LGBT Rights in Uganda: a case study of Shared Responsibility?

 Posted by: Jacobs Dov

Discrimination against homosexuals and lack of recognition of LGBT rights in Africa has been a pressing concern for a number of human rights organizations in recent years. The situation in Uganda has received particular attention, following the passage of anti-gay legislation in 2009 and the practice of some local newspapers to “out” certain homosexuals, accompanied by calls for their execution. While this is an obvious human rights issue, some recent initiatives are bringing the question in the realm of international criminal law, which bring to the fore interesting questions in relation to shared responsibility.

SMUG v. Lively and the use of the Alien Tort Statute

The first development to be mentioned is a claim brought under the Alien Tort Statute (ATS). In SMUG v. Lively, an LGBTI organization in Uganda brought a claim against Scott Lively, a American anti-gay activist, author of the far from tastefully named book The Pink Swastika and a strong supporter of anti-gay legislation in Africa. The basic claim of the plaintiff is that Lively, through his support for violent and repressive actions against gays, is aiding and abetting crimes against humanity committed in Uganda. The case is set to go to trial, following the decision of the District Court to deny Lively’s motion to dismiss in August 2013. Basically, the judge considered that 1) the discrimination against gays in Uganda might constitute persecution as a crime against humanity and 2) if established, the fact that Lively influenced and advised Ugandan anti-gay activists could constitute aiding and abetting of such crimes. While the reasoning of the judge is shaky in a number of ways, this approach to such human rights violations is interesting.

It is difficult to evaluate the exact impact that this case might have if successful, because it would depend on where the judge at trial would set the threshold for aiding and abetting. However, should mere intellectual support by a random citizen in another country be deemed as aiding and abetting crimes against humanity, this could have far-reaching consequences in creating a responsibility not to support those who commit such crimes elsewhere.

The ICC as a possible avenue?

The second development is the “complaint” that the Prosecutor of the International Criminal Court (ICC) apparently received earlier this year calling on the arrest of three anti-gay activists for promoting crimes against humanity. It is not entirely clear what the legal status of this “complaint” is and it seems to be under consideration. Earlier this month a petition was launched in order to put the Prosecutor under pressure to act. This initiative has, in my view, near to no chance of success, given the current workload at the ICC and because a petition signed by 200 people online is hardly going to put any kind of “pressure” on Fatou Bensouda to do anything.

However, it is nonetheless interesting because the proposition that state-sponsored discrimination of gays could amount to crimes against humanity is certainly plausible. One could discuss whether the threshold for finding crimes against humanity has not been lowered too much in recent years at the ICC (notably in the Kenya situation), but the result is that the ICC could easily be shifting its attention from international crimes to more broadly defined gross human rights violations, and could be a possible tool in order to hold state leaders in check for the type of conduct that is currently taking place in Uganda.

The implications for shared responsibility

I think these developments, when seen together, are illustrative of the development of shared responsibility in international law, at least on two levels.

First, it is indicative of the development of a shared accountability, as mentioned in the SHARES Conceptual Framework, whereby several entities might be brought before various jurisdictions in order to cover various dimensions of an event. The various ways in which the Srebrenica massacre has been dealt with (before the International Court of Justice, the International Criminal Tribunal for the former Yugoslavia and domestic courts against individuals, states and the United Nations) is a perfect example of that.

Second, it is indicative of a possible shared responsibility in dealing which such conduct, that relies on a framework of judicial bodies, both national and international and a web of legal regimes, such as human rights and international criminal law. This institutional and normative interdependence is yet again at the heart of the need to define and refine a more elaborate understanding of shared responsibility in international law.

How We Can Do Something: Sharing the Responsibility to Protect Syrian Refugees

 Posted by: Swerissen Isabelle

Cross posted on the website of the ESIL Interest Group on Migration and Refugee Law

With breath bated, the world has been waiting to see what will happen next in Syria. On Tuesday 10 September 2013, President Barack Obama said he would pursue a Russian proposal which has “the potential to remove the threat of chemical weapons without the use of force”. It’s too early to tell whether this diplomatic attempt will succeed, so in the meantime, the option of military action remains on the table. Without a Security Council mandate, any form of military engagement in Syria would violate international law on the use of force. And yet, this may not stop the United States and its allies from moving forward with military intervention. It is all but clear whether intervening will improve matters on the ground. In fact, it could easily make things worse, but that doesn’t seem to matter. What matters is that “we need to do something”.

In this blog post, I argue that we can do something. The countries of the world can share the responsibility for the 2 million Syrians who have been forced to seek refuge abroad.[1] In a statement released to mark this sad milestone, United Nations High Commissioner for Refugees (UNHCR) António Guterres said Syria had become “a disgraceful humanitarian calamity with suffering and displacement unparalleled in recent history”. He added that “the only solace is the humanity shown by the neighbouring countries in welcoming and saving the lives of so many refugees”. But with an average of almost 5.000 Syrians fleeing into Lebanon, Jordan, Turkey, Iraq and Egypt every day, their ability to cope is wearing thin.[2] International support is urgently needed to help them deal with the Syrian refugee crisis.

The protective responsibility with which surrounding countries are struggling, can be shared in several ways, three of which are outlined below. One way is by creating international territories of asylum,[3] that is, territories leased by an international organisation (IO) for the purpose of offering refugee protection. IOs, in particular the UN, are already heavily involved in protection efforts for Syrian refugees. The next step is to conclude binding agreements on leasing of land with host countries. On the basis of such an agreement, an IO assumes temporary control over the land on which refugees reside. In exchange, host countries receive monetary compensation for the use of that land.[4] This constitutes a truly international solution, because responsibility for the protection of Syrian refugees is indirectly – through the IO – shared by countries beyond the region.

The establishment of international territories of asylum would be unique in the history of refugee protection; never before have international lease agreements been used for strictly humanitarian purposes.[5] However, as a new tool of protection, this solution raises a number of complex legal issues. Most fundamentally, it is doubtful whether IOs can ever be “actors of protection”,[6] even though they increasingly play a role in providing care and assistance to refugees. The reason for such skepticism harks back on the essence of refugeehood. To be a refugee means to have a broken political relationship with a state,[7] which cannot be replaced by a makeshift relationship with an IO. In other words, refugee protection could be said to involve particular functions and attributes that IOs, and other non-state actors for that matter, simply cannot provide.

In light of this initial objection, and given the fact that countries are generally reluctant to concede authority over territory, it is highly unlikely that international territories of asylum will be become a reality in the coming weeks. A responsibility sharing solution that stands a greater chance of success is the provision of temporary protection by countries bordering Syria, combined with the promise of resettlement in countries further afield. This two-step formula has been applied in the past, most notably in response to the Indochinese refugee crisis from 1979 until 1989 and the Kosovo refugee crisis in 1999. In both cases, countries of first asylum rejected a further inflow of refugees due to fears of national destabilisation. Eventually, they were persuaded into admitting refugees on a temporary basis, but only after assurances of resettlement elsewhere were given.[8]

Overall, the temporary protection and resettlement solution contributed positively to the protection of Indochinese and Kosovar refugees. However, implementation of this solution was not without controversy. In both cases, access to protection became dependent on the possibility of resettlement. It is this conditionality that was heavily criticised by human rights activists and even UNHCR staff in the field. They feared that setting sharing as a pre-condition would compromise the obligation of non-refoulement, which includes non-rejection at the border. Taking a principled stance, they argued that the obligation of non-refoulement must be “scrupulously observed” in all cases[9] and “can in no way be contingent upon the implementation of a responsibility sharing programme”.[10]

Apart from concerns relating to conditionality, there were other problems as well. For example, refugees were forcibly moved to resettlement countries, which, albeit for protection purposes, is questionable from a human rights perspective. In addition, resettlement outside of the region made return once the situation had changed considerably more difficult.[11] These problems were all associated with the physical transfer of refugees from one place to another. To prevent their recurrence in dealing with the Syrian refugee crisis, it may be advisable to push for some form of responsibility sharing that is financial only. Pursuant to a financial responsibility sharing arrangement, countries close to Syria will continue to bear the responsibility for physical protection, with other countries doing their part by providing funding for protection and relief efforts.

The strength of this solution is that it recognises that different states can contribute to refugee protection in different ways, depending on their preferences and capabilities.[12] It is also the solution that is most feasible, since it greatly resembles the way the international community is currently organising its support to states hosting Syrian refugees. However, important adjustments must be made, especially with regard to the discretionary nature of the funding arrangements. On numerous occasions, donor states have pledged to send money without making good on those promises.[13] This has to change, because only the reliable availability of fiscal aid and assistance will ensure that the refugees can continue to find the protection that they so desperately need. What is thus required to improve the current state of affairs is a binding mechanism for financial responsibility sharing.

In this blog post, I have discussed three options on the basis of which responsibility for the protection of Syrian refugees can be shared. In view of the pressure that the refugee exodus is placing on neighbouring countries, sharing is no longer a matter of ‘if’, but ‘how’. Although the answer to the ‘how’ question has shown that each of the proposals comes with its own challenges, they merit serious consideration nonetheless. After all, as long as the world remains deeply disunited over how to bring about an end to the Syrian conflict, there is no hope of eliminating the causes that force people to flee in the first place. In this tragic reality lies the “beauty” of refugee protection: it is a “palliative” response that allows the world to do what it can, at least until the bloodshed in Syria is stopped.[14]

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[1] The 2 million figure represents Syrians who have registered as refugees or who are pending registration. A further 4.25 million people are displaced inside Syria, according to data from the UN’s Office for the Coordination of Humanitarian Affairs (OCHA). Taken together, these numbers – amounting to more than six million people – mean that more Syrians are now displaced than people from any other country. See ‘Number of Syrian refugees tops 2 million mark with more on the way’, UNHCR <http://www.unhcr.org/522495669.html> (3 September 2013).

[2] More than 97 per cent of Syria’s refugees are hosted by countries in the immediate surrounding region. Of those countries, Lebanon hosts the most with some 720,000, followed by Jordan with 520,000, Turkey with 464,000 and 200,000 in Iraq. Egypt is hosting an additional 111,000 Syrian refugees. See ‘UNHCR and host countries to push for greater international help on Syrian refugees’, UNHCR <http://www.unhcr.org/522756779.html> (4 September 2013).

[3] See generally on the notion of international territories of asylum, Terje Einarsen, ‘Mass Flight: The Case for International Asylum’ (1995) 7 International Journal of Refugee Law 551.

[4] Eve B. Burton, ‘Leasing Rights: A New International Instrument for Protecting Refugees and Compensating Host Countries’ (1987-1988) 19 Columbia Human Rights Law Review 307, 319.

[5] Einarsen (n 3) 565.

[6] See generally on the issue of non-state actors as actors of protection, Maria O’Sullivan, ‘Acting the Part: Can Non-State Entities Provide Protection Under International Refugee Law?’ (2012) 24(1) International Journal of Refugee Law 85.

[7] Alte Grahl-Madsen, The Status of Refugees in International Law – Volume I (AW Sijthoff-Leyden 1966) 78-79; Andrew E. Shacknove, ‘Who is a Refugee?’ (1985) 95 Ethics 274, 283.

[8] See generally on the Kosovo refugee crisis, Michael Barutciski and Astri Suhrke, ‘Lessons from the Kosovo Refugee Crisis: Innovations in Protection and Burden Sharing’ (2001) 14(2) Journal of Refugee Studies 95.

[9] UNHCR ExCom Conclusion No. 22 (XXII) ‘Protection of Asylum Seekers in Situations of Large-Scale Influx’ (1981) para. II.2.

[10] Amnesty International, ‘Former Yugoslav Republic of Macedonia: The Protection of Kosovo Albanian Refugees’ (1999) 20.

[11] Joanne Thorburn, ‘Transcending Boundaries: Temporary Protection and Burden Sharing in Europe’ (1995) 7 International Journal of Refugee Law 459, 476.

[12] James C. Hathaway, ‘Why Refugee Law Still Matters’ (2007) 8 Melbourne Journal of International Law 89, 102. See also James C. Hathaway and R. Alexander Neve, ‘Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection’ (1997) 10 Harvard Human Rights Journal 115, 202-207.

[13] As a result, states hosting Syrian refugees are worryingly under-supported, with receipt of only 47 per cent of the funds required to meet basic refugee needs. See UNHCR (n 1).

[14] Hathaway (n 12) 98.

Responsibility of the Netherlands for the conduct of Dutchbat: overview of the Supreme Court decision

 Posted by: Bérénice Boutin

On 6 September 2013, the Dutch Supreme Court confirmed that the Netherlands was responsible in relation to the death of three Bosnians in Srebrenica. Finding no ground for cassation, it upheld the 2011 decisions of the Court of Appeal of The Hague, concluding the last stage of proceedings in the important cases of Nuhanović and Mustafić. These cases are remarkable in that a remedy is finally provided to some victims, but also because they comport a number of important findings for the debate on the shared responsibility of States and international organizations for the conduct of peacekeepers. Notably, the Supreme Court unequivocally recognizes the possibility of multiple attribution, notably under the test of effective control (para 3.11.2).

For those not familiar with the cases, their specific factual circumstances must be recalled. The cases of Nuhanović and Mustafić are based on a limited claim that the Dutch contingent to UNPROFOR (Dutchbat) wrongfully forced a few individuals to leave a compound where they had sought refuge. Following the capture of the enclave of Srebrenica in July 1995, about 32 000 civilians took refuge in and around the nearby industrial compound where Dutchbat was stationed. The Dutch government and UNPROFOR commanders rapidly agreed to evacuate the compound and withdraw forces, and Dutchbat commander Karremans met with Mladic to attempt to negotiate the safe evacuation of the refugees. Refugees started being evacuated by buses of the Bosnian-Serb army, and it quickly became clear that refugees, specially able-bodied men, were being murdered. Nonetheless, Muhamed Nuhanović, Ibro Nuhanovic and Rizo Mustafić were forced to leave and died. Relatives of these three individuals brought two almost identical claims before Dutch courts to upheld the responsibility of the Dutch State for the wrongful removal by Dutchbat.

In 2008, the District Court rejected the claims on the ground that the alleged conducts were attributable to the UN alone. In 2011, the Court of Appeal ruled in favor of the victims, finding the State responsible on the basis of effective control (see here). The Dutch State, which has always maintained that the UN should be responsible for the conduct of Dutchbat, brought the cases to cassation. In these landmark decisions, the Dutch Supreme Court confirmed the responsibility of the State for the conduct of forces engaged in peacekeeping operations.

1. Attribution

In previous instances, victims maintained that their claim, including the issue of attribution, was to be decided under Bosnian law (applicable through Dutch private international law). Here, victims did not challenge the finding that attribution had to be decided under international law, thus the Supreme Court proceeded on the assumption that ‘the question of attribution should be answered solely in accordance with the rules of international law‘ and pointed the ILC Articles on the Responsibility of States (DARS) and the ILC Articles on the Responsibility of International Organizations (DARIO) as relevant instruments (paras 3.6.2, 3.7).

The Court rejected the State’s submission that ‘Dutchbat’s conduct should, in principle, always be attributed to the United Nations’ (para 3.10.1) under Article 6 DARIO. It rightly considered that, even if Dutchbat was a UN organ during the time of the mission, it did not cease being an organ of the Netherlands, which – as any State contributing troops to a military operation – retained ‘organic command‘ (that is, disciplinary powers and criminal jurisdiction) over its troops (para 3.10.2). Referring extensively to the ILC commentaries, the Supreme Court confirmed that Article 7 DARIO is the relevant rule for the attribution of the conduct of peacekeepers.

On the question of multiple attribution, the State submitted that ‘international law excludes the possibility […] that both the United Nations and the State had effective control’ and inter alia suggested that multiple attribution of the same conduct was not possible in the ILC framework. The Supreme Court dismissed this claim as an ‘incorrect interpretation of the law’ (para 3.11.2). It pointed out that, according to the ILC Commentaries, ‘articles 6-9 DARIO do not necessarily mean that conduct must be exclusively attributed to an international organization – thereby resulting in the exclusive responsibility of the international organization – but instead leave open the possibility of conduct being attributed to an international organization and a State, which would then result in dual attribution to the international organization and the State concerned‘, and added that ‘Article 48(1) DARIO therefore expressly leaves open the possibility of more than one State or organization being held responsible for the consequences of an internationally wrongful act’ (para 3.9.4).

Further, the Supreme Court upheld the interpretation that, to exercise effective control, ‘it is not necessary for the State to have countermanded the command structure of the United Nations by giving instructions to Dutchbat or to have exercised operational command independently’ (para 3.11.3), and confirmed that during the transitional period of withdrawal where the Stare was closely involved, ‘not only the United Nations but also the Dutch government in The Hague had control over Dutchbat and also actually exercised this in practice‘ (para 3.12.2). By these decisions, the Supreme Court impotantly confirmed that a State exercising some degree of effective control cannot hide behind the UN when it comes to responsibility for the conduct its contingent.

2. Wrongfulness

The Court of Appeal had held the conduct wrongful on the basis of alternatively Bosnian torts law or international law (art 2 and 3 ECHR, art 6 and 7 ICCPR). Under Dutch law, the Supreme Court cannot review ‘in the cassation proceedings the correctness of these rulings of the Court of Appeal in so far as they are based on application of the domestic law of Bosnia and Herzegovina’. In its decisions, the Supreme Court could therefore confirm the wrongfulness of the conduct on the sufficient basis of Bosnian law (para 3.15.5).

Nonetheless, the Court addressed the State’s submission that the ECHR and ICCPR were not applicable extraterritoriality. It took the opportunity to ‘observe, by way of obiter dictum’ that the Netherlands derived competence in Srebrenica from the Status of Force Agreement concluded with Bosnia and Herzegovina, and therefore exercised ‘jurisdiction within the meaning of article 1 ECHR in the compound‘ (para 3.17.3).

The Court powerfully concluded by asserting that courts should not refrain from holding a State responsible on account that it was engaged in a peacekeeping operation. It observed: ‘far-reaching restraint is unacceptable. Nor is this altered by the fact that the State expects this to have an adverse effect on the implementation of peace operations by the United Nations, in particular on the willingness of member States to provide troops for such operations. This should not, after all, prevent the possibility of judicial assessment in retrospect of the conduct of the relevant troop contingent‘ (para 3.18.3).

With its clear stance on multiple attribution, effective control, and judicial review, it is expected that the Supreme Court ruling will have some impact on future cases of responsibility in military operations before domestic courts and the ECtHR.

Intervention in Syria and International Law: Inside or Out?

 Posted by: Nollkaemper André

Cross posted on Opinio Juris

States that have decided to potentially engage in military strikes against Syria, or to support such strikes, face a difficult choice between two options: do they operate outside the international legal framework when they act, or do they use the strikes as part of an attempt to reconstruct the law on the use of force?

There is no doubt that in the present situation, military strikes against Syria would be in violation of international law as it has been understood since 1945. In situations as we face now, in the absence of a Security Council mandate, international law allows no unilateral use of force. Building a coalition outside the United Nations does not help. Qualifying strikes as punishment does not help either. International law does not provide a right of states to respond with force to serious violations of international law – even when that law prohibits the use of chemical weapons. Other than what was suggested in the UK legal position, reliance on the doctrine of humanitarian intervention does not change this. The positions of states on humanitarian intervention simply are too diverse. This was made quite clear in the UN debates on R2P, which did not recognize any right to use force outside the existing Charter system.

In this situation, states that move forward with strikes have two options: to act outside the system or to stay inside, but present the strikes as part of a process to change the system.

The first option is simply to ignore the international legal framework – and just bombard, without attempt to justify the bombardment in legal terms. An alternative way to frame this, which boils down to the same approach, would be to deny that international law as it is prohibits unilateral strikes. At the time of writing, this first option appears to be the US approach. The line then would be that in extreme cases, strong military responses are required to protect interests of states or of the international community – no matter what international law has to say on the matter. Politically, and/or morally, stakes are too high to be limited by the law. The law may have to pass in situations as this.

The second option is to present the strikes as part of a process of reconstruction of the law on the use of force, and more in particular as a revival of the right to humanitarian intervention. The argument would be that the Charter (and for that matter the R2P doctrine) gives the Security Council the responsibility to act when states use chemical weapons, and that if they fail to do so, individual states should be able to act to protect civilians. Present international law may prohibit it, but international law is not static and can change by being breached. The unlawful act may contain the seeds of a new rule allowing for humanitarian intervention.

On the assumption that strikes deter and influence future behavior, both options may help to protect civilians. Moreover, both options may put the Security Council and its member states on notice that the next time, they should better take their responsibility more seriously, otherwise they will be left behind again.

It may be said that the difference between the two categories is thin or even artificial, since also an act that ignores the law may later be invoked as a precedent for the process that leads to change. Nonetheless the positions can be distinguished. There is a difference in terms of the opinio juris that is relevant for the formation of customary law. Another difference is that states in the former category can continue to rely on the system as it is, to critique future uses of force that rely on an alleged humanitarian exception if they consider these uses politically undesirable, whereas the second group will have a little more to explain.

For those supporting air strikes, the choice between the options is not easy. The benefit of the first option is that the Charter system stays in place. The states embarking on this route will hope that such incidental transgressions do not affect the system as a whole. Next time a similar situation arises, they can simply rely again on the traditional law. This hope is not entirely baseless. Somehow the many transgressions of article 2(4) of the UN Charter in the past decade have not changed anything in the fact that states and legal scholars generally continue to use article 2(4) as a first baseline for justifying or critiquing action or inaction.

A drawback of the first option is that it does not offer anything to make the international legal system more capable of responding to violations of its most fundamental norms. As long as the Security Council does not take its responsibilities more seriously, the system will have to pass when it really matters. There is no ambition of development towards a system that can protect the persons for whose purpose international law in the final analysis exists.

The second option is from this angle more attractive. It could allow participating states to ride the moral high ground, and to seek protection of civilians from within the international legal order. At the end of the tunnel it projects a body of international law that allows for decisive action when needed to protect fundamental values when the Council once more fails to act.

The difficulty of the second option is that it is rather uncertain where this process will lead. Some states (e.g., the UK, the Netherlands) have articulated conditions for humanitarian intervention, such as the requirement that negotiations have been exhausted, that there is a likelihood that the strikes will achieve the aim of protection of civilians, and that there is support of other states – notably states in the region.

However, it is very uncertain whether these conditions will be acceptable to the majority of other states. It also is likely that opinions on the interpretation and application of such conditions in specific cases will differ. If so, a serious risk exists that engaging in this process will lead us to a situation where the old system is abandoned and no longer provides protection, yet no new agreed new rule will be established. States then may justify the use of force on different criteria. They may use the pretext of humanitarian intervention to justify, for example, a strike on Israel because there too the Security Council fails to effectively respond to the illegal occupation, and there too humanitarian costs are high. Engaging in air strikes as part of an attempt to reconstruct the law on the use of force in a humanitarian direction then may come back like a boomerang. The agony is that article 2(4) then will have lost some of its power to protect us.

The failure of the Security Council to take its responsibilities and to act therefore is for more than one reason deplorable. Not only does it leave the people in Syria without protection, but it also induces unilateral action that, whichever it proceeds inside or out, leaves the international legal system worse off.