Update – The Dutch Courts and Asylum at the ICC: From Shared Obligations to Obligations of No One

 Posted by: Irving Emma

In October 2012, the SHARES Blog carried a post that discussed a September Dutch Court decision concerning the on-going asylum situation at the ICC. Since then there are have been two important developments: the matter has been taken to the European Court of Human Rights (ECtHR) and the original Dutch decision has been overturned on appeal.

First, one of the detained witnesses sought to challenge his detention by bringing a claim against the host State of the ICC before the European Court of Human Rights (ECtHR). However, the application in Longa v The Netherlands was declared inadmissible on the basis that The Netherlands had no jurisdiction under Article 1 of the European Convention on Human Rights. While acknowledging that jurisdiction is primarily linked to territory, the ECtHR drew on previous case law dealing with the ICTY to decide that the mere presence of the ICC on Dutch territory is not sufficient to engage Dutch jurisdiction. It went on to dismiss the arguments made that the level of human rights protection at the ICC is deficient, and then rejected the notion that by accepting jurisdiction to hear the asylum claims the Netherlands had also accepted jurisdiction under the Convention. The Court held that there was no obligation on member States of the ECHR to allow a person to await to outcome of an asylum claim on its territory.

Armed with the Longa decision, the Dutch authorities filed an appeal to the earlier Dutch Court decision that would have compelled The Netherlands to take over control of the witnesses. The Appeals Court overturned the first instance decision on 18 December 2012. In this decision, the Dutch Appeals Court denied the lower court’s assertion that the witnesses were in a dead end detention situation, which as it had no end in sight, had therefore become illegal. It was held that just because the asylum procedure was lengthy, did not mean it was unending. The Court held that in any case, it was not for it to consider whether there was a conflict between the detention and Articles 5 and 13 ECHR: as the ECtHR had said in Longa, the Netherlands lacked jurisdiction under Article 1.

Once the ECtHR handed down its opinion on the situation of the detained witnesses, The Netherlands was offered an easy way out of the compromising position which the judge of the first instance court had placed it in. The Dutch authorities were no longer compelled to take over the witnesses, and suffer the precedential and political consequences that would entail. However that does not remove the question of whether the Longa decision was indeed a good one. On closer inspection, one might wonder whether the precedent the ECtHR relied on was not easily distinguishable. Having read the arguments of the applicant, one is struck by the fact that the ECtHR seems to have overlooked a number of relevant facts which may have led it to a different conclusion.

It is to be regretted that an unconvincing decision of the ECtHR has left the witnesses detained at the ICC unprotected. The September Dutch Court decision arguably took the better approach to the legal questions raised by the situation. Now the most pertinent question is to whom can the witnesses turn to seek relief? Not to the ICC, nor the DRC, and now not to the Netherlands. The result is an example of where shared obligations result in obligations for no one.

Who’s responsible for protecting terrorist suspects?

 Posted by: Heijer Maarten den

In its recent judgment in Othman, the European Court of Human Rights held that the United Kingdom could not expel a Muslim cleric suspected of ties to Al-Qaeda to Jordan. The judgment is of interest for our SHARES project, as the Court on the one hand cautions against international cooperation in the sphere of extradition of terrorist suspects – stressing the responsibilities under human rights law of expelling States – but on the other hand urges States that definitely wish to expel or extradite to do so only in close cooperation with receiving States so as to protect against maltreatment and to ensure a fair trial.

Othman, who had been allowed to reside in the UK as refugee in 1993 and was detained there in 2002 under the Anti-terrorism, Crime and Security Act which was introduced two months after 9/11, is facing charges of terrorist conspiracies in Jordan. The European Court found that there was a real risk that evidence obtained by torture would be used against Othman during his trial in Jordan. The judgment, together with other recent pronouncements of the European human rights court, constitutes important guidance for those countries struggling with the twofold objective of bringing to trial and permanently relocating terrorist suspects, while at the same time guaranteeing their human rights. On this very issue, also see André’s post on the UK Court of Appeals decision in Yunus Ramhmatullah v Secretary of State for Foreign and Commonwealth Affairs et ano.

Although the judgment was not well received in the United Kingdom (see here and here) and Prime Minister Cameron publicly voiced his disappointment over it only days after it was published in a speech before the Council of Europe – in support of his argument that the European Court is in dire need of reform – the judgment is on closer inspection also receptive to on-going efforts of Western countries to extradite or expel terrorists. Indeed, Amnesty’s Julia Hall describes the judgment as ‘an alarming setback for human rights’, in view of the Court’s holding under Article 3 of the Convention that the diplomatic assurances negotiated between the Jordanian and UK governments effectively removed the risk that Othman would be tortured or otherwise ill-treated in Jordan.

Thus, notwithstanding the Court’s strong stance on the admissibility of evidence obtained by torture, the judgment may open a path for Western countries facing the problem of not being able to remove terrorist suspects due to human rights concerns, to try to alleviate these concerns by procuring diplomatic assurances and cooperate in post-expulsion monitoring. That the European Court sees diplomatic assurances as a viable option in this respect is also confirmed in last week’s judgment in M.S. v Belgium (French only) where the Court found that the expulsion from Belgium to Iraq of a Al-Qaeda suspect would violate Article 3 of the European Convention but adding, notably, that the Belgian authorities should have obtained a series of safeguards from the Iraqi authorities with a view to ensuring his safety in Iraq. Although the Court has in the past shown reluctance to accord weight to diplomatic assurances from countries which systematically violate human rights (see for example the judgment in Saadi v Italy, the Court is now signalling that even in respect of such countries, it may be worthwhile to consider the procurement of diplomatic guarantees and the setting up of monitoring mechanisms with and in the receiving country.

The M.S. v Belgium case also underscores that it may well be that, in some cases, diplomatic assurances will be the only realistic option for States who want to remove terrorist suspects – since these persons are not particularly welcome in third countries. Like the U.S. government in respect of the Guantanamo Bay detainees, Belgium had sought resettlement possibilities in a whole range of countries (the judgment mentions Venezuela, Burundi, Vietnam, Burkina Faso and Costa Rica) – but all apparently refused. Absent any resettlement possibilities, it will be the ‘joint responsibility’ of the country of origin and the country of residence to find a solution which is satisfying to all parties.

One positive offspring of this development is that Western countries have a clear interest in contributing to improving the quality of justice systems in receiving countries. One example of a country where international efforts in this respect appear to bear fruit is Rwanda. The International Criminal Tribunal for Rwanda in 2011 in the case of Uwinkindi considered the justice system in Rwanda sufficiently improved so that it for the first time allowed for a case to be transferred to the Rwanda prosecutor. This reasoning was some months later confirmed by the European Court in the case of Ahorugeze v Sweden. In both cases, mention was not only made of successful international efforts to improve the quality of the Rwandese judiciary and detention conditions, but the Courts also referred to diplomatic guarantees as a means to ensure international standards are met. In respect of Kenya, international efforts are also underway to ensure the fair prosecution of piracy suspects. However, as we reported, a German court found the current agreements in place between the EU and Kenya to insufficiently remove the risk of ill-treatment.

The MSS Case: Shifting Burdens and Evading Responsibilities?

 Posted by: Swerissen Isabelle

The European Court of Human Rights issued a landmark ruling in the case of M.S.S. v. Belgium and Greece on 21 January 2011. The case concerned the expulsion of an asylum seeker to Greece by the Belgian authorities in application of European asylum law. Not only is this judgment extraordinarily rich, it also exposes serious flaws in the current European asylum regime.

The Common European Asylum System (CEAS) was established to reduce ‘asylum shopping’ and ensure minimum standards of protection to asylum seekers across the European Union. So far, so good.

The Dublin II regulation, which is an important part of the CEAS, determines which Member State is responsible for the examination of an asylum application and allows them to deport asylum seekers to the country where they first entered the European Union. For geographical reasons, southern and southeastern European countries, including Greece, receive the greatest share of asylum seekers. After all, they form the closest port of entry into Europe. The result: unbalanced burden-sharing among the various European countries. Just take a look at Italy which is currently trying to deal with hundreds of thousands fleeing Libya. Here the trouble starts.

The Court has acknowledged these challenges by saying that “the States which form the external borders of the European Union are currently experiencing considerable difficulties in coping with the increasing influx of migrants and asylum seekers” (para. 223). Yet, by recalling the absolute character of Article 3 of the European Convention on Human Rights, it also underlines that the Dublin regulation (and a minimalist reading thereof) do not absolve Member States of their responsibilities vis-à-vis that Convention or other applicable international treaties, including the 1951 Refugee Convention.  Belgium and Greece are thus held individually responsible for violating their own human rights obligations.

How then is this case relevant from the perspective of shared responsibility? An interesting question is to what extent Belgium can be held responsible for the violations on the part of Greece? By virtue of the CEAS there arguably is a collective obligation on the Member States of the European Union to protect refugees, predicated on the presumption that all participating states can and will provide generally equivalent protection to those in need.

However, in the case of Greece, that presumption has been rebutted. Countless reports of NGOs and international instances such as UNHCR, Amnesty International and the European Committee of Torture have documented the structural deficiencies that plague the Greek asylum procedure. The Court therefore argues that the Belgian authorities must have been aware of the risks they were exposing the applicant to by returning him to Greece (para. 358).

I therefore wonder whether it can be argued that these authorities had a perception of risk that makes them subject to responsibility – not only for exposing the applicant to conditions in Greece that amount to violations of the Convention, but also for the violations themselves?

A valid question, especially in light of the fact that the Court has already held more than one state responsible in the past (albeit in circumstances that cast doubt on the credibility of its findings). The Court, in the Ilascu case, found that the breaches of the applicants’ rights under Articles 3 and 5 were attributable to both defendant states – Moldova and Russia.

And even though the Court does not pronounce itself on the possibility of multiple responsibility in this particular case, we may still be able to infer a difference in degree of responsibility from the respective damages that were awarded to the applicant. Pursuant to Article 41 of the Convention, Greece was held to pay the applicant some €6.000 in compensation whereas Belgium was fined to the tune of a whopping €30.000!

So where does this judgment leave us? It has dealt a severe blow to the principle of inter-state confidence in the CEAS. The Court considers that transferring states should not just “assume”, but must actively “verify” that other Member States will comply with their human rights obligations (para. 359). In practice, this means that, when an issue arises under Article 3, they are obliged to apply the so-called ‘sovereignty clause’ (read: suck it up and handle the examination of an asylum application themselves). However, this fails to remedy the principal problem: southern and southeastern European states will still receive far more asylum seekers than western European states. The question is how these problems of sharing responsibility can be better dealt with in the future?