Soufiane Ababou v People’s Democratic Republic of Algeria, The ACHPR

By Gillian Higgins

The Application

On 20 February 2011, an application was received by the Registry of the African Court on Human and Peoples’ Rights (ACHPR) submitted by Mr Youssef Ababou who alleged that his son, Mr Soufiane Ababou, (the “Applicant”) had been forced to join the military in Algeria against his will. The details of the application as summarised by the ACHPR can be found here.

The application states that Soufiane Ababou was summoned to report to the Military Tribunal in Oran by State Counsel on 30 January 2011 for “refusing to undergo military training”. After reporting to the Tribunal, the Applicant has not been heard from since. The summary explains that his father fears that he has been “incorporated into the army forcefully” and that his son is a “cardiac patient”.

The application submitted on behalf of Soufiane Ababou was not signed, nor was there any indication of “evidence of exhaustion of local remedies or the inordinate delay thereof.” A signed copy was subsequently submitted on 25 March 2011 in which the Applicant’s representative also set out those steps taken to exhaust domestic remedies.

On 10 June 2011, the Registry of the ACHPR made enquiries from the African Union Commission as to whether the People’s Democratic Republic of Algeria had deposited the declaration accepting the Court’s competence to hear cases brought under Article 5(3) of the Protocol to the African Charter. Such a declaration is required in order to allow individuals to petition the ACHPR directly. The Court was informed that the Respondent had not deposited the declaration and determined therefore that it did not have jurisdiction to consider the application. The Court sent the case back to the African Commission under Article 6(3) of the Protocol.

Observations

The publicly available summary of this application does detail the article of the African Charter allegedly breached by Algeria. Indeed, the substance of the application did not receive any scrutiny as it was determined correctly that the Court lacked jurisdiction as Algeria had not signed the requisite declaration allowing individuals to petition the Court directly.

The case of Soufiane Ababou has been reported widely. The reason Mr Ababou resisted military service was because he was a pacifist. Interestingly, at the time of writing, there is no legal provision for conscientious objection and no substitute civil service in Algeria. Any individual claiming to be a conscientious objector will be considered to be a draft evader.

The interesting question that would have arisen for determination before the Court, is whether or not Soufiane Ababou’s right to freedom of conscience under Article 8 of the African Charter had been breached by the State of Algeria. Article 8 provides that “Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms”.

A similar issue has recently been addressed in a relevant decision of the Grand Chamber of the European Court of Human Rights in a ground-breaking judgement in the case of Bayatyan v Armenia (Application no. 23459/03, 1/6/2011), in which the Grand Chamber ruled that states have a duty to respect individuals’ right to conscientious objection to military service as part of their obligation to respect the right to freedom of thought, conscience and religion set out in Article 9 of the European Convention on Human Rights. This is the first time that the right of conscientious objection to military service has been explicitly recognised under the European Convention on Human Rights.

Given the judgment in Bayatyan and the important subject matter of Soufiane Ababou’s application, the question arises as to whether it would be possible, and indeed desirable, for the African Commission to refer the case back for determination by the ACHPR. The advantages for the Applicant are obvious, as the Court unlike the Commission would deliver a binding judgment within 90 days of having completed its deliberations, if the application was admissible. In principle, the Commission has the power under Article 5 of the Protocol to the African Charter to submit cases to the Court. Interestingly, referral of the case by the Commission in this manner would provide the Court with the jurisdiction it lacked initially, when approached by Soufiane Ababou in his individual capacity.

Further or in the alternative, the Applicant’s representative could submit a separate “communication” to the African Commission requesting its urgent transfer to the Court. After receiving a case submitted by an individual, the Commission may then decide to bring the case before the ACPHR. The modalities of such a transfer have not been determined by the Protocol and would therefore largely depend on the willingness of the Commission to do so. Provision would also need to be made for the representation of the victim in proceedings where the ACHPR is referred a case by the Commission.

The author agrees with the dissenting opinion of Judge Fatsag Ouguergouz in the application of Ekollo Moundi Alexandre v Cameroon and Nigeria in which he determined that in cases where the ACHPR does not have jurisdiction, the application should nonetheless be communicated to the State concerned for information purposes in order to give the State party the opportunity to accept the Court’s jurisdiction. No such communication was made in the case of Soufiane Ababou to Algeria. Furthermore, HHJ Judge Ouguergouz criticised the Chamber for failing to provide any reasons as to why it transferred the case back to the Commission and stated that although “it lies within the discretionary powers of the Court, such a choice cannot be made in an arbitrary manner, in other words, in a hazardous and unpredictable way or in a manner bereft of any apparent logical approach.”

Given the importance of the issues in the application of Soufiane Ababou, and the existence of a mechanism under Article 5 of the Protocol by which the Commission could submit the case to the Court on his behalf, perhaps it is time for the Commission to consider its next move carefully in relation to assisting this all-important fledgling institution.

http://thearcproject.vpweb.co.uk/blog.html

Femi Falana v African Union - The African Court on Human and Peoples’ Rights

A guest blog by Marie O’Leary

One of the first applications before the African Court on Human and People’s Rights (“ACHPR”), Femi Falana v. African Union (Application No. 001/2011), seeks wider access to the court for citizens of African Union (“AU”) nations. A Nigerian human rights lawyer, Mr. Femi Falana, filed his application by letter on 14 February 2011 claiming he had a right to be heard guaranteed under Article 7 of the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (“African Charter”) regardless of whether his government had made the declaration allowing petition by individuals as required by Article 34(6) of the Protocol.

In his application, he stated that he had made several efforts to encourage the government of Nigeria to file the Article 34(6) declaration. Having failed to persuade the government, Mr Falana decided to file an application against the AU as representative of its 53 Member States, requesting the Court to find Article 34(6) inconsistent with Articles 1, 2, 7, 13, 26 and 66 of the African Charter.

The African Union Commission, as Respondent, replied that Mr. Falana had no standing before the Court, that he had not exhausted his domestic remedies and that the obligations of the State Parties to the African Charter cannot be inferred upon the AU.

While several arguments concerning corporate community status and treaty law were invoked by Mr. Falana, the crux of this case relates to the ability of individuals to access the Court and the legality of Article 34(6) which allows for individual petition only in those States that have made the requisite declaration.

Notably, Article 2 of the African Charter provides for equal rights for all African Union State parties “without distinction of any kind such as... national and social origin...”. Article 7 of the African Charter, referred to by Mr. Falana, further provides that “[e]very individual shall have the right to have his cause heard” including “the right to an appeal to competent national organs against acts violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force.” Article 26 provides that “States parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter.” Finally, Article 66 provides that special protocols or agreements may supplement the African Charter itself.

The restrictions of Article 34(6) are very real. To date, only five African countries have made the Article 34(6) declaration. Indeed, in the first judgement of the ACHPR, Yogogombaye v. Senegal (15 December 2009), the Court held that the Applicant, as a Senegalese citizen, did not have standing before the Court as Senegal had not made the Article 34(6) declaration.

The 2010 Activity Report of the African Court on Human and Peoples’ Rights addressed this conundrum, specifically citing this “disturbing situation” whereby so few countries have made the special declaration which creates “a paradoxical situation where Member States of the African Union have established a human rights court and allocated minimum resources for its operation, and yet have considerably limited access to the Court by those mainly concerned, namely the individuals and nongovernmental organizations involved in the defence of human rights.” The Report notes that the continuation of such a situation would seriously affect “the entire system of judicial protection of human rights at the continental level.”

In essence, Mr. Falana’s claim – rooted in treaty law – if successful, would negate any requirement of the State Party to make an Article 34(6) declaration, thereby allowing individual access by any citizen of the 26 African Union Member States that have ratified the Protocol establishing the Court. Such broad boundaries may be considered desirable as a measure to allow otherwise remediless claimants to seek relief before the ACHPR. Alternatively, such a broad approach to jurisdiction could overburden the Court’s limited resources, especially considering that the totality of the annual budget presently stands at around 8-11 million U.S. dollars.

Hearings in Falana v. African Union were scheduled to be held during the Court’s 22nd Ordinary Session between 12-23 September 2011. No decision has been issued to date. Interestingly, the Coalition for an Effective African Court on Human and People’s Rights has scheduled Nigeria as one of five African Court Promotional Visits this autumn. Coalition representatives will be visiting several African nations to raise awareness of the ACHPR and to encourage States to make the Article 34(6) declaration – the very declaration challenged by Mr. Falana as incompatibly restrictive. This visit is scheduled for 30 November – 2 December 2011.

For more on Falana’s arguments and the case, see:
http://www.african-court.org/en/cases/pending-cases/
http://www.vanguardngr.com/2011/06/falana-faults-au-over-objection-to-access-african-court/
http://www.thewillnigeria.com/general/8642-African-Union-Falana-Has-Right-Access-African-Court.rss

Access to the African Court on Human and Peoples’ Rights

Under Article 5(1) of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights (the “Protocol”), the following are entitled to submit cases to the ACHPR: the African Commission on Human and Peoples’ Rights (the “Commission”); a State Party which has lodged a complaint to the Commission; a State Party against which a complaint has been lodged at the Commission; a State Party whose citizen is a victim of a human rights violation; and African Intergovernmental Organisations.

Where a State Party has an interest in a case, it may, under Article 5(2) of the Protocol, submit a request to the ACHPR to be permitted to join the proceedings.

Under Article 5(3), the ACHPR may entitle NGOs with observer status before the Commission, and individuals, to institute cases directly before it. However, this provision can only be invoked where a State Party has made an explicit declaration accepting the competence of the ACHPR in this regard. To date, only Burkina Faso, Ghana, Malawi, Mali and Tanzania have accepted the competence of the court under Article 5(3).

In terms of further interaction between the ACHPR and the Commission, the Protocol also states that the Court: (a) is prevented from providing a legal opinion, where the subject matter of the opinion is related to a matter being examined by the Commission; (b) may request the opinion of the Commission when deciding on the admissibility of a case instituted under Article 5(3); (c) when considering admissibility, may transfer cases to the Commission; (d) shall consider the issue of complementarity between the Court and the Commission; (e) shall transmit all judgments to the Commission; and (f) shall consult the Commission when drawing up Rules and considering procedures.

For more information:
http://thearcproject.vpweb.co.uk/blog.html
http://www.achpr.org/english/_info/news_en.html
http://www.achpr.org/english/ROP/Rules%20of%20Procedure.pdf
http://www.african-court.org/en/
 

The Queen on the Application of Kolanowski v Circuit Court of Zielona Gora Poland

Toby Cadman of 9 Bedford Row International appeared on behalf of the Requesting Judicial Authority of Zielona Gora Poland in an extradition appeal before the Administrative Court:

The Queen on the Application of Kolanowski v Circuit Court of Zielona Gora Poland CO/3653/2011

High Court of Justice Queen's Bench Division the Administrative Court

17 October 2011
[2011] EWHC 2727 (Admin) 2011 WL 4966446

Before: Mr Justice Irwin

Monday, 17 October 2011

Representation
Mr M Henley (instructed by Central Law Practice ) appeared on behalf of the Claimant.
Mr T Cadman (instructed by CPS Extradition ) appeared on behalf of the Defendant.

Judgment
Mr Justice Irwin:
1 I am grateful to both counsel for your further submissions in this case, the facts of which are fully analysed in the judgment of 16th September. I admitted fresh evidence from Dr Clague, the jointly instructed cardiologist, in the form of the letter of 8th September, which was unavailable at the time of the hearing below before Deputy Senior District Judge Wickham. I rehearsed the effect of that letter in paragraph 49 of the judgment on 16th September. It seemed to me that Dr Clague's further evidence might be capable of bringing about a different outcome, but I was not then able to see if the evidence was decisive in that regard within the meaning of Hungary v Fenyvesi [2009] EWHC 231 Admin . Therefore I set three questions for potential answer to see whether what Dr Clague had to say was or could be decisive so as to change the outcome of the hearing before the Deputy Senior District Judge.
2 The upshot has been that further to the evidence already admitted as being fresh, pursuant to section 27(4)(a) of the Extradition Act , I have also now read the further letter of clarification from Dr Clague dated 6th October and two letters from Poland, one from the Public Prosecutor's Office dated 3rd October and one in rather similar terms from the Circuit Judge Derius Pawlak, the requesting judicial authority in the Circuit Court of Zielona Gora. I take that material together.
3 I consider that its potential relevance is to the risk of the process of deportation, although in that regard I bear in mind that before any extradition was to be carried out, there would have to be an examination of the patient by a suitably qualified cardiologist. I also bear in mind the risks to this appellant's health within the Polish prison system, in the light of all the information that is now before this court. I, of course, focus on the positive obligation of the signatory country, namely Poland, under article 3 and I consider the test under section 25of the Act which reads in part:
“(1) This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied.
(2) The condition is that the physical or mental condition of the person in respect of whom the Part 1 warrant is issued is such that it would be unjust or oppressive to extradite him.”
The real point here is the oppression rather than any implication as to the justice of the proceedings in Poland.
4 This law has been usefully summarised by Stanley Burnton LJ in Kolanowski (1) [2009] EWHC 1509 Admin at paragraph 1.9 where he observed that for the purpose of oppression and probably to very similar degree in relation to article 3, there is a high burden upon the person seeking to establish oppression or potential breach of article 3.
5 Summarising the effect of the further information, it is that the operation of ablation now planned to take place in the United Kingdom can be done in Poland on this patient within about 12 months, as opposed to four to six months in England, and thus the time is not radically different between the two; and that monitoring is possible in Poland, even if not by the same technical means, through the interrogation of the existing ICD.
6 Balancing against those factors must be, as Dr Clague has pointed out, the uncertainty and anxiety of continuing proceedings itself is a major factor in affecting Mr Kolanowski.
7 Taking this material together with the letter of 8th September, it does not seem to me that it is so decisive as to change the picture which existed before. It does not seem to me that it satisfies the test of oppression or that it is so significant as to represent a breach of article 3. Dr Clague expresses himself in reasonably qualified terms and a good deal of what he has to say is informed by his feelings about the position in Poland within the prison medical system. That is not a matter about which he can have any expert knowledge.
8 For those reasons, it seems to me that the appellant here has not discharged the high burden laid upon him. He may be extradited and the appeal is dismissed.
9 MR CADMAN: My Lord, the only matter I would just ask Mr Henley to consider is obviously that once a timeframe is established for his removal that any change or deterioration, as was apparent in the first set of proceedings, should be immediately communicated because obviously with the discharge proceedings there was some confusion as to whether he was able to surrender or not. He was not able to surrender on at least one occasion due to his health, so I would only ask that Mr Henley communicates that if there is any dramatic change before his removal.
10 MR JUSTICE IRWIN: Yes, in terms of mechanics, I do not know whether I need to go into it, but what is actually going to happen from here?
11 MR CADMAN: I will communicate immediately with the CPS extradition unit who will in turn communicate with the metropolitan team that co-ordinates the logistics and I will have to give very firm instructions as to a cardiologist being made available to conduct a full examination of Mr Kolanowski before he is removed. I will recommend, and it is entirely a matter for them, but I will recommend that Dr Clague is that person, but it is obviously entirely a matter for them. He is the leading cardiologist in the field so I see no reason why he cannot be the—
12 MR JUSTICE IRWIN: And he knows the patient.
13 MR CADMAN: I will obviously communicate all that information to Mr Henley as soon as I receive further instructions from the CPS and then they will have to make a determination as to whether he is transported by a special medical plane — because ordinarily for Poland it is a military plane which may not be suitable for Mr Kolanowski, so will have to take—
14 MR JUSTICE IRWIN: But he is hardly an escape risk.
15 MR CADMAN: He is not, but there obviously was some concern expressed by the judicial authority in the past when he did not surrender. Now we have dealt with that through the discharge proceedings and I am not going to make any comment about as to what has happened in the past. I am certainly not requesting any change in his bail conditions.
16 MR JUSTICE IRWIN: No.
17 MR HENLEY: My Lord, there is a couple of issues. Whilst I understand of course that section 14 , that is passage of time, posits the same test as section 25 and in essence if you do not — it is highly probable, although not necessary — one does not necessarily follow the other actually because of course the section 14 point which was still a live matter, I think in oral submissions I did put it forward as a live matter on the last occasion—
18 MR CADMAN: My Lord, the only point I would make is that the appeal was dismissed as regards all of the matters raised by Mr Henley except for the new evidence in this point which was a pure section 25 point. So far as I am aware section 14 was disposed of in the previous hearing.
19 MR JUSTICE IRWIN: I would have expected Mr Henley if you felt that it had not been dealt with or there was some point that had not been addressed, you would have raised it then.
20 MR HENLEY: I cannot — I am at a slight loss. Yes, perhaps I should have raised it then, but — and of course I am in error for not reminding — if I was doubtful of that I should have reminded you on my submissions prior to judgment. Clearly I do not want to put myself in an embarrassing position by making comment about something. I am not sure that the section 14 point was disposed of on the last occasion. Mr Cadman says it was.
21 MR JUSTICE IRWIN: Let me make it absolutely clear. I do not think there is anything in the section 14 point and so if you want this degree of clarification, given the level of uncertainty about this gentleman's health, given the degree of care with which that has been investigated by all on both sides and given the contribution to delay — and it was a significant contribution, although not of course the only cause of delay, but there was a significant contribution to delay coming from him — then it seems to me that you are nowhere near establishing oppression or anything like oppression by reason of the delay that has occurred in the case. The great majority of that, apart from what is directly to be laid to Mr Kolanowski's door, was in order to be sure that he could be extradited without oppression. So as a standalone complaint it seems to me there is absolutely nothing in that and I am, without going back and reminding myself of everything I said by way of reasoning on the previous occasion, I cannot take you to where I dealt with it but I am perfectly clear that is my view.
22 MR HENLEY: Yes, my Lord. I do not think that I can press that matter. I understand the position but there was an issue of law on the passage of time which, whilst I accept what you have just said, that may cause some difficulty as to where he may have contributed in part to the passage of time, I accept my Lord's judgment on that, of course as I must, but there was still some considerable time because one of the matters was, even on the best interpretation there was still a good, I think, about 10 years or so of passage of time on the oldest offence.
23 MR JUSTICE IRWIN: I do not know what the matter of law was.
24 MR HENLEY: The matter of law was whether the end date is 2005, ie when he left Poland on the other matters and he should not, which was Mr Cadman's position, or whether it should have continued running in these particular matters because he was not fleeing for the purposes of evading these proceedings which had not been commenced at that point and he was not aware that they were criminal proceedings and it was — I do not think that that particular point has actually been dealt with.
25 MR JUSTICE IRWIN: I am sorry, Mr Henley, if you thought that was a live point that might change the outcome you should have persisted in saying that that needs to be addressed at the close of the previous remarks.
26 MR HENLEY: I will accept that criticism, my Lord, clearly. Perhaps—
27 MR JUSTICE IRWIN: It cannot go on forever.
28 MR HENLEY: I accept that, my Lord.
29 MR CADMAN: My position is that it was dealt with effectively on the last occasion. Your Lordship may recall that you asked me a series of questions as to what I would accept, notably when a person is in circumstances outside of his own control whether the period should count during that timeframe and I conceded that there are circumstances where the requested person has not contributed to the delay and that was effectively, as far as my understanding, it was effectively dealt with when you gave judgment on the last occasion.
30 MR JUSTICE IRWIN: I think that is correct. Have you got the judgment?
31 MR HENLEY: No, I have not.
32 MR JUSTICE IRWIN: When you look at it, if you look at paragraphs 39, 40 and 41 I do analyse the question of delay and I come to the conclusion by saying at the end of paragraph 40 that the findings of the Deputy Senior District Judge Wickham were entirely defensible and then in paragraph 41, I say: “She was also right in saying that the risk of prejudice to the accused in the conduct of the trial is very low because of the nature of these cases. They are already very old. They are mostly based on documents, and it is hard to see what the prejudice or injustice would be.” So I think I have addressed that.
33 MR HENLEY: Yes. Certainly, my Lord, I was not trying to be critical of you.
34 MR JUSTICE IRWIN: I do not take it to be that, but I think it has been dealt with.
35 MR HENLEY: Thank you. Then the second point and this is a more difficult point, it is about certifying a question as to whether it is suitable for the Supreme Court. Now one of the reasons that I am addressing you on that, and of course this is largely a factual-based issue which is particular to Mr Kolanowski and I am slightly hesitant about making this application, but Mr Cadman and I were discussing it, there is a current case for which permission has been granted, it is HH ?
36 MR CADMAN: My Lord, it is an article 8 point, not a section 25 point. It is whether the matter has been certified where there are children and there are two parents at risk of extradition. It is entirely different to this matter. I appreciate that Mr Henley might want to attach the oppression side of the article 8 point and the test, but in my submission it is an entirely separate matter and therefore any application for leave to certify a point of law in that relation should be refused.
37 MR JUSTICE IRWIN: Well, Mr Henley, I think I am going to deal with this fairly shortly because it seems to me that we have ended up in a very similar position, after all of the exploration and examination of the case, in a very similar position to that at the end of Kolanowski (1) and it does not seem to me there is a matter of law here fit for the Supreme Court. You will have to ask them.
38 MR HENLEY: I think I cannot without your certifying a question, but I have 14 days in which to put something in writing which I may take the opportunity for your consideration.
39 MR JUSTICE IRWIN: Of course. If you certify something that persuades me it is worthy of their attention, I will of course think afresh, but at the moment I think you have an uphill struggle on that one.
40 MR HENLEY: Thank you, my Lord.

9 Bedford Row International Annual Conference – Materials

On 19 November, 9BRi held its annual conference on international law. The speakers addressed the audience on current topics in international law, including the ICC Confirmation of Charges Hearing in the case of Muthaura et al; the death and torture of Sergei Magnitsky; the International Crimes Tribunal, Bangladesh; and the Special Tribunal for Lebanon.

9BRi and the ICLB have made available a selection of the materials from the conference.

See the ICLB blog for further info:

http://www.internationallawbureau.com/blog/?p=3559

Former Khmer Rouge Leader 'Unfit to Stand Trial'

A guest blog by Jake Taylor

On Thursday, the Extraordinary Chambers in the Courts of Cambodia (ECCC), declared that Ieng Thirith, the 78-year-old former minister of social affairs in the Khmer Rouge regime, was "not fit to stand trial” on the grounds of her dementia.

The decision came only days before the second trial at the ECCC is set to begin. Last month, court-appointed medical experts testified that Ieng Thirith was suffering from 'moderate dementia' and would be unable to follow the complex trial proceedings. In light of this information, the judges held, on Thursday, that the "trial and continued detention of an accused who lacks capacity to understand proceedings against her or to meaningfully participate in her own defence would not serve the interests of justice". The judges further held that pending any objections, she should be released.

Ieng Thirith was the only woman amongst four defendants to stand trial for the atrocities committed in Cambodia in the 1970s. The trial against three other Defendants: Ieng Sary, the former Khmer Rouge foreign minister; Khieu Samphon, the nominal head of state; and Nuon Chea, the prime minister, also known as Brother Number 2 begins on Monday. This trial follows the conviction of Kaing Guek Eav, alias “Duch” the head of the notorious Tuol Sleung torture facility, in separate proceedings last year.

This news is yet another setback for the trial process which was hoped to provide some form of catharsis for a country still recovering from the regime that left 1.8 million people dead. The ECCC has been plagued by allegations of corruption - with staff having to make kick back payments to secure their jobs, political interference by the incumbent Prime Minister Hun Sen; and the use of at least some evidence which is known by all Parties to have been obtained by torture – all of which threaten to overshadow the Court's proceedings.

The timing of the ruling - just days away from the second trial - only underscores the advanced age of the three remaining Defendants with the crimes they are charged with having taken place over 30 years ago. Recognising that time is short, the ECCC has opted to try each of the charges in the complex second case separately in the hope that this will expedite proceedings.

After note: One of the Prosecutors, Andrew Cayley stated that the OTP “have applied for a stay of the immediate release and we have also filed a motion of appeal in respect to certain parts of the decision itself”.

For more information:

http://edition.cnn.com/2011/11/17/world/cambodia-khmer-rouge-trial/?hpt=ias_c2

http://www.nytimes.com/2011/11/19/world/asia/un-court-appeals-release-of-khmer-rouge-defendant.html

http://www.bbc.co.uk/news/world-asia-15781209

In Bangladesh: Reconciliation or Revenge?

The New York Times, 17 November

By John Cammegh

Over the last 20 years, international criminal justice has developed rapidly, and most people see this as a change for the better. Thanks to the labors, however imperfect, of the International Criminal Court in The Hague, and of ad-hoc tribunals from Sierra Leone to Cambodia, it has been established that politicians and warlords who commit terrible crimes against the vulnerable can no longer count on impunity.

But a trial now starting in Bangladesh risks making a mockery of that principle. Indeed, it serves as a terrible warning of the way in which the ideals of universal justice and accountability can be abused. Facing ill-defined charges of crimes against humanity, which carry the death penalty, are five elderly men who lead the country’s Islamist party, Jamaat-e-Islami. (A sixth defendant is a central figure in the Bangladesh National Party, an erstwhile political ally of Jamaat.)

The charges arise from the civil war of 1971 in which the former East Pakistan gained independence as Bangladesh: a savage nine-month conflict in which hundreds of thousands of people died. It is widely accepted that military forces under the command of West Pakistan committed brutal acts of ethnic cleansing, directed at Hindus in particular. But that does not, of course, prove the guilt of a political party, like Jamaat, which opposed independence. To make a considered moral judgement on a conflict that took place 40 years ago, a scrupulously impartial investigation would be needed.

Sadly, the current trial promises to be nothing of the kind. It pretends to be applying universal principles — that is implicit in the name of the court, the Bangladesh International Crimes Tribunal — but in contrast with other recent ad-hoc tribunals, there is no external input, because none has been allowed.

I was one of three British lawyers whose help was sought by the local defense team. I was retained on behalf of Delwar Hossain Sayedee, Jamaat’s leading cleric, who goes on trial for his life on Sunday. Although I managed to pay one visit to Dhaka last March, where I was tailed by security operatives, neither I nor any other British lawyer has been allowed to participate in the trial or enter Bangladesh while it is happening.

But from any vantage point, certain dire features of the proceedings are clear. The trial is being held under a revived version of the country’s International Crimes (Tribunals) Act of 1973, which was initially presented as South Asia’s answer to the Nuremberg trials — only to be set aside in favor of a general amnesty for all participants in the conflict. In its original form, the 1973 act falls far short of international standards. Government investigators have wide-ranging rights to detain and question, suspects lack the usual rights to information and legal advice. The 1973 act has recently been amended in ways that make matters worse.

Sayedee’s treatment speaks for itself. When he was first questioned, his attending lawyer was forced to “observe” from a room where he could neither see nor hear anything. The questioners regularly broke off their work to inform journalists of the suspect’s supposed “confessions” which were duly sensationalized in the press. When Sayedee was eventually charged, he was again denied access to a lawyer and forced to enter immediate pleas to a series of grave accusations with little precision over place or time. The 1973 act then allows just three weeks, an absurdly short time, for the defense to prepare its case.

In recent days there have been disturbing reports of defense lawyers and witnesses being harassed. As Human Rights Watch has disclosed, one of Sayedee’s main lawyers received a warning to stay away from work, and was told that he might be arrested. Another prominent lawyer and Jamaat supporter faces an arrest warrant in connection with riots in Dhaka in September, even though he was in Europe at the time. Further ominous developments, cited by Human Rights Watch, include the arrest of one key defense witness and the preparation of criminal charges against nine more.

The rules on what sort of evidence is permissible, as laid down by the 1973 act, are at variance with international norms, and with Bangladeshi jurisprudence. Media reports, however biased, are explicitly admitted, with no forensic scrutiny. In the latest alarming development, the court has rejected a petition of recusal against its own chairman, who in 1993 was involved in a contentious enquiry into Jamaat’s alleged liability for atrocities.

The Bangladesh government has made some extravagant claims on behalf of the trial. Kamrul Islam, the state minister for law, said in October that the tribunal would be “exemplary for the world community ... working with full independence and complete neutrality.” A fair trial would indeed have been a landmark: the court could have set an example to the developing world, showing how to end impunity while also cementing reconciliation.

But the court prosecutor, Rana Dasgupta, seems not to anticipate any real deliberation by the court. “One can say that 2012 is the year of the verdict of the war crimes trial and 2013 the year of verdict execution,” he has ominously predicted. If he is proved right, the result will smack not of reconciliation but revenge.

http://www.nytimes.com/2011/11/18/opinion/in-bangladesh-reconciliation-or-revenge.html?_r=1

The Bangladesh War Crimes Tribunal: Reconciliation or Revenge?

By John Cammegh, 9 Bedford Row

Justice Without Politics?
The steady development of international criminal law and of war crimes tribunals in particular over the past 20 years has owed much to the maxim ‘No Peace Without Justice’. But there can be no peace without a winner; and in the aftermath it is the winner who gets to dispense the justice and write the history. All too frequently, the international judicial process has drawn accusations of providing a means of revenge rather than reconciliation.

The perception of victor’s justice has bedeviled ad hoc war crimes tribunals since Nuremberg: the International Criminal Tribunal for the fomer Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) placed disproportionate emphasis on prosecuting the vanquished. Even at the Special Court for Sierra Leone (SCSL), where trials of victorious pro-government leaders were supposedly given equal billing to those of the defeated RUF rebels, sentences for crimes of equal gravity were cynically disproportionate. This is not to say the International Tribunal system cannot be made to work; the International Criminal Court (ICC) makes for a process less vulnerable to political manipulation. But, so far as the ad hoc tribunals go, experience drives an inescapable conclusion: if there is no peace without justice, there can be no justice without politics. The trouble is, politically motivated, selective justice is anathema to civilized democratic society and is ultimately doomed to fail- as it eventually did in totalitarian states in the 20th century.

Today, on a tide of nationalist fervour, the ad hoc Bangladesh International Crimes Tribunal (ICT) is set to embark on a series of trials concerning surviving individuals allegedly responsible for atrocities committed in the 1971 Liberation War. Swept into power in 2008 on a manifesto to hold these trials 40 years after the event pursuant to legislation mothballed since 1973, Prime Minister Sheikh Hassina and her Awami League government are about to deliver on their promise. But will these trials avoid the mistakes of the past? Speaking in October 2011, State Minister for Law Qamrul Islam attempted to allay any such doubt:
‘The international criminal trial process will be more neutral and transparent than that of other war crimes trials so far held elsewhere in the world. It will be exemplary for the world community…working with full independence and complete neutrality’.

On the face of it, such aspirations are encouraging, if perhaps naïve. At the very least, they suggest a desire for openness, balance and restraint- qualities I found desperately lacking at the SCSL as lead counsel for one of the RUF indictees. Taking Mr Islam at his word, Bangladesh has a privileged opportunity to change the course of ad hoc international criminal justice. If it were to get things right, the ICT could set a brave example to the developing world in particular in banishing impunity whilst cementing national reconciliation. But if it were to get things wrong, the consequences might be disastrous: not only for the wellbeing of international justice but for the region as a whole. The trials are yet to commence and time will tell; but despite the Minister’s lofty assurances, the opportunity seems likely to be wasted.

The 1973 International Crimes (Tribunals) Act: A Brief History
Pakistan’s partition from newly-independent India in 1947 was the culmination of a long and bloody struggle in which hundreds of thousands died on both sides, leaving a legacy of mistrust between the two states that persists to this day. To accommodate religious and cultural differences, newly-created Pakistan was divided into two separate territories, western and eastern Pakistan, separated by the vast expanse of northern India. Of the two, east Pakistan was the poor relation, prone to natural disasters and suffering widespread social, economic and political discrimination from the western-based ruling elite. By 1970 the impetus of Sheikh Mujibur Rahman’s nationalist movement in east Pakistan forced the military ruler, General Yahya Khan, to hold free elections in which Mujibur’s Awami League triumphed over Zalfiquar Ali Bhutto’s Pakistan People’s Party in the west. Bhutto was a bad loser; Mujibur was equally reluctant to compromise. As they squabbled over power, Gen Yahya Khan postponed the sitting of the National Assembly. The open revolt that followed in the east in March 1971, and in Dhaka in particular, led to a savage civil war of epic proportions. Although lasting only nine months until India’s decisive intervention in December, it cost the lives of hundreds of thousands: the majority of whom were neither freedom fighters nor anti-liberation forces but defenceless civilians.

As with all conflicts, there is competition over the truth; fact and myth merge after years of propaganda and prejudice generated on both sides. Whilst nationalist claims of up to 3 million dead are surely far-fetched, the Bangladesh Liberation War certainly saw large-scale acts of genocide with the hounding out, killing and displacement of individuals by virtue of their profiling as members of religious or ethnic groups. Hindus in particular suffered brutal ethnic cleansing at the hands of Pakistani military forces opposed to independence. Many such wounds are yet to heal: the call for justice and reconciliation, albeit 40 years on, cannot and should not be denied.

The ICT had its genesis in the International Crimes (Tribunals) Act of 1973 (ICTA), which proposed to hold the first international criminal tribunal since 1946. Using Nuremberg as a template, ICTA cited genocide, crimes against humanity and war crimes, amongst others, as the basis for bringing anti-liberation military personnel (former Pakistan Army combatants) and their auxiliary forces (local ‘Razakar’ units of anti-liberation volunteers) to justice for crimes committed against civilians and pro-liberation freedom fighters alike. The idea was stillborn; in the spirit of peace and reconciliation Sheikh Mujibur swiftly repatriated several hundred Pakistani prisoners of war following the tri-partite Simla Agreement with India and Pakistan. Following Mujibur’s Presidential Order No. 16 in 1973, in which a blanket amnesty was granted to all participants ‘in connection’ with the conflict, ICTA was seemingly put to rest: until its resuscitation during the Awami League’s 2008 election campaign, that is.

A Selective Prosecution?
Whether today’s Bangladesh war crimes tribunal evokes a genuine desire to heal past wounds, or is simply a blunt instrument of political expediency to mask socio-economic difficulties at home, the promise of trials has triggered widespread, populist demands for vengeance amidst this, the war’s 40th anniversary year. But who should be tried? The Pakistan military were all sent home; most of the Auxiliary leaders either left with them or have since died. In any event, all combatants were effectively pardoned by Sheikh Mujibur in 1973.

Deft amendment of the 1973 Act found a way past this problem in 2009, adding the new category of ‘individuals’ to the original ICTA targets of anti-liberation armed forces and auxiliary personnel. By contrast, immunity for pro-liberation ‘freedom fighters’ remained intact, irrespective of their conduct in the conflict. Now, with this loophole in place, what was originally drafted in 1973 as a vehicle to prosecute military excesses during the conflict had assumed the appearance of a means of pursuing pre-selected civilian targets 40 years later. Certainly, the initial arrest phase from June to December 2010 suggested a co-incidental pattern: five of the six detained comprised the leadership of Bangladesh’s most powerful Islamic political party, Jamaat e Islami; the other was a central figure in the Bangladesh National Party (BNP). Considering that Jamaat actively opposed independence in 1971, and that their alliance with the BNP ensured the Awami League’s defeat at the 2001 election, questions arise as to whether the Awami League-sponsored ICT may, after all, have more urgent motives other than bringing those responsible for the events of 1971 to justice.

ICTA 1973- The Hangman’s Charter
Regardless of the government’s motive, it is important to grasp both the full extent of the draconian powers conferred by ICTA on the tribunal and the prosecution, and the frightening extent to which the rights of the accused are curtailed in proceedings that allow for the death penalty. Brief inspection of the statute immediately casts a shadow on Qamrul Islam’s assurances of a fair trial process. Whilst this was the first statutory attempt to create a war crimes tribunal after Nuremberg - which hardly set a glowing precedent - there can be no excuse for the Act’s spectacular denigration of the rights of accused persons. For the Act to be resurrected almost 40 years later in virtually unchanged form suggests, at best, that the government has little interest in conforming with modern standards- despite being a state party to the International Criminal Court and a signatory to the International Covenant on Civil and Political Rights. At worst, two years ahead of the next general election, it betrays a cynical determination to eliminate opposition figures for political gain.

A detailed exposition of ICTAs many excesses would be too lengthy here. In summary, its Pre-trial provisions confer rights on government-appointed investigators to detain and question any person without notice; there is no statutory right to any form of prior disclosure to the suspect, no right to silence in interview, and there is no right to have a lawyer present. While the first arrestee, Jamaat’s leading cleric Delwar Hossain Sayedee, was interviewed, his attending lawyer was forced to ‘observe’ from an adjoining room: his task hindered by the absence of a window or the ability to hear what was being said. During lunchbreaks excited investigators briefed the expectant press corps on the suspect’s ‘confession’, duly sensationalized in the national press and on the internet the following day. Formal charging (on an indictment ‘framed’ by the judges themselves) is ordained to proceed in a specially convened hearing whereupon the accused is arraigned immediately. When formal charges were eventually put to Sayedee, he was prevented from conferring with his lawyer and was instead ordered immediately to enter pleas to a lengthy series of charges, most of which alleged multiple offences drafted with an alarming lack of specificity as to date, location and details of alleged victims. Following arraignment, the Act allows just three weeks until commencement of trial, on which day the defence is to disclose full details of its case, including identities of witnesses and exhibits. Compared to proceedings at the ICC, or indeed at recent ad hoc tribunals where the gap between arraignment and trial can typically extend to six months or more, this might be considered a little harsh- particularly when the alleged conduct took place 40 years ago.

The Act’s impact on the Trial process itself is equally disturbing. As with investigators, all judges on the tribunal panel are to be appointed by the government; proceedings may continue in a judge’s absence, and there is no right to challenge judicial appointments. Judges have an unfettered right to question witnesses with no right for defence counsel to re-examine.

Fundamental rules of evidence are dispensed with entirely: the 1872 Evidence Act, and the 1898 Criminal Procedure Code, largely derived from the statute that until recently governed English proceedings and which continues to govern the rules of evidence and procedure in Bangladesh’s domestic criminal courts, are specifically outlawed by ICTA for the tribunal’s purposes. Remarkably, ICTA deliberately provides for the admissibility of newspaper articles, film, radio and other media reports as evidence, notwithstanding the natural tendency in the press to exaggeration, and the fact that such material will inevitably be incapable of forensic scrutiny.

But there is yet worse to come: in the event of a controversial ruling by the bench, Article 47 (3) of the Bangladesh Constitution, an amendment incorporated in 1973, removes any right for interlocutory appeal from the tribunal to a separate or higher court. Indeed, the only right to appeal provided within ICTA is that against conviction and sentence to the Bangladesh Supreme Court. Whilst the tribunal is empowered to entertain a review of its own decisions, results have proved predictable: the tribunal has been disinclined thus far to overrule its own judgment.

The most egregious example of this up to now in Sayedee’s case was the tribunal’s rejection of a petition for review of their earlier decision not to give clarification to the ICT’s definition of crimes against humanity. In so doing, the tribunal appears to have withdrawn the accused’s right to be informed of the nature of the case against him, contrary to Article 14 of the ICCPR and, ironically, s16 of ICTA itself. As a consequence, it has permitted a case to proceed on the allegation of a crime that resembles something very different in 2011 to what it did when it first appeared at Nuremberg in 1946.

Crimes against humanity have traditionally encompassed offences such as murder, extermination, enslavement, deportation, imprisonment, torture, rape and persecution, amongst others. But the basic legal requirement for crimes against humanity per se has been a subject of debate. The precondition at Nuremberg was the existence of an international armed conflict between at least two states when the crimes were committed. But this requirement was absent from the 1994 ICTY statute’s definition, a position confirmed in 2010 at the Extraordinary Chamber of the Courts of Cambodia (ECCC), which claims jurisdiction over crimes dating back to 1975. The ECCC case of Duch confirmed that the need for an armed conflict was dispensed with altogether, and replaced with the familiar chapeau requirements of a widespread or systematic attack directed against a civilian population on national, political, ethical, racial or religious grounds.

Leaving aside the fact that ICTA fails also to define the individual offences that may qualify as crimes against humanity (murder, extermination, etc) in contrast to the ICC and earlier ad hoc tribunals, it makes no attempt to clarify a definition of crimes against humanity per se. Does the court intend to apply the Nuremberg precondition of an international armed conflict, still applicable in 1971, or does it intend to employ the current definition of a widespread or systematic attack? To import the latter would be unlawful: the nullum crimen sine lege maxim enshrined within Article 15 of the ICCPR prevents retroactive application of law not in force at the material time. One would imagine the simple solution would be for the court to apply the law as it stood in 1971: namely the requirement of an international armed conflict. But this won’t work either: on any view of the facts, the 1971 Liberation War was an internal, not an international armed conflict. Indeed, Bangladesh was not recognized as a sovereign state by any foreign nation until their ally India did so on 6th December 1971, ten days before the war’s end. The next to follow suit was East Germany on 11th January 1972: ergo the Nuremberg definition, requiring an international armed conflict between at least two states cannot apply.

In other words, when it comes to trying crimes against humanity, the ICT is caught between two stools. On this analysis, it is surely disqualified from trying the crime at all. Unfortunately, owing to the amended Constitution’s bar on interlocutory appeals, there is no higher court available to tell them so. Instead, the tribunal is left with the indignity of entertaining charges on an indictment where nobody-not the prosecution, nor the defence, nor even the judges themselves - has a clue about what must be proved for a crimes against humanity conviction to stick. The tribunal’s announcement that they may at a later stage in the proceedings choose to adopt developments on the definition of crimes against humanity from recent tribunals adds insult to injury: the suggestion doesn’t just amount to a tacit admission that they are undecided about the law, it also suggests the judges are open to making up the law as they go along.

One is tempted at this point to ask: how serious is the government-backed ICT about legality, or even the appearance of a fair trial? Again, there’s worse to come: wheras Article 31 of the Constitution states ‘To enjoy the protection of the law, and to be treated in accordance with the law, and only in accordance with the law, is the inalienable right of every citizen’, Article 47 (3), as amended, effectively removes that protection from those charged under ICTA. Thereby, ICT suspects are rendered second-class citizens before the law. Just to emphasise the point, in proceedings brought against the amendment a Supreme Court judge held that a reasonable distinction could properly be drawn between the rights afforded to ‘ordinary citizens and other citizens accused of war crimes’.

All this acts as a grim reminder of the past: rather than Qamrul Islam’s vision of a tribunal ‘exemplary for the world community’, the provisions of ICTA and Article 47 (3) of the Constitution chillingly create the perfect habitat for a political show trial, culminating with the provision of the death penalty.

Current Situation
On 3rd October 2011, after 14 months in custody, Delwar Hossain Sayedee was finally charged with 20 counts of genocide and crimes against humanity. A petition to review the ‘framed’ indictment, objecting to the tribunal’s failure to define the offences charged, and to duplicity and lack of specificity within the charges awaits disposal. Meanwhile, four further Jamaat e Islami suspects, all of advanced age and now in custody for well over a year, remain detained without charge or any advance disclosure whatsoever.

At the time of writing (November 2011), Delwar Hossain Sayedee’s trial for his alleged participation in the atrocities of 1971 is delayed pending a petition for recusal against the chairman of the bench following discovery of his involvement in a 1993 Commission of Enquiry into the alleged participation of several anti-Awami League figures. The defence were recently informed that the chairman has agreed not to sit on the tribunal’s deliberations into the matter. The 1993 Commission, which can hardly be said to have been independent, found that four of the five Jamaat suspects currently in detention were criminally liable for atrocities in 1971. Examination of the Commission’s report shows it to be one sided and arbitrary. It appears to overlook both the limited influence of Jamaat as a political force in east Pakistan at the time as well as widespread accounts of Jamaat members and their affiliates offering protection to Hindus and others from attack and persecution by Pakistani military personnel. The outcome of the recusal petition is awaited with interest; the unexpected withdrawal of the chairman could be a serious setback to the government’s intention to complete the process in time for the 2013 general election.

Despite Qamrul Islam’s proud boast, the ICT has received nothing but criticism, raising alarm all over the world. So far, pleas for restraint from the US State Department, the International Bar Association, the International Center for Transitional Justice, Human Rights Watch, Amnesty International, members of the UK House of Lords and the European Parliament have fallen on deaf ears. Widespread calls for ICTA to be amended in line with ICC Statute provisions and the repeal of Article 47 (3) have been similarly ignored.

Today in Dhaka, opposition to the tribunal is growing. Following a mass demonstration on 19th September in which hundreds were arrested and many injured, an arrest warrant was issued for the Jamaat detainees’ Bangladeshi lead counsel citing involvement with the mob ringleaders. The authorities overlooked the fact that rather than being in Dhaka on 19th September, as the arrest warrant alleged, the suspect was in Europe, where he had been for some time. More recently, a key defence witness in the Sayedee case, ironically a former nationalist freedom fighter, was arrested on unknown allegations. Separately, five other defence witnesses were also arrested and urged not to involve themselves in the trial.

Enthusiasm for the trials within government circles is unbridled: in an address to the UN’s General Assembly in New York in September 2011, Prime Minister Sheikh Hassina signaled not only her determination to carry on regardless but also her confidence in the ICT’s outcome, when, speaking of the accused, she declared
‘Their eventual punishment will strengthen our democracy, demonstrating that the state is capable of just retribution’.

The prosecution are equally bullish: in November ICT prosecutor Rana Dasgupta claimed
‘One can say 2012 is the year of verdict of the war crimes trial and 2013 the year of verdict execution’.

A Disaster in the Making?
As part of the UK-based defence team instructed to advise the Jamaat e Islami detainees, I visited Dhaka in March 2011. I encountered an austere, foreboding atmosphere that could almost be described as Orwellian. Leaving my hotel I was tailed by hapless Bangladeshi security operatives; armed militia roamed the streets; massive murals celebrating the freedom fighters’ sacrifice hung from tall buildings in a throwback to Soviet times. As the trials draw near, the pro-government press is increasingly fervent in its vitriolic attacks on the ‘war criminals’; last month a national daily’s report on an Awami League rally featured lurid photographs of the simulated public hanging of the Jamaat detainees.

One must not prejudge, but appearances suggest that the ICT is the focal point for a government-led crusade seeking vengeance rather than reconciliation amidst a political culture that brooks no consent. Revenge, it seems, wins votes. But tension is mounting: it is increasingly likely that these trials will become a rallying point for both secular, Awami League nationalists and anti-government, largely Islamic opposition groups. In declining socio-economic conditions one can only hope the trials do not trigger a call to arms by extremists on both sides. Such an outcome would be a grievous betrayal not just of the rule of law, but of the victims of the conflict. For what a tragedy it would be if, 40 years after the event, these trials were to lead to the same hatred, chaos and impunity they were supposed to lay to rest.

John Cammegh
9 Bedford Row

Toby Cadman Interviewed by Al Jazeera on Syrian Crisis

Al Jazeera interview with Toby Cadman of 9 Bedford Row International on the current crisis in Syria

See the interview on the 9BRi YouTube channel:

http://www.youtube.com/watch?v=s5ClQOrsrj8

The Arab Spring and Attempts to Re-imagine Sovereignty

A guest blog by Richard Cashman

Arguing in defence of humanitarian intervention, David Cameron, in his address to the 66th UN General Assembly meeting in September, said that ‘we must always act with care when it comes to the internal affairs of a sovereign state, but cannot allow this to be an excuse for indifference’.

Cameron was speaking of the need to protect people and their civil and human rights by preventing their abuse. However, the broader language employed by Western states in response to the so-called Arab Spring has focused more pointedly on the alleged illegitimacy of unelected governments suppressing democratic dissent.

Given that the existing understanding of sovereignty does not enquire into the means by which leaders and governments have come to power, today there is the implication, at least, that that understanding might be under review.

It seems clear if we look to the practice by Western states of giving vocal support to people with democratic aspirations in autocratic ones that the basis of any such recalibration will be the refrain that sovereignty now encapsulates a democratic requirement that renders autocracies, by definition, not sovereign.

However, one had to wonder when looking at Cameron’s UN audience how many state representatives were going along with his typically steamrolling oration and how many were appalled at the idea of more frequently countenancing intervention against distasteful but sovereign regimes, not least their own.

The legal grounds for militarily intervening in a state are still confined to either self-defence, a threat to international peace and security or invitation by the state concerned. There remains little legislative link between sovereignty and democracy.

Article 25 of the 1966 UN Convention on Civil and Political Rights[1] emphasises representative government and democratic processes and there are similar passages in the American[2] and European[3] Conventions on Human Rights – the latter, especially, explicitly tying democracy to state legitimacy. However, failure by a state to uphold these principles does not afford a right to others to enforce them.

That said, a lack of democracy as a precipitate to serious civil and human rights violations has been a marked focus of a broad cross-section of commentary concerning intervention in response to the events of the Arab Spring.

That commentary has discussed intervention in its multifarious forms and Cameron and France’s Nicholas Sarkozy, foremost, have spoken of a comprehensive assault on undemocratic and abusive regimes beyond military action and including the full panoply of diplomatic, legal and economic weapons.

Although history does exhibit examples of democratic processes producing governments that have opposed them, Western states continue, quite understandably, to promote such processes on the basis that, overall, they produce cooperative governments that accommodate Western values.

But it is here where the limits of attempts to re-imagine sovereignty can be seen.

The ending of the Cold War afforded new possibilities to enforce existing laws that had become moribund by the power realities of the bi-polar situation. The 1991 Persian Gulf War was the first expression of what was sweepingly called ‘the new world order’. Thus in many ways the history of intervention since the end of the Cold War more closely resembles the kind envisaged by the drafters of the UN Charter.

However, many states – a majority in fact – remain wedded to the traditional interpretation of sovereignty, perhaps including the guaranteeing of certain rudimentary rights, but definitely premised on an understanding that there are few limits to the exercise of legitimate coercive control within a defined territory.

This is essentially still the position of Russia and China as two permanent members of the UN Security Council keen to avoid painting themselves into corners. And it is primarily they who will oppose attempts at to re-imagine sovereignty in which they see the influence of Western interests which – no matter how universally presented – they believe are opposed to their own.

In their opposition they will be supported in the West, however inadvertently, by those who point out the parallels between intervention against non-democratic regimes today and that on the grounds of religious persecution in the sixteenth and seventeenth centuries.

Thus current attempts to re-imagine sovereignty will be constrained in future by both domestic and international factors. Nevertheless, a two-tier system of sovereignty with the second tier hot seats occupied by unelected or mis-elected governments may emerge.

Whether it does will depend on a combination of Western public perception concerning the results of intervention in places like the Balkans, Iraq, Libya and possibly Syria, together with perceptions of self-interest in emerging powers seeking to secure their places in the more multi-polar world order that is approaching.

[1] http://www2.ohchr.org/english/law/ccpr.htm

[2] http://www.oas.org/juridico/english/treaties/b-32.html

[3] http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/ENG_CONV.pdf