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Human Rights

Thoughts on the Ukraine Ad Hoc Self-Referral

by Kevin Jon Heller

As readers no doubt know, Ukraine has accepted the ICC’s jurisdiction on an ad hoc basis for acts committed between 21 November 2013 and 22 February 2014. The self-referral has already led to a good deal of intelligent commentary — see, for example, Mark Leon Goldberg’s discussion of the politics of an ICC investigation here and Mark Kersten’s convincing argument that Russia may not be particularly opposed to an ICC investigation here. I just want to add a few additional thoughts.

To begin with, I remain troubled by the insistence of Ukraine’s Constitutional Court that Ukraine cannot delegate its adjudicative jurisdiction to an international court. As it said in 2001:

Article 124 of the Ukrainian Constitution states that the administration of justice is the exclusive competence of the courts and that judicial functions cannot be delegated to other bodies or officials. The Constitutional Court noted that the jurisdiction of the ICC under the Rome Statute is complementary to national judicial systems. However, under Article 4(2) of the Rome Statute, the ICC may exercise its functions and powers on the territory of any State party, and under Article 17, the ICC may find a case to be admissible if the State is unwilling or unable genuinely to carry out the investigation or prosecution. The Court concluded that jurisdiction supplementary to the national system was not contemplated by the Ukrainian Constitution. Hence, the amendment of the Constitution is required before the Statute can be ratified.

Parliament’s acceptance of the ICC’s jurisdiction, even on an ad hoc basis, seems specifically foreclosed by the Constitutional Court’s judgment. Ukraine’s President and Parliament clearly don’t care about that inconvenient fact; will the ICC? Martin Holtermann may be right — the ICC may simply defer to Ukraine’s President and Parliament. But I can help but think it would be unseemly for an international court like the ICC to simply ignore a clear judgment issued by the highest court in a state purporting to accept its jurisdiction. At the very least, Fatou Bensouda should take the Ukraine’s internal conflict into account when she decides whether to open a formal investigation — you can bet that any suspect wanted by the ICC would challenge the legality of the self-referral in Ukraine’s domestic courts, litigation that could make it very difficult for ICC proceedings to go forward.

Relatedly, I think it’s important to remind ourselves that Ukraine’s self-referral does not mean the OTP will open a formal investigation into the situation. Diane Amann writes today that the self-referral shows “Europe is on [the] ICC docket.” That’s true — but only in the formal sense. As Mark Kersten noted in February, Europe has been on the ICC docket for a long time in terms of preliminary investigations. After all, the OTP announced the Georgia investigation in August 2008 — nearly six years ago. (Its Afghanistan investigation has been plodding along even longer, since 2007.) That hasn’t quelled the voices that have been complaining — with justification — that the ICC has been overly obsessed with Africa. So unless and until the OTP decides to open a formal investigation into the situation in Ukraine, the country’s self-referral is unlikely to have any positive effect whatsoever on the Court’s African reputation.

Finally, a brief thought on the temporal limits of the self-referral. I don’t think the ICC will reject the referral on the ground that it is too carefully tailored to ensure only one side of the conflict. (A major problem with Comoros’s Mavi Marmara state referral.) The temporal limits, however narrow, make some sense — the referral begins when Yanukovych announced Ukraine was abandoning the agreement with the European Union and ends when Yanukovych fled the country. Should Ukraine have accepted the ICC’s jurisdiction for a longer period — most notably, to include Russia’s invasion of Crimea? I had an interesting twitter debate earlier today on that issue with a bunch of smart Court-watchers, including Ryan Goodman, Eugene Kontorovich, Mark Kersten, Martin Holtermann, and David Kaye. I pointed out that it’s difficult to see what international crimes Russia committed during the invasion, other than the non-prosecutable crime of aggression. Ryan replied that a longer self-referral could give the ICC an opportunity to address important issues in the law of occupation. (See also his post here.) That’s absolutely true — but only if Russia actually violates the law of occupation, which seems unlikely given the popularity (certainly not uniform) of the invasion and annexation within Crimea itself. The wildcard is the crime that Eugene mentioned during our discussion — the transfer of civilians into occupied territory. I have no idea whether Russia intends to directly or indirectly transfer Russians into Crimea; Eugene seems to think it does, and I will defer to his greater knowledge of the situation. But my position with regard to that possibility is the same as my position on Israel’s transfer of civilians into the West Bank: whatever the merits of the allegations, the war crime is legally uncertain and factually difficult to prove, especially when the transfer is indirect instead of direct — which it is in the West Bank and would almost certainly be in Crimea. In the absence of other violations of the law of occupation, therefore, I am not sure the OTP would get involved.

I imagine we will have much more to discuss concerning the ICC and Ukraine in the weeks to come!

The Case That Won’t Die: U.S. Court Revives South Africa Apartheid Alien Tort Statute Lawsuit

by Julian Ku

So maybe the use of the Alien Tort Statute against corporations for overseas activities isn’t fully dead. Yesterday, the U.S. District Court for the Southern District of New York has revived In re South Africa Apartheid Litigation, a twelve-year-old litigation that just won’t die. A copy of the opinion can be found here.

Most of the opinion deals with whether a corporation may be sued under the Alien Tort Statute, an issue most thought was settled within the Second Circuit (the federal appeals circuit that includes New York). As a lower court within that circuit, the district court should have been bound to follow that court’s 2010 opinion Kiobel v. Royal Dutch Shell, which held that corporations cannot be sued under the ATS.  The lower court judge, Shira Scheindlin, decided that since the Supreme Court had ended up dismissing the Kiobel plaintiffs on other grounds (e.g. extraterritoriality), the Court had sub silentio reversed the original Kiobel decision’s ruling on corporate liability.  That is quite a stretch, and appears based almost solely on the Supreme Court’s reference to “mere corporate presence” as being insufficient to overcome the statutory presumption against extraterritoriality.  This language, and the Supreme Court’s decision not to otherwise mention the corporate liability issue, was enough for Judge Scheindlin to revisit the corporate liability issue.  I don’t really buy this sub silentio interpretation of Kiobel, but to give credit where credit is due, this argument was previewed in our Kiobel insta-symposium by Jordan Wells, a third year law student.  Let’s just say Judge Scheindlin really went out of her way to re-open this question.  

My views on the corporate liability issue haven’t changed since I published my full length attack on it back in 2010.  In my view, the Supreme Court’s decision in Mohamad v. Palestinian Authority, finding that the Torture Victim Protection Act does not allow torture claims against corporate defendants, provides an unappreciated boost to the policy rationale for limiting these kinds of lawsuits to natural persons.  But other circuits, and apparently Judge Scheindlin, refuse to agree with me (I know, I know, it’s hard to believe, but it’s true).

Putting aside the corporate liability issue, it is perhaps more surprising that Judge Scheindlin did not simply dismiss all of the defendants on Kiobel extraterritoriality grounds.  The Second Circuit appeals panel in this case held that all of the defendants (U.S. and foreign) should be dismissed because all of the alleged relevant conduct occurred in South Africa.  The U.S. corporate defendants (Ford and IBM) did not overcome the Kiobel presumption because the complaints only allege vicarious liability as parent corporations to their South African subsidiaries.   Yet Judge Scheindlin only dismissed the foreign defendants and will allow the plaintiffs to re-file their complaints against the US defendants to overcome the new Kiobel extraterritoriality presumption.  This means that she is willing to explore in greater detail the Kiobel requirement that plaintiffs’ claims “touch and concern” the territory of the U.S. with sufficient force to displace the presumption against extraterritoriality.  Will knowledge by the US parent of the subsidiaries’ activities in South Africa be enough? Will receiving profits from the subsidiaries be enough? I assume that is the best the plaintiffs will be able to plead is knowledge by the U.S. parent.

I assume this is going back to the appeals panel in this case, and we should expect some rather testy reactions. Judge Jose Cabranes (the author of the appeals court panel decision) and Judge Scheindlin have recently tangled over a local NY case against aggressive police tactics resulting in the controversial removal of Judge Scheindlin from that case (Judge Cabranes was one of three judges involved in that removal order).  This latest Scheindlin order seems a double-insult at Judge Cabranes.  It “reverses” his earlier Kiobel decision on corporate liability (from a lower court no less!), and then it ignores his subsequent opinion holding that all defendants should be dismissed via a motion for judgment on the pleadings.   A little tension brewing at 40 Foley Square, perhaps?

There Is No General “Security Exception” in the UNHQ Agreement Act

by Kevin Jon Heller

I fully concur with Julian’s recent post about the United Nations Headquarters Agreement. There is no question that the US decision to deny Aboutalebi a visa violates the Agreement itself. But I’ve seen suggestions, most notably by my friend John Bellinger, that the US is not violating domestic US law because the 1947 United Nations Headquarters Agreement Act (scroll down) contains a “security exception” to the visa requirement. Here is what John said, according to Bloomberg:

President Barack Obama has authority to deny a visa to Iran’s newest choice as envoy to the UN, yet doing so would open up risks for U.S. foreign policy.

The decision in the case of Hamid Aboutalebi, who was part of the group that took over the American embassy in Tehran in 1979, is being made at a delicate point in U.S.-led negotiations over Iran’s nuclear program.

Under the United Nations Headquarters Agreement Act approved by Congress in 1947, the president has authority to deny visas to individuals deemed to pose a security threat to the U.S., said John Bellinger, a former State Department legal adviser who is now partner at Arnold and Porter LLP in Washington.

If Obama decides a person is a threat “then we’re not required to give that person a visa, and that would be consistent with our obligations under the headquarters agreement,” Bellinger said. “Whether that’s good policy or not that would be up to others to decide.”

“The short answer is, it’s complicated,” he said.

I disagree. With respect to John, nothing in the Headquarters Agreement Act permits the US to deny a visa to anyone it considers a “security threat.” The relevant provision is section 6, which Julian did not quote in full in his post (emphasis mine):

Nothing in the agreement shall be construed as in any way diminishing, abridging, or weakening the right of the United States to safeguard its own security and completely to control the entrance of aliens into any territory of the United States other than the headquarters district and its immediate vicinity, as to be defined and fixed in a supplementary agreement between the Government of the United States and the United Nations in pursuance of section 13 (3) (e) of the agreement, and such areas as it is reasonably necessary to traverse in transit between the same and foreign countries. Moreover, nothing in section 14 of the agreement with respect to facilitating entrance into the United States by persons who wish to visit the headquarters district and do not enjoy the right of entry provided in section 11 of the agreement shall be construed to amend or suspend in any way the immigration laws of the United States or to commit the United States in any way to effect any amendment or suspension of such laws.

Section 6 contains two separate provisions. Provision 1 permits the US to prohibit individuals who have a right of entry under the Headquarters Agreement but are considered a security threat from traveling anywhere other than other than “the [UN] headquarters district and its immediate vicinity.” Provision 2 then permits the US to deny entry completely to anyone who does not have a right of entry under the Headquarters Agreement. Section 6 thus does not permit the US to deny entry completely to someone who has a right of entry.

I think this is the only plausible reading of section 6. To find a general “security exception,” we have to read “safeguard its own security” (1) in isolation from the rest of the sentence in which it is placed (in which case we must still infer that the US is entitled to deny entry completely to individuals who are security threats, because Provision 1 does not specify any remedy other than limitation to the UN area), and (2) in isolation from Provision 2, which does explicitly permit denying entry completely but limits that remedy to individuals who do not have a right of entry under the Headquarters Agreement. Moreover, as Julian notes, it is extremely unlikely the UN would have accepted a general security exception if that had been Congress’s intent, because such an exception would have effectively rendered section 11 of the Headquarters Agreement moot.

Thanks to Tyler Cullis for calling the “security exception” problem to my attention.

How to Get Yourself Convicted of Terrorism

by Kevin Jon Heller

Just follow the lead of Henry Okah, a Nigerian national recently convicted in South Africa (under universal jurisdiction) of terrorism-related offences in the Niger delta. Here are the key paragraphs from the trial court’s decision:

[28] The correctness of copies of 3 journals kept by the accused in his own handwriting was admitted. In these journals the accused made notes in from January to September 2010 of names, military clothing, equipment and hardware. For example, he writes:

“Battle jackets… boots… boats, rounds… walkies…engines… balaklavas… water bottles… tee shirts, caps, belts, camo(flage) shorts… TNT… backpacks… binoculars nightvision… badges… bulletproof vests… tents… VHF radios … generators… rechargeable lamps… fuel… ordering through Ange Dewrance the construction of a gunboat with protector plates for the gunmen… rifle slings… the contact numbers of Military Surplus Stores CC… compasses… BMG assault weapons… RPG …SAM …grenade launchers… mortars… landmines… anti-tank missiles… shotguns… handguns… notes on military tactics inter alia the use of explosives, weaponry and sabotage… and notes on counter insurgency.. names of his co-militants like Tompolo, Stoneface, Boyloaf, Moses, Chima, Raphael, VIP, Stanley…”

[29] Also admitted is the fact that an email address and account was registered with Yahoo with a login name “nigdelunrest” in the name of “Mr. Jomo Gbomo.”

I hear iamalqaeda [at] gmail [dot] com and loyaltalibansoldier [at] mac [dot] com are still available. Any takers?

Hat-Tip: Chris Gevers, University of KwaZulu-Natal, who blogs at War and Law.

Could Moreno-Ocampo Represent LRA Victims at the ICC?

by Kevin Jon Heller

John Louth at OUP passes along the latest potential twist in Moreno-Ocampo’s career path:

The former prosecutor of the International Criminal Court (ICC), Mr Luis Moreno Ocampo, has offered to represent the victims of Barlonyo Massacre in the court.Barlonyo village in Agweng Sub-county, Lira District is where more than 400 people were massacred by suspected Lord’s Resistance Army rebels on February 21, 2004. A total of 301 people are buried at the memorial site in a mass grave.

However, more people are believed to have been killed in the attack as 11,000 people were in the camp at the time. “I have something to offer you, I want to be your lawyer,” Mr Ocampo told the survivors who gathered at Barlonyo to welcome him on Friday.

He then asked those in the crowd who lost relatives in Barlonyo massacre to raise their hands and all did. He then offered to represent them in court. Mr Ocampo said initially, it was thought only 200 were killed in Barlonyo but now he knows more people were killed.

“We can document that. The killing, abduction and the looting and we can present this to the ICC. We can request to expand the arrest warrant, the number of victims and the number of crimes and document well what happened here,” he said.

“We can present this to the ICC we can request to expand the arrest warrant we can expand the number of victims and number of crimes.” Mr Ocampo was invited to Lango region by Children of Peace, an NGO supporting the vulnerable and victims of the Barlonyo in Lira District

I have no idea whether Moreno-Ocampo actually intends to represent Barlonyo victims at the ICC, but it’s worth thinking about some of the potential ethical issues that such representation would involve. Like all counsel who are involved with the Court, Moreno-Ocampo would be subject to the Code of Professional Conduct for Counsel. The most relevant provision is Art. 12, “Impediments to representation”:

1. Counsel shall not represent a client in a case:

(a) If the case is the same as or substantially related to another case in which counsel or his or her associates represents or formerly represented another client and the interests of the client are incompatible with the interests of the former client, unless the client and the former client consent after consultation; or

(b) In which counsel was involved or was privy to confidential information as a staff member of the Court relating to the case in which counsel seeks to appear. The lifting of this impediment may, however, at counsel’s request, be ordered by the Court if deemed justified in the interests of justice. Counsel shall still be bound by the duties of confidentiality stemming from his or her former position as a staff member of the Court.

I don’t think Art. 12(1)(a) would apply, because the OTP doesn’t have “clients” in the sense of private counsel — especially given that the victims of crimes have their own counsel, making clear that they are not represented by the OTP. But it would be interesting to see the OTP’s position, because it could at least plausibly argue that the provision would require Moreno-Ocampo to get its permission to represent the Barlonyo victims. There is no question that the Barlonyo case is “substantially related” to Moreno-Ocampo’s previous work on the LRA cases; after all, the OTP pursued those cases on his watch and Moreno-Ocampo was responsible for opening the Uganda investigation in the first place. And although the interests of the OTP and the victims often align, that is certainly not necessarily the case — see, e.g., the Lubanga controversy over sexual violence. So I could see Bensouda worrying that Moreno-Ocampo might pursue a strategy for the Barlonyo victims that was inconsistent with his previous work on the LRA cases.

Which leads to Art. 12(1)(b), the confidentiality provision. That provision could easily be fatal to Moreno-Ocampo’s potential representation of the Barlonyo victims, even if the OTP didn’t oppose it. No former member of the OTP could have had greater access to confidential information than Moreno-Ocampo; after all, he was the Prosecutor for eight years. Could he represent the victims without in any way revealing or relying on confidential information he had access to while he was the Prosecutor? I’m willing to give Moreno-Ocampo the benefit of the doubt that he would take his confidentiality obligation seriously, but I’m skeptical that he — or anyone in a similar position — could maintain the mental “Chinese wall” necessary to avoid information bleed. So I could very easily see the Court deciding that it would not be in the “interests of justice” — or in the interests of the victims themselves — to permit Moreno-Ocamo to represent the Barlonyo victims given his previous role in the Court.

I have no problem with Moreno-Ocampo using his clout and visibility to promote the interests of the Barlonyo victims. But I’m not sure whether he should actually represent them at the ICC. In my view, it would be difficult, if not impossible, for Moreno-Ocampo to navigate the exceptionally complicated confidentiality issues that would be involved in working on behalf of victims in a situation he was once responsible for investigating. We’ll see what happens.

Al-Senussi, Gaddafi Show Trial to Begin Next Month

by Kevin Jon Heller

According to Lebanon’s Daily Star, Libya intends to begin the trial on April 14, just a few weeks from now:

Seif al-Islam Kadhafi, Saadi Kadhafi and former spy chief Abdullah Senussi are among more than 30 officials from the ousted regime who are to stand trial on charges ranging from murder to embezzlement.

Former premiers Al-Baghdadi al-Mahmudi and Bouzid Dorda are also among those going on trial from April 14, Seddik al-Sour, spokesman for the state prosecutor’s office, told a news conference.

Charges against Kadhafi’s sons and aides include murder, kidnapping, complicity in incitement to rape, plunder, sabotage, embezzlement of public funds and acts harmful to national unity.

Saadi Kadhafi, who was extradited from Mali earlier this month, is to stand trial in the same case, said Sour.

His older brother Seif al-Islam, Kadhafi’s former heir apparent, is being held by rebels in the western city of Zintan who have refused to transfer him to Tripoli for the trial.

Sour said he could stand trial via video conference from his detention cell in Zintan.

There is still no evidence that either al-Senussi or Gaddafi have ever had access to a lawyer, despite Libya’s constant assertions to the ICC that the government is doing everything in its power to arrange representation for them. Can’t let a little thing like Libyan law get in the way of a good show trial. And, of course, the nice thing about a show trial is that there really isn’t any need for the defendants to prepare a defence.

It’s also difficult to avoid noting the irony of Sour’s suggestion that Gaddafi could be tried via video link — exactly what the Assembly of States Parties and the Trial Chamber (though not yet the Appeals Chamber) have said is fine in the Kenya cases. To be fair, Libya would use videoconferencing without Gaddafi’s consent, whereas the ASP’s backdoor amendment of the Rome Statute was designed to placate Kenyatta and Ruto. But once the ASP and TC proved willing to dilute the clear presence requirement in Art. 63(1) of the Rome Statute, it was only a matter of time before states began taking liberties with presence, as well.

The ICC Fiddles While Libya Burns

by Kevin Jon Heller

For quite some time I zealously followed all of the various filings in the Libya cases — by Libya, al-Senussi and Gaddafi, the Registry, the OPCV, everyone. I also regularly blogged about those filings. But I haven’t lately, as consistent readers will know. The reason?

The ICC judges seem to have lost all interest in actually making decisions.

The record is quite shocking. Take the admissibility challenges. The Pre-Trial Chamber rejected Libya’s admissibility challenge to the case against Saif Gaddafi on 31 May 2013, nearly ten months ago. And it granted Libya’s admissibility challenge to the case against al-Senussi on 11 October 2013, more than five months ago. Both sides immediately appealed the decisions, yet the Appeals Chamber has done nothing since. I’ve been hearing rumours lately that the Appeals Chamber is planning on resolving both appeals at the same time. That may reduce the judges’ workload, but it doesn’t justify letting the appeals languish well beyond what is reasonable.

But it’s not just the Appeals Chamber that is failing to do its job. Pre-Trial Chamber I deserves even harsher criticism. Not surprisingly, Gaddafi’s defence team has been trying desperately to convince the Pre-Trial Chamber to issue a finding of non-compliance against Libya regarding its failure to surrender Gaddafi to the Court. (Or to at least try to surrender him, given that he is still being held in Zintan.) The defence filed its its first request for a finding of non-compliance on 7 May 2013, and it has filed numerous similar requests since. Yet the Pre-Trial Chamber has still not issued a decision on any of the defence’s requests.

So what has Pre-Trial Chamber I been doing in the Libya cases? Not much. It has issued a grand total of three decisions in the past five months, none of which have been substantive. Here they are:

13/02/2014 ICC-01/11-01/11-511 Pre-Trial Chamber I Decision designating a single judge
11/12/2013 ICC-01/11-01/11-490 Pre-Trial Chamber I Decision on the “Request for Leave to Appeal against the ‘Decision on the Request for an order for the commencement of the pre-confirmation phase by the Defence of Saif Al-Islam Gaddafi’”
13/11/2013 ICC-01/11-01/11-477 Pre-Trial Chamber I Decision on the “Defence application on behalf of Mr. Abdullah Al Senussi for leave to appeal against the ‘Decision on the request of the Defence of Abdullah Al-Senussi to make a finding of non-cooperation by the Islamic Republic of Mauritania and refer

Although it’s bad enough that the Court’s judges feel no urgency to address al-Senussi’s situation, their willingness to turn a blind eye to Gaddafi’s detention is simply unconscionable. As his defence team notes in its most recent — and certain to be equally ignored — request for a finding of non-compliance, Gaddafi has now been held in solitary confinement without access to a lawyer (at least one not subsequently imprisoned unlawfully by the Libyan government) for more than two years. (27 months, to be precise.) That situation has been condemned not only by the United Nations Working Group on Arbitrary Detention, but also by the African Court of Human Rights, which determined more than a year ago with regard to Gaddafi’s detention that “there exists a situation of extreme gravity and urgency, as well as a risk of irreparable harm to the Detainee.”

Yet still the judges do nothing — fiddling while Libya burns.

Even More on the Privacy and Civil Liberties Oversight Board Hearing: Why International Law Won’t Matter Much for NSA Spying

by Julian Ku

I was fortunate to participate in a discussion held at a hearing of the Privacy and Civil Liberties Oversight Board today in Washington D.C. I say “participate in a discussion” because it was not like giving testimony to a congressional hearing where the congressman make speeches and ask questions unrelated to your testimony.  Rather, it was closer to a mini-oral argument with five judges asking you questions about difficult legal issues (luckily, there were three other panelists though to field most of the questions).  The members of the PCLOB are all engaged and asked tough questions of me and of my fellow panelists. (I think C-SPAN will have video of our panel posted here)

The written testimony that was submitted (as well as  comments from the general public) can all be found here at the Regulations.Gov website. I want to flag for this blog’s readership the day’s last panel, which focused on international and transnational legal issues related to the NSA’s Section 702  surveillance program.  Three members of that panel (former State Dept. Legal Adviser John Bellinger, Human Rights Watch’s Laura Pitter, and the Max Planck Institute’s Ulrich Sieber) tackled the ICCPR’s applicability to overseas surveillance as well as the applicability of rules of customary international law.  (Video can be viewed here).  For those who don’t have the patience to watch the video or view the transcript, I live-tweeted the panel here).

Let me just add my two cents on the issues in this panel: Based on the questions, I don’t think the majority of the members of the PCLOB are convinced that international law does, or even should, constrain U.S. surveillance under Section 702.  They are also unimpressed with the complaints of foreign governments, most of whom have similar overseas surveillance schemes but with fewer oversight mechanisms.  The only concern that seemed to bother the Board was the fact that U.S. companies selling information technology overseas are being tarred with the NSA label, making it harder for them to compete in foreign markets.  These are just my impressions, mind you, but I wouldn’t be surprised if the final PCLOB report on Section 702 gives short shrift to international law issues.  (By the way, I would expect the opposite in their treatment of the Fourth Amendment, however).

Anyway, something to keep an eye on….

YLS Sale Symposium: Sale’s Legacies

by Harold Hongju Koh

[Harold Hongju Koh is Sterling Professor of International Law at Yale Law School. He served as Legal Adviser, U.S. Department of State, from 2009-13 and Counsel of Record for plaintiffs in Sale v. Haitian Centers Council, from 1992-93.]

Why, two decades later, does the Sale v. Haitian Centers Council litigation still spark such interest? This year alone, symposia about the litigation have transpired at law schools at Yale, Columbia, Howard, Brooklyn, and in London.  The case has been dissected in first-year Procedure Classes at Yale, Columbia, Touro, University of Connecticut, and New York Law Schools, just to name a few, using as texts Brandt Goldstein’s absorbing nonfiction novel Storming the Court, and his Storming the Court: A Documentary Companion, compiled with co-authors Professors Rodger Citron and Molly Beutz Land.

These texts tell the tale of a complex bifurcated lawsuit brought by a class of “screened-in” refugees and their lawyers against the U.S. Government, challenging first, the long-term detention of Haitians on Guantanamo, and second, starting in May, 1993, their direct return to Haiti following interdiction on the high seas.  Remarkably, the two halves of this frenetic case—which rocketed to the Supreme Court eight times in just fifteen months—ended on the same day in June 1993.  The Direct Return half of the case concluded with an 8-1 defeat for the Haitians at the U.S. Supreme Court, which ruled that the nonrefoulement obligations of  8 U.S.C. sec. 1253(h) and Art. 33 of the Refugee Convention do not apply on high seas. But on that same day, in the Illegal Detention wing of the lawsuit, some 200 HIV+ Haitian refugees detained for months on Guantanamo were released following trial, pursuant to a permanent injunction granted by Judge Sterling Johnson, Jr. of the Eastern District of New York. “Although the [U.S. government] defendants euphemistically refer to its Guantánamo operation as a ‘humanitarian camp,’” Judge Johnson wrote, “the facts disclose that it is nothing more than an H.I.V. prison camp presenting potential public health risks to the Haitians held there.”

This Opinio Juris Symposium just concluded reveals that, even decades after Sale ended, its story keeps repeating.  In particular, as the excellent contributions to this symposium have illustrated, Sale leaves behind three competing legacies. The first is the continuing governmental search for “national security black holes” through techniques of high seas interdiction, offshore detention camps, and theories that human rights law can be displaced by extraterritoriality and the law of armed conflict.  But this first legacy has been countered by a second legacy– constantly evolving strategies of transnational legal process and litigation– and a third– rapidly adjusting changes in human rights advocacy and clinical education. Together, the second and third legacies have largely thwarted continuing governmental efforts to construct enduring legal black holes.

In Sale, Justice John Paul Stevens found for eight Justices that the non-return (nonrefoulement) obligations of Immigration and Nationality Act (INA) and Article 33 of the 1951 Refugee Convention did not apply on the high seas.  As I chronicled shortly after the decision, that conclusion was deeply flawed methodologically: it ignored both the plain text and object and purpose of the treaty and statute. Moreover, the majority ignored contradictory negotiating and legislative history underlying both laws; overly deferred to executive power; and exalted the so-called statutory “presumption against extraterritoriality,” a trend the current Court strengthened in its recent Kiobel decision. Justice Blackmun’s compelling dissent skewered the majority, underscoring not only that the text and meaning of the INA and Refugee Convention were simple and crystalline—“Vulnerable refugees shall not be returned”—but also that that object and purpose would be entirely thwarted if those legal obligations did not apply extraterritoriality to protect fleeing refugees.

Looking back, Justice Stevens’ decision is most striking for its frank and admirable acknowledgement of the “moral weight “ of the Haitians’ claim. Justice Stevens found his own ruling deeply in tension with the spirit of the treaty, but curiously, instead of reading that text consistent with that object and purpose, Justice Stevens found instead that, although “the human crisis is compelling, there is no solution to be found in a judicial remedy.” Internal Court memos unearthed after Sale show that Justice Scalia had objected to the Court’s mere mention of “the moral weight” of the Haitians’ claim, saying “For my taste, that comes too close to acknowledging that it is morally wrong to return these refugees to Haiti, which I do not believe.”  To which Justice Stevens responded,  “I think it is undeniable that it has some moral weight and I think it would be unfortunate for us to imply that we think it may have none” (emphasis in the original).

(more…)

YLS Sale Symposium: International Protection Challenges Occasioned by Maritime Movement of Asylum-Seekers

by T. Alexander Aleinikoff

[T. Alexander Aleinikoff is the UN Deputy High Commissioner for Refugees.]

Irregular maritime movement raises complex issues of “mixed migration” flows, life-risking sea crossings, varying state policies, well-ingrained smuggling and trafficking networks, and emerging regional processes.  Movement of migrants, refugees and asylum-seekers by sea is a world-wide phenomenon, with Afghans, Sri Lankans, Rohingyas, and Bangladeshis, among others, travelling by boat in the Indian Ocean and Andaman Sea; more than 60,000 persons a year (mostly Ethiopians) arriving in Yemen; sub-Saharan Africans and now increasingly Syrians and Palestinians from Syria seeking to cross the Mediterranean from North Africa to Europe; and several thousand Cuban and Haitian migrants interdicted each year in the Caribbean.

The central goal of UNHCR is that states adopt policies and practices that are protection-sensitive.  A protection-sensitive approach would, at a minimum, embrace the following core principles:

  • The norm of non-refoulement, which prevents forcible return of a person in need of protection, applies wherever a state has de jure or de facto jurisdiction  (that is, whether the individual is encountered on the high seas or within the territorial water of a state).
  • Effective application of the non-refoulement principle requires fair and timely procedures for assessing whether an individual in an irregular situation is in need of international protection.
  • During the time that refugee claims are being examined, persons must not be subject to arbitrary detention or inhumane or degrading treatment.
  • Persons recognized as in need of international protection should ultimately be afforded a solution (such as third country resettlement or lawful presence in the state in which their claim is assessed).

Rescue at Sea

The vessels used by irregular migrants are often unseaworthy, and search and rescue efforts are frequently required in order to save lives.  “Rescue at sea” standards are embodied in number of international instruments, but important gaps remains—particularly related to (1) where rescued migrants should be disembarked, and (2) how best to ensure the processing of asylum claims and the provision of solutions.  A UNHCR-hosted experts meeting on Refugees and Asylum-seekers in Distress at Sea (held in Djibouti in 2011) supported a Model Framework for Cooperation for rescue at sea operations.  The aims of the Framework are to reduce loss of life, ensure predictability regarding disembarkation, preserve the principle of non-refoulement, and foster burden-sharing. The expert group also supported the establishment of mobile protection teams that can respond in rescue at sea situations, including by providing assistance with the reception and processing of rescued persons.

In November of 2013, UNHCR launched the Central Mediterranean Sea Initiative (CMSI), which proposes a comprehensive strategy for the region that would strengthen search and rescue by E.U. authorities and private ships, identify safe places for disembarkation, and provide screening of migrants to assess protection needs and other grounds of vulnerability. As to burden-sharing, the CMSI recognizes that the location for assessment of refugee claims need not be the state of disembarkation and recommends the establishment of a joint processing pilot for persons rescued in international waters and the resettlement of persons found in need of protection. The Initiative also proposes measures to reduce irregular migration, including mass communication efforts in countries of origin highlighting the dangerousness of irregular movement at sea, the establishment of robust asylum and protection processes in North Africa, and the enhancement of legal migration opportunities.

Interdiction

Rescue at sea is a humanitarian response to migrants in danger on the high seas. Interdiction is a law enforcement activity undertaken to prevent irregular migration that seeks to avoid state migration rules and processes. The reasons for irregular migration are numerous: migrants for whom legal channels of migration are not available may seek to join family members or to obtain work; or persons involved in criminal activity may try to avoid detection by law enforcement officers. Of central concern to UNHCR are individuals who undertake irregular movement in order to flee from persecution, conflict or other situations of violence and seek to access international protection guaranteed by international law.

UNHCR recognizes that states have legitimate interests in law enforcement actions against smugglers and traffickers and migrants seeking entry outside of lawful avenues.  But we urge states to ensure that such efforts comply with international conventions and norms relating to refugees and human rights.  UNHCR’s Executive Committee has declared that “[i]nterception measures should not result in asylum-seekers and refugees being denied access to international protection, or result [in non-refoulement].” (Conclusion on Protection Safeguards in Interception Measures (Conclusion 97, 2003).)

Despite this well-recognized norm, we see alleged “tow-backs” of boats in the Mediterranean that result in the loss of life, “push-backs” in the Andaman Sea that seem to be instances of refoulement, and on-board screening and returns in the Caribbean that appear not to fully protect against non-refoulement.

Interdiction and return—without any process—raises obvious protection concerns (and was held in Hirsi Jamaa and Others v. Italy to be a violation of European human rights norms).  Fortunately, it is not generally the rule, and states that intercept migrants at sea generally have policies and practices in place that they assert meet its duty to comply with international protection principles.  Thus, they may (1) screen and/or process intercepted asylum-seekers on the high seas (e.g., ship-board screening by the U.S. Coast Guard); (2) undertake extra-territorial processing (e.g., United States assessments of “screened-in” Cubans in Guantanamo), or (3) transfer interdicted asylum-seekers to other states for processing (the transfer of asylum-seekers by Australian authorities to Papua New Guinea and Nauru is one of several measures undertaken by Australia to deter irregular migration). (more…)

YLS Sale Symposium: Sale’s Legacy and Beyond (Part II)

by Guy Goodwin-Gill

[Guy S. Goodwin-Gill is a Senior Research Fellow, All Souls College, Oxford and Professor of International Refugee Law, University of Oxford.]

Recent EU and ECHR jurisprudence on a range of State activities affecting refugees and asylum seekers has emphasized that fundamental rights are not just about freedom from torture or refoulement, but also about effective remedies.

What comes through in the judgments of the CJEU in N.S. and Puid, for example, is acceptance of the notion that fundamental rights may well require proactive, protective action – in the case of the Dublin system, a duty to assume responsibility wherever transfer may expose the individual to a serious risk of prohibited harm, such as refoulement or inhuman or degrading treatment. The European Court of Human Rights decision in M.S.S. v. Belgium and Greece further supports this proposition, while that in Hirsi v Italy goes still further on the interception issue.

Other courts in other jurisdictions have been no less robust in defence of the displaced, this especially vulnerable group of asylum seekers who require special protection – the UK House of Lords in the Roma Rights case, facing up to a policy and practice clearly discriminatory by reference to race; the UK Supreme Court in EM (Eritrea), recognizing that any real risk of prohibited treatment, not just a systemic failure, was sufficient to require non-removal under Dublin; the European Court of Human Rights in M.S.S. v Belgium and Greece, also on Dublin transfers, but also on knowledge and risk, among others, and on the right to an effective remedy; and again in Hirsi v Italy; and the Australian High Court in Plaintiff M70.

Australia once actively promoted temporary refuge, then turned to mandatory detention as supposedly some sort of deterrent to boat arrivals; when that seemed to have little effect, it tried to emulate some of the interdiction practice. Interestingly till now, and as in the early days of US interdiction, it has expressly recognized its basic obligations towards the intercepted, and its goal, in theory, has been to accommodate non-refoulement, but to deny on-shore processing and even, from time to time, on-shore solutions.

What the M70 decision of the Australian High Court reveals, however, is that international obligations are difficult to wish away onto other States. In its earlier dealings with the remote island nation of Nauru, Australia had clearly been the principal in a ‘principal-agent’ relationship, paying the full costs of detention accommodation of the intercepted, relying on Nauru and distance to keep lawyers and journalists at bay, but impliedly accepting that it remained responsible internationally.

Behind M70, though, there was different thinking. It involved an agreement – intentionally not a binding treaty – to trade asylum seekers: 800 to go to Malaysia, 4000 to be resettled out of Malaysia over four years. The domestic legal background was a provision of the Migration Act which anticipated that the Minister would make a declaration, identifying a State as appropriate for such an arrangement, and as able to provide the requisite level of protection.

The High Court placed this agreement firmly within the context of an effort by Australia to ensure that its international obligations were met; but as a ‘protection exercise’, this meant that, as a matter of domestic law and statutory construction, Australia was obliged to ensure that those transferred enjoyed legal protection of their rights, not just practical protection; what is more, this meant more than just non-refoulement, but the protection also of other, Convention-related rights in the State of intended destination. (more…)

YLS Sale Symposium: The Globalization of High Seas Interdiction–Sale’s Legacy and Beyond

by Guy Goodwin-Gill

[Guy S. Goodwin-Gill is a Senior Research Fellow, All Souls College, Oxford and Professor of International Refugee Law, University of Oxford.]

Before Sale, before Haitian interdiction even, there was ‘piracy’ off the coast of Thailand, tolerated and encouraged locally as a deterrent to landing; there was towing out to sea, even of unseaworthy vessels; there was the blind eye turned to the plight of those in distress; and somewhere in-between was the refusal to allow disembarkation of the rescued – an exercise of legal competence on a matter regulated in the past by practice and expectation, but never written into law.

No, there is nothing new here, and many are the ways by which States have sought to keep others away from their shores, particularly those in search of refuge. And yet despite the many novel forms of interdiction, I do not share many of the premises on which this conference appeared to be based. For example, I do not think that Sale itself has influenced the practice of States in any meaningful way. It may have encouraged elements within States to push the envelope of legality, but looking around at what goes on in the name of ‘migration management’, it’s hard to believe that they need any encouragement.

Nor do I think that courts which clarify the legal limits to permissible State action thereby invite executives just to look for other ways to avoid law and obligation. They do, of course, but that’s part of the tension inherent in societies operating under the rule of law. Nor do I think that the judgment of the Supreme Court in Sale counts for anything juridically significant, other than within the regrettably non-interactive legal system of the United States. Here, the Court ruled for domestic purposes on the construction of the Immigration and Nationality Act. What it said on the meaning of treaty was merely dictum and the Court was not competent –in at least two senses – to rule on international law.

At best, the judgment might constitute an element of State practice, but even here its international relevance can be heavily discounted. The Court failed, among others, to have regard to the binding unilateral statements made by the US when interdiction was first introduced, and the ten years of consistent practice which followed. And as any student of international law will tell you, practice and statements of this nature are highly relevant, particularly when against interest.

UNHCR, moreover, which is responsible for supervising the application of the 1951 Convention/1967 Protocol, protested the judgment at the time and has consistently maintained the position set out in its amicus brief to the Supreme Court (and in earlier interventions with the US authorities). Significantly, no other State party to the treaties has objected to UNHCR’s position, though the forum and the opportunity are readily available, such as the UNHCR Executive Committee, ECOSOC, or the Third Committee of the UN General Assembly. (more…)