Amnesty law Found Unconstitutional in Uruguay: Victory for Human Rights, but what about popular sovereignty?

On monday, the Supreme Court of Uruguay issued a decision condemning the 1986 amnesty law for crimes commited under the military regime that was in power until 1985. I'm not familiar with the constitutional framework in Uruguay and the legal consequences of the decisions. Some report that the law was declared "unconstitutional" (see here): does it mean that the law is immediately inapplicable? Others report that the law was "annuled" (see here). I haven't read the decision (if someone has it in English, i'd appreciate receiving it!) but apparently, the Court invoked Uruguay's human rights obligations to respect victim's right to reparations and to know the truth.

This is a new decision in the trend against amnisties in international law, and is, in this sense not particularly groudbreaking. I won't go into a debate here on the general question of Amnisties (I invite you to read my forthcoming paper on this). What strikes me more particularly in this case, beyond the legal technicalities, is that the law was upheld by referendum, not once, but twice, the last time as recently as 2009, despite strong opposition from rights groups. I find it a little disturbing, in the broader political scheme of things, that the democratic popular expression of opinion be given so little consideration. In 2009, after the referendum, the regional director of HRW said that: "let's not forget that  accountability is not a popular contest that should be decided by majorities". Actually, it kind of is. Society makes a choice to criminalize some conducts and not others. And the least worst way we have come up to evaluate support for such choices is requiring a majority. In other words democracy. What kind of arbitrary criteria allows HRW to decree that democracy is a good thing, except when people don't vote "right"? If the referendum had gone the other way, I'm sure that same person would have applauded the popular support against amnisties.

It is a difficult balance to be struck between majority decisions and minority opinions in any democracy, and a harder balance even between human rights and political compromise in situations of transitions, and I  certainly do not claim to have the answer. But as a rule, I would tend to give quite some credit to the free expression of public opinion as a starting point. The majority principle (with qualifiers or not), is effective in that it allows institutions to move forward. Whereas, minority power can only lead to political stalemate. This is of course schematic, and doesn't mean that there shouldn't be any normative framework (both procedural and substantial) surrounding the exercice of democratic expression. But as a rule of thumb, I have difficulty seeing how a law disapproved by a majority can be politically legitimate.

This reasoning of course implies adopting a collective/social contract approach to political analysis, which is a little removed from the individual approach, where rights emerge from above and social relationships are totally depoliticised. Indeed, how could they not be where the origin of rights is transcendental, rather than emerging from some form of popular consensus? you cannot argue with a priori morality. I find it ironic that such effort was put by intellectual and political leaders over the centuries to free themselves from the Church by breaking down the conflation between the temporal power and the spiritual power, only to see the latter re-enter through the prism of Universal Human Rights in recent years. Apparently, nothing much has changed since the Middle Ages...

Defence counsel immunity at the ICTR: there in theory but harmless in practice?

As you may recall, Peter Erlinder, a defense counsel at the ICTR, made the headlines a few months back (in June) for having been arrested in Rwanda, along with Kagame political opponent Victoire Ingabire, on charges of genocide denial under Rwandan law. The detention did not go well, to say the least, Erlinder having alledgedly tried to commit suicide, and he was released some time later, with charges still pending. At the time, this sparked some interesting debates on the nature of laws prohibiting denial of genocide, and the political use of the such laws in Rwanda (including on this blog).

One key legal question that remained to be answered was the existence and extent of any immunity afforded to Erlinder as a defence counsel, given that, at the time it wasn't entirely clear if the statements that were considered for the charges were made in the course of his work at the tribunal or not. Some weeks ago, on the 6th of October, the Appeals Chamber of the ICTR issued his decision on the immunity of Peter Erlinder, the defense counsel for one of the accused. I didn't have time back then to comment on it, but still wanted to say a few words.

As to the existence of an immunity:

26. [...] Defence Counsel benefit from immunity from personal arrest or detention while performing their duties assigned by the Tribunal and also with respect to words spoken or written and acts done by them in the course of the performance of their duties as Defence counsel before the Tribunal, in order to allow for the proper functioning of the Tribunal in accordance with Article 29 of the Statute.

This decision is based on an interpretation on the MOU between Rwanda and the ICTR, and an application of the Convention on the Privileges and Immunitities of the United Nations. In light of the latter document, Defense Counsel are to be considered experts and

23. [...] While Defence Counsel are not officials of the Tribunal, some guarantee is necessary for the independent exercise of their Tribunal assigned functions which are integral to its functioning. Accordingly, the nature of their mission, which is to engage in preparations for proceedings before the Tribunal, is the defining factor in granting them such privileges and immunities as granted to experts on mission - not their administrative status with the Tribunal. 

This recognition that Defense lawyers should benefit of some form of immunity is welcome, as it would be incompatible with principles that they not benefit from equivalent protection as the Prosecutor.

Where the decision is more problematic is on the extent of the immunity. Indeed, they adopt a narrow reading of the immunity. Basically, the Court finds that because Erlinder is being essentially charged with statements done as an academic or a commentator (except for one of them), and not done directly in the context of the representation of his clients, he was not covered by the immunity. There is some logic to the statement... but it is extremely short-sighted in light of the rationale behind the immunity in the first place. Indeed, The ICTR holds that

30. [...] Ntabakuze's right to a fair trial cannot be protected where Erlinder faces investigation or prosecution in Rwanda on the basis of words spoken or written in the course of his representation of Ntabakuze before the Tribunal.

But how can Erlinder adequately prepare for the defense of his client if he is in jail, whatever the charges? Or if he cannot set foot in Rwanda for fear of being arrested? This completely defeats the purpose of immunity.

This result is due to the in fact suprisingly unsophisticated discussion on the concept of functional immunity in the decision, especially by not taking into account the temporal dimension. On this point, one can refer to the ICJ Arrest warrant case, where it went into some detail on the scope of official immunities. It found, among other things, that (§61):

after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy al1 of the iinmunities accorded by international law in other States. Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his oir her period of office, as well as in respect of acts committed during that period of office in a private capacity.

I know this judgment was strongly criticised in relation to the extent of immunities applying to crimes that fall under the jus cogens category, but for the purposes of our situation it seems to be a perfectly sensible solution. The immunity stands during the time a person is in "function", both for personal and professional activities, in order to allow the good exercise of the function. Once the function seizes, the immunity from prosecution falls in relation to private acts, but remains in place for acts done in an official capacity. This would mean that Erlinder would be immune from prosecution altogether now, but could face charges for his "private" comments later, while still being protected for statements made in the course of his defense, thus continuing to protect the current functioning of the Tribunal, "which requires that Defence Counsel be free to advance arguments in their client's case without fear of prosecution" (§29 of the decision).
It should be point out, as did the ICJ in the Arrest Warrant case (§60) that immunity does not mean impunity. It is mostly a temporary obstacle to prosecution, but does not remove individual responsibility once it is lifted.

It is intellectually puzzling that the Tribunal, having so clearly recognised the necessity for functional immunity, so dramatically fails to recognise the logical practical requirements to give it full effect. As a result, the Appeals Chamber has  proposed a wobbly, and I believe ultimately inefficient system of protection for defense counsel in international tribunals and at the end of day of protection of fair trial rights. This is not the first time, and therefore unsurprsing, but disappointing nonetheless.

Follow-up on Lubanga and the possible removal of ICC Prosecutor by the ASP: it's "definitely" not going to happen, says the President of the ASP.

I ended my previous post on the possible next steps after the Appeals Chamber Judgment reversing the stay of proceedings in the Lubanga case. I would like to make a couple of follow-up comments on this point.

For one, it is likely that contempt proceedings be initiated by the Court in accordance with article 71 of the Statute. In accordance to Rule 171 of the RPE, the Chamber can pronounce the removal from the proceedings of a person who has failed to comply with an order of the Court, or even, if the person is an official of the Court, order an interdiction to exercise their function for a period up to 30 days. And of course, they can fine the person as well.
I still don't see how this is linked to the opportunity of staying the proceedings or not. If the prosecutor were being accused of bribing witnesses (which is not far removed from the underlying accusations against the OTP intermediaries in this case...), would the Chamber have an obligation to keep the trial going while it initiated proceedings under 71, even if it means that corrupt witnesses are testifying? It wouldn't make sense. You have to make sure that the underlying cause justifying the stay has ceased to exist before you can resume the trial.

Another (independent) avenue is action by the ASP. This could lead to disciplinary measures (Article 47) which may be (very scary) "(a) A reprimand; or (b) A pecuniary sanction that may not exceed six months of the salary paid by the Court to the person concerned" (RPE, Rule 32). Or, if the conduct is sufficiently serious, the ASP can vote by an absolute majority of States a removal from office (Article 46). There is no middle-ground between the two, such as a temporary suspension. However, this oversight is partly compensated by the fact that the Chamber can suspend the person temporarily. It should also be pointed out that the proceedings are not initiated directly by the ASP, but should be triggered through a formal complaint to the Presidency, or proprio motu by the Presidency (Rule 26 RPE).

In relation to the latter possible proceedings at the ASP, the Asser Institute hosted a lecture by Ambassador Wenaweser last night, where the President of the ASP shared some of his thoughts on the Kampala Conference and more generally on what lies ahead for the ICC. In response to a comment he made on strenghtening the role of the ASP, I asked him if he had any thoughts on the ASP using its powers to sanction or even remove Prosecutor Ocampo. He was fairly evasive on the ASP looking into things more generally, but his answer was crystal clear on the removal aspect: this will definitely not happen. Of course, this is unsurprising politically. But this statement is problematic, both substantially and procedurally.

From a substantial point of view, you have to wonder what the Prosecutor must do to be removed, if his conduct in the Lubanga case is not sufficient to at least consider the possibility. In Lubanga alone, he has voluntarily misrepresented the Statute not to communicate UN documents to the defense. He has refused to obey Court orders. Also, we mustn't forget the underlying situation behind the recent current events, which have taken a backseat to the procedural drama of the stay of proceedings : his intermediaries are alleged to have interfered with witnesses, which, if established, would be a massive breach of the fairness of the proceedings.

Beyond this substantial aspect, it is problematic that the President of the ASP would express a preconceived opinion about the possible outcome of a formal procedure provided for by the Statute and the Rules of Procedure and Evidence. This is just as inappropriate as a judge saying in advance that a defendant will go free before his hypothetical trial takes place.

This is a sign of the general impunity for the organs of international tribunals, which is ironic given that their overarching mandate is specifically to fight impunity. Judges have been caught sleeping. Prosecutors have been accused of paying witnesses. Decisions have been taken that clearly undermine the rights of the defense on a daily basis, both subanstially (for example new crimes being added through the haphazard use of customary law) and procedurally (for example the very lax rules on the admission of evidence). All these events would constitute serious miscarriages of justice by any normal standard, but end up having little to no consequences in international tribunals under the guise of the superior moral objective of these institutions. Of course, I'm not equating some of the procedural improprieties that I mention previously, to the serious crimes alledgedly committed by the defendants. But the underlying principle behind these tribunals should apply in their daily working: if there is no accountability, there cannot be justice.

To come back to the specific issue at hand, one could argue that it wouldn't look good and would be a sign of weakness for the ICC to remove (or sanction) its Prosecutor. But for me, this is a short-sighted analysis. On the long-run, the legitimacy of the Court will depend on its capacity to publicize its successes, but also to accept the consequences of its failures. It is a sign of the maturity of an institution that it can acknowledge its mistakes, rather than sweep them under the carpet, as it keeps doing in the Lubanga case. All they will achieve is to create this increasing mound of dust over which Justice, as the long-term goal of the institution, can only stumble eventually.

Self Promotion: the ICJ, Kosovo and the Twilight Zone Effect

The Hague Justice Portal has just published my new commentary on the ICJ Kosovo advisory opinion. It's part of an online series discussing the issue, with Jean d'Aspremont, Eric de Brabandere, Jure Vidmar and Tarcissio Gazzini.

I basically argue that the difficulties arising from the decision come from the fact that the Court accepted to answer a question about the legality of the conduct of individuals under international law, which is outside its natural jurisdiction. It should have refused to answer the question asked, or, alternatively, tried to attribute the conduct to the ultimate entity in charge, in this case, the UN.  

International Justice marches (limps...) on (again): ICC Appeals Chamber reverses stay of proceedings in Lubanga

In July, Trial Chamber I ordered a stay of proceedings in the Lubanga case because the OTP was refusing to comply with an order to disclose the name of an intermediary to the defense. As I related at the time, the TC considered that it had lost control over its capacity to insure the fairness of the proceedings if the OTP could decide unilaterally to not comply with an order of the Court. A few days later it ordered the release of Lubanga.

The Appeals Chamber just issued its Judgment on the Prosecutor's appeal, and the result is unfortunately not surprising. Once again the AC recognises that the OTP has violated its obligations under the Statute... but there is no immediate consequences and Lubanga remains in jail (see separate Judgment on that)!
More specifically, the OTP had raised three issues.

The first one was that the OTP was under an autonomous duty to protect witnesses and should be able to not comply with a TC order, should it consider that it would violate this autonomous duty. The AC rightly recalled that orders of the TC are binding on all the parties until changed or suspended by the AC.

The second related issue was that the burden to insure fair trial was a shared one between the Court's organs, and that in case of contradiction between OTP and TC, there should be a coordination of the two until accepted adjustments are reached. On this, the AC affirmed that the the TC is the ultimate guardian of fair trial and that the OTP cannot supplant TC orders. Any conflict between the two should be resolved in favour of the TC. I of course agree with the AC and I find it a little shocking that the Prosecutor, who has so often shown his attachment to fairness by, for example, publicly misrepresenting Court decisions to imply that the issuance of an arrest warrant is tantamount to a finding of guilt, as in the Bashir case, should have the chutzpah to claim that the duty to insure the fairness of the proceedings also rests on his office...

Finally, the OTP argued that the stay of proceedings was a "premature and excessive" remedy and that the TC could have used its powers under article 70(1) to punish the Prosecutor and find alternative ways to compensate Lubanga. The AC agreed with the TC that the conduct of the Prosecutor, who claimed that he could decide not to implement a Court order based on his own interpretation of the Statute, could indeed constitute a grave enough situation where it would be impossible to insure a fair trial and could therefore justify a stay of proceedings. HOWEVER (of course, however...), the TC erred in concluding that it had lost control over the trial in this specific instance. It could have used Article 71 and impose sanctions on the Prosecutor to try and obtain compliance BEFORE ordering the stay of proceedings. The decision of the TC is consequently reversed. As a result, the decision to release Lubanga is also reversed, and the AC considered that it was not appropriate to make a finding on whether the Prosecutor's actions constituted an "inexcusable delay" that might justify release under Article 60(4) of the Statute.

So, as usual, the Appeals Chamber is entirely predictable in his reasoning, ultimately not wanting to jeopardize the ICC's first trial too much, despite the Prosecutor's continued best efforts to sabotage it. Although it is disappointing that the Prosecutor is once again given a chance to repair the damage, rather than reaping the consequences of what he sowed, there is some satisfaction to be found in the clear slap of the wrist received by the OTP for its conduct. I do have an issue with the reasoning of the Court on the last point raised by the Prosecutor. I'm not sure I see the link between the order of a stay of proceedings and the possible sanctions under Article 70(1) and 71. Indeed, whether or not sanctions are possible, the fact remains that the official position of the OTP is still that he doesn't have to comply with TC decisions and that is the basis for the stay of proceedings. Until that position changes, whether through a voluntary change of mind, or sanctions, the trial cannot go on and the stay is justified in my opinion.

In any case, the next step is twofold. First, the TC should definitely initiate proceedings under 70(1) and 71 for offences against the administration of justice, which could even justify, according to KJH at Opinio Juris, his removal by the ASP. Second, the defense should file a new motion under article 60(3) to obtain Lubanga's release. If this doesn't constitute "inexcusable delay" on the part of the Prosecutor, I don't know what does. Until then, international justice marches (limps...) on...