Author: Daniella Lock (PhD student at UCL Faculty of Laws). The original post was published on Just Security on 30 November 2016. 

What was formerly known as the Investigatory Powers Bill, referred to elsewhere as the “revised Snoopers’ Charter,” has received Royal Assent and, as of Nov. 29, is officially law in the UK. The Act (full text here) does introduce additional safeguards, as well as a new body of oversight and the involvement of judges in the authorization of surveillance warrants. However, the broad range of surveillance powers available to the British Government, which were exposed by the Snowden leaks, have not been scaled back but further entrenched within British law. This is despite consistent pleas to reduce the powers by parliamentarians, legal practitioners and legal NGOs, and amendments having been made to the Act by both Houses of Parliament.

The Not So New Powers 

The government’s powers exposed by the Snowden leaks were the subject of widespread fear and shock, and they will be further consolidated by this new legislation. The surveillance powers that the Act will now explicitly enshrine in law include: targeted and bulk hacking powers; bulk interception of communications (provided for under the previous UK surveillance regime); access to bulk personal datasets (BPDs); and the acquisition of communications data, both targeted and bulk, which involves the retention of web history logs (known as “Internet Connection Records”). The Act also provides for the use of thematic warrants in relation to targeted surveillance powers. These warrants, equated with general warrants in a previous Just Security post by Scarlet Kim, have the potential to be very broad in scope and may be used against “a group of persons who share a common purpose or who carry on, or may carry on a particular activity.”

All of these far-reaching surveillance powers existed in one form or other prior to the Act. However, many of them were only avowed by the UK Government in the aftermath of the Snowden leaks. For example, engagement in the bulk acquisition of communications data by the security services was first admitted in November 2015, when the then-Home Secretary, Theresa May, informed Parliament that communications data was being obtained in bulk from Communication Service Providers under the authority of the Telecommunications Act 1984. The use of hacking powers was acknowledged by the UK government through the publication of the Draft Equipment Interference Code of Practicepublished in February 2015 (containing, admittedly, unclear distinctions between bulk and targeted powers). The use of thematic warrants and BPDs were publicly avowed for the first time in March 2015 in a report by the Intelligence and Security Committee (the Parliamentary committee appointed to oversee the work of the UK’s security services). 

The Passage of the Act 

Many were hoping to prevent or obstruct the UK Government in its consolidation of these extensive powers. Since the Act was first published in bill form, there has been rigorous engagement with its provisions by legal practitioners, legal NGOs as well as tech companies. When the Act was published in draft form in November 2015 last year, over 1,500 pages of written evidence were submitted to the Joint Committee responsible for scrutinizing the bill. Written evidence was then submitted throughout the year. Legal NGOs and legal practitioners made recommendations calling for many of the powers either to be removed or subjected to much greater restriction. For example, Liberty calledfor a removal of all bulk powers contained in the bill, and the barrister (and Reader at University College London) Dr. Tom Hickman called for the scope of thematic warrants to be greatly reduced.

Official scrutiny of the Act was primarily undertaken by the Joint Committee for the Investigatory Powers Act and the Intelligence and Security Committee (ISC), who both wrote reports in response to the draft bill. These reports also conveyed skepticism about certain powers contained in the bill. For example, the  ISC expressed uncertainty over the need for bulk hacking powers, and the Joint Committee stated that it was not clear that the bulk powers of interception and hacking were compliant with the UK’s obligations under the European Convention on Human Rights.

Partly in response to concerns such as these, the government called for a review of bulk powers by the Independent Review of Terrorism Legislation. The publication of the review report was discussed in a previous blog post by Shaheed Fatima Q.C. The Independent Reviewer concluded in the report that there was a “proven operational case” with respect to three of the bulk powers which were “already in use.” These powers were bulk interception, bulk acquisition (of communications data) and BPDs. At the time of the review, the Independent Reviewer had been told by the UK’s Government Communications Headquarters (GCHQ) they had not so far engaged in bulk hacking. With regards to this power, it was found that there was a “distinct, but not yet proven, operational case” for it.

While the conclusions of the review were welcomed by the UK government, they were not accepted across the board and opposition to the reach of surveillance powers in the bill remained.  Liberty criticized the scope of the review, arguing that its lack of consideration of the necessity and proportionality of bulk powers meant that the most important question regarding their use had gone unanswered. It also criticized the short time-frame for the review, citing the lack of time that had been available for those carrying out the review to consult experts in the field. It also highlighted that no operational case with regards to internet connection records had been made, and it claimed that this power should be removed from the bill.

Despite determined efforts by many to oppose the powers in the bill, only fairly minor changes were made to them during its passage. For example, restrictions were added to class warrants for BPDs, the examination of material obtained under bulk warrant and additional safeguards were added with respect to accessing journalistic material and legally privileged material.

Changes the Act Makes to the UK Surveillance Regime as a Whole 

For those less familiar with the provisions contained in the Act, it should be noted that at the same time as ensuring the same breadth of surveillance powers are available to the government, it also introduces a new authorization process for these powers and new safeguards and body of oversight.

With respect to the authorization process, there is now a mechanism by which judges, called Judicial Commissioners, will be involved in the decision-making process for the issuing of surveillance warrants—a mechanism described as the “Double-Lock.” Judicial Commissioners will be required to approve warrants initially issued by the Secretary of State before they can be fully authorized.

A new oversight body will be set up, which merges previously existing oversight bodies. The body will be made up of an Investigatory Powers Commissioner and a group of Judicial Commissioners. It will keep under review the exercise of statutory functions by public authorities provided for in the Act. Furthermore, as stated, Judicial Commissioners will also be involved in the authorization process for surveillance warrants.

Insofar as these additions to the UK surveillance regime serve to impose robust limitations on the UK government’s use of its surveillance powers, they are clearly welcome. However, the extent to which they will impose robust limitations has been a matter of debate. One issue of controversy is that the Act expressly states that the Judicial Commissioners are to apply judicial review principles when reviewing the Secretary of State’s decision. As was discussed in an earlier blog post by Shaheed Fatima Q.C, there may still be potential for Judicial Commissioners to undertake substantive and meaningful review of the Secretary of State’s decision despite this constraint. However, this remains to be seen.

Furthermore, there are a number of other factors that may serve to constrain the Judicial Commissioners, highlighted here by Lord David Pannick, which are not acknowledged in the Act. For example, there is no clause in the Act which provides that the Judicial Commissioner would have access to all of the same information on the basis of which the Secretary of State made their decision. There is also no provision in the Act to ensure that Judicial Commissioners will be able to access a special advocate to assist them in their decision-making. Concerns have also been raised about the fact that this same oversight body, responsible for providing oversight with regards to the UK surveillance regime, is also responsible for approving surveillance warrants.

Initial Concerns with UK Surveillance Powers Still Stand 

While it is not clear how robust these restrictions will be, what is clear is that the Act does not reduce the powers available to the government. And ultimately, many of the concerns that were initially voiced about the Act still stand. For example, the problems discussed in the blog post by Scarlet Kim, in connection with the expansive hacking powers and use of thematic warrants, remain. The concerns regarding justifiability of access to Internet Connection Records, discussed in a blog post by Shaheed Fatima Q.C, are as relevant as they were last year.

Due to the extensive surveillance powers that the Act provides for, it is still not clear whether the new regime will be compliant with standards set by international law. This was expressly stated by the UN Special Rapporteur when he delivered his first report to the UN Human Rights Council in March this year. The Special Rapporteur argued that the provisions in the Act “prima facie fail the benchmarks” set in recent case law by the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU).

This view is at least plausible. As was highlighted in an earlier blog post by Carly Nyst, the ECtHR has, in the cases of Zakharov v Russia (Grand Chamber) and Szabó and Vissy v Hungary, recently emphasized the need for human rights law principles to be “enhanced” to take into account States’ increased appetite for “massive monitoring of communications.” In the case of Zakharov, it was also emphasized that interceptions must:

“clearly identify a specific person to be placed under surveillance or a single set of premises as the premises in respect of which authorization is ordered. Such information may be made by names, addresses, telephone numbers or other relevant information.”

Some have taken such commentary by the Court to be a sign that the ECtHR may be willing to take issue with the Act. Indeed, in a memorandum on surveillance and oversight mechanisms in the UK published in May, the Council of Europe Commissioner for Human Rights cited “major human rights concerns” over the then Bill. Of particular interest in the memorandum was a reference made to suggestions by surveillance experts that “the sheer breadth of a bulk warrant may have difficulties” against the “clear standard” quoted above, as set out in Zakharov. The Commissioner also commented that:

“by their nature bulk warrants place large groups of people under the menace of surveillance without any suspicion on the part of the authorities that an individual has committed a criminal offence or is of national security interest.”

Provisions in the Act may also come into conflict with certain standards set by the CJEU. The UK will be required to adhere to these standards for at least the next few years, even if the UK manages to begin the process of leaving the Union early next year.  The key issue will be the Act’s provisions on data retention. Recent decisions—such as in the joined cases of Digital Rights Ireland and Seitlinger as well in the case of Schrems —suggest that the CJEU is willing to take a more hardline approach with respect to data retention. Furthermore, in July 2016 the Advocate General of the Court of Justice published his opinion on the Tom Watson (and formerly David Davis) case, regarding the lawfulness of the UK’s Data Retention and Investigatory Powers Act 2014 (DRIPA). The Advocate General stated in his opinion that data retention should only be lawful for the purpose of investigating serious crime. This opinion is not binding, and a lot depends on what the CJEU rules in relation to DRIPA early next year. However, it may be that the provisions for data retention in the Act, which allow for data to be retained on the basis of a broad range of purposes—including for the purposes of “public health” and “assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department”—may be incompatible with EU standards.

Looking to the Future 

Legal NGOs have made it clear that they intend to challenge the Act on its compliance with international law. Liberty’s response to the passing of the Act by Parliament couldn’t have been clearer. They stated: “[t]he fight does not end here. Our message to Government: see you in Court.”

There are already challenges relevant to the Act underway. For example, Privacy International and five internet and communications providers have lodged an appeal in the ECtHR challenging the UK Government’s hacking powers (under the previous regime). An application by Big Brother Watch regarding bulk interception and intelligence sharing (under the old regime) is also waiting to be heard in Strasbourg. Many legal challenges to be made directly against the Act once it becomes law are no doubt being currently drafted.

Some will be relieved that, for now, the “fight” is not completely over. However, it seems like a sad reflection of the current state of British law-making that an Act like this could be passed in its current form, with the best chance of opposing its most questionable provisions apparently lying in the ability of pro bono lawyers to challenge it in courts.

People will point to a variety of factors to explain how we got here. One factor which has undoubtedly played a role, which other countries who may face similar legislation can hopefully learn from, is timing. It has taken just over nine months for the Act to pass through Parliament. This is an undeniably brief period of time for an Act which, at the time of being introduced to Parliament, was almost 250 pages of complex legal provisions, accompanied by 19 “overarching documents“ many of which were over a 100 pages long. The then Bill was over 300 pages long on leaving the Lords’ report stage. Nine months is insufficient time to subject so many complex provisions to proper scrutiny. Many parliamentarians would barely have had time to get their head around the implications of the first few chapters of the bill, let alone all of its nine long and technical separate parts.  The government was warned that it was “not in the nation’s interest” to pass the Act this year, when over a 100 cross-party lawmakers and campaigners signed a letter calling for a longer consultation period to “give the Bill the time it needs.”

The letter reminded the government that the new law “could lead the world” if it was done right. Indeed, this new legislation was a big opportunity to wipe the slate clean after the Snowden leaks, and to help rebuild trust in the UK government and its surveillance practices. However, the UK government has chosen to push through a law which may well be seen as only serving to enhance distrust: for it consolidates far-reaching surveillance powers which many think should never have been relied upon in the first place.

  By Luis F. Viveros, Teaching Fellow and PhD Candidate at UCL

“They’ll be back. Shame has bad memory.” (Gabriel García Márquez, La Mala Hora)

I have chosen the general title of this series to be ‘Peace Against Humanity’. The series will consist of three deliveries, the purpose of which is to provide analysis about the on-going peace process in Colombia. The analysis will focus on issues related to transitional justice (TJ), international human rights law (IHRL), and international criminal law (ICL). This is the first in the series of forthcoming posts about Colombia’s ongoing peace process with the Revolutionary Armed Forces of Colombia (Spanish: Fuerzas Armadas Revolucionarias de Colombia). FARC, as this group is more commonly referred to, is a Marxist guerrilla organisation, and one of the main parties to Colombia’s decades-long internal armed conflict. The Council on Foreign Relations, an independent, nonpartisan membership organization and think tank, estimates that the Colombian conflict has thus far resulted in over 200,000 fatal victims, some 25,000 disappeared individuals, and nearly 5.7 million victims of internal displacement.

On 24 August 2016 it was announced that, after almost five years of negotiations, Colombia’s government and the FARC reached a deal to end their decades-old confrontation. The full text of the agreement has been released and a plebiscite on the accord will take place on 2 October 2016. This post argues that any TJ scheme needs to be justified from the definitional traits of that concept, and that the Colombian deal subverts the rationale of TJ. Concretely, it is maintained that some aspects of the deal do not conform to the logic of necessity underpinning the exceptional nature of measures undertaken in order to achieve TJ’s ends: democracy, the rule of law and respect for human rights.

The Rationale of Transitional Justice

According to Teitel TJ is defined as “the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes.” The ‘need for political change’ is perhaps the central definitional trait of every TJ scheme, the very thread by which completely dissimilar processes might be characterised as such:

Either political change is thought necessarily to precede the establishment of the rule of law or, conversely, certain legal steps are deemed necessary to precede political transition. The privileging of one developmental sequence or another derives either from disciplinary bias or from the generalization of particular national experiences to universal norms. So it is that in political theory the dominant account of how liberalizing transition occurs comprises a sequence in which political change comes first (Teitel, 2000).

The underlying logic is a simple one: where the existing institutional arrangements of a state are insufficient, exceptional political reform is needed to achieve democracy, ensure the rule of law and respect for human rights.

Political reform materialises in transitional measures. Taking into account that the institutional environment in which transition takes place is always different, then those measures are bound to take very different forms. Thus, it is their characterisation as adequate means to achieve democracy, human rights and the rule of law that connects all those measures under the conceptual umbrella of TJ.

The Nuremberg Trials constituted the first time where an international adjudicative body passed judgment upon, convicted and sentenced (including to capital punishment) those responsible of war crimes and crimes against humanity. Conversely, transitional processes in the Southern Cone of South America, Eastern Europe and Central America focused on amnesties. Within that spectrum there are formulas with emphasis on truth commissions (e.g. South Africa), or watered-down judicial proceedings like the one adopted by Colombia with paramilitary groups. That TJ schemes have dissimilar, and even contradictory emphases, might convey the idea that the process of TJ is nothing but the post-rationalisation of unconnected phenomena. Political reform’s necessity (transitional measures) as means to achieve ends (TJ’s ends) provides an analytical framework capable of overcoming this conceptual challenge.

TJ as necessary political action also provides a standard against which to assess whether particular measures are justified in a given transitional process. This is important because transitional processes are built upon dilemmatic problems far more complex than the binary formulas of conflict/peace or authoritarian regimes/democracy. As Tietel explains:

The central dilemma of transition is how to transform a society that has been subjected to illiberal rule and the extent to which this shift is guided by conventional notions of the rule of law and responsibility associated with established democracies. A core tension emerges in the use of law to advance transformation, as opposed to its role in adherence to conventional legality. To what extent is transitional criminal justice conceptualized as extraordinary in the relevant societies or guided by the ordinary rule of law?

This core dilemma implies many others. Who should be held to account and for what offense? Under what legal order? International or national? Military or civilian? These are the dilemmas successor societies struggle with; ultimately […] they commonly strike a transitional compromise, the ‘limited criminal sanction,’ which is, more than anything, a symbolic form of punishment.

“Does Colombia want Peace or Justice?” – under such heading ran a piece in a Colombian news magazine in 2013. This paradoxical statement, which perfectly embodies TJ’s dilemmatic nature, reflects the greatest obstacle to Colombia’s current transitional process. In that sense, polls consistently find both that Colombians support the peace deal, but overwhelmingly reject the lack of effective punishment (imprisonment) to FARC’s leadership. A comprehensive statistical inquiry was conducted by Universidad de los Andes, USAID, and Vanderbilt University, showing in detail how these ‘contradictions’ extended to other areas of the agreement (A graphic overview of the study is available here and the full study can be consulted here.)

There is an inter-temporal dimension to the analysis that can be easily overlooked. Blanket amnesties are inconsistent with IHRL and may prevent states from fulfilling its ICL obligations. Thus, the level of injustice acceptable as a matter of TJ has narrowed over time due to the developments in ICL and IHRL. Still, TJ allows for a wide range of acceptable measures so as to permit each society to design successful transitional schemes. It is within that spectrum of acceptable political reform or action where transitional measures are deemed as necessary. Conversely, political action falling outside that spectrum is at odds with TJ’s ends.

An analysis in those terms matters for Colombia. It provides a framework of social discussion parallel to that focusing on the legality of TJ’s measures as a matter of international law. In that sense, TJ’s language and concepts enable the articulation of policy concerns that in Colombia have been framed within the broad concept of ‘peace’, an aspirational value that sits at the centre of Colombian political and legal narratives. In fact, the Constitution enshrines it as “a right and a duty of mandatory compliance” (Art. 22), and both the accord and the plebiscite establish themselves as means to achieve “stable and enduring peace.”

While international law provides for external limits to TJ, the rationale of necessity of political change constitutes TJ’s internal limits. Besides serving as vehicle for domestic political debate, necessary political reform serves an important purpose in transitional processes: it allows to understand the dilemmas at the centre of transition by explaining how much impunity is acceptable in order to achieve the rule of law.

The FARC-Government Peace Deal in light of Transitional Justice’s Rationale

The FARC is perhaps the most violent of all the groups involved in the decades-long armed conflict in Colombia. FARC resorted to systematic kidnapping of civilians and extortion, in addition to drug trafficking and environmentally-shattering mining, so as to fund its so-called revolution. To illustrate the FARC’s modus operandi and pointedly on the issue of kidnappings, according to the The National Center for Historical Memory (Centro Nacional de la Memoria Histórica), it is responsible for 33-37% of kidnappings out of a total reported of 39.058. Markedly, the US State Department formally deems FARC as a Foreign Terrorist Organization, and Forbes ranks it as the third richest terrorist group in the world (annual turnover USD600 million), trailing only Hamas (2) and Isis (1).

The negotiation with FARC has finally yielded a full accord addressing six issues: (i) integral policies for agricultural development, (ii) political participation, (iii) cease of hostilities, (iv) [eradication of] illicit drugs, (v) victims (i.e. justice), and (vi) a process to hold a plebiscite on the agreement in its entirety. The justice section provides for a sanctions regime that raises serious concerns from a TJ point of view. It is argued that, while there are transitional justice-based reasons for applying a special justice framework, (i) the sanctions regime is inconsistent with the notion of necessary political reform that defines TJ, and (ii) application of the said regime to members of the military responsible for international crimes seriously undermines the TJ goals.

 

(i)   The sanctions regime as incompatible with the rationale of TJ

The Deal establishes a ‘Special Peace Tribunal’ for the purpose of judging crimes perpetrated by all parties to the armed conflict. Subject to corroboration and substantiation, the tribunal has jurisdiction to determine sanctions to be imposed on perpetrators. According to paragraph 60 of the Deal’s justice chapter these sanctions are “effective restrictions to liberty and [other] rights such as freedom of movement and residence deemed as necessary for their execution and to ensure non-repetition.” Although it is not yet clear what these restrictions entail in practice, the same provision clarifies that:

Effective restriction means adequate mechanisms for the supervision and monitoring to ensure compliance in good faith with restrictions ordered by the tribunal […] under no circumstances these should be understood as jail, prison or any other equivalent measure. (emphasis added).

Imprisonment could only be an imposable sanction if an individual fails to fully comply with truth-telling obligations or does not recognise responsibility for all crimes committed. However, the Deal does not establish means to ensure full compliance with those duties. This makes it highly probable that the majority of individuals under the jurisdiction of the Special Peace Tribunal will be subject to mere ‘restrictions’ to liberty as described above.

This sanctions regime raises concerns regarding its consistency with the exceptional character of TJ. Leaving aside concerns from an ICL and IHRL perspective, TJ’s rationale requires that measures are adequate to achieve the rule of law, democracy and human rights. This entails the balancing of different interests at play in the overall justice scheme adopted in the Deal, particularly in terms of truth and justice. The framework, however, disincentivises both truth-telling and justice.

Firstly, truth-telling is discouraged because the Deal does not provide for mechanisms to verify and confirm whether an individual provides a full account of crimes committed. There are already signs that the FARC does not consider itself bound to full truth-telling and unconditional atonement for crimes perpetrated against civilians. In a speech delivered after the Deal was signed in Havana, FARC’s lead negotiator, a.k.a. Ivan Marquez, stated that “in all armed conflicts, especially in long-lasting ones, mistakes are made and the civilian population is involuntarily affected” (emphasis added). Nowhere in that speech did the FARC express its willingness to tell the truth and recognise responsibility for their crimes.

The issue of child soldiers forcibly recruited by FARC provides an additional good example of this point. Although in February 2016 the FARC announced that that they would stop recruiting minors, on 27 August 2016 a.k.a. Jesus Santrich twitted that minors in FARC’s ranks were being held for their own ‘protection’. The US Department of State 2015 Human Rights Report on Colombia concluded that “[t]he FARC and the ELN routinely engaged in forced recruitment of persons under age 18.” Although the report does not provide an exact number of minors in that situation, it reproduces reports “that more than 5,800 children demobilized from illegal armed groups between 1999 and July 2015.” A study by Universidad Sergio Arboleda concluded that around 47% of FARC’s members were forcibly enlisted while still underage. A March 2016 New York Times video-report shows many children in a single FARC camp in an non-designated location, most of them in uniform and heavily armed.

 

 

 

 

 

 

 

 

 

In other words, FARC systematically denies facts regarding the true scope of their responsibility in child recruitment, framing their statements in a manner inconsistent with the responsibility to recognise the crimes committed. Stronger sanctions coupled with effective means of verification of compliance with these obligations might serve as deterrent to this type of conduct. Given that the Deal does not provide for them, the risk exist that this sort of conduct becomes endemic at the implementation stage.

Secondly, justice expectations are watered-down by a sanctions regime, which in practice will put the FARC in better conditions than the current ones. The blanket exclusion of prison or similar sanctions subverts the retributive function of sanctions in the context of serious criminal offences and therefore raises serious legitimacy concerns. In that sense, in terms of sanctions within the Special Peace Jurisdiction, there is no difference as regards responsibility between serious and minor offences.

Further, this system of justice will operate alongside the ordinary Colombian judicial system for many years. This will inevitably result in a situation where the petty criminal will continue being subject to years of imprisonment, while those responsible for war crimes and crimes against humanity will face penalties which, for all practical effects, entail no significant restrictions. In sum, by eliminating imprisonment as an available sanction, the FARC Deal breaches the fundamental principle enshrined in Riggs v. Palmer that “[n]o one shall be permitted to […] take advantage of his own wrong”.

A recent poll suggests that 90% of Colombians reject the idea of FARC’s leadership not serving prison time. But even if all of the above were to be accepted, the question whether the adoption of such sanctions framework is the only means available to achieve the termination of armed confrontation remains. Colombian recent experience suggests that not to be the case. Starting in 2005 Colombia adopted a transitional scheme in a negotiation with a federation paramilitary groups (‘AUC’ for its Spanish acronym) which outmatched FARC in terms of size and influence. That framework, also known as the Justice and Peace Law, required inter alia truth-telling in judicial procedures and reparation to victims. Justice, truth and reparation were balanced in order to justify reduced prison sentences of 5 to 8 years. Non-compliance with full confession obligations resulted in exclusion from the framework. Those excluded were transferred to ordinary criminal courts where prison sentences of up to sixty years can be imposed.

The terms agreed with FARC seem particularly lenient taking into account that this group negotiated in a weaker position in relation to the Government than the AUC did a few years before. The AUC had ample links with influential politicians, had a significantly bigger membership (AUC: 34,000/FARC: 7,000-10,000 members), and the Colombian military had just started to consolidate the results of a huge US-backed military strategy dubbed ‘Plan Colombia’ (Rochlin, 2010). By 2011, when the FARC negotiations were in its preliminary phase, that group’s military capabilities were in a historic low and its morale had been heavily decimated due to successful air raids with US-provided smart bombs. Thus, the statement that the FARC Deal’s sanctions regime was the best attainable transitional measure under the circumstances appears to be unsubstantiated.

 

 

   

 

 

 

 

 

 

(ii) The applicability of benefits to the military subverts TJ’s logic

The applicability of the above described sanctions regime vis-à-vis members of the military is unjustified in the Colombian context owing to the lack of transitional grounds. In the case of FARC and AUC the transitional reason justifying the application of exceptional frameworks is that the state lacked the capabilities to bring those responsible of crimes before existing judicial institutions.

In contrast, members of the military have already been investigated, prosecuted, and tried before independent and impartial tribunals, which ensured victims’ access to justice in terms consistent with IHRL. This is due in part to a series of decisions by the Inter-American Court of Human Rights in cases involving allegations of human rights violations by members of the military. In those cases, the Court held that where allegations of human rights abuse against civilians are at stake, military tribunals lack minimum independence standards necessary to guarantee the victims access to justice.

Getting there was a hard-won victory for human rights advocates in Colombia, and one which has yielded results in terms of effective accountability. As reflected in the ICC’s Report on Preliminary Examination Activities 2015, Colombian judicial authorities have seized jurisdiction from the military justice system in over 3,000 cases, over 800 members of the military have been handed down guilty verdicts coupled with prison sentences of up to 40 years, including “since 2012, one Colonel, two Lieutenant Colonels, nine Majors, six Captains and 35 Lieutenants.”

Further, if the argument for the applicability of the sanctions regime to the military were grounded in the political need of ‘reconciliation’, that too would be unjustified from a TJ perspective. In fact, one reason why amnesties for serious human rights violations have been rejected in Latin-America is the need to strengthen the perception that members of the military do not enjoy privileges for crimes committed in their official capacity.

Historically, it was the common practice of Latin-American dictatorships to enact statutes which effectively amounted to self-amnesties. Similarly, the application of the Peace Deal sanctions regime to members of the military who are being prosecuted or have already been tried and found guilty, will have an effect akin to those of self-amnesties. Those already serving sentences will be freed on time-served grounds, and the retroactive application of the Peace Deal on the basis of the most favourable standard will preclude further action by Colombian criminal courts.

In this case, as in those of the past, society will be stripped of reasonable expectations of truth, retribution and full reparation for crimes committed by members of the military. The only difference is that in Colombia justice was already being made. Garcia Marquez was right, “shame has bad memory.”

 

Human Rights Provisions in Economic Partnership Agreements in light of the Expiry of the Cotonou Agreement in 2020 (Report of 13 July 2016 Briefing)

By: Ira Ryk-Lakhman (PhD student, UCL)

On Wednesday, 13 July 2016, the EU Committee on International Trade discussed the conditionality of human right in Economic Partnership Agreements (EPAs) post the Cotonou Agreement. The ACP-EU Partnership Agreement, signed in Cotonou on 23 June 2000, was concluded for a 20-year period from 2000 to 2020. It is the most comprehensive partnership agreement between developing countries and the EU. Since 2000, it has been the framework for EU’s relations with 79 countries from Africa, the Caribbean and the Pacific (ACP). And here’s the rub: By its own terms, the Cotonou Agreement is due to expire in 2020, yet the legal and practical ramifications thereof remain uncertain.

For over 20 years, the EU pursued a policy of ensuring that its trade and cooperation agreements are governed by a human rights clause. These human rights clauses comprise two main parts. The first part is an ‘essential elements’ clause, which establishes human rights and democratic principles as the basis for an agreement. The second part is an ‘appropriate measures’ clause. Under this latter part, the parties to the agreement may adopt ‘appropriate measures’ if the other party fails to comply with the essential elements of the agreement.

The Cotonou Agreement is an example of this EU model. Under Article 9(2)(4)  ‘Respect for human rights, democratic principles and the rule of law’ constitute ‘the essential elements’ of the Agreement. Next, subject to certain procedural preconditions, Article 96 allows ‘a Party [that] considers that the other Party fails to fulfil an obligation stemming from respect for human rights, democratic principles and the rule of law’, as set out in Article 9(2), to adopt ‘appropriate measures’. Notably, under this provision, any such ‘measures’ must be ‘taken in accordance with international law, and proportional to the violation,’ and ‘shall be revoked as soon as the reasons for taking them no longer prevail’.

According to EU practice, human rights clauses are incorporated in a framework agreement, and the substantive agreement makes reference to that human rights clause. In conformity with this practice, the four EPAs with the Cariforum, East African Community (EAC), Southern African Development Community (SADC) and West African regions, refer (inter alia) to the Cotonou Agreement and its human rights clause. Thus, the Cotonou Agreement functions as a framework agreement in this respect.

How would the expiry of the Cotonou Agreement affect the agreements incorporating and/or referring to its provisions?

For the foregoing, the EU Parliament debated several questions, which were addressed by a leading expert in the field. First, can the EPA references to the human rights clause in the Cotonou Agreement be used to suspend the EPAs after the expiry of the Cotonou Agreement? Second, if these clauses lack legal effect, does the EU have any alternative means at its disposal to react to violations of human rights, democratic principles and the rule of law by an EPA partner country? Third, how might this be done under EU law? And fourth, are there any other constraints under international law on such measures?

The expert report as well as the ad hoc briefing suggested that the EPAs do not incorporate the mechanism established under the Cotonou Agreement for the adoption of ‘appropriate measures’. However, the SADC, West Africa, and Cariforum EPAs do incorporate the principles set out in the essential elements clause of the Cotonou Agreement such that it can be said that these agreements are based on these principles. This means that, under international law of treaties, it is possible to suspend these agreements in the event that one of the parties violates these principles, even in the absence of an express possibility of adopting ‘appropriate measures’.

The situation with the EAC EPA is slightly distinct. The SADC, Cariforum and West Africa EPAs are based on the principles and essential elements ‘as set out’ in the relevant provisions of the Cotonou Agreement, not the actual provisions of the Cotonou Agreement, while the EAC EPA is based on ‘building on the acquis of the Cotonou Agreement’.  Dr Bartels analyzed the wording and interpretation of the relevant instruments provisions and opined that in light of other statements, objectives, and recitals in the EAC EPA, the acquis is in fact incorporated into the agreement. This would mean that all four agreements are governed by a similar legal position.

Suspension of EPAs on ground of fundamental change of circumstances and/or material breach

The practical meaning of holding the above suggested interpretation is that there is a basis for suspension of the agreements under international law, specifically under the Vienna Convention on the Law of Treaties (VCLT), in the event that the basis of the agreements is no longer there. This is all the more the case if the basis for the agreement disappears because of the conduct of one of the parties. The report presented to the committee addressed the legal options for suspending the agreements, namely – under the doctrine of fundamental change of circumstances (VCLT, Article 62) and material breach of a treaty (VCLT, Articles 60(3)(a) and (b)).

As for the first option, under the doctrine of fundamental change of circumstances, Dr Bartels noted that he is of the opinion that this is a weak route for a lawful suspension of the agreements. Pointedly, the doctrine of fundamental change of circumstances requires the triggering change to be “unforeseen”. A provision anticipating possible suspension in case a party failed to comply with the ‘essential elements’ ipso facto undermines the [un]foreseeability condition. As for the doctrines of material breach, these may serve as stronger legal basis for a lawful suspension of EPAs. Specifically, according to the ICJ in the Namibia Advisory opinion, repudiation can be manifested by factual circumstances and by the conduct of the parties. Thus, if one of the parties acts in a manner which displaces the ‘basis of the agreement’ (i.e., human rights violations) then, that party de facto repudiated the treaty. This, in turn, allows the other party to suspend the agreement. Additionally, under VCLT, Article 60(3)(b), if the party acts in a manner which removes the basis of the agreement and/or contradicts it, this conduct could be considered as a violation of a ‘provision essential to the accomplishment of the object or purpose of the treaty’. Under this constellation, the other party would be allowed to suspend the agreement on grounds of material breach.

Having established that, and given the basis notion that as only “obligations” may be violated, Dr Bartels addressed the more important question, which is whether these four ‘basis clause’ actually establish obligations?  According to him, these clauses do not establish obligations. The provisions prescribe that human rights ‘are’ the basis for the treaty, thus the clauses serve as a statement of fact and a presumption on which the treaty is predicated. The clauses do not give rise to an international obligation, and are not crafted as such. Nonetheless, posited Dr Bartels, on this point there is no substantive difference between a statement of fact and a stipulation of an obligation. In fact, the legal effect is the same in both cases. In other words, if a party acts so as to remove the basis of the agreement, the other party is entitled to suspend the agreement whether the ‘basis’ is coached as an obligation or not.

In outline, under international law, certainly for the SADC, Cariforum and West Africa EPAs can be considered to be based on the principles of respect for human rights, democratic principles, and the rule of law, with the legal consequences that this entails. The EAC EPA, however, is at most required to be consistent with these principles, without this having any bearing on the conduct of the parties outside the scope of that agreement.

The expert also addressed the possibility of suspending these agreements as a form of countermeasures due to a violation of human rights. On this point, Dr Bartels noted that countermeasures are legitimate under international law. Nevertheless this route would not achieve the same result as a human rights clause. The difficulty with following the countermeasures route is that countermeasures are only available for ‘injured’ States, and it is generally considered that, on the current state of international law, a State (or the EU) would only be ‘injured’ for these purposes if one of its nationals were affected by the conduct of the other party.

Full brief: http://www.europarl.europa.eu/ep-live/en/committees/video?event=20160713-1500-COMMITTEE-INTA