination and transit countries of Brazil, Colombia, Ecuador and Peru. This ambitious Latin American framework for refugee protection has been a source of pride in the region for more than three decades. In fact, back in 2015, then UN High Commissioner for Refugees, and current UN Secretary General, António Guterres, referred to it as a “humanitarian brand name” reflecting Latin America’s “rich tradition of refugee protection”. Despite this supposedly boastful record, of the more than 120 thousand Venezuelan refuge requests received by the Peruvian Ministry of Foreign Affairs since 2016, barely over 200 have been granted. According to the Ministry officer in charge of overseeing these requests, refugee status “is not a solution” because economic reasons, lack of food, and lack of medicine do not qualify as a “proper refuge motivation”. Similarly, Colombian Minister of Foreign Affairs María Ángela Holguín stated that her administration would “avoid [granting] the status of refugee” arguing in favor of ad hoc solutions. Facing its biggest test since its inception, Cartagena seems to be failing Venezuelans.

Thus, the countries facing the largest numbers of refugees have so far been unwilling to manage the crisis through the lens of refugee and asylum law, choosing instead to handle it through unilateral, temporary, ad hoc mechanisms. In addition to policy considerations, another reason for this is administrative backlog. Immigration bureaucracies claim to be unable to handle the current massive inflow of Venezuelan nationals through anything other than temporary administrative permits. In Colombia, the “PEP-RAMV”, (the acronym for “Special Permanency Permit of the Administrative Registry of Venezuelan Migrants”), allows Venezuelans the right to stay up to two years in Colombia without the need to process a residence visa. Similarly, Peru established the “PTP” or “Temporary Permanency Permit”, which allows for a year of legal stay. These special regimes are usually defended on the idea that an expedited procedure will help Venezuelans integrate faster, considering the administrative limitations in both countries. While these mechanisms served as a useful palliative in the early stages of the crisis, it is now clear that they are simply not enough to secure adequate legal protection for Venezuelans, especially at a time when xenophobic tensions are on the rise.

One key limitation of temporary permits is that it forces Venezuelans to a definitive deadline, which leaves them vulnerable to political instability. In Peru, the most recent PTP regulation shortened the window of permissible entry for Venezuelans seeking PTP protection by two months, from December 31st to as early as October 31st, 2018, most likely in an attempt to gain popularity with an increasingly intolerant electorate. As such, the hundreds of thousands of Venezuelans currently making their way to Peru, walking across Ecuador, are at serious risk of missing the window to obtain legal immigration status once in the country. Likewise, the Peruvian Government also shortened the period in which the PTP request could be submitted to authorities once the applicant is inside the country, from June 30th 2019, to December 31st 2018, affecting the close to 200 thousand Venezuelans already living in Peru that are desperately trying to gather the necessary documentation. This would not be a problem if fleeing Venezuelans would be granted refugee status, as the protections of refugee law would remain in force for as long as the situation giving rise to the need for refuge continues to exist.

Treating people who are fleeing from mass human rights violations, with little to no support networks, as if they were mere economic migrants has considerable drawbacks. If Latin America is to live up to the values it set up for itself all those years ago, then it will need to work together, in a holistic fashion, seeking multilateral solutions to a complex transnational problem. In fact, there is a unique opportunity for this in the near future: upon invitation of Ecuador, thirteen Latin American vice-ministers of foreign affairs will meet in Quito on September 17th. It is essential that this meeting addresses reasonable multilateral solutions, including specifically the process through which fleeing Venezuelans will be recognized as refugees within the framework of the Cartagena Declaration. Anything short of this will be a failure of monumental proportions and a stain in the legacy of Cartagena for many years to come.

Asylum and the Duty to Protect the Yazidis from Genocide

by Sareta Ashraph, Makrina Finlay and Melinda Taylor

[Sareta Ashraph is a barrister specialised in international law, and is currently focused on ISIS’s crimes against the Yazidis. Sister Makrina Finlay OSB (DPhil Oxon, Modern History) assists Yazidi asylum seekers in Germany and Melinda Taylor is an international criminal law and human rights attorney, who provides voluntary assistance to asylum seekers through Advocates Abroad. The authors are currently exploring the possibility of filing a complaint before the ECHR in relation to Yazidi asylum seekers in Germany.]

August 15 marks the fourth anniversary of ISIS’s destruction of the Yazidis of Kocho village, the last intact Yazidi community in Sinjar, northern Iraq. Investigations uncovered ISIS’s commission of almost-unimaginable atrocities: of men being killed; of women and girls, some as young as nine, being sold into sexual slavery; and of boys being forced into ISIS training camps. These horrors were committed systematically against the Sinjari Yazidis, following ISIS’s initial attack on 3 August 2014.

The US Holocaust Memorial Museum, and the Commission of Inquiry on Syria determined that ISIS was committing genocide, as well as crimes against humanity and war crimes, in its multi-pronged attack on Yazidi women, children, and men. The genocide was recognised by Parliamentary Assembly of the Council of Europe, and the European Parliament, as well as by numerous States.

ISIS’s crimes against the Yazidis shocked the world. States such as Germany initially trumpeted their willingness to offer asylum to the Yazidis. In 2018, however, Yazidi asylum seekers are denied asylum on the ground that – since ISIS has, for now, lost its territorial grasp – the genocide is over and it is safe for them to return. Subsidiary protection is also withheld because, it is claimed, Yazidis can safely live in the Kurdish region of Iraq (KRI). This is despite the continuing threats to the Yazidi community, the ingrained prejudice that they face, as well as the fact that the KRI is not their home region. Most Sinjari Yazidis in the KRI live in tented IDP camps – camps which are currently at capacity, and do not provide sufficient schooling, psycho-social support, medical treatment or opportunities to earn a livelihood.

With thousands of Yazidi women and girls believed to be still held by ISIS, the genocide is ongoing. Yazidis who fled or have been rescued from ISIS live under constant threat to their security. For their group’s survival, Yazidi women, men and children need to live in an environment where they can safely practise their faith and their culture. To achieve this, States must offer meaningful protection of their right to exist as a people. Where that cannot be guaranteed in Iraq, States must interpret and apply the right to asylum in a manner which respects the right to exist as a Yazidi people, and their specific vulnerability as a group. 

The particular vulnerability of the Yazidi community in Iraq

Iraq, with its limited accountability and failure to confront the roots of past and present violence, will continue to afford opportunities for bloodshed, which in turn, continues to draw support from the local population. ISIS, now in a more fragmented but still lethal form, continues to mount violent attacks against the civilian population throughout Iraq, focussing in particular on vulnerable communities.

While there was much international relief at the pushing of ISIS from Mosul and northern Iraq, this relief is not shared by the indigenous Yazidi community. Undoubtedly ISIS – as an organisation with territorial control – does not currently exists as it once did but ISIS, as a people and an ideology, remains present just below the surface of Iraqi society. As before, the Yazidis, by reason of their faith, will continue to be a target.

In its attempt to destroy the Yazidis, ISIS drew from entrenched prejudices that still exist today. It is still common for Yazidis in Iraq to be referred to as “devil-worshippers”, as ISIS also did. These prejudices are rooted misconceptions of the Yazidi faith and the fact that Yazidis are not “People of the Book” and live outside the social and cultural acceptance that Muslim and Christian communities in Iraq and in the Middle East enjoy. At the level of protection of Yazidi rights, including the right to security of person, this has pernicious effects.

The Yazidis commonly speak of having suffered, over the centuries, 73 genocides and the historical record is littered with attempts at their annihilation. The events of August 2014 are not, to them, an isolated incident. Questions continue to be raised about the efficacy with which this marginalised, maligned community has been protected by the authorities. This has included the failure to protect them from ISIS in the first place, given the foreseeability of the attack on Sinjar after ISIS seized Mosul in June 2014. In the aftermath it remains unclear whether authorities – both in the KRI and in areas directly controlled by the central Government – are prepared to protect Yezidis from future attacks. 

The duty to prevent genocide and the responsibility to protect, viewed through the lens of asylum rights

Both the 1948 Genocide Convention and the 1951 Refugee Convention arose from the carnage wrought by Second World War, when minorities – unanchored from the protections of a nation-State – were targeted for their otherness, not just by the engineers of genocide, but also by states, such as the United States, that chose not to provide safe haven. This refusal to accept thousands of Jewish people attempting to flee the Holocaust became a moral stain, which gave rise to the impetus to craft binding legal frameworks to take actions to protect vulnerable minorities. The link between the right of asylum and the prevention of genocide was cemented by this historical failure to secure the protection of a people by extending the most basic form of welcome to them.

For the 1951 Refugee Convention, the notion of a well-founded fear of ‘persecution’ is the touchstone for protection. Article 1 of the Genocide Convention sets out the duty to “prevent and punish” genocide, but whereas the content of the duty to punish is further fleshed out, the duty to ‘prevent’ is left hanging as a vague promise. This notion of ‘prevention’ might have remained a dead letter if not for the fresh wave of shame following the inaction of the international community in the face of the Bosnian and Rwandan genocides. Yet again, the question was asked, what could we have been done, and what should we have done to prevent these horrors, and protect the victims?

The debates and resolutions that unfolded over the next decades centred around the notion of the ‘responsibility to protect’ (R2P). While the question as to the upper-limits of responsibility hovered on the controversial question of humanitarian intervention, less attention was given to the role of asylum protection as a means for preventing genocide, and protecting its victims. The notion that the existence of a genocide can trigger a duty to intervene or take positive steps has also created a perverse disincentive for States to call a genocide a genocide, as reflected by the fact that some States have yet to acknowledge the Yazidi genocide.

If States prove resistant to incorporating asylum protection within the Genocide Convention, its obligations must be incorporated into the interpretation and application of asylum law. Persecution and genocide exist on the same continuum, and there is no empirical bright line as to when the systemic persecution of people is likely to mutate into a genocide. It follows, therefore, that effective genocide prevention strategies must be harmonised with State obligations to protect against persecution. Concretely, the notion of ‘persecution’ must take into account the dynamics of collective harm that results from genocide, and the right to collective protection as a mechanism for pre-empting the extinction of the identity of the group, as such. 

Asylum policy and the particularities of the Yazidi ethno-religious group

At present, the political pendulum in many States has swung towards a more restrictive and individualistic approach to asylum law, which promotes the denial rather than acceptance of asylum seekers. This narrow approach, which focuses on the right to exist free from serious harm, whilst ignoring the bigger picture of the right of a vulnerable group to exist “as such”, fails to protect the right of the Yazidis to exist as a people, and not just as an atomistic fragment, divorced from the element as a whole.

For centuries, Yazidis had managed to secure their continuing identity and existence in what was often a hostile environment by marrying only from within the Yazidi community: Yazidi children must have two Yazidi parents and conversion to Yazidism is theologically impossible. They also secured their existence by having large families and living in regions that are geographically isolated. With the destruction of Sinjar, the death of thousands of young Yazidi men, the sexual violation of young Yazidi women, and the scattering of Yazidis across the KRI, Europe, and further abroad, all three of these survival strategies are under threat. When taking into account how to provide for the survival not only of Yazidi individuals but of the Yazidis as a people, it is essential for Yazidi asylum seekers to be considered as a group: assessing them simply as individuals risks sundering them from their people and their faith.

Durable solutions must ensure the integrity of the people at risk. Individuals need to be accepted and protected as a community, and the notion of a safe and sustainable return to the country of origin needs to take into consideration the extent to which the ‘return’ allows the ‘population’ to maintain their identity as a group. A forced return to an IDP camp in a different geographic area might be consistent with the ‘safe’ return of the individual, but not the sustainable return of the protected population, and the protection of a people ‘as such’.

The focus of asylum protection is on the risk of future persecution, as predicted on the basis of past conduct. Genocide – in either its active or nascent ideological form – seeks the annihilation of the group. Genocidal attacks against individual Yazidis are thus clear indicia of the risk of persecution faced by the group. The assessment of the future risk faced by individual Yazidis cannot, therefore, occur in a vacuum, but must take into consideration the experience of the group as a whole.

The designation of the Yazidi people as a ‘vulnerable group’

The corpus of asylum law has evolved over the last half-century to recognise that within the genus of persecuted minorities, there is a further need for specific minorities to be designated as a ‘vulnerable group’ in order to protect against intersectional layers of discrimination. This open-ended category of groups has been constructed on the basis of the heightened protections set out in other legal instruments, such as the Convention on the Rights of the Child, and the Convention against Torture, and includes children, and survivors of torture, trafficking and gender-based violence. The vulnerability designation requires States to exercise specific care to ensure that the asylum process is compatible with the groups’ protection needs, as concerns the manner in which the interviews are conducted, the provision of appropriate medical and psychological assistance, and the type of accommodation that is provided.

Within the context of the Council of Europe, the notion of ‘vulnerable groups’ also corresponds to a heightened degree of human rights protection, and has been held to encompass a ‘people’ as such. In Oršuš and others v. Croatia, the ECHR explained that although the case concerned the situation of fourteen individual applicants, it was necessary to take into account the “specific position of the Roma population” who “as a result of their history…have become a specific type of disadvantaged and vulnerable minority”.

This line of reasoning applies with even greater force to the Yazidi people. The genocide in which started just over four years ago marked the extreme intensification of a continuum of persecution, and historical vulnerability caused by their otherness. The Yazidis exist as a majority in no state. In the absence of political power, their survival, as a group, rests exclusively on their ability to enjoy effective protection as a minority group, which can exist as such. The synergies between the 1951 Refugee Convention and Genocide Convention, as set out above, also speak to the need to classify the Yazidi people as a ‘vulnerable group’ that requires a heightened degree of protection in order to ensure their right to continue to exist as a people.

A Business and Human Rights Treaty: The Risks of Human Rights Counter-Diplomacy

by Luis Yanes

[Luis F. Yanes is a Project and Research Assistant of the Essex Business and Human Rights Project and a PhD candidate at the Human Rights Centre of the University of Essex. You can find him on Twitter @LuisFYanes.]

As we now know, on the 19th of July 2018, the first draft for a Business and Human Rights Treaty was published (draft zero). In a post published here in Opinio Juris, Carlos López brilliantly summarized some of the key legal aspects that the draft zero proposes, with a critical view of what is missing in order to ensure a more effective treaty.

However, neither the draft, nor any posts regarding it, have addressed one of the mayor risks that all UN human rights instruments have historically presented, this is, the vulnerability to human rights counter-diplomatic tactics. The intention of this post is, therefore, to bring attention to the underlying risks that treaty-making has to the full effective enjoyment of human rights.

A treaty on Business and Human Rights (B&HR) has the potential of resolving many of the ambiguities when interpreting the impacts that the activities of multinational corporations have in the enjoyment of human rights. But we have learned with time that there are some risks in the way human rights treaties have been created. Are we ready to craft a draft that actually tackles these diplomatic risks?

Human Rights Diplomacy and Counter-Diplomacy

It is important to take into consideration that international human rights agreements are the result of a political process, and therefore, are created though a developing dialogue by states who wish to bind themselves to such principles. This process can be seen by certain states as their diplomatic means of advancing human rights issues (by negotiations and persuasion) in other nations. This is what some call human rights diplomacy. However, it is also possible to use the means of diplomacy to frustrate such efforts.

For some, the international politics of human rights is mainly centred on mobilizing shame and public exposure, therefore, the ability of a state to tackle or even diverge the attention of certain allegations are key mechanisms in what can be called human rights counter-diplomacy. This is, using diplomatic means to undermine the efforts of other countries that aim to improve the promotion and protection of human rights.

This human rights counter-diplomacy can also be seen in the process of negotiating and implementing human rights treaties, as a state might want to play-along with the international community, with no real intention of complying with such rules.

Ratifying but not complying

Experts in Diplomacy and International Relations would probably say that it is naïve to suppose that states with questionable human rights records have signed or ratified a human rights treaty because they believe in the principles that such instruments contain. Hence, some believe that a more realistic approach might be to consider that countries with questionable human rights records – such as Venezuela and Cuba, which supported the original initiative of drafting a treaty on B&HR – decide to enter into such international instruments as a response to external pressure, or internal propaganda, but never really expecting to comply with their obligations.

From a legal perspective, acknowledging that states enter into treaties with no expectations to comply with them might be seen as alarming. This of course given that it would undermine one of the most fundamental principles of international law, pacta sunt servanda. If states ratify treaties – in good faith – it is because they are willing to comply with the obligations such instruments enshrine. Foreign Affairs experts, however, calls us to take a step back and look at the political landscape the international community currently faces.

The draft zero, however, does not address this issues. It repeats the Treaty Monitoring Body formula, whereas a Committee of Independent experts is created to oversee compliance with the treaty. These Bodies have been repeatedly criticised for their inability to enforce their decisions and directly ensure the implementation of their treaties. In comparison with Regional Human Rights Institutions, such as the European and Inter-American Court of Human Rights, Treaty Monitoring Bodies have historically been created without tools to ensure non-complying states do not undermine the rights and obligations enshrined in such instrument.

Ratifying with reservations

States may appear to show commitment, by ratifying international human rights treaties, but with substantial reservations. Such reservations could often be incompatible with the treaty itself, undermining the rights that they have vowed to protect. Some states may directly object to reservations done by other states, but rarely do so.

A B&HR treaty could be seen as an accomplishment for the international community, but if substantial reservations were to be made to it, then the real nature and effectiveness of the instrument would disappear. The draft zero explicitly addresses the issues of reservations, by stating in its article 15 that ‘[r]eservations incompatible with the object and purpose of the present Convention shall not be permitted’. But this is no guarantee of success, as we have seen with the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) with 57 reservations, particularly to core provisions to the Convention.

Most of CEDAW’s reservations limit the enjoyment of such rights to compliance with domestic law. Hence, if domestic law is more restrictive, the Convention is basically overridden. CEDAW’s treaty monitoring body has expressed that certain reservations are incompatible with the Convention, but this unfortunately has had no substantial effect in state practice.

Reservations to a B&HR treaty based on compliance with domestic law could potentially undermine the effectiveness of the treaty altogether. If the right of victims to seek direct redress against multinational corporations – as proposed in draft zero – is understood to be essential this international framework, and if such right could be limited or prohibited in a given country by its domestic law, then the essence of the treaty itself disappears.

No ratifications

Another risk that human rights counter-diplomacy might bring is that very few countries might ratify it. This presents a mayor risk. If one was to look as an example at the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, with only 51 ratifications to date, a B&HR treaty could end up with the same fate. One must, therefore, question if a treaty with very few ratifications would be a positive step or rather a step backwards, as one could argue that the lack of universal acceptance might restrain the ability of existing human rights bodies to further develop the area of B&HR.

On this point, for example, one could foresee an argument sustaining that – given the importance of state consent within public international law – the Committee on Economic, Social and Cultural Rights would not have the legitimacy to issue General Comments such as its No.24, as there would not be a real universal acceptance that States have specific obligations to regulate the conduct and activities of multinational corporations that negatively affect human rights.

Ensuring that sufficient states ratify a B&HR treaty is not an easy task. Overall consensus will be needed. Time will be essential. To push too soon for a treaty, where some states have not indicated a preference or even presented a slight indication on their position, could present a mayor risk for the future.

Disrupting mechanisms

A more complex, yet common counter-diplomatic tactic, is to disrupt the mechanisms that were created through human rights treaties. Treaty monitoring bodies (TMBs) – as the one draft zero is proposing – play an essential role by examining state reports, reviewing individual complaints and assessing a state’s obligation to a particular human rights treaty. However, the selection of its members and its funding are very much in the hands of states parties to the treaty, ergo, states have the ability to undermine any effectiveness of their work.

The selection process at the UN is highly political and has been criticised for taking limited account of the qualifications of the members that are being proposed to different TMBs. Such selections may be affected by vote trading, with some countries willing to negotiate the selection of certain members to undermine the independence of such bodies; seeking to select members that are less harsh with certain governments.

A clear consequence of ill selection of treaty bodies members is the tremendously vague concluding observations that they often produce, which arises from the political bias of its members, who are unwilling to provide more specific recommendations as to not publicly shame a particular country.

Draft zero, nevertheless, does not provide a clearer language that could potentially overcome some of the historical problems related to the members of the treaty monitoring bodies. The draft states that the members of its committee must have ‘recognized competence in the field of human rights, public international law or other relevant fields.’ B&HR is inherently a complex and multidisciplinary field; the treaty should reflect that the level of competency required for the members of the committee is real expertise and knowledge of this specific field. Moreover, special provisions, as to assess such qualifications should be in place, in order to ensure that real and independent experts are being selected.

On the other hand, the political reality of the UN, were member states have been unwilling to approve substantial budget increases for the human rights work of the UN, places the treaty bodies in a situation of vulnerability. States, on the basis of budgetary decisions, may seek to deteriorate the work of treaty bodies by ensuring they do not receive the necessary funding for their work. As an example, the Chairperson of the TMBs has noted in several occasions that financial and technical resources have been allocated to support the Universal Periodic Review of the Human Rights Council (a political process led by states for states), while TMBs have not seen an increase in their budget.

How will this new Committee be funded? The draft zero gives us no answer to that. And although some might think that it is somewhat precipitated to discuss this, the risk that counter-diplomatic tools could be used to underfund a B&HR Committee, or reduce the funding of other TMBs to provide for this new Committee, is something we need to address in the early stages of this draft.

Looking forward

A treaty that would link B&HR would provide a more coherent and less fragmented international law, stipulating that human rights would take part of the law that regulates businesses. A treaty could clarify the precise content of states’ duty to protect human rights by being explicit in the extraterritorial reach of this duty, in order to dissipate any confusion. It would define clear legal obligations of corporations with respect to human rights, and could address how multi-national corporations can be held accountable for their violations.

Many legal uncertainties might be resolved if there was a positive outcome, however, human rights counter-diplomacy presents a real and unavoidable threat to a successful B&HR rights treaty. Being aware of such risks is essential, and the draft zero does nothing to prevent these foreseeable risks.

The draft zero repeats many of the mistakes – or problematic issues – we have seen with the current human rights treaties. It repeats the language used by other treaties – such as CEDAW – in regards to reservations. Hence, it needs to develop a more sophisticated approach, whereas a clear mechanism to object incompatible reservations is in place, or, whereas the Committee is provided with the authority to determine incompatibilities.

The risk of non-compliance is ultimately unavoidable with the current draft zero. Thus, it is essential that the treaty contains clear provisions that require state parties to incorporate into domestic law the set of rights and obligations enshrined in the instrument. It is also essential that its Committee is given sufficient teeth to be able to ensure that non-complying states are held accountable.

Civil society, academia and those states that champion human rights must be ready to use their knowledge and skills to make sure that a treaty on B&HR rights is less vulnerable to counter-diplomatic tactics; in particular, if we want the treaty to have a real and meaningful impact in the way international law currently regulates the adverse effects that multinational corporations have in the enjoyment of human rights.

India’s Supreme Court Poised to Make History by Decriminalising Homosexuality

by Maitreyi Gupta

[Maitreyi Gupta is an International Legal Adviser for the International Commission of Jurists, Based in India.]

The Supreme Court of India will soon deliver its judgment in a historic case — Navtej Singh Johar et al v. Union of India and others — on the criminalization of consensual same sex relations in the country.

Branded outlaws by the law, lesbian, gay, bisexual and transgender (LGBT) persons have been at the forefront of the struggle for full equality, demanding recognition of their human rights, in light of India’s Constitutional and international human rights law.

The Supreme Court’s decision will be a watershed in the jurisprudential recognition that LGBT persons’ rights are human rights.

During hearings that concluded on 17 July 2018, Senior Advocate Mukul Rohatgi underscored how Navtej Singh Johar and other LGBT petitioners in the case “are not only seeking protection as sexual minorities, but recognition of characteristics that inhere to all human beings”.

Advocate Menaka Guruswamy further argued that, “these people deserve to be protected by their court, their Constitution, and their country”, and said, Section 377 “is not about sex but about love and it must be constitutionally recognized.”

Together with 73 other countries India criminalizes consensual same-sex relations by making “carnal intercourse against the order of nature” illegal under Section 377 of the Indian Penal Code, a provision that is a relic of India’s British colonial past. In practice, it makes illegal all non-normative sexuality, branding LGBT people outlaws, and denying a fundamental characteristic of their identity.

While criminal convictions under Section 377 are rare, its existence facilitates extortion, harassment and blackmail of LGBT persons by the police, as well as by their families and communities.

Other vague and overly broad provisions criminalizing, among others, public nuisance, sex work and beggary are also similarly used to harass and persecute LGBT people in the country.

For instance, in 2016, F, a transgender man and activist, arrested while assisting transgender sex workers, told the ICJ,

“[The police] took me to the police station and beat me with a stick….I spent that night in the [police] station. The police took my phone. My lawyers couldn’t get through and the police did not allow me to inform my family about the arrest. I wasn’t given any food or water”.

F was charged in 2009 with committing a “public nuisance”; however, three years later, without any explanation, the case against him was dismissed.

The legal struggle to decriminalize same-sex relations in India started in 1991.

It has seen many setbacks, most notably the Indian Supreme Court’s 2013 decision dismissing the LGBT community a “minuscule fraction of the country’s population’, and upholding the validity of Section 377.

In response, several renowned Indian LGBT individuals came forward for the first time in 2016 to file petitions demanding both decriminalization and recognition of their non-negotiable and inalienable rights to dignity, equality, liberty, and non-discrimination.

The petitioners have urged the Supreme Court to repeal Section 377 insofar as it applies to consensual same sex relations, but more notably they have also pleaded for a recognition of their right to intimacy as integral to their right to life, as well as a recognition of their rights to express their sexual orientation; to form associations; and to non-discrimination in housing, education and employment, among others.

Parents of LGBT persons, mental health professionals and teachers, who also petitioned the Supreme Court, have further asserted that Section 377 violates the constitutional right to fraternity, that is, ‘respect for the dignity of another’.

They have invoked B. R. Ambedkar, the father of the Indian Constitution, to draw comparisons between the discrimination Ambedkar faced as a Dalit and the discriminations faced by LGBT persons in present day India.

With this case India’s Supreme Court may well make history: by decriminalizing consensual same-sex relations and recognizing the full range of LGBT persons’ human rights.

It bodes well, judging by some of the statements made by some of the judges on the nine-judge bench hearing the case: “Section 377 is not about a sexual act, but is about the lives of the LGBT persons”, and “the law should not enable social opprobrium”.

A watershed decision is required by and would be consistent with India’s international human rights law obligations.

For instance, India and other States criminalizing consensual same-sex relations have been urged by the United Nations Human Right Committee to “guarantee equal rights to all individuals… regardless of their sexual orientation”.

The Indian Supreme Court’s judgment is also crucial because the direction it takes has transnational importance as other countries, especially former British colonies, will be looking to it as they hear similar legal challenges.

By merely decriminalizing, India would follow in the recent footsteps of, among others, Trinidad and Tobago, Seychelles, Nauru and Mozambique.

But by coupling decriminalization with the recognition of the full range of LGBT persons’ human rights, India would set its own precedent, one for others to follow.

Job Announcement: Allard IJHR Clinic (UBC) Seeks Junior Supervising Attorney

by Jessica Dorsey

The International Justice and Human Rights Clinic at the Peter A. Allard School of Law, University of British Columbia (“Allard IJHR Clinic”) is seeking a full-time junior supervising attorney to work with the Clinic Director and law student clinicians from Sept 1, 2018 to July 31, 2019, with possible extension. 

The Allard IJHR Clinic works on pressing human rights and global justice concerns through hands-on work on international cases and projects. Students gain experience applying international human rights law, international criminal law and/or international humanitarian law working on specific cases with a range of international justice organizations, including international criminal courts and tribunals, United Nations human rights bodies, and non-governmental organizations.  The Clinic also produces its own human rights reports. 

Applications due August 31, 2018, preferably sooner. For more information, please see the full posting here.