Syria and the Arab Spring: International Criminal Law after a UN Veto

Posted on February 20, 2012 by Mark Kersten

JiC welcomes Peter Quayle, a solicitor specialising in public international law and litigation and the author of an excellent blog on international law. In this guest-post, Peter considers the international legal parameters in responding to the ongoing crisis in Syria. Enjoy! 

A not-so-subtle and quite grim use of graffiti to suggest that some would like to see Syria's Assad meet a similarly grisly fate as Libya's Gaddafi

During Syria’s scorching summer, visitors to the Souk Al-Hamdiye in central Damascus appreciate the shaded cool. They also remark on the slender beams of sunlight that lance the corrugated iron roof and scatter in the gloom. These are resulting from the profusion of penny-sized holes left by bullets fired in 1925 during an unsuccessful uprising against French colonial rule. It was not until 1945 that Syria gained its independence.

Today’s opposition to President Bashar al-Assad needs be no less protracted. All the more so since the recent veto by Russia and China of a UN Security Council resolution urging adherence to a peace plan proposed by the Arab League. Yet, last year’s interdiction of Libya’s long time leader, Muammar Gaddafi, unsettled the regional presumption of exemption from UN-sanctioned international intervention. Hence the strong supposition that the situation in Syria is surely akin to Libya but the politics in Moscow and Beijing differs. But if we can discern important categorical differences of international criminal law, does this account for apparently inconsistent policy? And if international institutions are inactive, is international law irrelevant?

Five months ago, the UN’s Office of the High Commissioner for Human Rights (OHCHR), reported to the General Assembly on a fact finding mission sent to Syria to investigate breaches of international human rights law. The mission had found “a pattern of human rights violations constituting widespread or systematic attacks against the civilian population, which may amount to crimes against humanity.” It had evidence that murder, disappearances, torture and persecution were all instruments of a policy to brutally suppress political opposition. The OHCHR urged the Security Council to consider referring Syria to the International Criminal Court (ICC).

However, it is noticeable that this categorisation has not cohered before the Security Council. The action taken against Gaddafi’s regime under UNSC 1970 (2011) – arms embargo, travel bans, asset freeze, and referral to the ICC’s jurisdiction – considered that “the widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity.” In contrast, the doomed recent resolution against Syria was confined to the condemnation of “continued widespread and gross violations of human rights and fundamental freedoms.”

A pro-Assad protester in Damascus (Photo: Muzaffar Salman / AP)

Typically, atrocity crimes – crimes against humanity, war crimes and genocide – engage the Security Council’s prerogative to maintain and restore international peace and security. Human rights violations, under the UN Charter, Article 2(7), more often than not, are merely considered to be “essentially within the domestic jurisdiction” of members states. Action against Gaddafi was binding under Chapter VII, “[a]ction with respect to threats to the peace, breaches of the peace, and acts of aggression.” Action as drafted against Syria was under non-compulsory Chapter VI, “Pacific settlement of disputes.” The resolution passed by the General Assembly, adopts the vetoed Security Council version, and is non-binding. Continue reading →

Posted in Human Rights, International Criminal Court (ICC), Syria, UN Security Council | 2 Comments

Legacies of Injustice in Liberia: Transitional Justice and Economic Crimes

Posted on February 16, 2012 by Mark Kersten

JiC is thrilled to welcome back Kara Apland for this thoughtful and thought-provoking guest-post. Drawing on the Liberian experience, Kara delves into the oft-neglected subject of economic crimes in the context of transitional justice. Enjoy!

Ellen Johnson Sirleaf, Liberian president, winner of the Nobel Peace Prize and Africa’s first democratically elected female president, has come to be known as a hero of Liberia’s post-conflict recovery. “Liberia’s leading lady” has succeeded in bringing high levels of aid and foreign investment into the country while securing the forgiveness of over a billion dollars in foreign debt. Yet Sirleaf has also been the target of many critical voices within Liberia. In a controversial move that served to delegitimize its work in the eyes of the international community, the Liberian Truth and Reconciliation Commission recommended that Sirleaf be barred from office for her role in supporting war criminal Charles Taylor.

The TRC is by no means Sirleaf’s only critic. Days after Sirleaf was elected for a second term as Liberia’s president, an op-ed by two Liberian land rights campaigners, Silas Siakor and Rachel Knight, appeared in the New York Times. “Mrs. Johnson Sirleaf’s government may now be sowing the seeds of future conflict by handing over huge tracts of land to foreign investors and dispossessing rural Liberians,” they wrote.

While Sirleaf is certainly not the first high-profile Liberian politician to elicit controversy, her disputed reputation in Liberia illustrates the challenge of renegotiating power in political transition, and particularly the question of how to address economic crimes and allocate control of natural resources. Resource control and mismanagement by government and multinational corporations played a major role in the Liberian civil conflict. Not only did control of natural resources (especially rubber, timber, gold and shipping) serve as a motivating factor in the war, those resources ended up funding the armed groups perpetrating the conflict, particularly Charles Taylor’s NPFL. And on a more structural level, corruption, exploitation of natural resources and resulting economic marginalisation and extreme poverty served as underlying causes of the conflict.

Given the intimate role that corruption and resource control played in the Liberian conflict, it would seem that addressing “economic crimes” and securing just, sustainable and democratic policies with regard to natural resources are critical to breaking down norms of impunity and achieving a sustainable transition. But as Siakor and Knight point out, policy in Liberia has been geared toward attracting foreign investment rather than responding to Liberians’ conceptions of economic justice. Between 2006 and 2011, Sirleaf gave the rights to over one-third of Liberian land to logging, mining and agro-industrial industries. Land ownership is a source of conflict in Liberia, as hundreds of millions are being displaced from their homes and farmland to make room for international investment.

Liberian President Ellen Johnson Sirleaf

The flip side of current debates over just policies regarding natural resources in Liberia is impunity with regard to economic crimes of the past. The Liberian Truth and Reconciliation Commission is one of the few transitional justice mechanisms that has been mandated to address economic crimes, having been charged with

“investigating human rights violations and violations of international humanitarian law as well as abuses that occurred, including…economic crimes, recommending measures to be taken for the rehabilitation of victims of such violations.” Continue reading →

Posted in Economics of Conflict, Liberia, Transitional Justice, Truth and Reconciliation Commissions, Truth Commission | 1 Comment

The Kwoyelo Trial: A Final(?) Roundup

Posted on February 13, 2012 by Patrick Wegner

Thomas Kwoyelo when he was still with the LRA (Monitor)

Last summer Justice in Conflict regularly reported on the trial of former LRA Commander Thomas Kwoyelo. After being arrested by the Uganda People’s Defence Forces (UPDF) in the Democratic Republic of Congo (DRC) in 2009, the Ugandan Department of Public Prosecutions (DPP) decided to charge Kwoyelo with war crimes under the Geneva Conventions and with crimes under national law.

The trial received considerable national and international attention as it was the first case of the newly created International Crimes Division (ICD) of the Ugandan High Court. The ICD had been founded in reaction to questions of accountability that arose during the Juba peace talks between the Government of Uganda (GoU) and the LRA. Meanwhile the Ugandan Parliament has passed the International Criminal Court (ICC) Act, which allows the ICD to prosecute Rome Statute crimes on the domestic level.

In a nutshell, the ICD referred the Kwoyelo case to the Constitutional Court when Kwoyelo’s defence lawyers protested that Kwoyelo had been denied amnesty under the Amnesty Act. In their view, this constituted a violation of equal treatment under the Ugandan Constitution. The Constitutional Court decided in late September 2011 that Kwoyelo should be eligible for amnesty and ordered the ICD to cease the case against him.

Even though the case was stopped, Kwoyelo remained in detention. He then decided to sue the GoU for illegal detention and petitioned the Ugandan High Court for amnesty on 23rd of November 2011. The High Court indeed ruled that Thomas Kwoyelo should be given amnesty and be set free. The Department of Public Prosecutions and the Amnesty Commission are the two competent institutions in this case and decided to meet to consult the Kwoyelo case after the High Court ruling. In early February the Department of Public Prosecutions again denied amnesty to Thomas Kwoyelo, citing that there can be no amnesty for charges of war crimes. Thomas Kwoyelo thus remains imprisoned in Luzira Prison in Kampala to date.

The judges of the ICD in charge of the Kwoyelo case (Justice and Reconciliation Project)

There are several conclusions that can be drawn out of the way the first domestic war crimes trial in Uganda developed. First and foremost, the ongoing back and forth concerning Thomas Kwoyelo’s amnesty again underlines that Uganda is at the crossroads with transitional justice. The actions of the DPP hint at a re-orientation towards more accountability and less amnesty in the future. The DPP has made that clear by repeatedly denying amnesty to Kwoyelo, despite court orders, and by announcing that it has prepared additional cases against former LRA rebels that it will pursue should Kwoyelo be found guilty. As far as I am aware there is no explicit government position on how amnesty and prosecution should relate to each other in the future, and the lack of clarity might well spark fears and unrest among LRA returnees as I have described in a piece last summer. Continue reading →

Posted in Complementarity, International Criminal Court (ICC), Kwoyelo Trial, Lord's Resistance Army (LRA), Uganda, War crimes | Tagged , , , , , , , , , | 6 Comments

Why Libya should not join the ICC…Yet

Posted on February 10, 2012 by Mark Kersten

A satirical depiction of an NTC meeting (Cartoon: Pambazuka)

It comes as no surprise that human rights NGOs and those aligned with the International Criminal Court are advocating that Arab Spring states join the ICC. After all, justice and human rights have been central to the uprisings that sprang up last year. One Arab Spring state, Tunisia, already acceded to the Court last June.

In this context,  as part of its Universal Ratification Campaign, the Coalition for the International Criminal Court (CICC) recently initiated a targeted effort to get Libya to join the ICC. The CICC, an impressive array of some 2,500 civil society organizations which broadly support the aims of the ICC, released a statement arguing that:

“At a time when sweeping changes are occurring across the Middle East and North Africa (MENA), the Coalition believes that Libya can further strengthen this growing movement in the region towards ending impunity by joining the ICC.”

The Coalition’s Director for Regional Programmes, Brigitte Suhr, noted that joining the court would be in line with hopes for a new human rights respecting Libya:

“Acceding to the Rome Statute would be consistent with the commitment of the government of Libya to uphold human rights as enshrined in its Constitutional Declaration.”

The CICC, along with others urging Libya’s National Transitional Council (NTC) to join the ICC have their work cut out for them. The chances of Libya joining the Court right now are pretty slim. Despite the ongoing question of whether the ICC’s Pre-Trial Chamber will approve of Libya’s plans to try Saif al-Islam Gaddafi and Abdullah al-Senussi in Libya, by Libyans, some, like Chris Stephen, have suggested that the ICC is “the last thing on Tripoli’s mind.”

Members of the NTC (Photo: Action Press)

But just because the Court is not on the NTC’s mind, does not mean that the CICC shouldn’t press on with its aim to put it in the minds of the NTC to sign the Statute. That isn’t the problem. The problem is that demanding that the NTC, an unelected body trying to hold the country together, sign the Rome Statute risks making Libya’s accession to the Court undemocratic.  Continue reading →

Posted in International Criminal Court (ICC), Libya, Libya and the ICC | 6 Comments

Dithering over Damascus

Posted on February 8, 2012 by Mark Kersten

JiC welcomes Andrew Jillions back with this thought-provoking post on the recent inaction of the UN Security Council in the face of ongoing violence and human rights violations in Syria. 

A Syrian protester in London (Photo: The Mirror)

There’s no doubt that the Assad regime has been buoyed by the international community’s dithering over the situation in Syria. Russia and China’s veto saved Syria from outright pariah status, as well as stymying the immediate possibility of intervention. Visiting Damascus yesterday, Russia’s foreign minister was given a hero’s welcome while some estimates suggest that the death toll has at least doubled since the vote. Draw your own conclusions, but the consensus seems to be that the UN Security Council has lived up its pre-Libya reputation as a toothless and irrelevant anachronism.

Beyond the focus on the Russia and Chinese vetoes, however, the Syrian boost also comes from the perception that there isn’t an appetite for military intervention among the other members of the Security Council. The Security Council’s vote comes on the back of months of inaction, where the dominant policy position seemed to be one of hope – hope that the Syrian situation would somehow resolve itself, if only given long enough. Despite the vocal condemnation of Russia and China none of the other P5 members really want the hassle, or expense, of another intervention. In many respects the veto was a boon to those countries more in thrall to public opinion. If Russia and China are willing to shoulder the public opprobrium that comes with failing to act, all the better.

If this seems an unfair gloss, especially given the vocal condemnation from the UK, US and others, it is worth recalling that this was not a vote on intervention, but a vote on the future possibility of intervention. The Syria situation, after all, has been rumbling on for almost a year now with nary a sign of direct intervention. Although billed as a ramping up of the pressure on Syria, the text itself is filled with banal exhortations to find a peaceful solution, one that doesn’t challenge Syrian sovereignty or trigger Article 42 action. What a good thing appeasement has such a great track record as a strategy for peace! Steven Cook’s observation seems even more relevant after the vote:

“Assad still has bullets left, people to resupply him when his stocks run low, and loyal officers to fire them. What more does he really need?”

A member of the Free Syrian Army in Zabadani (Photo: Reuters)

It is shameful that intervention has been taken off the table as an option.  But it is also a stretch to think that intervention would have occurred had there been a positive outcome at the UN Security Council. Continue reading →

Posted in China, Human Rights, Humanitarian Intervention, Peace Processes, Responsibiltiy to Protect (R2P), Russia, Syria, UN Security Council | 2 Comments

Drones for Human Rights: Are Drones the Answer?

Posted on February 2, 2012 by Mark Kersten
Drones for justice?

(Photo: U.S. Air Force photo by Staff Sgt. James L. Harper Jr.)

I watched Mark Hanis last night on RT defend his and Andrew Strobo Sniderman’s op-ed article in the New York Times, which I responded to yesterday. Given the salience of this debate, I thought I’d share a few more thoughts, this time on the misconception that the missing ingredient in human rights advocacy and enforcement is surveillance of human rights abuses.

Hanis and Sniderman start from a premise with which virtually every human rights advocate agrees: there remains a worrying level of inaction in the face of atrocities being committed around the world. Again, no one disagrees. They’ve got the diagnosis right. It’s their prognosis that’s wrong.

History presents a litany of sombre cases of mass atrocities that have been met with shamefully inadequate responses: we know the tragic lack of response to the Rwandan genocide and the deafening silence on the alleged counter-genocide in its wake in the Democratic Republic of Congo (DRC); Darfur is consistently decried as a situation where the international community has made a mockery of the mantra, “never again”; seemingly more people are interested in whether it is called Burma or Myanmar than responding to systemic human rights abuses there; the situation in the DRC, where violations of rights pretty much dwarf all other contexts, barely registers in public opinion; this week, international leaders hunkered down for the intense process of diluting their response to the crisis in Syria because they’re unable to do enough, but unwilling to do nothing.  The list goes on; it’s not pretty.

But before you go jumping on the “humanitarian drones” bandwagon, here’s the critical question: would any of the above situations have been different if we just had more precise aerial surveillance of violence and human rights abuses? Let’s look at the record.

An aerial photo of Auschwitz from 1944, more than a year before the war - and the Holocaust - ended.

It is worthwhile remembering that there were aerial photographs, as well as personal testimony of Nazi concentration camps, including Auschwitz and Dachau. Winston Churchill called Auschwitz “probably the greatest and most horrible crime ever committed in the whole history of the world.” Despite having seen the evidence and having been implored by various groups to take action, Allied powers did nothing. Both the UK and the US rejected any plan to bomb either the concentration camps or the railway lines that satisfied the camp’s insatiable appetite for human slaughter. Faced with unmistakable aerial surveillance and witness-based evidence, the Allies chose not to bombard the camps. Remarkably, that was during the war, when Allied planes were already bombing other Nazi targets. Continue reading →

Posted in Darfur, Drones, Holocaust, Human Rights, Justice, Southern Sudan, Sudan | 7 Comments

Drones for the ICC and Drones for Human Rights?

Posted on February 1, 2012 by Mark Kersten

(Photo: Kirsty Wigglesworth/AP)

A recent thought-provoking and provocative op-ed in the New York Times has presented a serious challenge to those who view drones as nothing more than the evil extensions of secretive warfare. According to Andrew Stobo Sniderman and Mark Hanis, “[i]t’s time we used the revolution in military affairs to serve human rights advocacy.”

The use of drones to assassinate alleged terrorists in the Global War on Terror has elicited a heated debate on the ethics and legality of the extra-judicial killing of individuals by un-manned air crafts. Sniderman and Hanis don’t contest that the use of drones, particularly by the US, is legally and ethically controversial. But, they argue, we need to go beyond the myopic focus on drones as military hardware and consider how drones can be employed for good ends and, more specifically, the role drones could play in highlighting and responding to human rights violations. Using the case of Syria, Sniderman and Hanis argue the following:

“A drone would let us count demonstrators, gun barrels and pools of blood. And the evidence could be broadcast for a global audience, including diplomats at the United Nations and prosecutors at the International Criminal Court…

…We could record the repression in Syria with unprecedented precision and scope. The better the evidence, the clearer the crimes, the higher the likelihood that the world would become as outraged as it should be…

…Even if humanitarian drones are not used in Syria, they should assume their place in the arsenal of human rights advocates. It is a precedent worth setting, especially in situations where evidence of large-scale human rights violations is hard to come by. “

On first glance, the authors’ argument is persuasive. Heck, who doesn’t want better protection of human rights and who isn’t frustrated that atrocities often go completely ignored (here’s looking at you, DRC)?

But in their argument, Sniderman and Hanis conflate two key issues which need to be distinguished and considered separately. The first, which I think most will agree with, is that having more accurate information and evidence of human rights violations is a desirable goal. The second is that drones are the answer to how to do this.

Could the International Criminal Court use drones to accumulate evidence of crimes against humanity, genocide and war crimes? It might be an appealing prospect. Consider, for example, the cases of Darfur and Libya where ICC investigators have had virtually no access. Drones could take detailed images of violations which could then be used to form the basis of arrest warrants. Sounds good, right? Continue reading →

Posted in Drones, International Criminal Court (ICC), Justice | 10 Comments

Where in the World is Abdullah al-Senussi?

Posted on February 1, 2012 by Mark Kersten

Abdullah al-Senussi and Muammar Gaddafi (Photo: ANP)

Over the past few months, the world has honed in on the fate of Saif al-Islam Gaddafi, the former heir apparent of Libya and one-time galavanting ‘playboy’ who now finds himself in almost complete seclusion after being detained in November 2011 by Libyan rebels. At the same time, international observers, the media and human rights groups have virtually ignored the whereabouts and fate of Abdullah al-Senussi, the other living member of the Tripoli Three – the individuals indicted by the International Criminal Court for alleged crimes committed while crushing the Libyan uprising.

The apparent disinterest surrounding Abdullah al-Senussi is only more precarious given his role in and knowledge of Gaddafi-era Libya. As a key confidant, the “right hand man”, the “eyes and ears” and Colonel Gaddafi’s brother-in-law, Senussi has a unique understanding on what made the Gaddafi regime tick.

Moreover, as the head of both the internal and external intelligence services under Colonel Gaddafi, Senussi is associated with, if not responsible for, some of the worst crimes of the Gaddafi regime. The bombing of UTA Flight 772 in 1989, the 1996 Abu Salim prison massacre and the violent repression of pro-democracy protests in the Libyan uprising are but a few of the more notorious acts in which Abdullah al-Senussi was deeply involved.

It is because of Senussi’s intimate knowledge of these crimes that the reputable international lawyer, Geoffrey Robertson, recently maintained that Senussi was the “crown jewel” of justice in Libya. Not only is Senussi associated with the crimes noted above but, with Colonel Muammar Gaddafi dead, Senussi may hold the keys to understanding the Lockerbie bombing, the Gaddafi regime’s funding of the Irish Republican Army, the cozy political, economic and intelligence relations between Western states and the Gaddafi regime and, just as importantly, where the bodies of the Gaddafi regime’s many victims lie.

The situation in Libya has had its moments of pure confusion and contradiction. With regards to Senussi, it was reported in November that he had been detained at his sister’s house in the south of Libya. After reports of his capture, there has been a deafening silence concerning Senussi. Indeed, it is not clear whether Senussi was, in fact, captured and then escaped, or whether he was ever captured in the first place. It is worth recalling headlines in August that declared that Saif al-Islam Gaddafi had been captured. Just hours later he was seen taking a joy-ride through the streets of Tripoli. Continue reading →

Posted in Justice, Libya, Libya and the ICC, The Tripoli Three (Tripoli3) | Leave a comment

The ICC as a Network Actor

Posted on January 30, 2012 by Patrick Wegner

The International Criminal Court is cooperating with a large number of NGOs, civil society organisations as well as national and international institutions

Since the Rome Statute was surprisingly adopted by an overwhelming majority of the states present at the Rome Conference in 1998 (120 against 7 votes with 21 abstentions) the Court has time and again been described as a civil society creation. There are good reasons for this view as the Coalition for the International Criminal Court (CICC), a world-spanning coalition of 2,500 civil society organisations, was involved in the drafting process of the Rome Statute, in advocacy efforts for the Court and in the negotiations in Rome. The coalition is a unique network of diverse NGOs that come in different shapes and sizes, with different thematic foci, operating on national, regional or global levels.

The CICC is convened by the World Federalist Movement and includes heavyweights such as Amnesty International and Human Rights Watch. Its role in the creation of the Court, during negotiations at the Rome and Kampala Conferences, as well as in the Court’s day to day work has been comprehensively analysed in a recent Human Rights Quarterly article by Claude Welch Jr. and Ashley Watkins. The article shows convincingly how the cooperation between the CICC and the group of so-called ‘like-minded states’, who all pushed for a fair, efficient Court with an independent prosecutor, made the passing of the Rome Statute in its current form possible. The CICC also played a role during the Kampala Review Conference and during the election phases at the Court, pushing for the election of qualified candidates. The CICC’s role is just one example of how the ICC cooperates with, and is influenced by, networks on a regular basis.

Apart from the NGO roles described above, civil society organisations all over the world are of crucial importance to support the work of the Court. Again, often coordinated by the CICC, NGOs lobby for the arrest of individuals wanted by the ICC. The best case to illustrate this is probably the civil society pressure brought on governments that consider inviting the ICC indicted President of Sudan, Omar al-Bashir. Court action filed by the South African civil society led to a ruling by a South African Magistrate that South Africa would be violating its constitution by not arresting Bashir if he set foot on South African soil. Prior to that point, South Africa had been ambiguous in its statement whether it would respect its obligations towards the ICC and arrest Bashir. The decision by the Magistrate made a key African state fall in line with its legal obligations vis-à-vis the ICC and Bashir has not visited South Africa since. Recently, he skipped the 100 year African National Congress anniversary due to domestic obligations. Continue reading →

Posted in International Criminal Court (ICC) | Leave a comment

The Politics of Trust: Diplomatic Assurances

Posted on January 29, 2012 by Mark Kersten

Another fascinating guest post by Andrew Jillions on the politics of trust in the context of the highly controversial, yet widespread, practice of granting diplomatic assurances. Enjoy!

(Photo: DVIDS)

Diplomatic assurances and the politics of trust

The recent decision preventing the UK from returning Abu Qatada to face trial in Jordan for terrorist related crimes has sparked a lot of discussion – especially in the popular presses – about how sovereignty simply doesn’t mean what it used to. Bad Foreign Men are being granted a privileged status over the Good British People, at the behest of Unelected European Judges.

Lost in this ridiculous narrative – a narrative that conveniently serves David Cameron’s larger purposes of reforming the European Court of Human Rights– is the potential it has to undermine the prohibition on torture. Crucially, the Court wasn’t worried that Abu Qatada would be tortured himself. In coming to this conclusion, the ECHR gave a greenlight to the institutionalization of ‘diplomatic assurances’ (DAs). For anyone concerned about the force of the norms prohibiting torture, this is a worrying legacy. Quite the contrary to Cameron’s Daily Mail spin, this strengthens states’ already expansive powers to decide on security deportations and, crucially, gives states the power to legitimately contract around the principle of non-refoulement.

Re-balancing rights and security

The idea behind diplomatic assurances is that some states – such as Jordan, in the Abu Qatada case – are known to be less than fully compliant with their international human rights obligations. At various times, the governments of these states have been accused of torture and other ill-treatment. States’ right to return an individual to their country of origin or to respond to an extradition request is not absolute; the question that needs to be asked and answered before the removal can take place is whether the individual is or will be at high risk of having their fundamental human rights violated once they’ve been removed. This is the principle of non-refoulement, which prohibits return when there is a clear threat of torture and other serious violations of basic human rights.

The argument is that this creates a direct tension between human rights and national security norms. Non-refoulement restricts that most basic sovereign power to decide who is allowed in and who has to get out. When you place counter-terrorism at the centre of the policy-making universe these restrictions on border security look immediately obsolete, a cosmopolitan throwback that gives terrorists far too much legal power. Non-refoulement becomes a weapon primed for ‘lawfare’. If human rights obligations present a barrier to effective action, diplomatic assurances are a possible doorway through this barrier.

There has always been a place for diplomatic assurances in exceptional circumstances. The current debates are over whether they have a place in everyday deportation practices. Rather than challenging the principle of non-refoulement head on, diplomatic assurances imply that both human rights and security objectives can be met. The key security objectives – getting rid of security risks or undesirables – could be achieved by signing bilateral memorandums of understanding (MOUs) where states that have a history of abuse agree not to torture. MOUs ‘enhance’ diplomatic assurance by getting rid of the need to get case-by-case assurances; having that background, principled agreement that anyone sent now or in the future will not be subjected to torture is seen to be enough. This one promise averts all future risks of individuals being tortured. Everyone goes home a winner.

 

Abu Qatata (Photo: BBC)

Trust and trustworthiness

This happy state of affairs has some gaps in it. For a start, as Amnesty International points out, the very fact that a country feels the need for diplomatic assurances shows that they are worried about the risks that individual would face on return. The UK does not use or seek diplomatic assurances in sending people back to Australia or Brazil. So why go through the rigmarole of getting diplomatic assurances from Libya, Algeria, or Jordan?

The obvious answer is that the individuals in question are seen to face a serious risk. In the normal course of events, the obligations of non-refoulement should be triggered. Which is where the government wants to be able to say: ‘but we have a diplomatic assurance that negates our initial suspicions!’ Which in turn begs the questions: what about the ‘promises’ these states have made under treaty and customary international law? How much weight can a promise from a serial human rights abuser carry?

The answer – at least the answer that the courts have accepted – seems to be: rather a lot. Continue reading →

Posted in Diplomatic Assurances, Human Rights, Jordan (not Michael), Lawfare, Libya, Pakistan, Terrorism, United Kingdom | 1 Comment