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International Law

Legacy of the ICTY

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The International Court is the judicial body that brings to justice individuals accused of violation of the international law. The idea to create the court arose after the end of the World War II and it is based on the principle: all persons, including high-ranking state officials, accused of committing serious international crimes must be punished.

International criminal tribunals should not be considered in the same way as domestic or national courts. When people hear the words “court” and “law” – they immediately think it refers to national law, but they are wrong. There is distinction even between personnel that works in international and national courts, and much less in other characteristics.

The paper will put a special emphasis to the work of the ICTY, describing a number of positive as well as the negative sides of the Court.

The ICTY

The ICTY has been established at the proposal of the UN Secretary General on the basis of Resolution No. 827 of the UN Security Council of 25 May 1993. The territorial jurisdiction of the Court covers the territory of the former Socialist Federal Republic of Yugoslavia (hereinafter: the former Yugoslavia), including its land surface, airspace and territorial waters, while the temporal jurisdiction includes the period from 1 January 1991, without indicating when the temporal jurisdiction ends. However, the UN Security Council ordered to the Court to end its work by 2010, by Resolution No. 1503 of 2003 and the Resolution No. 1534 of 2004. Due to the abovementioned reasons, the Court was supposed to put an end to all investigations and filing all indictments by 2004; to end all trials by 2008 and to end all appeal proceeding by 2010. However, the year is 2015 and the ICTY has not ended its work. According to some estimations given in December 2014, three out of four appeal proceedings are expected to be completed during 2015, while the judgment in the case of Ratko Mladic is expected to be rendered in March 2017 or event after this date. However, addressing the UN Security Council on 10 December 2014, President of the ICTY Theodor Meron assured that these forecasts do not mean closure of the ICTY in 2017.

The ICTY is an ad hoc court based in The Hague. The Court can prosecute only individuals and not organizations or governments. The court can impose life imprisonment as maximum penalty. As a result, the Court signed an agreement with a number of countries, in order to enable enforcement of the penalties on their territories.

Huge role of the ICTY’s Trial Chamber significantly determines work of the ICTY and it implies wide powers of arbitrators and initiative relating to probative evidence. The basic principles that the Court follows in its work are: justice, rapidity and equality of arms.

The aim of establishment of the ICTY is to bring to justice persons responsible for serious violations of the international humanitarian law during conflict in the area of the former Yugoslavia. However, “although it was obvious that many actions of the conflicting sides, people who fought within their ranks or who joined them, represent serious crimes under domestic law or the international humanitarian law (the former Yugoslavia ratified all the Geneva Conventions of 1949 and their Protocols of 1977), almost none of the suspects for these crimes was charged and brought to the Court until 1993”.

All violations that are put under the jurisdiction of the ICTY and which represent violation of the international humanitarian law committed in the former Yugoslavia, are divided into:

  • Grave breaches of the Geneva Conventions of 1949;
  • Violations of the laws or customs of war;
  • Genocide;
  • Crimes against humanity.

The criminal defense of crime against humanity exists under the following conditions:

  • In case of an attack;
  • If the accused committed the crime as part of the attack;
  • If the attack was directed against any civilian population;
  • If the attack was widespread or systematic;
  • If the accused knows that his acts are part of a pattern of widespread or systematic crimes directed against a civilian population and if he knows that his act fit in the pattern.

Regardless of the rules that regulate work of the ICTY, its employees are faced with several challenges.

The first challenge certainly refers to a rule that an individual may be punished for grave breach of the Geneva Conventions under the Article 2 of the Statute, only if the crime for which he is charged, was committed against persons and property that are considered protected.

Another challenge is the Article 7, Paragraph 1 of the Statute, i.e. the Article 4 Paragraph 3 of the Statute. Namely, when the Court finds that the accused person had no genocidal intent, but he or she helped others to commit genocide, the question is which of these two provisions of the Statute of the Court should be applied. The first Article envisages responsibility for assisting in committing any criminal offense put under the jurisdiction of the Court, while the second Article envisages, inter alia, complicity in genocide. Furthermore, the Court has the jurisdiction to act in case of committing any of the criminal offenses listed in Article 5 of the Statute, but only if the crimes were committed in an armed conflict. Therefore, an armed conflict is a precondition for prosecution before the ICTY. At the same time, the only Article of the Statute that relates to penalties is the Article 24 that envisages the obligation of the Chamber when sentencing, to take into account gravity of the defense and individual circumstances of the perpetrator. However, the Article 2 of the Statute represents the biggest challenge and it envisages that every crime regulated by this Article, shall be committed in the context of the international armed conflict.

The first trial before the ICTY started on 7 May 1996 and the first verdict was rendered on 29 November 1996. So far, a total of 161 persons have been indicted. Proceedings against 147 persons ended, while proceedings against 14 persons are still ongoing.

Legacy of the ICTY

The region of the former Yugoslavia welcomed the establishment of the ICTY with great suspicion, complaining that incompetent body has established the Tribunal (the Security Council), and that the Court cannot be an impartial judicial body, since it has been established as a subsidiary body to the executive authority (the Security Council). However, author of this paper shares the standpoint of Dr. Vojin Dimitrijevic, who says that „in a sea of such attacks (…) legitimate and legal reviews of critics about the way The Tribunal has been established, the advisability of some of the provisions of its Statute, the quality of the rules of procedure and so on, are lost (…)“. The author also shares Dimitrijevic’ stance that work and existence of the ICTY should be seen as a “unique judicial experience in the actual application of the international humanitarian law, its written and unwritten rules and the very Statute of the first international criminal Tribunal that, despite of the fact that it has been formed on temporary basis as an ad hoc court, has acted so long and prosecuted so many persons on various posts for so many crimes that are considered international crimes”.

There is no doubt that there are positive and negative aspects of the international criminal proceedings led before all courts. Positive sides of the proceedings before the ICTY are certainly higher level of impartiality, easier ways to collect evidence, uniformity in the application of the international law and greater preventive effect of international trials. Namely, it is logical that people who are not involved in a concrete dispute, i.e. judges who are not related to armed conflicts will be more objective to decide about the dispute. National courts are almost always insufficiently objective, and these courts are not interested enough to lead proceedings against its own nationals who have committed crimes against foreign nationals. At the same time, the fact that this is a proceeding led before an international court, proceedings related to these and all other conflicts in the international community are set to be uniform, with the continuity in application of law and decision-making process.

Although a proceeding before the ICTY does not fully meet all demands which the right to fair trial puts before the Court, its practice gives hope that the proceedings will get closer to the standards of the fair trial. The procedure led before the ICTY is complex, but it was inevitable because it has been established quickly as a reaction to the situation on the ground (for example, the states harmonized their stances about formation of the International Criminal Court for years). Principles like the ones from the Geneva Conventions of 1949 (ratified by most of the states in the world) would certainly remain only a dead letter, if it was no courts like the ICTY. Namely, such courts defined an armed conflict, defined when an armed conflict begins etc.

One of the important specifics that refer to international crimes is the existence of a large number of victims. The procedural status of victims and witnesses in criminal proceedings for these crimes is a particular problem in international judiciary, because of direct or indirect risk of intimidation, reprisal or retaliation against the victims. For these reasons, rules of the ICTY include adequate provisions on protection of victims and witnesses in the proceedings. Per example, such provisions are stipulated in the rule that the main hearing will be held without the presence of the public; the rule about the protection of identity of the victims, and the rule on formation of Department for Victims and Witnesses, as the body in charge to provide support and advices to victims and witnesses and propose measure for their protection.

The ICTY has contributed to clarification of some basic concepts that are of huge importance for the international criminal law and the international humanitarian law. For example, the rule on the obligation to distinguish civilians from combatants was clarified in the judgment in the cases of Tadic, Martic, and Kupreskic, while the rule to distinguish civilian from military facilities was clarified in the judgment in cases of Kupresic, Kordic and Cerkez, judgment in cases of Kunarac and Furundzija defined torture, etc. For the first time in the history, an international court found that rape (although prohibited by humanitarian law) may constitute torture. This is also the first international court which included sexual violence as a crime against humanity in its Statute. Besides, the Court also gave huge contribution to the interpretation of serious violations of the Geneva Conventions.

According to the current President of the ICTY Theodor Meron, the ICTY has demonstrated to the world that, after half a century of impunity, it is possible to lead complex trials at the international level, in accordance with the highest international standards. The ICTY has developed an influential body of jurisprudence concerning a large number of procedural issues and issues related to evidence and thus, created conditions for establishment of new international and mixed criminal courts. The support to strengthening of national judicial systems relating to war crimes trials is certainly one of the most positive things in the heritage of the ICTY.

Many criticize the ICTY for the reason that all the accused have not been convicted especially the ones who are accused of the crime of genocide. However, the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 stipulates very strict conditions for proving genocide. The Genocide is a crime that does not have to be committed during armed conflicts: the crime can be committed in peacetime, during a war, against civilians and against combatants, with or without committing widespread or systematic attack. Under the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, “(… genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.”

As the aforementioned definition reads, it is a state of mind of the perpetrator of the crime of genocide that matters (that he committed the crime with intention to destroy, in whole or in part, a national, ethnical, racial or religious group). Therefore, certain group and not individuals in the group should be the main objective and likewise, the destruction should be physical or biological nature, not cultural. Proving responsibility for the crime of genocide is harder than proving responsibility for any other international crime. Murders and other prohibited acts must be committed with the intention to destroy, in whole or in part, a national, ethnical, racial or religious group (dolus specialis). If a prosecutor fails to prove that intention, it is considered a crime against humanity or a war crime – and the ICTY is not authorized to prosecute these crimes.

The latest criticisms directed against work of the ICTY are addressed to the President Theodor Meron, an experienced US (Israeli) lawyer and a judge. Many believe that he made terrible mistakes in individual trials which he chaired, especially in the cases of Gotovina and Markac, Stanisic and Simatovic and in a particularly interesting case from the legal point of few – case of Momcilo Perisic. The judgment in the case of Momcilo Perisic has established a new legal standard of command responsibility, providing amnesty to political leaders and military commanders in case of committing war crimes in the future period. Namely, the appeal judgment to Perisic has adopted the new specific direction criterion which has not existed in the international customary law. The question is whether court judgments discourage future threats against human civilization or the opposite? The UN Security Council has established the ICTY after some people endangered peace and security of the civilization and nowadays, some experts believe that the ICTY turned into its contradiction after Perisic’s acquittal, and its decisions jeopardize international peace, security and order.

When it comes to criticisms related to the impact of the Hague judgments to victims of the conflict, we must take into account that, when it comes to individual criminal responsibility, the ICTY is authorized to prosecute the crimes, but it has no option to adjudicate adequate compensation for victims of the crimes. Namely, primary role of the ICTY is retributive: the Court renders a judgment and defines whether someone is guilty for a certain crime or not, and orders an appropriate penalty for the crime. Of course, the ICTY also has a restorative function and it aims to ensure accountability, establish facts, bring justice for the victims and give them the right to speak, enhance the rule of law and pawing a way for reconciliation in the region. However, the ICTY is not established to be a mean for bringing complete justice to the victims and a mean to deal with the past.

Regardless of the aforementioned facts, the ICTY has taken away from us the ability to forget the past. The legacy of the ICTY is greater and more significant than occasional mistakes and judgments rendered without a legal explanation, while the Court will provide insight to future generations into judgments and facts about the atrocities.

Conclusion

The abovementioned text has led us to conclusion that, when it has established the ICTY, the international community has directly contributed to sanctioning of state policies and individuals responsible for initiation and conduct of armed conflicts at the territory of the former Yugoslavia. The paper also led us to conclusion that judgments rendered by the ICTY have clarified some theoretical parts of the international humanitarian law, international criminal law and the international human rights law.

Despite of many criticisms directed against the ICTY, the author of the paper believes that the ICTY has registered more positive than negative results. Unreasonably high expectations from work of the Court have been huge. At the end, when a conflict starts and when crimes happen, people say nowadays: “Send him to The Hague”, which was not the case a few years ago, when there was no court authorized to prosecute the perpetrators.

There is no doubt that existence of such a court is necessary and we could see it clearly in the case of Leipzig in 1921, when Germans were allowed to trial to themselves on their own. As a result, audience, judges, prosecutors greeted some people who were accused of crimes when they entered a courtroom, not to mention that all sanctions were minimal; two months, six months and four years of imprisonment. Therefore, author of the paper believes that foreign judges did not bring expertise in proceedings related to this territory, but impartiality.

Author of the paper considers the following facts as the greatest contributions of the ICTY:

  • The ICTY is a legal body that represents a basis for establishment of new judicial bodies;
  • The ICTY revealed limitations of trials;
  • The ICTY has left us legacy.

On the other hand, the fact that the ICTY has primarily focused on jurisprudence and its impact, without realizing how much it is important to reach out to the victims, is the main deficiency of this body.

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International Law

The United Nations: Expectations vs Reality

Javier Delgado Rivera

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“Alarm bells are still ringing. We face a world of trouble.” This was the distressing warning given by António Guterres, the United Nations (U.N.) Secretary-General, during his remarks to the U.N. General Assembly at the start of the year.

2018 was indeed a harsh year. The U.N. is always expected to play an appeasing role wherever peace and security are under threat. But the organization does not always have enough clout to silence the guns. As a result, last year the U.N. was unable to help bring stability in places like Afghanistan, Myanmar’s Rakhine State, Eastern Ukraine or between Israel and Palestine, to name just a few trouble spots. In the last two cases, disagreements in the Security Council help perpetuate current deadlocks.

On top of this, last year the U.N. refugee agency in the Occupied Palestine Territories (known as UNRWA) faced an unprecedented financial crisis after the U.S. cut its $300 million contribution. (The Agency was able to make up for the shortfall through additional donations from other countries and institutions). Yet the financial footing of the Agency remains so precarious that its chief has just requested US$ 1.2 billion to fund aid programs for 5.4 million Palestine refugees across the Middle East.

But 2018 was not all gloomy for the multilateral organization. Last year saw the adoption of the U.N.-led Global Compact for Migration. This non-binding pact, signed by 164 countries (out of 193 U.N. member states) in December, aims at strengthening regional and international collaboration in the management of migration flows. Claiming that it would obstruct efforts to control migration, the U.S., Israel, several E.U. countries and Australia did not join the accord. In early January, Brazil announced that it will abandon the accord.

The U.N. can also take some credit for forcing North Korea into the negotiating table. Last June’s summit in Singapore between the country’s leader Kim Jong-un and U.S. President Donald Trump came at the back of the harshest sanctions the U.N. Security Council has ever imposed on the Asian country. Moreover, an unusual visit in December 2017 by the then U.N. political chief to North Korea paved the way for the easing of tensions. Yet as Washington and Pyongyang gear up for a second summit in late February, a recent U.N. report claims that North Korea’s nuclear and ballistic missile programs “remain intact” and its leaders are dispersing missile assembly and testing facilities to prevent “decapitation” strikes.

On a housekeeping note, a recent important highlight has been the reform of the organization’s Resident Coordinator system. In January 1st U.N. country-offices gained more autonomy from headquarters, so that decision-making in development assistance, among other crucial work, can be done closer to the people that need it. This is part of a major restructuring of the U.N. system, which in addition to its international development area encompasses U.N. management and the organization’s peace and security pillar.

All while the U.N. Secretariat achieves, for the very first time, gender parity in its senior management positions – although the same cannot yet be said of other levels and departments.

The 2019 menu: frictions, priorities and conflicts

The year 2019 kicked off with the opening a major area of friction among key U.N. member states. In mid-January Palestine ­(a U.N. non-member observer state) took the 2019 chair of the G77 group of developing countries plus China. The U.S. and Israel objected to the move, which they saw as allowing the Palestinians to act more like a full U.N. member state this year. The G77 is currently comprised of 134 states and was established to sharpen the negotiating capacity of its members on economic matters.

In late January, at the World Economic Forum in Davos, António Guterres outlined his three priorities: 1) to prove to those reluctant to multilateralism that the U.N. is a vital actor to solve global problems; 2) to simplify and make the U.N. administration more transparent; and, 3) to show the added value of the organization.

These priorities represent just the tip of the U.N. iceberg. During 2019, the UN will have to accelerate efforts to achieve the Sustainable Development Goals (SDGs). As Guterres himself put it, “we need a sharper focus on what works in reducing poverty and inequality, and in delivering strong and inclusive economies while safeguarding the environment.” On this topic, a key date will be September 23rd, as Guterres will convene a Climate Action Summit in New York to mobilize public and private action to, among other objectives, increase financing to combat climate change: “the defining issue of our time,” as Guterres likes to describe it.

But it is Syria, where one the most lethal conflicts after the II World War is still being waged, that poses one of the greatest immediate challenges for the organization. The Norwegian Geir O. Pedersen, Guterres’ new Special Envoy for Syria, will try to mediate a political solution to a conflict in which the regime of Bashar al-Assad, with the support of Russia and Iran, has prevailed after a civil war that has already claimed more than 500,000 lives.

Further south, in Yemen, where the world’s worst humanitarian crisis has been unfolding since 2015, a U.N.-brokered ceasefire (last month’s Stockholm Agreement) has so far avoided a devastating full-fledged military confrontation in the key port city of Hodeida.

Although it is Africa where most of the U.N. peace and security work focuses. With volatility reigning in countries like Libya, Mali, South Sudan, Somalia, the Central African Republic and the Democratic Republic of the Congo, the continent hosts seven of the current fourteen U.N. peacekeeping missions.

And if all this were not enough, the current presidential crisis in Venezuela has again reopened the same fractures at the Security Council (i.e. Russia and China opposed to any type of foreign interference) that prevented the organ from taking action in places like Syria and Ukraine.

Somehow naively, the U.N. is always expected to resolve the most pressing crises that erupt around the world. As we have seen, the reality is very different. And 2019 will not be an exception.

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International Law

The normative context in defining ‘refugees’

Janakan Muthukumar

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Photo Credit: © UNHCR/Ivor Prickett

Contextual challenges in recognizing refugees

The Refugee Convention articulates that for any person to be qualified to be a refugee that person must have been outside from the country of his nationality due to the fact of a well-founded fear of being persecuted for reasons of race, religion, nationality, member of a particular social group or for having a particular political opinion. However, the Convention also in its stand approves that any person who has already been considered as a refugee under any treaty arrangements prior to this Convention would also be considered as refugees. The definition provided in the Convention is comprehensive, in a way that considers the cultural changes, and the interpretation includes the fear of persecution not only by the state actors but also by non-state actors.

However, there are also a number of restrictions, such as if a person voluntarily re-availed him or herself of the protection of his/her country of nationality, or has voluntarily reacquired the nationality of their state, the definition of refugees would not be applicable.  Further, if the state ceased to exist under the ‘cessation’ clauses, although according to the UNHCR, such clause required to be invoked sparingly, there is a possibility where the person may not fit within the definition provided by the Convention.  Nonetheless, the provision in the Convention so far has been interpreted broadly, in a way that the refugee status will not be considered to be ceased as long as the situation in the state of origin remains a danger.

Irrespective of these restrictions, the Convention remains as the central pillar, customarily interpreted in reflecting its objective and purpose of it – protecting individuals in need. Although in cases the general instability was found as a factor which is inconsistent to the prevent cessation of status, particularly due to the effect of persecution, it has also been considered as a viable internal alternative, which demonstrates that the customary interpretation of the Convention is limited. In other cases, the general instability was found as a ground for subsidiary protection that said, although the Convention fails to provide the required protection, still the state is obliged to grant such protection. Further, the Convention contemplates that irrespective of the condition of persecution remains a qualification, an individual could still qualify as a refugee given the fact there are compelling reasons arising from the previous persecution, commonly referred as ‘exemption from cessation.’ This exception applies only to the ‘statutory’ refugees, i.e. individuals who are eligible as refugees under the Article 1A (1) of the Convention: who were prior to the Convention were recognized as refugees. Further, the state practice is also contributing in extending the ‘exemption from cessation’ in protecting Convention refugees, irrespective of the fact, that the UNHCR noted clearly that such interpretation is not required by the Convention.

Nonetheless, the extent of the state practice creates now the customary norm, requiring this application, to be a purposive one. However, limitation applies under the exclusion clauses from the protection of non-refoulment to anyone qualify as a refugee under the serious reasons for consideration for have committed a crime against peace, war crime or crime against humanity or poses a compelling threat to national security or public order to the security of the country of refuge, where the individual who has already qualified as a refugee would subsequently lose the status. Note, however the exclusion clauses themselves have exceptions, such as child soldiers, decided in the case of AG v Zaoui by the Supreme Court of New Zealand, reflected on refoulment that goes hand and hand with the jus cogens status on preventing torture, noted that “[t]he prohibition on refoulment to torture has the  status of a peremptory norm or jus cogens with the consequence that article 33.2 [of the Refugee Convention] would now be void to the extent that it allows for [refoulment in such circumstances].” This implication of flexible application of the Convention was not only followed throughout the judicial decisions but also by legislative actions such as by the Council of Europe on the Recommendation 773, which recommended the European Union members to apply the definition of refugee liberally as amended by the Protocol of the Convention.

Evolution of a definition under the customary international law

As discussed above although the Convention has not amended explicitly in revising the definition of refugees, it has been customarily broadly interpreted as to justify the object and purpose. Although there has been an argument that the definition of refugees does not appear under the customary international law, but under treaty law, authors alike Hailbronner believes that the international obligation to grant protection to the victim is a ‘wishful legal thinking’, thus reflection through the state practice is a viable option. The American Society of International Law also produced that the human rights instruments are required to be read as a whole, thus protection prescribed in the Convention could be applicable to persons who enjoy any sort of non-refoulment. Thus, non-refoulment is a general principle, which Bazo also agrees that any individual who has the right to be protected under the international law must be covered by the definition of refugees. However, these arguments would be only valid if there are an extensive state practice and opinio juris to support the argument.

Regarding the state practice in expanding the definition of refugees, the reason for the primary expansion is because of civil wars, ethnic and communal conflicts and natural disasters, and of the acceptance that the international law can expand itself through custom. The Statue of the International Court of Justice prescribes that ‘evidence of a general practice accepted as law is law’ based on two elements: state practice which is described as a widespread and consistent practice of the states and opinio juris, the subjective belief of the state that engages in that practice, believing it as a requirement, not as an option. In this context, the statistics reveal that according to the UNHCR around 9 million individuals who have been identified as refugees, deserve protection, which from the state practice guidance provided in the case of North Sea Continental Shelf and of the history of the states to recognize and receive refugees to their respected nations represent the widespread practice, further be recognized not only through the subjective believe that it is the responsibility to protect refugees under the outgrown opinion juris, but also an international obligation under the treaty provisions such as Conventions Against Torture (CAT), and of the peremptory norm, jus cogens.

Defining Refugee through International Agreements

Although number of international instruments address the refugees in various stands, the Convention of the Organization of African Unity (OAU) on Refugees expands the definition of refugees includes, the people who displace due to the ‘external aggression, occupation, foreign domination or events seriously disturbing public order.’ Although there have been arguments that the intention of the drafters of the Convention was reflecting the post-colonial context, the fact that the Convention was signed by a number of largest recipients of refugees including Kenya, Uganda, Sudan, Zambia, Egypt and Tanzania makes the validity of the claim of the Convention in expanding the definition of refugees. In one step further, the states such as South Africa, Tanzania and Uganda adopted the Convention into their municipal laws impacts on the state practice, form a customary international law in expanding the scope of the definition of refugees. As such, the Bangkok Principles on the Asian -African Legal Consultive Organization also claims similar expansion in the definition of refugees, specially accepts the concept of refugees sur place, also claims the definition to cover any individual who was expelled from a state where his or her life or liberty is threatened for the reasons of race, colour, nationality, ethnic origins, etc.

The Cartagena Declaration focused on the forced migrants in Central and South America noted that Article 1(2) of the OAU Convention as the starting point of defining refugees, the declaration was although not legally binding in nature, endorsed by the Organization of American States, the UNHCR Executive Committee, further cited in the Brasilia Declaration on the Protection of Refugees and Stateless Persons in the Americans. It was signed and ratified by most of the American states, including Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Mexico, Nicaragua and Venezuela. The Mercosur Rio de Janeiro Declaration further provided expanded definition includes not only to the individual whose life is threatened for the reasons of race, colour and nationality etc., as provided in the previously discussed declarations, but also the victims of a generalized violation of human rights. The declaration itself expresses the state practice by accepting the geographically diverse practice to support the existence of the customary international law.

The Refugee Convention, its Protocol of 1967, and the Protocol relating to the Status of Refugees 2001 attribute the expanded version of the definition of refugees, also affirms the important of the human rights and regional refugee protection instruments which by doing it expresses the obligation of the states to carry the burden for the stronger existence of opinio juris.

There has been also the subsidiary protection provided in the international agreements based on the context of persecution, often those individuals protected are referred as de facto refugees: the refugees who need are seen as legitimate, however, they would not qualify under the Convention. However, looking at the intention of the drafters of the Convention, it is expressed that the provisions of the Convention can be interpreted in a way to cover these expanded group of persons. However, there has been debate about this status, which was particularly addressed by the European Union in the context when considering the minimum standard of the directive failed to cover subsidiary protection. Although the directive models the Article 1(F) of the Convention, there has been no legal obligation to follow the terms, nor required to be supplemented by humanitarian assistance. Nonetheless, there are a number of international treaties calls for the subsidiary protection, such as the International Covenant on Civil and Political Rights (ICCPR) and the CAT in particular, the Article 3 which prohibits refoulment of a person, ‘where there are substantial grounds for believing that he would be in danger of being subject to torture.’

The European Convention on Human Rights and the American and African Charters make similar provisions on torture, establishes that the protection must be given to an individual when he is in ‘real risk.’ The EU Minimum Standards Directive 2004 particularly requires the member states to receive asylum application on the basis of the subsidiary protection who cannot go back to the country of origin because of serious harm, which includes death penalty or execution, torture and inhuman treatment or any other form of serious and individual threat to the civilian’s life by indiscriminate violence caused by the international or non- international armed conflict.

The state practice and the opinio juris have also been recognized in the context of refugees by the practice and mandate of the UNHCR that contributes to the formation of customary international law. It is because the organization embodies the state practice through being represented by the state delegates, or where the state cites the mandate of the organization being supervisory expresses opinio juris that the legal standards applied by the organization are accurate and the delegation by the states to the UNHCR could determine the status of refugees. In this context, the practice of the UNHCR cannot be dismissed, a representative opinio juris that is effective.

The Council of Europe through its Recommendation 18 of 2001 and by case laws such as in the case of Elgafaji v. Staatssecretaris van Justitie, Case C-465/07, 2009 E.C.R., argues for the qualification for the subsidiary protection which does not require to be a specifically targeted for harsh treatment, but as far is it fulfill ‘serious and individual treat’ due to the indiscriminate violence. It is to note that the EU did not broaden the definition of refugees, but provides legal standings for subsidiary protection, an expression of the opinio juris for the subsidiary protection.

Normative restrictions on the definition of refugees

Although the above discussion expresses that the definition of refugees has been expanded in a way to cover individuals, not just those facing the risk of persecution, there are also the existence of the negative impact of the customary international law that narrows the definition, particularly when there is a treaty provision which contrasts to the intention of the customary international law in this matter in particular.

One method the states adopted in narrowing the scope of the application of refugee law is by interpreting the territorial application of the Convention, which affects the determination of when an individual is outside his country of nationality. For an example, the US Supreme Court ruled that the Convention is not applicable outside the territory of the United States, whereas Russia interpreted in the same manner, along with interpreting the definition of territory.

The second method is by providing alternative relocation. Courts found when there is a possibility for the individual to relocate within the state of nationality, the application for refugee status can be rejected. However, in this context states found it from two approaches. First is to see whether there is genuine access to the areas of domestic protection, where the state can ensure the protection is meaningful, and the protection is not unpredictable. The second approach is comparing the situation of the area where the individual currently situated and the characteristic of the proposed area of protection, which is the approach the UK finds through the case laws since the first approach does not go along with the EU Council Directive 2004/83/EC.

The third method of the states enforce is applying the third country or safe country of origin tests to refuse the claims for asylum, in the basis that if the individual is coming from a country that has been deemed safe, then there is no requirement to provide asylum.

The fourth method is enforcing prohibitions on applying for recognition of refugee status through regulations under certain circumstances. Although it in first hand appears as it does not narrow the definition of refugees, but the fact the burden of proof is placed on the applicant that he has no disqualifying act or condition such as in the cases of terrorist suspects, such as in the case of Bundesrepublik Deutschland v. B, Case C- 57/09, 1990 E.C.R. and Bundesrepublik Deutschland v. D., Case C-101/09, 2010, severely affects the scope of being defined as a legitimate refugee. Further, broadly interpreting the acceptable criteria that the Convention spells out for refusing the refugee status, have certainly undermined the scope of the Convention, that indirectly impact in the definition and scope of refugees.

The fifth method is providing diplomatic assurances while refusing to accept the refugees, which is still remaining controversial. It was argued against by the UN Special Rapporteur on Torture as an ineffective approach has been used by states. The MOU signed by the UK with Jordan, Libya and Lebanon to provide blanket assurance is a clear example of it, which the Council of European Commissioner for Human Rights argued that “[t]he weakness inherent in the practice of diplomatic assurances lies in the fact that where there is a need for such assurances, there is clearly an acknowledged risk of torture or ill-treatment.”

In these contexts, this essay concludes that although normatively the definition of refugees has extended, the governments have been using different mechanisms in restricting the scope of it by not willfully restrict the definition, or contrast the customary international law, but by going around the definition, that has substantially weakened the entire legal scope of the extension of the definition so far has been built up by the customary international law.

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International Law

Human Trafficking in South Asia: Combating Crimes against Women

Dr. Nafees Ahmad

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Human trafficking is a lucrative crime with instant results, an offence of grave circumvention of human existentialism and a slap on the global security wall. While confronting human trafficking still remains an unfulfilled obligation of the international community as it is a global problem. However, SAARC has also committed to stamping it out while realizing its causes such as rampant poverty, inaccessible healthcare, gender discrimination, class conflicts, and minority injustices. South Asia is a region that is encountered with challenges of human rights such as prevention of human trafficking in women and children for prostitution, devising legal protection for children and evolving mechanism for combating terrorism. In South Asia, human rights discourse has become more intense in the wake of external castigation of its human rights record. Indeed, many Western governments and human rights watchdog institutions perceive South Asia as a reservoir of multi-dimensional discrimination in every walk of life. SAARC governments are mired in human rights transgressions contrary to their constitutional vision, mandate, and the rule of law, democracy, and good governance. South Asian consciousness against corruption, respect for governance institutions, human dignity, and probity in public and private life have been depleting at a pace that has not been experienced before.

Norberto Bobbio—an Italian philosopher—rightly expressed that the supremacy of human rights in present political and legal discourse as a revolutionary upsetting of the primordial practices in ruminating the primary task of moral philosophy to evolve in the designing of a compendium of duties instead of rights. From Two Tablets of Moses to Cicero’ De officiis including Immanuel Kant’s Sittenlehre which was construed as an edifice of duties raising the question in Kant’s second Critique is not “What are my rights?” but it posed “What should I do?” Therefore, the human rights situations of SAARC region cannot be assessed in total disregard of its historical and regional circumstances, nor can it be analyzed as per the preconceived model, tradition or standard of another region. Therefore, people of South Asia derived their viewpoints on human rights issues from their historical circumstances and practical experiences and formulated relevant policies and laws. However, Article 3 of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000):

“Trafficking in Persons’ shall mean the recruitment, transportation, transfer, harbouring and receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”

In this context, it is everyday human rights issues that determine the directions in which people are capable of living their lives in South Asia and elsewhere, they are of tremendous significance not only to all of us as individuals but also to us as members of South Asian society. Therefore, everyday human rights issues should be central to our collective social memory and practice just like certain international and domestic human rights events, victories, abuses and personages. The challenge, however, lies in trying to make these everyday issues attractive and newsworthy enough to capture people’s attention. What role can media play in illuminating these everyday human rights issues? Let’s try critically to analyze the questions arising out of the “SAARC Convention on Combating and Prevention of Trafficking in Women and Children for Prostitution”, the strengthening and enforcing of SAARC Convention on Promotion of the Child Welfare in South Asia and SAARC Regional Convention on Suppression of Terrorism in the light of on-going conceptual deliberations.

Human trafficking comes with a modern visage that derives its contours from antiquity and known as modern day slavery. Human trafficking is resorted by employing fraud, force, and coercion for prostitution, debt bondage, forced labour. Age and gender barriers are irrelevant in human trafficking as it is evident from the trafficked women of all ages, men, young children and teenagers. However, human trafficking is a global issue that has been affecting Global North and Global South countries alike and attained the proportions of organized crime. Human trafficking in women and children for prostitution has become a global trend and an offense that has been mushrooming and affecting almost every nook and corner of the world both as sources of passage or destination country. As per the UNODC (United Nations Office on Drugs and Crimes), victims from at least 127 countries have been recognized, and it is projected that a criminal is exploiting more than 2.4 million people at any given time. The ILO expects that there are 2.4 billion people in the world at any given time involved in forced labour and subjected to exploitation due to human trafficking. Around 800,000 women and children are trafficked every year across international borders out of which 80% are ending in forced prostitution. This projection does not include those trafficked within their own countries or missing children. Human trafficking in women and children for prostitution is a grave violation of human rights and has been regarded as a modern form of slavery. The United Nations projects that the trafficking of women and children for forced prostitution in Asia has victimized more than 30 million people. According to the OECD Reports, the human trafficking industry ranks among the top three highest grossing illegal criminal industries along with illicit drugs and arms. The study shows that over 160 countries across the world are known to be affected by human trafficking. It means that human trafficking is a terrible global reality and statistics adumbrated above would bleed the heart of every right-thinking person.

Thus, human trafficking poses an extreme threat to human rights and human dignity of considerable people in various parts of the world. It stays one of the least understood forms of transnational crime, with significant gaps existing in both the data on the incidence as well as differences in the ability of lawmakers to appropriately address the problem in their respective countries. Human trafficking is a life-threatening violation of human rights because of the involuntary manner in which trafficked victims are entrapped, transported, recruited and subsequently subjected to abuses and exploitation. The UN Office on Drugs and Crime, Regional Office for South Asia, (UNODC-ROSA) and the UN Women, South Asia signed a Memorandum of Understanding under which they committed to strengthening the present levels of cooperation in dealing with the organized crime of human trafficking in the eight SAARC countries. According to Article 1 of the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, 2002 “trafficking” denotes that the:

“moving, selling or buying women and children for prostitution within and outside a country for monetary or other considerations with or without the consent of the person subjected to trafficking.”

Unfortunately, there is no universal definition of trafficking, and the SAARC domestic laws even now lack a shared understanding of trafficking. Although India has a specific law on trafficking, but it does not define trafficking; it represents “prostitution” to have the usual attributes of trafficking for sexual exploitation. However, to determine the efficacy of criminal justice systems in South Asia and their effectiveness in addressing trafficking, it is essential to compare the standards in South Asia to the UNTOC standards as embodied in the Trafficking Protocol. The Protocol is reasonably comprehensive regarding looking at a variety of strategies to combat cross-border trafficking. Therefore, these gaps have raised several questions which have to be attended such as:

How to identify the administrative weaknesses in the enforcement system of anti-trafficking mechanism on a comparatively footing in South Asia?

Why there is a low number of arrest, prosecutions, and convictions for human trafficking in SAARC jurisdictions?

What are the reasons for insignificant legal integration of human rights, gender and child rights in domestic anti-trafficking laws and policies in SAARC countries?

What is the threshold of repressive state protection, prevention efforts in trafficking prone areas in SAARC jurisdictions?

Human trafficking encompasses recruitment, transfer, transportation, harbouring of persons through the use of duress, force, fraud, or coercion for exploitation. Economic inequalities, social disparities, and politico-cultural conflicts have led to the human mobility within all SAARC jurisdictions and across the borders in South Asia. Globalization has encouraged free movement of capital, technology transfer, expert exchanges, and sex service tours. Socioeconomic dependency, gender disparity, Illiteracy, cultural stereotypes, violence, social stigmatization, and endemic poverty inter-aliasociological deprivation of women and children in power-sharing, non-negotiable situations that have pandered to the emergence and mushrooming of the commodious problem of women trafficking in the entire SAARC region. This alarming spread of sex trafficking has fuelled the spread of HIV infection in South Asia, posing a unique and severe threat to community health, poverty alleviation and other crucial aspects of human development. Although the SAARC Convention on Trafficking in Women and Children has been a significant breakthrough, most of the SAARC countries do not have anti-trafficking legislation or means to protect the victims. Therefore, SAARC countries must make a concerted effort to treat women trafficking victims as “victims” of human rights transgressions in all their anti-trafficking policies and practices.

Abolition of women trafficking is inescapably a long-term process that involves a catena of causes like poverty, education, gender inequality, minority rights, and healthcare along with dismantling the actions of criminal syndicates. By its very nature, women trafficking for prostitution are a surreptitious crime for which adequate and comparable statistical data is rarely available. As of January 2017, 170 nation-states have ratified the Additional Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children to the UN Convention against Transnational Organized Crime which was adopted in 2000 (also known as Palermo Protocol) and India has even ratified it. The Palermo Protocol was the first international legally binding instrument with an agreed definition of human trafficking. However, there is an urgent necessity for greater collaboration between security agencies of South Asian countries to protect the victims. The key challenges to human trafficking in South Asia are porous borders, growing trade links, incoherent approach, lingual hurdles and time-consuming process of identification, verification, coordination, and implementation. Thus, it highlights the need for greater collaboration and assistance to rehabilitate and rescue victims of trafficking. At the same time, the UNODC South Asia must assist SAARC countries to develop comprehensive and sustainable responses to trafficking in persons. Such interventions include the prosecution of perpetrators, protection, and assistance of victims and, most importantly, prevention measures. SAARC jurisdictions countries have to have a unified and integrated action against human trafficking in the spirit of shared responsibility.

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