Justice Is Not a Construct

Justice is not a construct The Universal Declaration of Human Rights (UDHR) is a milestone document, which underpins all international human rights law and inspires us to continue to work to ensure all people can gain freedom, equality and dignity. In 2018, the Declaration turns 70.

Article 1. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 3. Everyone has the right to life, liberty and security of person.

Article 4. No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Article 5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6. Everyone has the right to recognition everywhere as a person before the law. 2 Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 8. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. Article 9. No one shall be subjected to arbitrary arrest, detention or exile.

Article 10. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11. (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

3 Freedom From Fear Magazine Justice is not a construct

Issue n. 14 May 2018 freedomfromfearmagazine.org [email protected] unicri.it

4 Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress

Martin Luther King, Jr.

5 Editorial Board Editor in Chief Website designer UNICRI Marina Mazzini Davide Dal Farra Jafar Javan Marina Mazzini Editorial Team Leif Villadsen Marina Mazzini Carlotta D’Orazio Max-Planck Institute Hans-Jörg Albrecht Graphic and layout Ulrike Auerbach Beniamino Garrone Michael Kilchling

Disclaimer The views expressed are those of the authors and do not necessarily reflect the views and positions of the United Nations. Authors are not responsible for the use that might be made of the information contained in this publication. Contents of the publication may be quoted or reproduced, provided that the source of information is acknowledged. The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations and UNICRI, concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. The mention of specific institutions, companies or of certain manufacturers’ products does not imply that they are endorsed or recommended by the Secretariat of the United Nations or UNICRI in preference to others of a similar nature that are not mentioned.

Photographers

UNPHOTO Victor Sánchez Berruezo Abdul Majeed Goraya Gonzalo Alonso Mark Garten Lily Lvnatikk Ricardo Garcia Vilanova/ Ikechukwu Ibe UNHCR R Chalasani Vladimir Proskurovskiy ICRC atulinda Images UNHCR Roger LeMoyne Barcelona Kamila Hyat Peter Denton John Isaac Igor Ovsyannykov Jodi Hilton Bernard Spragg. NZ Paulo Filgueiras Caleb Woods Fred Abrahams/Human International Criminal Myriam Asmani William Topa Rights Watch Court / Cour pénale inter- Marie Frechon Smit Patel Louise Hunt nationale Stuart Price pina messina Paulo Palermo/Accoglie- pingnews.com Eskinder Debebe Nicolas Jehly Rete Tarek RABAA’s case Sylvain Liechti Gabriel Côté Emergency Staton Winter Seth Doyle Francesco Malavolta/ OTHER Eric Kanalstein Toa Heftiba UNHCR EPA/Facundo Arrizabalaga Bikem Ekberzade Javier Graterol Rosie Scammell Amanda Voisard Jennifer Moreno Giammarco Boscaro Kevin McElvaney/MSF Evan Schneider Christian Fregnan Sudhakaran James Baldwin Flickr Sophia Paris Anthony Intraversato Katja Hasselkus Devra Berkowitz Brooklyn Morgan Eagle-wings Alexis Chloe Tambako UNSPLASH Aziz Acharki National Museum of the Sebastian Pichler U.S. Navy Tim Evans IRINnews Mike Goad Rudy Strydom Anthony Morland sébastien amiet Jordan Andrews ICC Meta Bunk Sharon Mccutcheon Wikimedia Commons AMISOM Public Nicolas Ladino Silva Aweys Osman Yusuf Information

6 Why

Jafar Javan Director a.i.

United Nations Interregional Crime and Justice Research Institute (UNICRI)

Justice is not relative in the global community

What does really justice mean? Is there a justice for all? The etymology associates the word justice to righteousness, equity and just behaviour. Over the centuries, justice has been always considered as a central virtue to both the moral and political dimensions of societies. Despite the many – and sometimes opposite – interpretations, justice should be aimed at establishing balance among powers and societal order. Justice is the litmus test for the well being of the community as well as for the conduct of its governors.

Modern philosophers rejected the idea of justice as a natural moral and political absolute value. Jus- tice was thus interpreted as a social contract, something of a public construct or artefact which in the “state of nature” would not exist because we are motivated by antagonism and selfishness that result in non-cooperative behaviours. Other lines of thought were centered around the causal determinism and substantial egoism driven by survival instinct and self-interest. In this sense, justice was also seen as a tool to guarantee a balance between personal liberty and public order.

Actually, defining justice has always been about framing the values of human beings, their needs, their aspirations and their interactions with the other members of their community. All over the centuries, the most advanced societies were those striving to develop justice systems re- flecting values and virtues, political and moral obligations. These were the societies were equal rights, peace and cohesion were central. By contrast, history has casted an ignominious shadow on those who built empires funded on violence and inequity. For those, justice was nothing but an instrumental archi- tecture of rules to justify repression and wars. Too many dictators used law to trample human rights, maintain the status quo and impose a regime of terror. 7 Nullum crimen, nulla poena sine lege. A crime does not exist and is not punishable if there is not a law that defines it. This guarantees that a person cannot be arbitrarily condemned for a crime that is not regulated by a law. On the other hand, this is where the very dilemma of justice lies. If a country does not regulate certain offenses, the offenders are not punishable. The crime does not exist. The crime becomes a construct of a specific culture.

The question then arises: are we, as a global community, sharing the same values and principles? Are we adopting the same concepts that help shaping appropriate justice systems aiming at addressing any type of violation against human beings and triggering a process of cohesion and development? One can argue that justice as well as human rights are artificial values defined by different contexts and cultures. This relativity that feeds violence and impunity has to be strongly condemned. No regime, no offender, should feel that justice is merely an option, a dress that can accommodate different needs time by time. There is no such relativity in the preamble of the UN Charter signed in 1945: We people of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom.

There is no such relativity in the provisions of the Universal Declaration of Human Rights. 70 years ago

8 Why the General Assembly proclaimed the Declaration and the words of its preamble do not leave space for relativity: Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people, Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law. The articles of the Dec- laration tell us about a humanity that is progressing towards a new model funded on universal principles to be protected by a new model of universal justice.

Kant’s vision projects a model of global law shared by all peoples of the earth, which prevails everywhere to the point that a violation committed in one place of the world is perceived as such in all the other places. This ideal of universal justice was echoed two centuries later in UN Secretary-General Dag Hammarskjold’s belief that the pain caused by a wound in the world is heard at the same time in the body of humanity. Kant’s revolutionary theory of justice is the first approaching the idea of justice as an absolute moral value governing international relations and the world. Justice is not relative to whatever ends and objectives but is an independent, objective, non-arbitrary variable. The categorical imperative as the principle of duty applicable to all persons as moral agents is the pillar of this vision: it is our duty to be just simply because this is the right thing to do. Justice is the only innate human right we have as equal rational agents, and is the right of freely follow our own will so as long as it is compatible with the freedom of everyone else in accordance with a universal law.

Today, the images of death and devastation on the numerous war fronts are open wounds in our collective conscience. We see people disappearing, jailed without a fair trial, abused, silenced and forgotten. Much progress is needed to foster international justice and peace. Today weapons of mass destructions and new technologies are threatening the survival of the human species. Today we face risks without frontiers from climate change to terrorism, but we are not able to share common solutions. We cannot afford and get stuck in this paralysis anymore. When we see the rising of nationalism and the retreat from transnationalism, we should remind ourselves the mistakes of the past. As global community, we have developed tools such as conventions, courts, and mechanisms for coordination and mutual legal assistance. But still, in too many places old paradigms and regressive concep- tions of society are impeding a real progress towards universal values. We live in a world that is exponentially subject to the effects of a techno-financial revolution as well as to the de-territorialisation of citizenship. We are all interconnected and we share common challenges. We should acknowledge that we are just a global community. Our cooperation models in terms of justice and human rights should operate at the same scale. Much more should be done for the universal equality of human beings as cosmopolitan citizens to be achieved.

The Chart of the United Nations, the UN Declaration of Human Rights as well as the International Tribu- nals are among the most important achievements of the 20th century. We need international justice to reinvigorate and protect them. Despite the progresses and the achievements of the present, the atrocities committed in many countries in the name of rules and principles that blatantly violate human rights require international justice to be strengthened. Justice cannot be reduced to pragmatic utility, and the global community together with its member states must recognize the need to develop a common cultural model to sustain the universal idea of justice.

9 Index No place for young people

{ Theme issue

7 Justice is not relative in the global community by Jafar Javan

13 Pennies from heaven by Dilia Marcela Ortiz Fonseca

24 The questionable ethics of civil forfeiture by Dick M. Carpenter II

29 Enforcement of international sentences in light of the ICC Decision in Lubanga and Katanga cases by Filip Vojta

36 A legal response to today’s reality: economic crimes as crimes against humanity by Sunčana Roksandić Vidlička

InFocus

42 Illicit trade: the worldwide, multi-billion dollar funding stream by Sharon A Melzer

57 Interfaith dialogue as a means to address incitement to violence based on religion or belief by Ahmed Shaheed

65 The use and abuse of the ‘Clash of Civilizations’ rhetoric by Alessia Vedano

80 When Mafia and jihadists team together by Alessio Postiglione 86 The truth in international criminal trials: A chance to write history? by Andrés Felipe Morales Arias

Photoreportage

93 Restoring Dignity and Hope for Refugees by Valentina Tamborra

10 Theme issue }

120 The return of hybrid courts: omen or promise? by Davide Brunone InFocus

126 The art of crime - New models of governance, compliance and accountability for the art world by Marcílio Franca

Theme issue

132 Is there a unique perspective to transitional justice? by Golriz Moezzi

InFocus

138 Is Italy facing a migration emergency? Italy’s challenge and its new legal framework by Clarissa Spada

Storytelling 151 Drawings from the border by Francesco Piobbichi

Theme issue

160 Equality of arms: the continued development of due process rights at courts of international character by Bradley Alan Fuller, J.D.

InFocus

168 Preventing crime and violent extremism by strengthening youth resilience: Implementation of the BOUNCE resilience tools in 10 European cities by Christiaens, E., Hardyns, W., Pauwels, L & Klima, N.

180 On SDG 16: Peace, Justice, and Strong Institutions by David M. Malone United Nations University

11 Women

Always in the front line to defend rights and peace. Always the ﬁrst to be hit by violence and conﬂicts.

#TimeIsNow #Womenday #IWD2018 #TimesUp @UN_Women #Standup4humanrights © unsplah/Sebastian Pichler

“Pennies from heaven” Three case studies on civil forfeiture by Dilia Marcela Ortiz Fonseca

Colombia, 19th June 1991: Pablo Escobar turns himself in, a few hours after a Constituent Assembly overturned the extradition of Colombian nationals. Seven years of terrorism and political murders perpetrated by the Medellin Cartel and “The Extraditables”, whose motto was “we prefer a tomb in Co- lombia, than a dungeon in the US”, were over. That day, Colombia knelt down to the narcos: with no extradition law, no money laundering legislation, no international judiciary cooperation and a level of corruption that had reached the highest instances of power.

However, the same Constituent Assembly introduced in the Political Charter article 34, which bans the criminal sanctions of exile, life-time sentences and confiscation, but allows the so called extinción de 13 F3 Magazine Justice is not a construct “Pennies from Heaven” Three case studies on civil forfeiture dominio, or extinction of prop- lombian Congress approved the war for more than twenty years erty, for those assets deriving first law of extinción de domin- were assassinated after hav- from illicit enrichment, in cas- io (law 333/1996) allowing the ing carried out the Maxi-Trial es of embezzlement of public State to confiscate the proceeds (1986-1992): the most important funds, or with serious harm to of crime at any time - even af- trial against the Sicilian mafia. the social morals. The extinción ter the death of the perpetrator - de dominio, sought to be intro- when there is unjustified dispro- duced by a State of Emergency portion between the value of the Colombian decree in 1980 and then de- owned property and the feasible Congress approved clared unconstitutional for vio- income of the owner. The im- lating the fundamental right of mense fortunes of the traffick- the first law of property, passed unnoticed on ers started to fill the public cof- extinción de this occasion: it was sown like fers and criminals realised that a seed that later developed into the inclusion of this measure in dominio (law the strongest weapon of the Co- the Political Charter was a fatal lombian Government against trap, for it hits them where it 333/1996) allowing corruption and organised crime. most hurts: the wallet! the State to

Still, many years had to go by The situation in Italy, in the confiscate the before this constitutional pro- eighties and early nineties, was proceeds of crime vision, which changed the rules not all that different. In fact, 1992 of the game for drug cartels and was a tragic year in the history at any time corrupted officials, could be of Italy. Giovanni Falcone and implemented. In 1996, after the Paolo Borsellino, two criminal The peculiarity of this trial, death of Pablo Escobar, the Co- judges engaged in the anti-mafia where 474 mafiosi were indicted

14 F3 Magazine Justice is not a construct “Pennies from Heaven” Three case studies on civil forfeiture and 360 were convicted (includ- law: the Racketeer Influenced the thing), was put into place. ing 19 life sentences to the ma- and Corrupt Organisations Act, In 1986, the Mafia Commission fia bosses), was the innovative known as RICO Act, to inaugu- Trial, the equivalent of the Ital- approach of holding the mafia rate what President Nixon called ian Maxi-Trial, was carried out: as an organisation responsible the “war on drugs”. One of the eleven people, including the for its criminal activities instead penalties imposed by the RICO heads of New York’s so called of trying individuals for isolated Act, was the mandatory confis- “Five Families” of the Cosa Nos- crimes. This was possible thanks cation of the proceeds of crime. tra, were indicted and sentenced to the first Italian anti-mafia law This measure was the first for- to 100 years imprisonment - the of 1982, known as “Rognoni-La- feiture in personam (against the maximum sentence available torre law”, that criminalised the person) introduced in the U.S. under the RICO Act. In the same act of belonging to a mafia-type after its prohibition in the late year, the Assets Forfeiture Fund organisation. This law envisaged eighteenth century by the US of the Department of Justice had a “mandatory confiscation” for Constitution and the abolition an income of 93,7 million US the assets directly linked to the of criminal confiscation of es- dollars. crime, as well as a “preventive tate as a punishment for federal confiscation” for the proper- crimes by the first US Congress ty of the person affiliated to a in 1790.1 Its purpose was to at- One of the criminal organisation in order to tack the illicit activities of the penalties imposed avoid its reuse in other criminal mafia by taking possession of activities. the ill-gotten gains of criminals. by the RICO Act, was the mandatory The latter was declared unconstitutional for contradicting the By shifting from confiscation of the principle of presumption of in- prosecuting nocence and Italy, like Colom- proceeds of crime. bia, remained without a com- the criminals This measure was prehensive legal framework on to prosecuting forfeiture until 1992, when a the first forfeiture new law (decree law 306/1992) their assets, in personam established the “enlarged confiscation,” which allowed the ju- this law was the (against the diciary to attack the proceeds of cornerstone for crime with the only proof of the person) introduced affiliation of a person to a ma- a more efficient in the U.S. fia-type organisation, or his/her confiscation “criminal lifestyle.” By shifting How is civil forfeiture differ- from prosecuting the criminals system in Italy ent from the criminal confis- to prosecuting their assets, this law was the cornerstone for a During the Reagan administra- cation? more efficient confiscation sys- tion the Comprehensive Crime There are three different kinds tem in Italy. Control Act of 1984 amended of federal forfeiture in the US: RICO’s provisions on forfei- criminal forfeiture; civil judicial On the other side of the Atlantic, ture, and a “civil forfeiture”, forfeiture and administrative for- the United States was also setting confiscation in rem (against feiture. up a legislative strategy against organised crime. Early in 1970, 1 Act of April 30 1970. Chasing “Criminal forfeiture is an action the Congress passed the equiv- Criminal Money: Challenges and brought as a part of the criminal Perspectives On Asset Recovery alent of the Rognoni-Latorre prosecution of a defendant. It is in the EU, edited by Katalin Ligeti, an in personam (against the per- Michele Simonato, 2017. 15 F3 Magazine Justice is not a construct “Pennies from Heaven” Three case studies on civil forfeiture

© unsplah/Tim Evans son) action and requires that the Criminal rights are extinguished and pass government indict (charge) the on to the local or federal state, property used or derived from forfeiture is an from the moment when the the crime along with the defen- property was used illegally and dant. If the jury finds the proper- action brought not from the moment when it ty forfeitable, the court issues an as a part of was seized. The “relation-back” order of forfeiture. Civil judicial doctrine applies in the civil for- forfeiture is an in rem (against the criminal feiture whereas in criminal cas- the property) action brought in prosecution of a es, only the assets belonging to court against the property. The the person, at the moment of the property is the defendant and no defendant conviction, can be confiscated.4 criminal charge against the owner is necessary. Administrative Another difference between forfeiture is an in rem action that criminal and civil forfeiture is Another permits the federal seizing agen- that the latter places the proba- difference cy to forfeit the property with- tive burden on the defendant. out judicial involvement. The The onus probandi is invert- between criminal authority for a seizing agency ed, so the persons claiming to and civil forfeiture to start an administrative forfei- be the legitimate owners of the ture action is found in the Tariff “tainted assets” have to prove is that the latter Act of 1930. Property that can their licit source, otherwise the be administratively forfeited is: court concludes “on the balance places the merchandise the importation of of probabilities”3 that the assets probative burden which is prohibited; a convey- are directly or indirectly linked ance used to import, transport to a criminal activity. The con- on the defendant or store a controlled substance; sequence is that the property a monetary instrument; or oth- How does civil forfeiture work er property that does not exceed Agencies, U.S. Department of Jus- in practice? US 500.000 dollars in value.”2 tice, March 1994. I asked Public Defence Attorney 3 A lower standard of evidence used 2 A Guide to Equitable Sharing of in civil cases, as opposed to the 4 Suppressing Terrorist Financing and Federally Forfeited Property for criminal standard of proof: “beyond Money Laundering, Jae-myong Koh, State and Local Law Enforcement reasonable doubt.” 2006. 16 F3 Magazine Justice is not a construct “Pennies from Heaven” Three case studies on civil forfeiture

Bradley Fuller, a Drug Court ex- the vehicle of the suspect, which However, local and state law-en- pert active in Chicago. was used in a drug deal, and in- forcement agents can carry out stitute a civil forfeiture. While the civil forfeiture outside a crimi- “A common case might look like defendant is entitled to a lawyer nal investigation and seize assets this”, he said. “A civilian is sus- in the criminal case, there is no without any warrant simply on pected of dealing drugs. The po- such entitlement to an attorney the basis of “suspicion”. Some lice conduct an investigation, in- in the civil matter. Many defen- practices, such as highway stops cluding ‘controlled buys’ which dants are obviously unable to re- to seize cash from motorists, are drug deals that are arranged tain private counsel and are thus have been extremely controver- by ‘snitches’ who are working at a huge disadvantage in the sial, especially after the “war on for the police. Law enforcement forfeiture case. The state’s bur- terror” was declared by presi- officers will conduct surveil- den of proof is much lower in the dent Bush in September 2001. lance of the controlled buy and civil case. In fact, the state must Seizures of cash on highways record evidence of the criminal only show by a preponderance of skyrocketed, with only 1/6 being activity. The police will then of- the evidence that the item seized challenged, in part because of ten obtain a search and/or arrest was used in the commission of a the high costs of legal action. warrant based on the evidence crime. The burden shifts to the they have. The suspect is then defendant to demonstrate that Property can also be forfeited arrested and charged with the the item was not an instrumen- through the “Equitable Sharing crime of delivering a controlled tality of crime, and they must Program” of the Department substance. During the search and try and do this without making of Justice’s Asset Forfeiture arrest, officers will seize instru- statements or producing evi- Fund created in 1984. Through mentalities of the crime such as dence that could jeopardise their this program assets that have scales, cell phones, ledgers and criminal case - which can be very been seized by local or state cash. Simultaneous to the crimi- tricky.” law enforcement authorities nal case, the state may also seize can be confiscated using feder- 17 F3 Magazine Justice is not a construct “Pennies from Heaven” Three case studies on civil forfeiture

al laws, either because they are Local and state Missouri, described civil for- seized during a joint operation, feiture during a Police Review or because the federal agency law-enforcement Board in 2012, as “pennies from “adopts” the property. In those heaven.”6 cases, 80% of the proceeds go agents can carry back to the local or state law out civil forfeiture The increase in civil forfeiture enforcement agencies and the since the creation of the Equi- remainder is kept by the federal outside a criminal table Sharing Program and the government. This financial in- investigation consequential participation of centive for federal forfeiture has local and state law enforce- turned equitable sharing, partic- and seize assets ment agencies in civil forfeiture ularly after the 9/11 terrorists gains has been notorious, with attacks, into “a virtual cash cow” without any proceeds going from 27 million for local and state law enforce- warrant simply dollars in 1985 to 556 million ment agencies.5 in 1993, and then soaring to 4.2 on the basis of billion dollars in 2012.7 The Civ- 5 According to criminal justice il Asset Forfeiture Reform Act scholars Gregory M. Vecchi, Robert “suspicion” T. Sigler, (2001), Economic factors (CAFRA) of 2000 broadened the in drug law enforcement decisions, To illustrate this phenomenon, Attorney General’s authority to cited in Policing for Profit: The the police chief of Columbia, Abuse of Civil Asset Forfeiture, Dick 6 Civil Forfeiture: Last Week Tonight M. Carpenter II, Ph.D., Lisa Knepper, with John Oliver, HBO, 2014. Angela C. Erickson and Jennifer Wesley Hottot and Keith Diggs. 7 Taken, Sarah Stillman, the New McDonald, with contributions from Institute for Justice, 2017. Yorker, August 12, 2013. 18 F3 Magazine Justice is not a construct “Pennies from Heaven” Three case studies on civil forfeiture restore forfeited assets to the and return, when appropriate, against public health, security victims of any offence that give those proceeds to the people and tranquillity. The preven- rise to the forfeiture, including harmed. In the Obiang case, 20 tive measure can be carried out civil forfeiture. In 2002, the De- million U.S. dollars were given by various entities, such as the partment of Justice initiated a to a charitable organisation to be Public Prosecutor, the National procedure called “restoration”, used by the people of Equatorial Anti-mafia Prosecutor, the Di- which allows the use of forfeited Guinea; 10.3 million are forfeit- rector of the Investigative Divi- funds to pay restitution, namely, ed to the U.S. and will be used sion Anti-mafia and the Police the equitable remedy for victims for the benefit of the people of Commissioner. The Anti-mafia of any crime, as journalist Sar- Equatorial Guinea to the extent Code foresees that the confiscat- ah Stillman of The New Yorker permitted by law. ed assets have a social function: points out: they must be returned to the community and be administered “The rise of civil forfeiture has, Federal agents by civil society. in some areas, proved to be of have used great value. It allows the gov- Two different regimes coexist ernment to extract swift penal- forfeiture to hunt in Italy: the preventive measure ties from white-collar criminals down migrant (in rem) and the mandatory con- and offer restitution to victims fiscation (in personam) which of fraud. Since 2012, the Depart- smugglers, is still in place and, in order to ment of Justice has turned over be applied, there must be proof more than 1,5 billion US dollars environmental of the “social danger” posed by to 400,000 victims of crime, of- offenders and the defendant. The latter can ten in cases of corporate crimi- also apply to corporations, as a nality.” individuals taking criminal sanction and not as a advantage of preventive measure, and can be Federal agents have used for- extended to the heirs of the con- feiture to hunt down migrant highly lucrative victed person within five years smugglers, environmental of- of his/her death (law 575/1965). fenders and individuals taking illicit activities advantage of highly lucrative il- Is the double-track system licit activities. It has also proved In Italy, a “non-convic- working in Italy and how is the to be a powerful weapon when tion-based” (NCB) confiscation NCB confiscation perceived it comes to hitting proceeds of became possible in 2008 with by civil society? foreign corruption. An exam- the law 92/2008. The legislature I asked Nicola Palmiero, a po- ple is the Department of Justice decided to create a “preventive lice officer of the Italian Asset action in 2014 against Teodoro measure” separated from the Recovery Office and this is his Obiang, son of the President of criminal procedure for a cate- statement: Equatorial Guinea, that resulted gory of “socially dangerous” in- in a settlement of its civil forfei- dividuals. The 2011 Anti-mafia “All in all, the double-track sys- ture case for 30 million dollars. Code (law 159/2011) confirmed tem works. There is information This case was brought under the application of the preventive sharing between police offices the Kleptocracy Asset Recovery measure for assets belonging to for transnational cases and for Initiative launched by a team of individuals that are usually ded- asset recovery through the IN- prosecutors of the Department icated to illicit trafficking, with TERPOL International Asset Re- of Justice working in partnership a life-style depending totally covery platform, Camden Assets with federal law-enforcement or partially on criminal activi- Recovery Interagency Network agencies to forfeit the proceeds ties, posing a threat to the mor- (CARIN) and other regional and of foreign official corruption al or physical integrity of mi- global initiatives. However, most nors and/or committing crimes

19 F3 Magazine Justice is not a construct “Pennies from Heaven” Three case studies on civil forfeiture of the national resources are investigative matters is done deriving directly from a provi- used for the investigation and through EUROJUST. Mutual co- sion of the Political Charter that the conviction of criminals and operation works well when it guarantees private property in much less is dedicated for asset comes to conviction-based con- accordance with civil laws, but at recovery. Italian public opinion fiscation, but NCB confiscation the same time provides a strong in general is in favour of NCB orders are still not recognised in limitation to this right (art. 58 of confiscation: it approves and all countries. The EU has accept- the Political Charter): property encourages the measure, but it ed non-criminal confiscation has a social function and there- does not consider it a priority procedures only in cases of tax fore implies obligations, and it because it ignores how much is evasion and has accepted the ex- has an inherent ecological func- being done by the police in this tended confiscation in cases of tion. The State can therefore ex- sector. The greater involvement serious crimes like terrorism or tinguish such right in two cases: of civil society in the adminis- in cases of gross disproportion if the property was not acquired tration of the confiscated assets between the assets declared and according to the legal standards is generating a higher level of the assets owned. The European (its origin), or if the property is transparency and trust. It is true Court of Human Rights (ECHR) used in a way that causes serious that there is still a lot to be done, has also validated the enlarged harm to the social morals (its but in the last years, thanks to confiscation to third persons and function). This includes crimes the NCB confiscations, we have corporations. against public health, the eco- made great progress and we nomical and social order, the are among the countries in Eu- A new Directive of the Europe- natural resources and the en- rope with the highest figures for an Parliament and the Europe- vironment, public security, the confiscations. Based on recent an Council (dir. 2014/42/EU) public administration, the con- available statistics, I think Italy accepts the NCB confiscations stitutional and legal regime and has one the most efficient asset only in cases where a criminal other crimes, such as kidnap- recovery systems in Europe.” procedure is not possible and ping, extortion and pandering. as long as guarantees of a criminal trial are in place (protec- According to the Constitution, The greater tion of third bona fide persons, the declaration of extinción involvement of presumption of innocence, due de dominio needs to be done process and notifications). The through judiciary sentence or civil society in the ECHR conceives confiscation order. For many years, under the administration of only as a criminal sanction first extinción de dominio law, within a criminal procedure, and this role was assigned to crimi- the confiscated even if domestic laws consid- nal judges and could not be car- er in rem confiscation as civil, ried out simultaneously with a assets is the principles and guarantees criminal procedure because of generating a of criminal proceedings, such as the principle of double jeopar- the presumption of innocence dy. This had greatly limited the higher level of and the prohibition of retroac- practice’s efficiency. Law 793 of transparency and tivity, must prevail. 2002 changed this: extinción de dominio became independent trust How does extinción de domin- from a criminal procedure and io work in Colombia? the action was passed on to the In fact, the Italian confiscation Extinción de dominio is a Consti- General Prosecutor’s Office, system is considered a model tutional Action. It is not crimi- which had enormous powers to to be followed in Europe where nal, nor civil. It follows the prin- investigate and no other judicia- there is no harmonised legis- ciples of an in rem confiscation, ry controls to safeguard funda- lation. Judicial cooperation for but it is an autonomous action mental or subjective rights. This

20 F3 Magazine Justice is not a construct “Pennies from Heaven” Three case studies on civil forfeiture

© unsplah/Sharon Mccutcheon was highly criticised by human ernment. The new extinción de model to the neighbouring coun- rights guardians, but the Consti- dominio code has created a spe- tries. “Colombian extinción de tutional Court expressed a fa- cial jurisdiction with specialised dominio is a very refined prod- vourable opinion of the special prosecutors and judges. This uct: the fruit of twenty years of powers of the General Prosecu- special jurisdiction will play an experience” he said. The ho- tor’s Office in this matter, giv- important role in the transition- mogenisation of domestic leg- en the fact that the declaration al justice process that the coun- islation on this crucial matter of extinción de dominio is not try is currently undergoing. has allowed inter-regional co- a criminal procedure, bound to operation through the creation the principles of criminal law, “The Colombian model of ex- in 2000 of the Financial Action but a completely autonomous tinción de dominio has been ex- Group of Latin America (GA- constitutional action. ported and replicated by most FILAT) and its Network System Latin American countries from of Asset Recovery (RRAG) to In 2014, the legislature codified the Rio Grande river to Patago- combat money laundering and extinción de dominio into one nia, thanks to UNODC’s techni- the financing of terrorism. single law (law 1708/2014) that cal assistance and the Stolen As- streamlined the procedure to set Recovery initiative (STAR) Is international cooperation in make it less lengthy and further done in partnership with the confiscation matters working? protect the rights of third bona World Bank”, explained Wilson In the international arena, when fide persons. The assets from Martínez Director of the Mon- it comes to the recovery of il- the extinción de dominio go to ey Laundering and Extinción de licit assets there are important FRISCO (Fund for the Reha- dominio Observatory of Nuestra networks that play an important bilitation, Social Inversion and Señora del Rosario University role, such as CARIN, as well as Fight against Organised Crime) and author of many books and regional networks for asset re- and are allocated as follows: 25% articles on this topic. Martínez covery: the Regional Asset Re- for the judiciary branch, 25% for himself has led the campaign covery Network of GAFILAT the General Prosecutor’s Office with UNODC across Latin Amer- (RRAG), the Asset Recovery In- and 50% for the National Gov- ica proposing the Colombian teragency Network Asia Pacific 21 F3 Magazine Justice is not a construct “Pennies from Heaven” Three case studies on civil forfeiture

(ARIN-AP), the Asset Recovery developed precious know-how extinción de dominio code lays Interagency Network for West and highly sophisticated legisla- strong emphasis upon the pro- Africa (ARINWA) and the Asset tion that can inspire other coun- tection of third bona fide per- Recovery Inter-agency Network tries when choosing their own. sons to avoid abuses of the kind for Southern Africa (ARIN-SA). The last figures of the Fund for committed in the past. However, there is still a long way the Rehabilitation, Social Inver- to go considering that less than sion and Fight against Organised With regards to Italy, some im- 1% (around 0.2%) of global illic- Crime show an equivalent of pressive figures show that the it financial flows are currently half a million U.S. dollars in as- double-track confiscation sys- seized and frozen,8 only 2.2% of sets (after extinción de dominio tem works. In fact, in 2014 and the estimated proceeds of crime sentence) and about 1,5 million in 2015 confiscations amounted were provisionally seized or U.S. dollars in liabilities (pend- to 1,5 billion euros. In October frozen in the EU (annual value ing extinción de dominio sen- 2017, the Anti-Mafia code has estimated to 2.4 billion euro) tence).10 Colombia is currently been reformed to speed up the and only 1,1% of criminal profits working on rationalising the ex- NCB confiscation procedure and in the EU were ultimately con- tinción de dominio framework enlarge its range, strengthen the fiscated.9 which means applying it to mac- protection to the rights of third ro-crime to avoid the overload parties and make the admin- Is there an ideal model of con- of cases with minor impact on istration of seized and confis- fiscation? the illicit economy and the ex- cated assets more efficient and There is no flawless asset recov- haustion of the judiciary system transparent. Having those ends ery system. However, countries which had occurred in the past. in mind, the reform has intro- like Colombia and Italy have Colombia is also introducing the duced specialised sections deal- principle of pro-activity instead ing with preventive measures at 8 UNODC Estimating Illicit Finan- of reactivity, understood as “in- lower and higher courts; it has cial Flows Resulting from Drug vestigating to seize instead of extended the cases of mandatory Trafficking and other Transnational seizing to investigate.” The new confiscation and the crimes that Organised Crimes, 2011. lead to liability of corporations; 9 EUROPOL Criminal Asset Recov- ery in the EU. Survey of Statistical 10 FRISCO financial statements 2014- it has restructured the public Information 2010-2014. 2015. agency for asset management 22 F3 Magazine Justice is not a construct “Pennies from Heaven” Three case studies on civil forfeiture

(ANSBC), and, most important, need to respond to the urgent principles of their domestic law it has included preventive mea- boiling matters pressing them and with the nature of the judi- sures for suspects of terrorism, in the area of local and/or glob- cial and other proceedings. The stalking and crimes against the al threats to peace and security. provisions of this article shall not public administration such as However, they should find the be construed to prejudice of the corruption, extortion, embez- ways to do it without creating rights of bona fide third parties” zlement and influence peddling. new systems of despotism and (paragraphs 7 and 8). Such reform, that stemmed from tyranny which turn against the a civil society initiative, entails a citizens that they ought to pro- “UNICRI promotes a balanced major coup against government tect. approach”, stated Mr. Shaw. white-collar criminals. “Through our various projects, Is it possible to achieve a bal- we encourage all States to adopt, Finally, the U.S. model of civ- ance between law enforce- where possible, a mechanism il forfeiture has proved to be ment and human rights pro- allowing for NCB forfeiture of very effective in intercepting tection? assets outside of the lengthy and organised crime and corruption James Shaw, Senior Legal Of- cumbersom e criminal process; at proceeds. However, the depen- ficer for Asset Recovery, with the same time, we motivate them dence of police departments the United Nations Interregion- to protect due process and bona on forfeited assets and cash for al Crime and Justice Research fide third party rights through their regular functioning, and Institute (UNICRI) believes it appropriate legislation and pro- the full discretional powers giv- is possible to achieve that fine cedures. Given that it is an in rem en to police officers to apply the equilibrium through a holistic action, which would not allow measure have led, according to approach. the court to deprive anyone of many scholars and journalists, to their liberty, the burden of proof excessive use of civil forfeiture The United Nations in general, can still be lower than in a crim- and, therefore, to abuses against and most particularly UNICRI, inal trial, so the State may show the fundamental rights of prop- follows what stated in the UN that the assets, more likely than erty and a fair trial. Convention against transnation- not, have an illicit origin. This al organized crime, art. 12 on holistic approach has proven, in The challenge lying ahead for confiscation and seizure: “States Colombia, Italy and in a number any State claiming to be under may consider the possibility of other countries, to be the right the Rule of Law is: how to find a of requiring that an offender formula to fight crime and avoid balance between the State’s “su- demonstrate the lawful origin of abuses that would pervert the per-powers” needed to crack- alleged proceeds of crime or oth- system characterised as ‘pennies down on crime and the protec- er property liable to confisca- from heaven’.” tion of human rights. States and tion to the extent that such a re- the international community quirement is consistent with the

The author

Dilia Marcela Ortiz Fonseca was born in Colombia in 1969. She studied Law in Bogota at the Univer- sity of Nuestra Señora del Rosario and graduated in 1993. She was active as a lawyer in Colombia in the oil private sector and then specialised in International Relations and Diplomacy at the Vienna Diplomatic Academy. From the year 1996 to 2000, Mrs. Ortiz Fonseca worked at UNODC as an Associate Expert in the field of drug control. She is the author of “Des-Nudos”, 2008, and “Calle 14 Tras las Huellas del Homo Amans”, 2013.

23 © unsplash / Victor Sánchez Berruezo

The questionable ethics of civil forfeiture by Dick M. Carpenter II, PhD

On a cool, sunny November day, Mark Brewer - a disabled decorated U.S. Air Force veteran - was driving through the state of Nebraska on his way to Los Angles to visit his uncle. While there, Brewer planned to make a down payment on a house. To that end, he was carrying more than $60,000 in cash, that he had saved during his military service and from disability payments.

After allegedly crossing traffic lanes without signaling, Brewer was stopped by a sheriff’s deputy. During the stop, the deputy performed a criminal background check, which “revealed no major violations.” The deputy then walked around the car with a canine unit, and the dog alerted to the trunk. When he searched the trunk, the deputy found the cash in two backpacks that had a “strong odor of raw marijua- na,” but no actual drugs. F3 Magazine Justice is not a construct The questionable ethics of civil forfeiture Although the deputy found no Civil forfeiture is based on a Civil forfeiture is evidence of criminal wrong- legal fiction in which the gov- doing and did not even issue ernment proceeds against the based on a legal Brewer a traffic citation, he still property directly as if the prop- seized the cash and started a le- erty itself somehow commit- fiction in which gal proceeding to keep it perma- ted a crime. America’s civil the government nently on the suspicion that it forfeiture laws can be traced to was somehow related to crimi- 17th-century English maritime proceeds against nal activity. Brewer challenged law, which permitted courts to the property the forfeiture in court but lost, obtain jurisdiction over proper- never to see his money again. ty when it was virtually impos- directly as if sible to obtain jurisdiction over Civil forfeiture is a mechanism owners - pirates, for example the property by which law enforcement can - who had violated the law. Al- itself somehow seize and keep property that though civil forfeiture remained is purportedly connected to a a relative backwater in Ameri- committed a crime crime. In contrast to criminal can law for much of the nation’s forfeiture, where property is history, its use expanded greatly Proponents of civil forfeiture taken only after a criminal con- during the early 1980s with the argue that it fights crime, both viction, civil forfeiture allows War on Drugs. Today, unmoored by removing assets required for law enforcement to take prop- from the practical necessities certain criminal activities - a erty from innocent people - like of enforcing maritime law, civil proposition with almost no em- Brewer - who have never been forfeiture is a popular tool of law pirical support - and by reduc- formally charged with a crime, enforcement. ing the profitability of crime. let alone convicted of a crime. But reducing the profitability

25 F3 Magazine Justice is not a construct The questionable ethics of civil forfeiture of crime can itself be profitable. sumed innocent. If it cannot, the grandmother had taken along in Forfeiture laws at the federal accused goes free. The burden of case she wanted to put a down level and in most states award proof lies with the government. payment on one of the condos. a portion, and sometimes all, But in civil forfeiture in most Fourteen miles inside Georgia, of the proceeds from forfeited states and at the federal level, an state troopers pulled them over property to law enforcement innocent owner bears the bur- for speeding. During the stop, agencies for their own use. The den of proving he did not know officers asked the family if they laws in some jurisdictions even about or consent to the illegal had any bombs, drugs, guns, or provide the opportunity for use of his property. The owner money in the car. Gentile men- agencies to use forfeiture pro- is, in effect, guilty until proven tioned the money in her trunk. ceeds to pay salaries, benefits, innocent. The troopers called in a drug dog and overtime, which means law to search the vehicle but found enforcement personnel could Taken together, these elements nothing illegal. Nevertheless, af- derive a direct personal benefit of civil forfeiture laws put own- ter detaining the family for six from forfeiture. Allowing agen- ers at a significant disadvantage hours on the side of the road, cies to reap financial rewards while incentivizing law enforce- the police seized the cash and from forfeiture can distort law ment to engage in and succeed at sent them on their way - without enforcement priorities, shifting forfeiting property. And succeed charge (other than a speeding the focus from fighting crime to they have. From 2001 to 2016, citation). Numerous newspaper generating revenue. the federal government took in stories in recent years demon- more than $35 billion through strate this is not an isolated in- The bad incentives they create forfeiture. State and local law cident. are not the only problems with enforcement took in hundreds civil forfeiture laws. They also of millions more, although the have a low standard of proof re- exact number can never be Forfeiture laws quired to forfeit property in most known since many states do not incentivize the states and at the federal level. In require agencies to track or re- a criminal case, the government port their forfeiture activity. diversion of law must prove the accused’s guilt enforcement “beyond a reasonable doubt.” Mounting evidence suggests This high standard - the highest two prominent concerns. First, priorities in the American legal system as discussed above, forfeiture - is intended to protect against laws incentivize the diversion toward revenue- the possibility of convicting in- of law enforcement priorities generating nocent people. By contrast, the toward revenue-generating ac- standard used in civil forfeiture tivities. Second, because pro- activities is typically far lower, affording tections for property owners much less protection to owners. are so poor, forfeiture laws al- Forfeiture proponents will claim low law enforcement the op- these behaviors are within the Added to this is that the laws tion to seize property with no law - a position that is debat- also turn the presumption of evidence or charges of wrong- able. But even if legal, they raise innocence on its head for inno- doing. ethical issues. The United States cent property owners - people is a nation built on the premise whose properties are involved Alda Gentile’s story is illustra- that individuals and their rights in criminal activities without tive. Gentile, her son, and her come first, and government and their knowledge. In a criminal grandson were driving home to its powers second, with govern- case in the United States, the New York after looking at con- mental powers deriving from government must prove its case dos in Florida. In Gentile’s trunk individual rights, including prop- against the accused, who is pre- were $11,530 that the Long Island erty rights. Individuals may exercise their rights provided they 26 F3 Magazine Justice is not a construct The questionable ethics of civil forfeiture

© unsplash / Vladimir Proskurovskiy do not violate the rights of oth- But while all vast majority of seized proper- ers. And when they do, the pur- ty - upwards of 80 percent at pose of remedies is to ensure justified remedies the federal level - is forfeited in that they put things right. Forfei- civil proceedings devoid of any ture in the general sense, then, are forfeitures, not charges against, let alone convic- is a remedy “aimed at securing all forfeitures are tions of, owners. rights by restoring a pre-violation status quo.”1 Noted U.S. legal justified remedies scholar Roger Pilon explains: Property is seized Thus, before law enforcement on nothing more “Stated most generally, legiti- - whose police powers derive mate or justified remedies are from individual rights - can eth- than suspicion forfeitures: to require a wrong- ically impose upon a person’s doer to restore the status quo rights through seizure and for- Civil forfeiture is not unique by returning what his action feiture, it must have sufficient to the United States. Canada has taken is to require him to reason: “Take … without suffi- and the European Union have ‘forfeit’ those holdings that cient reason, and another wrong similar provisions. The Unit- 3 are necessary to that end. But has been committed.” ed Nations, too, has addressed while all justified remedies are civil forfeiture under the term forfeitures, not all forfeitures This, then, is the core ethical “non-conviction based forfei- are justified remedies. In fact, problem with civil forfeiture: ture” (NCBF). Framing it as a tool when not justified, forfeitures under cover of - and encouraged for combating anti-corruption, are themselves rights violations: by - civil forfeiture laws, those the United Nations Convention they take what belongs to the who have done no wrong, either against Corruption encourages person required to make the for- in fact or absent a conviction are countries to permit NCBF to re- feiture.”2 punished. As described above, cover stolen assets when crimi- property is seized on nothing nal convictions are truly impos- 1 R. Pilon, Can American asset forfeiture law be justified?, 39 N.Y.L. Sch. more than suspicion. And the sible, such as when the violator L. Rev. 311–33 (1994), at 330. is dead, has fled the jurisdiction, 2 Ibid. 3 Ibid, at 331. 27 F3 Magazine Justice is not a construct The questionable ethics of civil forfeiture

is immune from investigation or civil forfeiture still applied as scope to a very narrow applica- prosecution, or is essentially too such, we would likely not see tion where the property owner powerful to prosecute. the ethical controversies we see has unquestionably committed a today. To the extent other coun- crime and securing a conviction NCBF is therefore similar in con- tries and the United Nations fa- against that person is truly im- cept and scope to civil forfeiture cilitate civil forfeiture, they can possible. in the United States when it was avoid the ethical problems pre- still tied to maritime law. Were viously described by limiting its

The author

Dr. Dick Carpenter is a director of strategic research at the Institute for Justice and a professor at the University of Colorado.

28 © UN Photo/John Isaac

Enforcement of international sentences in light of the ICC decision in Lubanga and Katanga cases by Filip Vojta

Introduction

On 19 November 2015, following two specially-crafted agreements with the Democratic Republic of Con- go (DRC), the International Criminal Court (ICC) has transferred two of its convicted defendants, Con- golese nationals Thomas Lubanga Dylio and Germain Katanga, to serve the remainder of their sentenc- F3 Magazine Justice is not a construct Enforcement of International Sentences in Light of the ICC Decision in Lubanga and Katanga Cases es in a national prison facility in the enforcement practice of the es there. The structure of the DRC.1 The transfer represents a ICTY. system has been later adopted precedent in the practice of en- by both the ICTR and the ICC, forcing the sentences of fully International criminal tribu- however, with some practical international criminal tribunals nals and the vertical system modifications. For instance, the – here also counting the ad hoc for the enforcement of inter- ICTR has tended to consolidate international tribunals, i.e. the national sentences the majority of its convicts in International Criminal Tribu- Mali and Benin, whereas the nal for the former Yugoslavia The activation of the ICTY in ICC seems to follow the disper- (ICTY) and the International 1993 marked the “rejuvenation” sion model of the ICTY, where Criminal Tribunal for Rwanda of international criminal justice smaller groups of convicts are (ICTR) – as for the first time the after World War II. Besides pro- usually dispersed among dif- state of origin of the perpetrator viding at the time a much-need- ferent states. In fact, seven out has been effectively decided as ed momentum for prosecution of 12 states with which the ICC the enforcement state. The deci- and adjudication of internation- signed enforcement agreements sion paves the way for discussion al crimes, the tribunal estab- are those European states host- over its potential impact on the lished a system for enforcement ing (or having previously host- future of the established system of sentences where, in the ab- ed) the ICTY prisoners (see Fig- for enforcement of international sence of official international ure 1): the current enforcement sentences, as well as its signifi- prison facilities, convicted per- decision of the ICC should be cance, particularly in the light of sons are being transferred to therefore analyzed against the the challenges the enforcement national prisons in those states backdrop of the enforcement system has encountered through that entered into special agree- experience these states share. ments for that purpose with the 1 See: http://www.bbc.com/news/ Tribunal, to serve their sentenc- world-africa-35144123.

30 F3 Magazine Justice is not a construct Enforcement of International Sentences in Light of the ICC Decision in Lubanga and Katanga Cases

Figure 1. The Hague Map of Eu- rope: blue indicating European states that entered into enforcement agreements with the ICTY; green indicating the states that entered into enforcement agreements with the ICC; and dark blue indicating the states that entered into enforcement agreements with both the ICTY and the ICC.

In the absence of official international prison facilities, convicted persons are being transferred to national prisons beginning of its mandate been al prisons. in those states dependent on the willingness of Arguably, many ICTY prisoners that entered into other states to accept its convicts and ex-prisoners would nowa- in their prisons. The validity of days testify to the prohibition special agreements the Security Council prohibition – which is still in force – as cre- was not questioned in the midst ating aggravating difficulties for Challenges for the legitimacy of the violent conflict in the Bal- them, but also for the ICTY as of the current enforcement kans as there was serious con- well as the enforcement states. system cern that national institutions The possibility to serve a pris- could not maintain impartial en- on sentence in a familiar envi- Due to the 1993 Security Council forcement in accordance with ronment (i.e. via social, lingual, prohibition2 to transfer the ICTY relevant human rights standards. cultural and family ties) is now- convicts back to their states of A shift of opinion started in the adays strongly encouraged by origin for enforcement, the ICTY 2000s when the ICTY, after the instruments regulating interna- (nowadays the Mechanism for introduction of Rule 11bis to its tional prison transfers on the International Criminal Tribu- normative framework, trans- grounds of supporting effective nals, or the MICT3) has from the ferred several of its accused to rehabilitation, yet rehabilitation the former Yugoslavian states does not seem to be a dominant 2 Report of the Secretary-General to stand trial there and, subse- principle guiding the enforce- Pursuant to Paragraph 2 of Security quently, incarceration in nation- ment of the ICTY sentences in Council Resolution 808 (1993) (S/25704, 3 May 1993). practice. Given its dependence 3 Mechanism for International Crimi- tences, of both ICTY and ICTR after on other states, as well as the nal Tribunals (MICT) is a comprised the completion of their mandates. fact that states themselves car- body established in 2010 to carry The ICTR-MICT branch became ry the costs of enforcement out a number of essential functions, active in 2012 and the ICTY-MICT including the enforcement of sen- branch in 2013. – something which the ICC en- 31 F3 Magazine Justice is not a construct Enforcement of International Sentences in Light of the ICC Decision in Lubanga and Katanga Cases

© UN Photo/Paulo Filgueiras forcement states are also bur- ons based on a “lottery” system, the enforcement inside Europe dened with – the ICTY could where prisoners’ personal con- and not on other continents, giv- never have demanded enforce- siderations regarding the state en that this would make the pos- ment from other states, even af- of enforcement would be taken sibility to maintain contacts with ter they signed the enforcement into account only if there would families meaningless and to that agreements. As a result, the be enough willing states at the degree aggravating already detri- ICTY has been forced to maneu- time to choose from. mental effects of imprisonment ver through criteria discretion- in a foreign state. Nevertheless, ally imposed by the states – such significant inconsistencies can as being willing to enforce only The possibility be observed between different sentences of a certain duration to serve a European states’ experiences or only a limited number of of enforcement practices.5 Dai- sentences (altogether or within prison sentence ly enforcement is subjugated to a certain time frame) – when in a familiar the national laws of the states negotiating a state of enforce- and the ability of states to meet ment.4 This means that prison- environment the needs of international pris- ers are being transferred to prisoners is based on general qual- (i.e. via social, ity and sensibility of their penal 4 For more information on the ICTY 6 state designation procedure, see lingual, cultural systems. In addition, the status Vojta, Filip (2014), “Punishment and of an ICTY prisoner, being both Sentence Enforcement of Serious and family ties) is Violations of International Hu- 5 See in detail supra Vojta 2014. manitarian Law Committed in the nowadays strongly 6 In general, considerable discrepan- Former Yugoslavia”, in A.-M. Getoš cy in treatment of the ICTY pris- Kalac, H.-J. Albrecht, M. Kilchling encouraged oners has been observed between (eds.), Mapping the Criminological Scandinavian states and those of Landscape of the Balkans: A Survey Perhaps the only rehabilitative Central/Western Europe, where on Criminology and Crime with prison conditions and treatment in an Expedition into the Criminal aspect the ICTY has continuous- Scandinavian states could be rated Landscape of the Balkans, Berlin: ly been able to fulfill concerns as having much better quality than Duncker & Humblot, pp. 401-427. in rest of Europe. 32 F3 Magazine Justice is not a construct Enforcement of International Sentences in Light of the ICC Decision in Lubanga and Katanga Cases

foreigner as well as internation- nals can go well beyond the lack their acts and giving them the ally convicted criminal, can have of basic problem-solving or so- opportunity to make amends a significant impact on the qual- cial skills, towards which gener- to societies they have grieved ity of prison treatment, dictating al offending behavior programs is something the rehabilitation e.g. the level of prison security, are oriented. Many perpetrators should strive for, despite being imposed restrictions, visitation feature members of political or difficult to achieve as long as regime, work detail as well as military elite, highly educat- prisoners bear grievances be- availability of other services, ed and socially intelligent, who cause of inequality of their pris- including coherent rehabilita- nevertheless mandated commis- on treatment. Many prisoners tion programs. If a state is not sion of atrocious acts. Similarly, also argue that sending them to already sensitive to the needs of there is a plethora of “average foreign states is unnecessary ag- foreign nationals as prisoners, Joes” among the perpetrators gravation of their punishments, the standard of provided pro- who, induced by extraordinary as next to the increased isolation grams, if any at all are provided, war-time circumstances and provided by prisons featuring can sink well below those that under auspices of state policies, foreign cultural, lingual and so- are offered to nationals. Anoth- committed grave crimes. Many cial milieu, the states themselves er question is whether rehabili- of them lack criminal identity are not welcoming them to stay, tative programs can offer more as what they did was considered therefore they are often denied than merely satisfying the basic an act of obedience and not de- services such as psychological needs of incarcerated people, es- viance, therefore they might be counseling, better remunerated pecially in terms of their moral (self-) assured they did nothing work detail or furloughs, which and social rehabilitation. Crime wrong. Assisting these people in are usually granted to national etiology of international crimi- understanding the wrongness of prisoners who are later re-inte-

33 F3 Magazine Justice is not a construct Enforcement of International Sentences in Light of the ICC Decision in Lubanga and Katanga Cases

grated back into their societies. these persons or a justice system Socrates spoke of a true knowl- On the contrary, the ICTY pris- that did not do enough, or in fact, edge coming from within a oners are mostly forced to leave further solidified perpetrators in person – and criminal justice states of enforcement upon their attitudes. should contribute to such a de- their release, which due to the velopment. Yet inducing per- practice of the tribunal usually sonal change in prisoners by happens after 2/3 of the sen- Crime etiology implementing mechanisms and tence served. There are broad- of international conditions that brought the atroc- casted instances of ex-prisoners ities afore in the first place (i.e. returning to their home states criminals can dehumanization of human be- only to re-embrace former dan- go well beyond ings) will be almost certainly gerous rhetoric without actual- met with failure. What the en- ly expressing remorse for their the lack of basic forcement system should first acts; however, it might be worth consider then, is how to reduce asking whether this is a conse- problem-solving unnecessary harm delivered by quence of “incorrigibility” of or social skills discrepant prison conditions and 34 F3 Magazine Justice is not a construct Enforcement of International Sentences in Light of the ICC Decision in Lubanga and Katanga Cases

treatment, before any meaning- pondering the extent to which tice institutions in reaction to ful improvement in rehabilita- it might have been influenced atrocity crimes? The ICC holds tion of international convicts is by trials and tribulations the the prerogative of supervising its made. ICTY had (and continues to sentences and, given that most have) in enforcement of its sen- international prisoners tend to tences. Has the Presidency of be released from prison to their Socrates spoke of the ICC come to a conclusion home states anyway, making the a true knowledge that the pains of finding a will- latter accountable for purpose- ing enforcement state – only to ful imprisonment of their citi- coming from be later potentially faced with zens might just be a valid way within a person complaints from both Messrs. how to mutually and more di- Lubanga and Katanga as well rectly engage both perpetrators – and criminal as national authorities of their and (post-) conflict societies respective enforcement states into a proactive transition, from justice should – are simply not worth the trou- violating internationally recog- contribute to such ble of going through, therefore nized human rights and values leaving the DRC to cope with to supporting them. As such, it is a development their nationals might be the best to be seen whether the decision pragmatic choice, or is it a care- will pave a new way in the en- Discussion fully though-through decision forcement of international sen- With regard to the enforcement intended to promote the devel- tences, or will attain only an ad decision of the ICC in Lubanga opment of complementarity of hoc quality. and Katanga cases, it is worth international and national jus-

The author

Filip Vojta is a doctoral candidate in International Max Planck Research School on Retaliation, Medi- ation and Punishment (IMPRS REMEP), Max Planck Institute for Foreign and International Criminal Law (Freiburg, Germany), currently completing his dissertation on the enforcement of the ICTY sentences. He is also a research member of the Max Planck Partner Group for Balkan Criminology and the Chair of the European Society of Criminology Postgraduate and Early Stage Researchers Working Group.

35 © Photo by Igor Ovsyannykov on Unsplash A legal response to today’s reality: economic crimes as crimes against humanity by Sunčana Roksandić Vidlička, PHD*

“…Those who use weapons and resources and violate human rights are as guilty as those who collaborate in business with them. Both groups should face tangible sanctions, investigations and criminal trials.1”

Whether in times of peace or during armed conflict, trade occurs, which sometimes leads to serious, systematic and widespread economic crimes. As with other core crimes, national states are often unwilling or unable to prosecute such large-scale crimes by themselves. (Core) international criminal

1 Smith, C. J., UN Interregional Crime and Justice Research Institute, director, UNICRI, MPI, Freedom from fear Magazine, A call for new heroes (July 2015), pp. 9-11, p. 11. F3 Magazine Justice is not a construct A legal response to today’s reality: economic crimes as crimes against humanity law remains the most effective As stated in the Preamble of of transitional and post-conflict tool to “stop the culture of im- ICCSt, the jurisdiction of the ICC countries, can lead to another punity” for serious economic is limited to the most serious cycle of armed conflict and/or criminal offences. Then, if the crimes of concern to the inter- physical violence as well as to detrimental consequences of national community as a whole internal and external insecuri- national wrongdoing can no lon- that threaten “security, peace, ty. As reaffirmed in many UN ger be confined to the place of and the well-being of the world.” and regional documents, sus- perpetration, the International In my opinion, serious (tran- tainable peace requires an inte- Criminal Court’s (ICC) principle sitional) economic offences grated approach, which is based of complementarity might be undoubtedly belong to this nar- on the development of security needed to incentivize national rative and while some of these policies that are consistent with states in prosecuting relevant crimes are already listed as war human rights, and includes gen- offences. These aspects imply crimes under the ICCSt (i.e. pil- der equality, the rule of law and two things for international jus- lage), they should also find their justice activities. For example, tice. First, the culture of impuni- place in the Statute during peace- the UN resolution 2122 (2013) ty for serious economic criminal time as crimes against humanity. recognized the need to address offences increases and second, Ignoring that serious economic the gaps and strengthen the links an adequate response from in- crimes, often represent eco- between UN peace and securi- ternational and national crimi- nomic violence2 characteristic ty in the field, as well as human nal law is expected. By connect- rights and development work as 2 Economic violence’ in various ing international criminal law forms, including widespread corrup- a means of addressing the root with international human rights tion, theft and looting from civilians, causes of armed conflicts and se- law, serious economic violence plunder of natural resources to fuel curity threats to women and girls does find its place within the wartime economies and fill war- in the pursuit of international lords’ pockets, and other violations jurisdiction of the ICC, without of economic and social rights, is also peace and security. As recog- the need of amending its Stat- deeply woven into the narrative nized by the European Union and ute (ICCSt). The same could be of many modern conflicts, as both the United Nations, stable econ- true for national provisions on driver and sustainer (Sharp, D.N.., omies represent a fundamental Economic Violence in the Practice crimes against humanity and its of the African Truth Commissions prerequisite for peace. understanding. and Beyond, in: D. Sharp (ed.), Justice and Economic Violence in Transition. Springer (2014), p. 79.).

37 F3 Magazine Justice is not a construct A legal response to today’s reality: economic crimes as crimes against humanity

3 The jurisdiction of and cultural rights. The same amples for the prosecution of discourse is present in the nar- gross violations of economic, the ICC is limited ratives of human security, as social and cultural rights through visible in the Global Strategy for existing core crimes by interna- to the most serious the European Union´s Foreign tional tribunals.4 crimes of concern and Security Policy from 2016. The inseparability between eco- to the internation- nomic crimes and human rights is Sustainable al community not to be doubted. Serious eco- peace requires nomic crimes infringe on eco- an integrated The factual interrelationship nomic, social and cultural rights, between serious economic of- but they also violate civil and approach, which fences, especially large-scale political rights (which are often corruption, and violent offences perceived as the protected inter- is based on the may mean that efforts to pros- ests of existing core crimes). Eco- development of ecute war criminals are under- nomic, social and cultural rights mined by the failure to address are also breached by physically security policies violent crimes. Schmid’s study economic violence. This state- that are consistent ment is in line with the transi- from 2012 already provided ex- tional justice discourse on the 3 See UN Human Rights Office of the with human rights need to address the root causes High Commissioner Publication on of conflict, and thereby tackles Transitional Justice and Economic, 4 Published as Schmid, E., Taking violations of economic, social Social and Cultural Rights (2014), Economic, Social and Cultural Rights available online at: www.ohchr. Seriously in International Criminal org/Documents/Publications/HR- Law, London, Cambridge University PUB-13-05.pdf. Press (2016). 38 F3 Magazine Justice is not a construct A legal response to today’s reality: economic crimes as crimes against humanity

Serious economic ity. Nevertheless, the question with internationally recognized is whether it should remain the human rights. crimes infringe on only option. In order to respond to today’s challenges and to ad- Crimes against humanity fall un- economic, social dress the root causes of conflict, der the ICC jurisdiction if some and cultural rights, prosecuting serious economic of the acts enlisted in article 7 of crimes as crimes against human- the ICCSt5 are committed as part but they also ity is, in my opinion, long over- violate civil and due. Although crimes against 5 Murder, extermination, deportation, humanity have emerged from or forcible transfer of population; Imprisonment or other severe political rights international humanitarian law deprivation of physical liberty in as an extension of the catego- violation of fundamental rules of By ignoring these crimes and ry of war crimes, they are un- international law; Torture; Rape, violations – unlike what inter- derstood today to be “closely sexual slavery, enforced prostitu- tion, forced pregnancy, enforced national human rights law and linked to the gradual expansion sterilization, or any other form transitional justice do - core of international human rights of sexual violence of comparable international criminal law no law.” Therefore, it is import- gravity; Persecution against any longer responds to the needs ant to connect the international identifiable group or collectivity on political, racial, national, ethnic, of societies and individuals. Of criminal law with international cultural, religious, gender as defined course, where there is enough human rights law based on Art. in para 3, or other grounds that are evidence, the prosecution of 21 (3) of the ICCSt. According to universally recognized as imper- businesspersons as perpetra- this provision, the application missible under international law, in connection with any act referred tors, accomplices and abettors of and interpretation of law pursu- to in this paragraph or any crime core crimes remains a possibil- ant to Art. 21 must be consistent within the jurisdiction of the Court; Enforced disappearance of persons; 39 F3 Magazine Justice is not a construct A legal response to today’s reality: economic crimes as crimes against humanity

of a widespread or systematic at- tionally causing great suffering egory of core crimes on an in- tack directed against any civilian or serious injury to body or to ternational level is comprised population, with knowledge of mental or physical health” is an by the “security, peace and the attack. Besides the defining effort to define this paragraph in well-being of the world. In turn, acts, there also lies a possibility a way which will be consistent the ICC’s possible engagement that crimes against humanity are with the cardinal principle nul- with economic violence has a committed as “other inhumane lum crimen sine lege.6 The Re- legal basis without the need of acts of similar character inten- chtsgut in need of protection by amending the ICC Statute. tionally causing great suffering, prosecuting serious economic However, one should be cau- or serious injury to body or to crimes that fall within the cat- tious about an overly broad in- mental or physical health”, as clusion of economic crimes un- 6 See e.g. Boot, M. revised by Hall, C. described in article 7(1) (k) of K.: Article 7, para 1(k) in: Triffterer, der the ICCSt, especially since the ICCSt. The phrase “inten- O. (ed.), Commentary on the Rome there is no common agreement Statute of the International Crim- on precisely which offences do The crime of apartheid (article 7 inal Court, Second Edition. Hart, fall under the notion of econom- ICCSt). Nomos, C.H. Beck (2008), p. 233. 40 F3 Magazine Justice is not a construct A legal response to today’s reality: economic crimes as crimes against humanity ic crimes. In light of Art. 21 para. trators and the potential charges. norms and mechanisms that 1 (b) of the ICCSt,7 offences un- The impact of crimes may be as- currently exist, and beginning der the UN Convention Against sessed in light of, inter alia, the to contemplate the creation of a Corruption seem to be plausi- suffering endured by the victims new legal regime better adapted ble candidates if they meet the and their increased vulnerabil- to tackle this problem.”8 If the criteria for being categorized ity, the terror subsequently in- ICC proves to be an inadequate crimes against humanity. stilled, or the social, economic body to tackle root causes of The arguments proposed do not and environmental damage in- conflicts by prosecuting seri- fall short from the Office of the flicted on the affected commu- ous economic crimes as crimes Prosecutor’s (OTP) Policy Paper nities. Moreover, in the same against humanity, international on Case Selection and Prioriti- Policy Paper on case selection justice might require new insti- zation from 2016. According and prioritization, it is added tutions. In any case, if one wants to this Policy, the Office of the that the Office will give particu- to respond to today´s realities, Prosecutor of the ICC will select lar consideration to prosecuting serious economic crimes should cases for investigation and pros- ICCSt’s crimes that are commit- be placed at the core of interna- ecution in light of the gravity ted by means of, or that result tional criminal law. of the crimes, the degree of re- in, inter alia, the destruction of sponsibility of the alleged perpe- the environment, the illegal ex- ploitation of natural resources 7 According to this provision, the ICC 8 Schabas, W. A., War economies, will apply, in second place, where or the illegal dispossession of Economic Actors and International appropriate, applicable treaties and land. Criminal Law in: Ballentine, K. & the principles and rules of interan- Nitzschke, H. (eds.), Profiting from tional law, including the established To this end, “two paths lie open: Peace: Making the Resource Dimen- principles of the international law sions of Civil War, Lynne Rienner, of armed conflict. strengthening the inadequate Boulder (2005), pg. 26.

The author

Assist. Prof. Dr. Sunčana Roksandić Vidlička was a doctorate candidate of the Criminology Depart- ment at Max Planck Institute of Foreign and International Criminal Law (MPI), writing her dissertation as Cotutelle de thèse between the University of Zagreb´s Faculty of Law and Freiburg University’s Faculty of Law. She teaches at the Zagreb Faculty of Law and is a member of the Max Planck Partner Group for Balkan Criminology (MPPG BC). She is the Head of the Croatian Unit for the International Network of the UNESCO Chair in Bioethics and a member of UNODC Anti-Corruption Academic Initiative. In 2017 she was a (co-) rapporteur for AIDP on the topic individual criminal responsibility for businessman on international crimes. She is the head of Jean Monnet Project Advanced Seminar in EU Criminal Law and Policy. In 2011 she received the Annual Award for the best young scientist in social sciences by the Society of University Professors and other Scientists of the University of Zagreb. She has published in English, Croatian and German on issues which concern breaching and strengthening international human rights, primarily economic and social ones, by mechanisms of national and international criminal law. In 2017 she published a book Prosecuting Serious Economic Crimes as International Crimes, A New Mandate for the ICC (Duncker &Humblot, Berlin, reseach series of MPI, MPPG BC).

*Sunčana Roksandić Vidlička (PhD Freiburg/Zagreb). Findings in this article represent the main conclusions from her forthcomming book; Prosecuting Serious Economic Crimes as international Crimes, A New Mandate for the ICC?, Duckner&Humblot 2017. In this respect, also see: Filling the void: the case for international economic criminal law, ZStW, Germany, 2017: 129(3)1-34.

41 Infcous

Illicit trade: the worldwide, multi-billion dollar funding stream by Sharon A Melzer, PhD

42 © Photo by Caleb Woods on Unsplash

43 F3 Magazine Justice is not a construct Illicit trade: the worldwide, multi-billion dollar funding stream

Somewhere in the world, there is a national health crisis. Doctors quickly receive the life-saving pharmaceuticals. However, the “pharmaceuticals” are counterfeits containing a combination of toxic chemi- cals and are powerless against the pandemic. In another part of the world, a country has developed a sophisticated, laser-guided missile capable of neutralizing targets with minimal collateral damage. Except, some of the missile’s components are counterfeit, causing its guidance system to malfunction. Mean- while, a terrorist organization engages in the trafficking of illicit tobacco and antiquities to fund their operations while a crime group moves its proceeds across borders via diamonds. Moreover, a rogue nation is circumventing the international community’s sanctions and finances their prohibited activities through illicit trade. Unfortunately, these illustrations are not plots from Hollywood movies but 44 F3 Magazine Justice is not a construct Illicit trade: the worldwide, multi-billion dollar funding stream examples where illicit trade and telligence and national security It is essential security intersect. purposes, and then develop policies to combat it for four rea- to analyze sons. First, illicit trade provides A terrorist a funding mechanism for nefari- illicit trade, organization ous actors. Those who engage in especially for these activities represent trans- engages in the national organized crime groups, ounterintelligence trafficking of terrorist organizations, cyber- and national criminals, the private sector, illicit tobacco and illicit actors who are sym- security purposes, pathetic to those groups as well and antiquities as hostile governments. Second, and then develop to fund their if the product is counterfeit or policies to combat inferior, then the items can also operations while cause direct and indirect harms. it a crime group Third, the physical goods and the financial transactions can pen- Over the last few decades, sov- moves its proceeds etrate physical borders and se- ereign nations have enact- curity provisions established by ed semi-efficient measures to across borders via sovereign nations. Fourth, gov- combat traditional illicit reve- diamonds ernments and non-state actors nue streams - such as narcotics can also engage in intellectual - through training, data sharing, enhanced punishments, It is essential to analyze illicit property theft, which can be a increased international coop- trade, especially for counterin- form of economic espionage. eration, and the enactment of

45 F3 Magazine Justice is not a construct Illicit trade: the worldwide, multi-billion dollar funding stream anti-money laundering laws. As rity personnel to more closely ropean Union’s total market. In governments implemented these examine the threats and actors 2016, the U.S. Customs and Bor- measures, illicit actors moved to related counterfeit goods and il- der Protection had more than more non-traditional revenue licit trade in general. 31,000 seizures of counterfeit streams, such as illicit tobacco products, including counter- and counterfeit products. The Counterfeit goods feit automotive and airplane significant profits also come Most, if not all, countries are im- parts, pharmaceuticals, comput- with a lower risk of detection pacted by counterfeit goods and er parts, apparel, luxury goods, and punishment since govern- the theft of intellectual proper- and numerous other categories ments have not fully realized ty. For some countries, counter- of goods. Had the goods been the potential profits and harms feit products, or the economic genuine, the estimated value associated with illicit trade and losses associated with counter- would have exceeded $1.3 bil- enact appropriate responses. feit products, harm their citi- lion. During the same year, the Moreover, preferred methods zens and negatively impact their European Union estimated the for moving their profits have overall security. Others, how- value of its counterfeit seizures also shifted toward moving val- ever, indirectly profit from the at more than €672 million.3 ue across borders, such as dia- manufacturing and exporting of monds and art, instead of cash. counterfeit products. The economic losses and profits earned Most, if not all, Counterfeits are a unique form by illicit actors alone warrant countries are of illicit trade. They fund a wide- attention by governments. Ad- range of illicit activities that are ditional concerns are justified impacted by intended to cause harm and dis- because the physical items pen- counterfeit goods rupt, while simultaneously pro- etrate borders via cargo con- ducing a myriad of direct harms tainers, parcel post, and express and the theft to a nation’s security sectors, mail couriers. The potential such as public health and safe- profits can be staggering, as can of intellectual ty, science and technology, the the financial losses suffered by property economy, and defense. For the governments and the intellec- United States economy alone, tual property rights holders. The Dangers and harms of counter- the Commission on the Theft counterfeit items tended to in- feit goods of American Intellectual Prop- fringe on the intellectual prop- All nations are vulnerable to erty estimates that “the annual erty rights of individuals and counterfeit products’ potential cost to the U.S. economy con- entities located in United States, harm to national security. The tinues to exceed $225 billion in Italy, France, Switzerland, Japan, illicit proceeds, the products counterfeit goods, pirated soft- Germany, United Kingdom, and themselves, and the networks ware, and theft of trade secrets, several other European coun- that move illicit items across and could be as high as $600 tries. borders are all threats to nation- billion.”1 These estimates may al security. Counterfeit parts, es- not include some indirect costs, A 2016 Organisation for Eco- pecially those intended for the such as those associated with nomic Co-operation and Devel- defense and aerospace sectors, health-related injuries and cost- opment (OECD)2 study placed can cause serious harm to indi- ly countermeasures that gov- the value of the 2013 worldwide viduals as well as a nation’s over- ernments must implement. For trade in counterfeit products to all security. The United Nations, these reasons and those outlined be about $461 billion and esti- through their “Counterfeit: Don’t below, it is prudent for counter- mated that counterfeit products intelligence and national secu- comprise about 5% of the Eu- 3 https://ec.europa.eu/taxation_cus- 1 http://www.ipcommission.org/ 2 http://www.oecd.org/governance/ toms/sites/taxation/files/report_ report/IP_Commission_Report_Up- trade-in-counterfeit-and-pirated- on_eu_customs_enforcement_of_ date_2017.pdf goods-9789264252653-en.htm ipr_at_the_border_2017.pdf 46 F3 Magazine Justice is not a construct Illicit trade: the worldwide, multi-billion dollar funding stream

Buy into Organized Crime”4 investigated counterfeit parts in Counterfeit campaign, warned consumers the U.S. Department of Defense’s about the multi-billion dollar supply chain and found that the products comprise black market and its connec- Department had 1,800 cases, tions to organized crime groups, involving approximately one about 5% of the money laundering, trafficking in million individual counterfeit European Union’s persons, drugs, and weapons, as parts. The detected counterfeit well as the various harms that parts, such as semiconductors total market counterfeits can cause to con- and memory chips, impacted sumers. Furthermore, the indi- guidance systems, missiles, More recently, the United States viduals who carried out the 2015 aircraft, and numerous other has taken additional actions to terror attacks in Paris, France5 types of military equipment. detect counterfeit parts within trafficked in counterfeit apparel. In addition to the direct harm its supply chains and then pros- to national security and public ecute and punish those involved. 8 In 2011, the United States Senate’s safety caused by counterfeit Operation Chain Reaction, a Armed Services Committee6 semiconductors, Senator Carlin joint venture between 16 federal Levin noted an industry estimate law enforcement agencies, in- 4 https://www.unodc.org/documents/ that places the loss to the United vestigated counterfeit products counterfeit/FocusSheet/Counter- that made their way into U.S. feit_focussheet_EN_HIRES.pdf States’ semiconductor business 5 https://euipo.europa.eu/ohim- at $7.5 billion annually and a loss government and military supply portal/documents/11370/71142/ of approximately 11,000 jobs.7 chains. Investigators were able Counterfeiting+%26%20terrorism/ 7c4a4abf-05ee-4269-87eb-c828a5d- 8 https://www.dhs.gov/ be3c6 news/2016/06/15/written-testi- 6 https://www.gpo.gov/fdsys/pkg/ 7 https://www.gpo.gov/fdsys/pkg/ mony-ice-senate-committee-fi- CHRG-112shrg72702/pdf/CHRG- CHRG-112shrg72702/pdf/CHRG- nance-hearing-titled-counter- 112shrg72702.pdf. 112shrg72702.pdf feit-goods 47 F3 Magazine Justice is not a construct Illicit trade: the worldwide, multi-billion dollar funding stream

to seize cash and items worth Counterfeits found in informa- could account for up to 6.5% more than $13.7 million. Among tion and communication technol- of all ITC products worldwide. the 23 convictions, a few indi- ogy (ITC) and parts for non-mil- These counterfeits can become viduals pled guilty to the impor- itary related vehicles, vessels, serious safety threats when they tation of counterfeit parts and and aircraft begin to blur the dis- do not function correctly. selling them to the U.S. Navy. In tinctions between national secu- 2011, the United States enhanced rity and consumer safety. The Illicit actors can instigate a hu- penalties for trafficking in coun- U.S. Coast Guard recently issued manitarian crisis or panic by terfeit military goods, and some a Marine Safety Alert9 warning penetrating supply chains for of the offenders in Operation vessel owners, operators, and medicines. There have been Chain Reaction were sentenced technicians about counterfeit numerous cases where counter- under the new penalty structure. parts. Moreover, illicit actors, feit pharmaceuticals replaced including rogue nations and ter- authentic medications needed rorist organizations, can reduce to treat malaria, HIV, and pan- A 2017 OECD the ability of first responders demics. In 2007,10 well-pub- report found and national security person- licized cases involving coun- nel’s ability to communicate terfeit diethylene glycol from that counterfeits during a crisis if vital commu- China sounded the alarm, again, could account nication networks and devices of counterfeit medications. The contain counterfeit components counterfeit glycol was fatal in at for up to 6.5% of and malfunction. A 2017 OECD least 365 cases in Panama alone, report found that counterfeits and counterfeit diethylene gly- all ITC products col resulted in deaths and poi- 9 http://mariners.coastguard.dodlive. worldwide mil/2017/04/07/472017-safety- 10 http://www.nytimes. alert-0317-the-dangers-of-counter- com/2007/05/06/world/ameri- feit-parts/ cas/06poison.html 48 F3 Magazine Justice is not a construct Illicit trade: the worldwide, multi-billion dollar funding stream

© Photo by Smit Patel on Unsplash soning in Argentina, Bangladesh, counterfeit and illicit pharma- line sales of counterfeit and il- China, Haiti, India, and Nigeria ceuticals in Africa. Since 2012, licit pharmaceuticals. Each year well before the Panamanian in- through their initiatives, they INTERPOL runs a week-long op- cident. Since then governments, have seized illicit and counter- eration, and in 2017, during Op- companies, and researchers feit medications worth approx- eration Pangea X,13 representa- have tried to increase aware- imately €400 million.11 During tives from INTERPOL, the WCO, ness of the dangers related to the 2016 iteration of Operation and 123 countries joined efforts counterfeit pharmaceuticals and ACIM (Action against Coun- to seize more than 25 million il- authorities are increasingly con- terfeit and Illicit Medicines), a licit and counterfeit pharmaceu- cerned about counterfeit Oxy- 10-day operation made possible ticals and medical devices worth codone, Xanax, and other pills with the assistance of 16 African an estimated $51 million. Seized that contain Fentanyl. Customs agencies, authorities items included dietary supple- seized approximately 113 million ments, contact lenses, condoms, The international community counterfeit and illicit pharma- medical and surgical equipment, has organized efforts to com- ceuticals. And, INTERPOL, via and medications intended to bat the trade in counterfeit and Operation Pangea12, targets on- treat malaria, psychotic condi- harmful pharmaceuticals and tions, epilepsy, erectile dysfunc- 11 http://www.wcoomd.org/en/ medical devices. The World media/newsroom/2017/january/ tion, and pain, including opioids Customs Organization (WCO) new-record-seizures-of-illicit-med- containing Fentanyl. The inter- and the International Institute icines-in-africa.aspx national operation also removed for Research Against Counter- 12 https://www.interpol.int/en/ more than 3,500 websites. Crime-areas/Pharmaceuti- feit Medicines have worked to- cal-crime/Operations/Opera- 13 https://www.interpol.int/News- gether to reduce the amount of tion-Pangea and-media/News/2017/N2017-119 49 F3 Magazine Justice is not a construct Illicit trade: the worldwide, multi-billion dollar funding stream

Authorities are by profits or to fund operations. even some governments. Some, Piracy can threaten electron- including drug trafficking orga- increasingly ic infrastructures, research and nizations, have used cigarettes development, and productivity, instead of cash for payments or concerned about especially if the pirated elec- moving money. This form of il- counterfeit tronic technology and software licit trade undermines health includes malware. Economic es- policy, reduces tobacco-related Oxycodone, Xanax, pionage and the theft of intellec- taxes that pay for various gov- and other pills that tual property harms a country’s ernment programs and expens- academic, business, and govern- es, and moves production jobs contain Fentanyl ment sectors through devalua- to the underground economy or tion of products as well as attacks abroad. Unscrupulous individuals can on infrastructures. In addition to counterfeit almost any item. Au- national security concerns, theft thorities have uncovered exam- of intellectual property nega- Counterfeit ples of counterfeit airbags and tively impacts taxation, research batteries and other automotive components and development budgets, cre- that relate to steering, braking, ates unfair market advantages, e-cigarettes can and safety operations of motor erodes brand integrity, reduces cause fires on vehicles. Toothpaste, hair care profits and royalties, and results products, cosmetics and per- in employment loss. airplanes and burn fumes, toys, foods and beverages, and apparel are known to be tar- users geted by counterfeiters. These Authorities products may contain hazard- have uncovered The volume of trade in illicit ous substances or may not meet tobacco is staggering and yields manufacturing standards. For examples of significant profits while ex- ploiting weaknesses in sover- example, counterfeit batteries counterfeit and e-cigarettes can cause fires eign countries’ borders and law on airplanes and burn users. airbags and other enforcement efforts. The estimates for the illicit trade in to- Finally, counterfeit products and automotive bacco products are astounding. 14 the theft of intellectual proper- components The World Health Organization ty have an impact on a country’s (WHO) estimates that one in ten cigarettes consumed worldwide economic security, innovation, Other popular forms of illicit and its technology sector. Coun- is illicit. The WCO’s 2016 Oper- trade: tobacco, cultural arti- 15 terfeiters and criminals engaging ation Gryphon II, a two-month facts & antiquities, and dia- operation that involved customs in economic espionage, espe- monds cially those who are state-spon- agencies and other intergov- Numerous, seemingly legal prod- ernmental organizations from sored or state-approved, also ucts can generate “illicit trade” engage in reverse engineering around the globe, seized an im- depending on their origin, tran- pressive “729 million cigarettes, of products and theft of de- sit, and legality during the sup- fense and electronic technologies. 287,000 cigars, and 250 tonnes ply chain. For decades, the illicit of other tobacco products […] Those who engage in state-spon- trade in tobacco, which includes sored theft of intellectual prop- counterfeit tobacco products 14 http://www.who.int/mediacentre/ erty may do so to increase mil- and counterfeit tax stamps, has factsheets/fs339/en/ itary and technology advances been a favorite revenue stream 15 http://www.wcoomd.org/ or to bolster diplomatic and eco- en/media/newsroom/2016/ of organized crime, drug car- july/millions-of-ciga- nomic initiatives; whereas, non- tels, terrorist organizations, and rettes-seized-during-operation-gry- state actors tend to be motivated phon-ii.aspx 50 F3 Magazine Justice is not a construct Illicit trade: the worldwide, multi-billion dollar funding stream

Components of machines used Those who crime and terrorist organiza- to manufacture cigarettes were tions to the illicit trade in to- also seized along with bulk cash engage in state- bacco products. Italian mafias18 and more than 12 million excise engaged in cigarette smuggling duty stamps.” The European sponsored theft throughout the 20th Century.19 Union16 reported that counter- of intellectual The Royal Canadian Mount- feit cigarettes accounted for 24% ed Police20 estimated that 175 of all counterfeit products seized property may do organized crime groups oper- in 2016 - the largest category of so to increase ating in Canada were involved counterfeit products seized that in the illicit tobacco trade and year. A 2017 European Union military and about three-quarters of those report estimated that if all illicit groups also trafficked weapons tobacco were sold legally, more technology and drugs. Concerning terrorist than €10 billion annually would advances or to organizations, in their 2015 re- be added to European Union port,21 the Center for the Analy- countries’ treasuries. The Unit- bolster diplomatic sis of Terrorism, located in Paris, ed Kingdom17 alone estimated and economic France, estimated that approxi- approximately £2 billion in an- mately fifteen terrorist organi- nual revenue losses from illicit initiatives tobacco in 2015. 18 https://lirias.kuleuven.be/bit- These statistics illustrate the stream/123456789/202043/1/oc_i global nature and size of the il- 19 https://global.oup.com/aca- 16 https://ec.europa.eu/taxation_cus- demic/product/mafia-broth- toms/sites/taxation/files/report_ licit trade in tobacco as well as erhoods-9780195375268?c- on_eu_customs_enforcement_of_ illicit networks’ ability to pene- c=us&lang=en& ipr_at_the_border_2017.pdf trate borders and markets. 20 http://www.ourcommons.ca/ 17 https://www.gov.uk/government/ DocumentViewer/en/40-3/SECU/ uploads/system/uploads/attach- meeting-12/evidence ment_data/file/418732/Tack- Numerous reports and academ- 21 http://cat-int.org/wp-content/ ling_illicit_tobacco_-_From_leaf_to_ ic studies have linked organized uploads/2016/02/Focus-CAT-TF- light__2015_.pdf Cigarette-Mars-2015.pdf 51 F3 Magazine Justice is not a construct Illicit trade: the worldwide, multi-billion dollar funding stream

zations, including Al-Qaeda in In 2015, the U.S. Department of co is a funding stream for organized the Islamic Maghreb (AQIM), State, in consultation with nu- crime groups and terror financ- engage in cigarette smuggling as merous U.S. government part- ing. a regular and very profitable ac- ners, published The Global Il- tivity. licit Trade in Tobacco: A Threat Another form of illicit trade that to National Security. This pub- has received increased attention lication discusses the intersec- is the illicit trade in cultural ar- Economic tions of illicit tobacco national tifacts and antiquities. The theft espionage and security concerns, such the in- or destruction of cultural prop- volvement of transnational or- erty has two positive outcomes the theft of ganized crime and terrorism and for illicit actors: a revenue intellectual the attempted importation of a stream and removal or destruc- surface-to-air missile and high- tion of cultural artifacts that property harms ly-deceptive counterfeit curren- contribute to ethnic cleansing. cy. The international community a country’s began to realize the importance academic, Additionally, the European Union,22 of combating this market during in 2017, concluded that illicit tobac- World War II with the plunder- business, and ing of art and artifacts during the 22 https://ec.europa.eu/anti-fraud/ Nazi occupation and the Soviet government sites/antifraud/files/tobacco_im- plementation_report_12052017_ sectors en.pdf 52 F3 Magazine Justice is not a construct Illicit trade: the worldwide, multi-billion dollar funding stream

Union’s Trophy Brigades23. The A 2017 European licit trade might not reach the theft of cultural artifacts and levels of drugs, tobacco, or coun- their movements through illicit Union report terfeits, the markets themselves markets has occurred in Latin can provide governments with America, Asia, Africa, and the estimated that if the needed intelligence27 to map Middle East for decades. More all illicit tobacco them, determine points where recently, the Islamic State of various actors converge, and Iraq and the Levant’s24 (ISIL)25 were sold legally, shut down critical players and use of this black market and the more than €10 sources of revenue. destruction of cultural artifacts have increased awareness of this billion annually The theft and trafficking of revenue stream and the illicit these treasures not only fund networks utilized. Initially, ISIL would be added illicit activities but also contrib- only taxed26 the antiquities mar- to European utes to the pilfering a society’s ket, but then they took over the cultural heritage; we cannot esti- market entirely and maintained Union countries’ mate those costs. While we can- control from extraction to ex- treasuries not measure the actual proceeds portation of the items. or social costs, a 2011 Rand re- 28 Cultural property not only gen- port cited estimates that place 23 https://www.tandfonline.com/doi/ erates revenue streams but can the size of the illicit trade to be abs/10.1080/02684527.2012.661648 also be a vehicle for moving val- about $6 billion annually. Tar- 24 https://www.newyorker.com/ geted operations and seizures news/news-desk/the-real-value-of- ue across borders. Illicit actors the-isis-antiquities-trade can move stolen artifacts and art also help illuminate the size of 25 https://www.fbi.gov/news/stories/ pieces through specialized black the illicit trade in cultural prop- isil-and-antiquities-trafficking erty. In 2016, Operation Pan- 26 https://www.washingtonpost.com/ markets that provide them with posteverything/wp/2016/06/03/ needed buyers and finances to 27 https://www.tandfonline.com/doi/ how-much-money-has-isis-made- continue their operations or to abs/10.1080/08850600701854441 selling-antiquities-more-than- move funds undetected. While 28 http://www.rand.org/content/dam/ enough-to-fund-its-attacks/?utm_ rand/pubs/documented_brief- term=.c0d39092420a the proceeds of this form of il- ings/2011/RAND_DB602.pdf

53 F3 Magazine Justice is not a construct Illicit trade: the worldwide, multi-billion dollar funding stream

dora29 - a week-long operation bribes, debts, and drugs. They can Approximately that included the WCO, Europol, fund organized crime, terrorism, INTERPOL, The United Nations corruption, and most notably fifteen terrorist Educational, Scientific and Cul- - wars. While all conflict dia- tural Organization (UNESCO), monds are illicit diamonds, not organizations, and numerous countries - seized all illicit diamonds are conflict including Al- more than 3,500 items and ar- diamonds. Illicit diamonds can rested 75 people. Operation Pan- be ethically and legally sourced, Qaeda in the dora was only one week, but law polished, and traded; but, once Islamic Maghreb enforcement and experts around they cross a border without the the world help combat this trade appropriate duties paid, they be- (AQIM), engage throughout the year. come illicit. Conflict diamonds30 Cultural property and works of are illicit diamonds that are also in cigarette art are not the only commod- rough diamonds, usually mined smuggling as a ities that can be used to move in rebel-held territories. Con- value across borders. The trade flict diamonds, or blood dia- regular and very in illicit diamonds allows nefar- monds, are used by rebel groups profitable activity ious actors to move value across to fund armed conflicts against borders with little risk of detec- internationally recognized gov- Diamonds have unique proper- tion. Diamonds can also serve as ernments. ties that make them very attrac- payment for weapons, cigarettes, tive as a form of illicit currency, 29 www.wcoomd.org/en/media/news- and as a means to move value room/2017/january/operation-pan- 30 https://www.kimberleyprocess. across borders. A semi-unique dora.aspx com/en/faq 54 F3 Magazine Justice is not a construct Illicit trade: the worldwide, multi-billion dollar funding stream

quality of diamonds, and some Cultural property can bring together their differ- other precious stones and met- ent methodologies and perspec- als, is that they can earn, trans- not only generates tives to create a more holistic port, and store value. They are approach and to counter these also difficult to detect at bor- revenue streams threats while expanding the ders and are susceptible to cus- but can also be a knowledge base relating to the toms fraud as well as under- and illicit networks behind these over-valuation schemes. Not vehicle for moving crimes. surprisingly, the Financial Ac- value across tion Task Force (FATF) con- There is diversity among the cluded in their 2013 analysis, borders schemes and the type of actors Money Laundering and Terrorist involved, and counterintelli- Financing Through Trade in Di- Countering illicit trade gence and national security per- amonds,31 that diamonds have a When experts illuminate threats sonnel need to be aware of the high-value to weight ratio and and revenue streams and then various manifestations of illicit are susceptible to criminal ex- develop countermeasures, illic- trade and intellectual property ploitation in trade-based money it actors tend to move into less theft. Analysts should look at laundering schemes. Increasing risky activities. Therefore, it is supply chains, legitimate net- the attractiveness of diamonds prudent to raise awareness of works and infrastructure related to criminals is the lack of aware- numerous revenue streams and to trade, delivery methods, and ness or attention paid by au- forms of illicit trade, dedicate retail distribution. Focusing only thorities – despite the known analysts to monitoring these on a particular product or mar- vulnerabilities in the diamond threats, and encourage data col- ket might not be as important as pipeline and that diamonds are lection on not only seizures identifying key variables, steps, “one of the most common meth- but also on the illicit networks or skills that enable illicit actors ods used by criminals to launder and smuggling methods/routes. to exploit criminal opportunities illegally gained funds.” 32 These efforts should be at the and vulnerabilities in legitimate local, national, and international markets. For example, some 31 http://www.fatf-gafi.org/media/ levels and include governments, fatf/documents/reports/ML-TF- characteristics of non-tradition- through-trade-in-diamonds.pdf inter-governmental organizations, al revenue streams include low 32 http://www.fatf-gafi.org/media/ the private sector, and academia. risk of detection, low risk of fatf/documents/reports/ML-TF- Collectively, these stakeholders punishment or punishments are through-trade-in-diamonds.pdf 55 F3 Magazine Justice is not a construct Illicit trade: the worldwide, multi-billion dollar funding stream minor compared to trafficking ganizations, such as INTERPOL, training and guides that include in drugs or humans, economic can play a role in capacity build- anti-counterfeiting components or other useful gains (e.g., in- ing too. They have designed, in and best practices, such as the telligence and establishing rela- cooperation with Underwrites U.S. Federal Bureau of Investi- tionships and trafficking routes), Laboratories (UL), an online gation (FBI)’s guide36 for Supply and various forums and levels of training program called the “In- Chain Risk Management. corruption. ternational IP Crime Investi- gators College”33 that provides Once governments expand their free training to law enforcement analytical approaches and efforts When experts officers worldwide and in more to combat illicit trade, then they illuminate threats than 20 languages. The pro- can work together to form net- gram covers the dangers of illic- works of intelligence analysts, and revenue it trade, distribution means and law enforcement officers, judi- streams and networks, counterfeit goods and cial personnel, and policymak- piracy, and illicit tobacco as well ers. These networks can develop then develop as how law enforcement can de- national and international strat- tect and investigate these crimes. egies that limit the economic countermeasures, Furthermore, the U.S. Depart- and operational benefits of illic- illicit actors tend ment of Justice published a 2013 it trade involving commodities manual34 and a 2016 United such as counterfeit goods, tobac- to move into less States Attorneys’ Bulletin35 that co, cultural property and antiq- risky activities provides guidance on prosecut- uities, diamonds, gemstones, and ing intellectual property crimes. precious metals. Capacity building initiatives and Finally, public and private sec- training can lead to an increase tors can lessen the vulnerabil- in the quality and quantity of ity of supply chains by offering data for law enforcement and in- 33 http://iipcic.org/ telligence analysts. Universities 34 https://www.justice.gov/sites/ and the private sector can assist default/files/criminal-cips/legacy/2015/03/26/prosecuting_ip_ with research and training pro- crimes_manual_2013.pdf grams. Inter-governmental or- 35 https://www.justice.gov/usao/ 36 https://www.fbi.gov/file-reposito- file/813026/download ry/scrmbestpractices-1.pdf/view

The author

Dr. Sharon Melzer is a Senior Fellow/Affiliated Faculty with the Terrorism, Transnational Crime and Corruption Center (TraCCC) at George Mason University’s Schar School of Policy and Government. Previously, she served as a Franklin Fellow/Senior Advisor for Transnational Threats and Illicit Trade at the U.S. Department of State. While at the State Department, she organized and chaired the United States Government Interagency Working Group to Combat Illicit Tobacco and co-chaired the tobacco sub-group of the OECD’s Task Force – Countering Illicit Trade. Dr. Melzer also held an Adjunct Faculty appointment with the Africa Center for Strategic Studies at the National Defense University and was an Assistant Professor of Criminal Justice at the State University of New York – College at Plattsburgh.

The characterizations and opinions in this piece are those of the author and do not necessarily represent those of the U.S. government.

56 © Simone Morra

APPLICATION DEADLINE: 16 september 2018

8 Areas of study

humanitarian law international criminal law and procedure

international human rights law international law dimensions of peace and conflicts

transnational crimes and transitional justice

Programme details

Blended learning integrating theory and practice, including: online activities, face-to-face lectures, seminars, mock trials, moot courts, practical exercises and up-to-date analysis of the jurisprudence of the International Tribunals

Faculty composed of international experts

Programme intended for: University graduates in Law, Political Science, International Relations, Criminology, or equivalent disciplines contact details Young professionals in governmental institutions, local authorities, international organizations or NGOs seeking to spe- cialize in international criminal justice e-mail: [email protected] Course taught in English tel: +39 011 6537 157/156/111 Lectures held at the United Nations Campus in Turin, Italy www.unicri.it

UNICRI Viale Maestri del Lavoro, 10 LL.M. degree 57 10127 - Turin, Italy

Upon successful completion of the programme, students are awarded an LL.M. degree from the University of Turin, which grants 60 university credits (ECTS) Infcous

Interfaith dialogue as a means to address incitement to violence based on religion or belief by Ahmed Shaheed, United Nations Special Rapporteur on freedom of religion or belief

58 © Photo by Toa Heftiba on Unsplash

59 F3 Magazine Justice is not a construct Interfaith dialogue as a means to address incitement to violence based on religion or belief

In age of rising incitement to interfaith dialogue can also be in the name of religion, with- violence based on religion or used as a positive force to bring out using excuses or justifica- belief it would be useful to ex- people closer together and to re- tions. Care must also be taken to amine the great potential of in- vitalize trust between groups. avoid the stigmatization of entire terfaith dialogue to prevent and communities on account of vio- mitigate the advocacy of reli- lence perpetrated by individual gious hatred. In fact, this type of Religion can members; and focus on build- dialogue can play a positive role certainly be ing bridges rather than erecting on several fronts. walls. misused as a force There are two phenomena that to divide people The phenomenon of fear has need to be urgently addressed. to be taken very seriously. As One is that crimes against hu- and to violate a previous Special Rapporteur manity, terrorism and violence on freedom of religion or belief can be waged in the name of re- human rights has stated: “fear can escalate to ligion. Second, in many parts of collective paranoia, and con- the world, we live in an era of It is of course important to rec- tempt can lead to acts of public increased hateful discourse, trig- ognize that perpetrators of vio- dehumanization.”1 He raises the gering the polarization between lence represent comparatively case of anti-Semitic conspiracy groups, as well as the rise of pop- small segments of the various theories, which may be the most ulism and xenophobia. religious communities to which intensively studied and one of they belong. To decrease ten- the most malign examples. The Religion can certainly be missions, these communities must toxic mix of fear and contempt used as a force to divide people overcome the culture of silence and denounce violence waged and to violate human rights. But 1 UN Doc A/HRC/28/66 60 F3 Magazine Justice is not a construct Interfaith dialogue as a means to address incitement to violence based on religion or belief can frequently target religious In order to rebuild trust between Religious and minorities or individual dissent- public institutions and victims of ers to build conspiracy theories discrimination, hostility or vio- belief groups can around them. This can lead to lence, public authorities must en- hateful discourse and polariza- sure that they tackle all aspects play a positive role tion of society, with a break- of this scourge, including: legis- in de-escalating down of trust between groups lative solutions, judicial practices and individuals — as well as be- and a broad range of preventive tensions and tween citizens and their trust in policies and coping strategies. rebuilding eroded public institutions. These are very well highlighted in the UN’s Rabat Plan of Ac- trust between 2 The toxic mix of tion. groups and/or the fear and contempt All forms of dialogue can con- state tribute substantially to the can frequently question of trust-building and I strongly believe that there is a target religious challenging stereotypes. Reli- need to deconstruct stereotypes gious and belief groups can play and put forward success stories minorities a positive role in de-escalating of shared common values, or in or individual tensions and rebuilding eroded other words the “golden rule”. trust between groups and/or the Humanity is bound by one com- dissenters to state. Pluralism needs to be con- mon belief. A “Golden Rule” is stantly nurtured for it to survive frequently voiced across many build conspiracy - and inter-faith/intra-faith dia- faiths and philosophies; it is the theories around logue is part of the solution. rule that defines one’s relation- ship to the Other: treat others 2 http://www.ohchr.org/Documents/ them Issues/Opinion/SeminarRabat/Ra- as you would like to be treated. bat_draft_outcome.pdf There is a universality to the

61 F3 Magazine Justice is not a construct Interfaith dialogue as a means to address incitement to violence based on religion or belief

values of coexistence, compas- Many government and civil so- engage them to prevent incite- sion, empathy and solidarity; ciety initiatives have been put ment to violence around the it runs like a common thread forward, and it’s important to world. across many nonviolent convic- stress their importance. Here tions. This core belief implies are some notable success stories: The Beirut Declaration: An- reciprocity and a commitment other UN initiative occurred in to equality. In trying times, this The Fez process: the Special March 2017, when the Office of message needs to be reinforced, Adviser of the Secretary-Gen- the UN High Commissioner for at every occasion. eral on the Prevention of Geno- Human Rights launched its ini- cide has worked on bringing re- tiative on “Faith for Rights”3 with ligious leaders together. His plan an expert workshop in Beirut. I strongly believe of action, known as the “Fez Pro- This initiative reflects on the that there is a need cess”, stemmed from the need to deep, and mutually enriching, better understand, articulate and connections between religions to deconstruct encourage the potential of reli- and human rights. The objective stereotypes and gious leaders in preventing in- is to foster the development of citement and the violence that it peaceful societies, and pledges put forward can lead to, and to integrate the towards 18 commitments, in- work of religious leaders within cluding: free choice, equal treat- success stories of broader efforts to prevent atroc- ment, non-discrimination, the shared common ity crimes. Given the particular rights of minorities and the obli- influence that religious leaders values have, the Office has sought to 3 http://www.ohchr.org/Documents/ Press/Faith4Rights.pdf 62 F3 Magazine Justice is not a construct Interfaith dialogue as a means to address incitement to violence based on religion or belief

gation to denounce all instances to more immediate national or one speech will be made during of advocacy of hatred that in- regional challenges. There may the event, and an opposite atti- cites to violence, discrimination even be instrumental motives tude will transpire in diplomacy? or hostility. attached to these ‘religion diplo- All these questions are crucial to macy’ efforts. discuss and tackle beforehand in order to achieve success. There is a When addressing the question universality to of inter-faith dialogue, there Finally, I would like to mention is a need to ensure that the right the question of intra-faith dia- the values of people are at the table to achieve logue, and highlight several re- coexistence, the objectives of the gathering. markable initiatives advanced in Indeed, there are many forms of the Islamic world at civil society compassion, interfaith dialogue, and it is im- and governmental level. portant to set the goals straight empathy and - in order to avoid the pitfalls! A letter was signed by numer- solidarity Several questions can be raised, ous Muslim theologians, law- such as: does this initiative aim at makers and community leaders In addition to forums involving dialogue between religious leaders who wrote an open letter to the United Nations, there are or grassroots activists? Is this a Abu Bakr al-Baghdadi, lead- numerous initiatives that have symbolic meeting or does it aim er of ISIS. It included a techni- been initiated and conducted by at future practical cooperation cal point-by-point refutation of faith-based groups, civil society in a variety of fields? How is the ISIS’ actions and ideology based actors, or indeed by states and dialogue planned to avoid possi- on the Quran, and using refer- regional organisations. Some of ble negative effects, for example, ences to other normative texts. these are implemented at the disappointment or frustration? national level, while others are How inclusive is participation? There were also other initia- regional or transnational. Many Are women well represented? If tives, such as the Amman Mes- of these serve as antidotes to the the state is a facilitator, how to sage (notably declaring that a so-called ‘clash of civilization ensure that this is not an exer- person is an apostate is impossi- thesis’, while others respond cise in double standards - where ble and impermissible in Islam) 63 F3 Magazine Justice is not a construct Interfaith dialogue as a means to address incitement to violence based on religion or belief

and the Marrakesh Declaration that show how interfaith/in- itate cross-boundary solidarity, (a statement made in January tra-faith dialogue can help pre- and is supported by policies of 2016 by over 250 Muslim reli- vent violent extremism. It can be inclusion, it can contribute to gious leaders, heads of state, and especially effective when there fostering resilient societies that scholars, which champions “de- is a deep commitment to create can overcome intolerance and fending the rights of religious inclusive societies that leave hatred that often undergird ex- minorities in predominantly Mus- ‘no one behind’. Where dialogue tremism and incitement to vio- lim-majority countries). can enhance understanding, pro- lence. All of these initiatives are tools mote empathy, build trust, facil-

The author

Mr. Ahmed Shaheed is the United Nations Special Rapporteur on freedom of religion or belief. The Special Rapporteur on freedom of religion or belief is an independent expert appointed by the UN Human Rights Council. The mandate holder identifies existing and emerging obstacles to the enjoyment of the right to freedom of religion or belief and present recommendations on ways and means to overcome such obstacles. Mr. Shaheed is Deputy Director of the Essex Human Rights Cen- tre. He was the first Special Rapporteur of the Human Rights Council on the situation of human rights in the Islamic Republic of Iran since the termination of the previous Commission on Human Rights mandate in 2002. A career diplomat, he has twice held the office of Minister of Foreign Affairs of Maldives. He led Maldives’ efforts to embrace international human rights standards between 2003 and 2011.

64 NEW PUBLICATION: Sunčana Roksandić Vidlička: Prosecuting Serious Economic Crimes as International Crimes. A New Mandate for the ICC?

Research Series of the Max Planck Institute for Foreign and International Criminal Law – Publica- tions of the Max Planck Partner Group for Balkan Criminology. Volume BC 2. Berlin 2017.

Serious economic crimes and violations of economic, social and cultural rights have often been neglected in criminal proceedings and reports of truth commissions that have followed in the wake of economic transitions or conﬂicts. Although such economic crimes often result in a substantial loss of wealth to the overall economy and society of the country in question, they have not been widely nor eectively prosecuted. The Balkan region is no exception to this rule. However, as argued in the book, from Nuremberg on, there have been attempts and successful examples of prosecuting war proﬁteering cases. Even quite recently, the International Criminal Court’s prosecutor called for such a prosecution before the ICC.

This study explores the legal and social preconditions under which serious economic oences may be characterized as crimes under international criminal law. It searches for answers as to why such crimes have been left out of the focus of mainstream international criminal law development since the end of WWII. It connects international criminal law with discourses of international human rights law, security studies, (supranational) criminology, political sciences, transitional justice and (economic) criminal law in order to ﬁnd arguments as to why it is necessary to start prosecuting serious (transitional) economic oences as crimes under international law and why they should ﬁnd their place in the Rome Statute of the ICC. 65 Infcous

The use and abuse of the ‘clash of civilizations’ rhetoric by Alessia Vedano

66 © UN Photo/Sylvain Liechti

67 F3 Magazine Justice is not a construct The use and abuse of the ‘Clash of Civilizations’ rhetoric

For well over two decades, and this particular terrorist group In other words, the association particularly in the aftermath of has entered the international between terrorism and ISIS, but 9/11, public perception of ter- agenda and taken over political more broadly between terror- rorism has largely been domi- debates since 2014, earning the ism and the Islamic faith, along nated by its seemingly inherent podium in the past years as one with its contraposition to West- link with the Islamic faith. From of the most concerning global ern ideals, has long been main- al-Qaeda to the more recent- threats and almost overshadow- streamed. Western media, in this ly-born Islamic State of Iraq and ing all other internationally-rec- context, have played a significant the Levant (ISIL), - perhaps bet- ognized terrorist organizations. role in fuelling the perception of ter known as the Islamic State of The reason for this is that, never a ‘civilizational clash’ between Iraq and Syria (ISIS) - today’s in history had a terrorist organi- cultures. Whereas it is certainly terrorist narrative revolves to zation hit at the heart of West- true that the religious compo- great extents around the con- ern societies as repeatedly as nent has been manipulated to traposition of Islamic against ISIS has done in the past years. shape the narrative of terror- Western ideals and values. It is But, perhaps more relevantly, it ism in recent years, it would be safe to claim that today, should has been the first terrorist group a dangerous mistake and utter- a Western citizen be asked what taking over major cities and try- ly simplistic to frame this phe- he or she associates “terrorism” ing to establish what could be nomenon solely in religious or with, the reply would quite sure- considered as a de facto ‘state’, ‘state’ see Politics as a Vocation ly make reference to the Islamic if we think strictly in Weberian published as Politik als Beruf (1921 State, and probably to the State terms of territory control and Gesammelte Politische Schriften). in Iraq and the Levant (ISIS). monopoly of the use of force1. Originally a speech at Munich Uni- versity in 1918, published in 1919 by Indeed, this is of little surprise: 1 For Max Weber’s definition of Duncker & Humblodt, Munich. 68 F3 Magazine Justice is not a construct The use and abuse of the ‘Clash of Civilizations’ rhetoric ethnic terms, particularly given As measured in the 2017 Global ly through the process of online the devastating impact that this Terrorism Index (GTI) Report, recruitment. As reported in the phenomenon has had, first and the five countries suffering the 2016 GTI, this group was respon- foremost, on the Muslim world. highest impact from terrorism sible for attacks in 28 countries steadily remain Iraq, Afghani- in 2015 alone.4 Consequently, stan, Nigeria, Syria and Pakistan, to the various and still ongoing It is certainly true which accounted for as much as military operations carried out that the religious three quarters of all deaths from against ISIS in Syria and Iraq terrorism in 2016 - last year for in the following years, the sit- component has which data is available.2 Simi- uation in early 2018 may at a been manipulated larly, only four groups, namely first glance look slightly bright- ISIS, Boko Haram, the Taliban er as the group lost consider- to shape the and al-Qaeda, were responsi- able field and terrorist-related ble for 59 per cent of all these deaths have decreased as a con- narrative of deaths.3 sequence.5 Nevertheless, ISIS is terrorism still very active on a rather large The geographical spread of ter- geographical scale: it already al- Impact of terrorism on the rorist activities had a peak in legedly carried out attacks in 13 Muslim world 2015, mostly due to ISIS ex- Contrarily to the wider public’s panding its operations, especial- 4 Institute for Economics & Peace, perception and to what Western Global Terrorism Index 2016. Meas- media too often portray, ‘global 2 Institute for Economics & Peace, uring and understanding the impact Global Terrorism Index 2017. Meas- of terrorism’ (Institute for Econom- terrorism’ is still a highly con- uring and understanding the impact ics and Peace 2016) 4. Available at: centrated phenomenon, with of terrorism’ (Institute for Econom- uploads/2017/11/Global-Terror- 5 GTI 2017 [Reportedly, deaths relat- ber of countries and by a small ism-Index-2017.pdf> ed to terrorism have decreased by number of groups. 3 Ibid. 5. 13 per cent from 2015 to 2016] 4.

69 F3 Magazine Justice is not a construct The use and abuse of the ‘Clash of Civilizations’ rhetoric countries, 9 of which are pre- ment agencies and the civilian which the Muslim world is af- dominantly-Muslim.6 population. Deaths at the hands fected by terrorism. As stated of this terrorist group amounted by former United Nations Sec- to 4,502 people in 1,094 terror- retary-General “the threat of The five countries ist attacks in 2015, making it the violent extremism is not limited suffering the group’s deadliest year.10 In 2016, to any one religion, nationali- bombings and explosions were ty or ethnic group. Let us also highest impact reported to have increased from recognize that today, the vast from terrorism 27 per cent of attacks in 2015 to majority of victims worldwide 32 per cent in 2016, killing an are Muslims.”14 While acting in steadily remain average 8 people in each attack.11 the name of Islam, these terror- As of April 2018, the Taliban ist groups are in fact hitting at Iraq, Afghanistan, have been allegedly responsible the very heart of the faith they Nigeria, Syria and of 75 attacks, predominately in blatantly pretend to represent. Afghanistan.12 In this regard, one very striking Pakistan event that shows the ‘a-religi- Al-Qaeda and its affiliates - Al- osity’ of terrorism is the attack When it comes to Boko Haram, Shabab, the Al-Nusrah Front, that hit the Saudi Holy city of their attacks are still quite con- al-Qaeda in the Arabian Pen- Medina on 4th July 2016. The centrated in Nigeria, despite ear- insula, al-Qaeda in the Islam- bombings, allegedly carried out lier efforts to expand into neigh- ic Maghreb and others - have by ISIS, occurred right outside bouring countries. The group, been mostly committing deadly of the Prophet’s mosque, second which aims at establishing an Is- attacks in, among others, Syria, in importance only to the Grand lamic state in Nigeria7 targets pri- Algeria, Pakistan, Yemen, Mali, Mosque in Mecca, a day before vate citizens as well as religious Somalia and Kenya. Again, the the Eid al-Fitr festival which institutions. In 2015, around 20 main targets are usually civil- marks the end of the Muslim attacks against mosques and ians. The latest GTI reports Holy month of Ramadan.15 The four attacks on churches were that in 2016 as much as 155 at- appalling attack on this religious reported.8 However, while the tacks against civilians were car- site, holy to both Sunni and group killed about 12,000 peo- ried out by Al-Qaeda affiliated Shia Muslims, was considered ple in years between 2013 and groups in the above-listed coun- a defiant act against the Islamic 2015, as a result of the Multina- tries, amounting to 29 per cent faith. Nevertheless, it had little tional Joint Task Force military of all incidents.13 operations, deaths decreased by 14 ‘UN Secretary-General’s Remarks roughly 80 per cent in 2016.9 In spite of the fact that such data at General Assembly Presentation only relates to four of the dead- of the Plan of Action to Prevent The Taliban on their hand have Violent Extremism [As Deliv- liest internationally-recognized ered]’ (15 January 2016) many other contexts, the statis- accessed 2 April 2018. targeting mainly law enforce- tics offered are still emblematic 15 For more information on the attack for understanding the extents to see: ‘Saudi Arabia: Bombings target 6 Data collected from: , accessed 1 10 GTI 2016 55. Mosque in Medina in third attack to March 2018. 11 GTI 2017 75. hit kingdom in one day.’ (AlJa- 7 The country is divided between 12 Data available at: , accessed 1 saudi-arabia-qatif-explo- 8 GTI 2016 54. March 2018. sion-160704165007140.html> 9 GTI 2017 74. 13 GTI 2017 75. accessed 2 March 2018. 70 F3 Magazine Justice is not a construct The use and abuse of the ‘Clash of Civilizations’ rhetoric

© Ricardo Garcia Vilanova/ICRC international resonance among As previously mentioned, today in a renowned article published Western media. Likewise, at- a more or less deliberate attempt in 1993 and later theorized into tacks during Ramadan are far to associate terrorism with radi- a best-selling book,16 where, in from occasional. Under the hor- cal Islamic terrorism can be not- brief, he argued that future con- rified eyes of the Muslim com- ed, at both political and societal flicts would be fought along the munity, the ‘Holy month’, which levels, with the international fault lines of civilizations, and, represents a time for reflection, focus being mainly on ISIS. In in particular between the West prayer, purification, and chari- this context, seemingly there and Islam.17 According to Hun- ty, has been bloodstained more has been an attempt to frame the tington, the latter, incompati- than once, in particular by ISIS, discourse on Islamic terrorism ble with Western democratic which has openly encouraged its in terms of a “civilizational war” values, is itself responsible for followers to perpetrate barbar- against the West. Indeed, many large amounts of violence. In ic killings against the ‘infidels’ of these groups, and particular- this regard, one of his most fa- during that time. In light of these ly ISIS, overtly put forward the mous and perhaps controver- facts, and on the general indis- same rhetoric. But is this really sial statements is that “the cres- criminative nature of their at- a war between civilizations or cent-shaped Islamic bloc […] has tacks, it remains somewhat un- is it rather a war within civiliza- 16 Samuel P. Huntington, ‘The Clash clear who such ‘infidels’ exactly tions? of Civilizations?’ (1993) 72 Foreign are to them. Affairs 22; Samuel P. Huntington, A clash of civilizations, within The concept of ‘clash of civili- The Clash of Civilizations and the Remaking of World Order (Simon & civilizations or an anti-establish- zations’ was first famously ad- Schuster 1996). ment phenomenon? vanced by Samuel Huntington 17 Huntington (1993) 25. 71 F3 Magazine Justice is not a construct The use and abuse of the ‘Clash of Civilizations’ rhetoric

bloody borders.”18 Though he associated with Western values) targets on a strategical basis acknowledged that conflicts and are not necessarily mutually rather than on culture per se.23 violence may also occur with- exclusive.21 Specifically talking Despite its controversial impli- in civilizations, he argued that about radical Islamic terror- cations, Huntington’s arguments those would more likely be less ism against Western countries, have nevertheless been used by intense.19 This provocative view Neumayer and Plümper explain several right-wing extremist par- was unsurprisingly challenged that this shall not be understood ties and populist movements, in by many scholars of internation- as a war between civilizations, an attempt to frame Islam as the al relations and political sciences but instead as a result of “West- real ideological enemy of the who regarded it as too simplistic ern interference in countries of West, this way legitimising racism to explain modern global poli- the Islamic civilization, whose through anti-terrorism policies tics. Henderson and Tucker for support is often crucial in pre- of profiling and border control.24 instance found that “civilization venting Islamic terrorist groups’ In these regards, as former US difference is not significantly as- bid for political inﬂuence.”22 In President Obama pointed out sociated with an increased likeli- other words, they theorise that in a speech in 2016, “If we fall hood of interstate war”, 20 while terrorist leaders choose their into the trap of painting all Mus- Norris and Inglehart argued that lims with a broad brush […] we Islam and democracy (typically 21 Pippa Norris and Ronald Inglehart are doing the terrorists’ work for ‘Islamic Culture and Democracy: 18 Ibid. 34. Testing the ‘Clash of Civilizations’ 23 Ibid. 719ff. 19 Ibid. 38. Thesis’ (2002) 1 Comparative So- 24 See Sedef Arat-Koҫ, ‘Whose Trans- 20 Errol A. Henderson and Richard ciology 235. nationalism? Canada, “Clash of Civ- Tucker, ‘Clear and Present Strang- 22 Eric Neumayer and Thomas ilizations” Discourse and Arab and ers: The Clash of Civilizations and Plümper, ‘International terror- Muslim Canadians’ in Roland Sintos International Conflict’ (2001) 45 ism and the clash of civilizations’ Coloma (ed) Asian Canadian Studies International Studies Quarterly 317, (2009) 39 British journal of political Reader (University of Toronto Press 334. science 711, 720. 2017). 72 F3 Magazine Justice is not a construct The use and abuse of the ‘Clash of Civilizations’ rhetoric

© Mike Goad viaFlickr them.”25 In other words, the Is- ists’ violence as opposed to be- selves and reject western values lam vs West rhetoric can be in- ing themselves the trigger. and conventional Islamic val- herently counterproductive and ues altogether.26 In this context, in fact contribute to fostering said However, a third way to analyse Roy contends that the attitude civilizational war, perfectly in contemporary radical Islamic towards religion can be under- line with some terrorist groups’ terrorism can also be advanced. stood as a stress on the individual goals. As a matter of facts, in And this is to regard it as an dimension as well as a quest for view of the impact that terrorist anti-establishment phenomenon personal realisation, where faith activities have on Muslim com- which shall not be confined simply supersedes the dogma in itself.27 munities analysed in the previ- within ethnic or cultural terms. According to his theory, such ous section, the current situation Professor Olivier Roy explains new interpretations of religion, seems to be more likely a clash what he calls ‘contemporary ji- or “religiosity”, are often char- within civilizations rather than hadism’, particularly in the West, acterised by a certain degree of between them. In this sense, re- in terms of youth revolt, count- anti-intellectualism in favour of ligion and ideology shall be seen er-culture response and a search easily accessible norms, where tools of legitimization for jihad- for identity among young Mus- emotions override knowledge.28 lims. According to Roy, this phe- However, one must be cautious, 25 ‘Obama: Painting All Muslims With nomenon is to be rooted in the he warns, and not fall into the Same Brush Helps Terrorists’ (14 ‘deterritorialisation’ of Islam as June 2016) [online video] available a consequence of globalisation 26 Olivier Roy, Globalized Islam. The at: < https://www.nbcnews.com/ and Westernisation processes, Search for a New Ummah (Hurst dateline/video/obama-painting-all- 2004). muslims-with-same-brush-helps- which has led frustrated young 27 Ibid. 148-197. terrorists-705338947833>. generations to alienate them- 28 Ibid. 31. 73 F3 Magazine Justice is not a construct The use and abuse of the ‘Clash of Civilizations’ rhetoric trap of viewing this phenome- ed as themselves victims of ter- “there were reports of a govern- non as a “fundamentalisation of rorism to the same - if not great- ment and the media building a Islam” but rather as an “Islami- er - extent as western societies campaign focusing on the dif- sation of fundamentalism”, in (as described above). Instead, ferences between Christians and which religion becomes only a the actions of a few stigmatize Muslims, perpetuating negative paradigm for youth revolt rath- Islam as a whole. stereotypes against Muslims and er than of cultural affiliation.29 The rise of Islamophobia and describing them as dangerous “The genius of ISIS” he says, the general anti-Muslim senti- people.”32 “is the way it offers young vol- ment has become a scary reality unteers a narrative framework in the West, and particularly in within which they can achieve Europe, especially as a conse- The rise of their aspirations.”30 . quence of the uptick in ISIS ter- Islamophobia and rorist attacks in 2015 and 2016 the general anti- Huntington’s combined with the latest waves of migration to the Mediterra- Muslim sentiment arguments have nean shores. has become a nevertheless Religion becomes scary reality in the been used by only a paradigm West several right-wing for youth revolt extremist parties Former Special Rapporteur also rather than of indicated that some anti-terror- and populist ist measures adopted in several cultural affiliation countries, including in Western movements Europe, in response to rising fear During the 35th Session of the for terrorist attacks in combina- A dangerous rhetoric: the rise Human Rights Council, former tion with the waves of migration, of islamophobia Special Rapporteur on contem- were undoubtedly discriminato- Going back to the ‘civilizational porary forms of racism, racial ry and not in accordance with war’ way of analysing Islamic discrimination, xenophobia and international law. In particular, terrorism, one must note how related intolerance, Mr. Mutuma he referred to the deportation the rhetoric contraposition of Ruteere, expressed concerns on of individuals on the basis of West vs Islam might, and indeed the proliferation of anti-Muslim national security to countries in already has, led to rather unde- rhetoric and the rise of right- which they are likely to expe- sirable consequences. When it wing extremist parties. Accord- rience ‘serious persecution’ as comes to people’s attitude to- ing to the Special Rapporteur, being in striking violation of the wards Muslims, regrettably, it “these two trends are intensi- jus cogens principle of ‘non-re- can be observed that Muslims fying globally following recent foulement.’33 According to Mr. are no longer regarded and treat- terrorist attacks and have led to Ruteere, “political scapegoating, an atmosphere of fear of Mus- administrative exclusion, selec- 29 Olivier Roy, ‘Who are the new lims in countries where Mus- tive and restrictive immigration jihadis? Biographies of ‘homegrown’ lims are racialized or viewed as policies, targeted gang violence, European terrorists show they are foreign, which in turn has in- violent nihilists who adopt Islam, police harassment, profiling and rather than religious fundamen- creased experiences of racism stereotyping in the media are talists who turn to violence’ (The and xenophobia.”31 He noted that also dangerous consequences of Guardian 13 April 2017) porteur on contemporary forms para 49. accessed 2 March 2018. of racism, racial discrimination, 32 Ibid. para 51. 30 Ibid.. xenophobia and related intolerance’ 33 Ibid. para 64. 74 F3 Magazine Justice is not a construct The use and abuse of the ‘Clash of Civilizations’ rhetoric

xenophobia.”34 In early 2017, the Profiling and Condemnation by Islamic com- United Nations Secretary General munities, and in particular by António Guterres expressed his stereotyping in religious leaders and imams is concerns regarding the spread loud, yet most times it goes un- of islamophobic ideologies at the media are heard. The idea that the horrif- a joint press conference with also dangerous ic actions committed by some Saudi Foreign Minister Adel al- terrorist groups can have any Jubeir, explaining that one of consequences of religious fundament repels the the things that fuels terrorism is xenophobia large majority of Muslims. In in fact “the expression in some this regard, a public opinion poll parts of the world of islamopho- Muslim communities’ among Arab Muslims conducted bic feelings and islamophobic response to terrorism by the Doha-based Arab Cen- policies and islamophobic hate On several occasions the Islam- tre for Research and Policy and 35 speeches.” ic world was criticized for not reported by the International clearly and strongly condemn- Centre for Counter-Terrorism 34 Ibid. para 11. ing the atrocities committed by surveying public opinion in sev- 35 ‘‘Islamophobia’ throughout the en countries, found that, indeed, world is fuelling terrorism, UN some terrorist groups acting in chief António Guterres says’ South the name of their religion, and “chances that more Muslims China Morning Post (13 February in so doing seemingly fostering rally behind ISIS are small as 2017) < www.scmp.com/news/ the ‘us’ against ‘them’ narra- the extreme violence (crucifix- world/article/2070432/islamopho- ions, stonings, beheadings, am- bia-throughout-world-fuelling-ter- tive. Bus is this really the case? rorism-un-chief-antonio> accessed The answer is certainly no. putations, rapes, mass killings of 9 April 2018. prisoners) disgust large major- 75 F3 Magazine Justice is not a construct The use and abuse of the ‘Clash of Civilizations’ rhetoric

ities of Muslims and non-Mus- 2017 that “far-right politics is on The Quran lims alike.”36 the rise, strengthening the narrative of ‘us’ against ‘them’. This itself recites Thus, in total rejection of Hun- is a scary scenario for an intoler- tington’s theory that violence ant world that none of us would that killing one is culturally enshrined within like our children to live in. […] innocent person Islam, the Muslim community We all need to play our role.”37 firmly responds that in fact the is equivalent Quran itself recites that killing As reported by a British news- to killing all one innocent person is equiv- paper, the Muslim Council of alent to killing all humanity. Britain was also very loud in ex- humanity Mr. Yousef Al-Othaimeen, Secre- pressing condemnation for ISIS tary-General of the Organisation barbaric actions. In the aftermath of the Westmin- of Islamic Cooperation (OIC), an ster attack carried out by ISIS 22 organization comprising 57 na- 37 Mr. Yousef Al-Othaimeen’s full on March 2017, the General tions with Islamic majorities, speech at the 7th Meeting of Secretary Harun Khan, besides warned at the Human Rights High-Level Segment during 34th offering prayers for the victims Regular Session Human Rights Council in Geneva on 1 March Council (1 March 2017) avail- and the law enforcement agen- able at 34th%20session&sort=- sure we come together in soli- accessed 9 April 2018. date&page=14>. 76 F3 Magazine Justice is not a construct The use and abuse of the ‘Clash of Civilizations’ rhetoric darity and not allow the terror- enough to excuse them for the civilizations” rhetoric, partic- ists to divide us.”38 In addition behaviour of a few ‘black sheep’. ularly as terrorist attacks are, to public condemnation, other In this sense, it may be argued still, significantly concentrat- significant attempts to detach that in fact Muslims should not ed in predominantly Muslim from the ‘islamisation’ of terror- feel forced to ‘apologize’ on be- countries, but could instead be ism narrative have been made half of individuals who they do viewed as an anti-establishment by Muslim communities. One of not feel are representing neither phenomenon of generational them is, for instance, the Mus- their culture nor their religion. fracture in which religion (or lim Reform Movement, born in ‘religiosity’ as Roy calls it) is rejection of interpretations of only a narrative framework to Islam that call for any violence, The best response legitimize violence, it is import- social injustice or politicized Is- to this outrage is ant to understand how the ‘us’ lam while promoting a culture of against ‘them’ discourse, with human rights, equality and tol- to make sure we its dangerous consequences, can erance.39 But for many, condem- come together be countered. One way forward nation and detachment by the could be intercultural dialogue. Muslim majority seems to not be in solidarity and Though this article excludes that not allow the Islamic terrorism is the product 38 Harriet Sherwood and Helen Pidd, of a civilizational clash between ‘UK Muslim leaders condemn ‘cow- terrorists to divide different populations whose cul- ardly’ London attack’ The Guardian tures necessarily collide against (23 March 2017) < https://www. us theguardian.com/uk-news/2017/ one another, it indeed acknowl- mar/23/uk-muslim-leaders-con- edges that the wrongful use of demn-cowardly-london-attack> Conclusion: intercultural dia- such rhetoric may in fact lead accessed 9 April 2018. logue as the way forward towards the undesired path of 39 More information on the Muslim Having established that contem- Reform Movement available at cultural clash, as demonstrat- . not easily fit into the “clash of

77 F3 Magazine Justice is not a construct The use and abuse of the ‘Clash of Civilizations’ rhetoric

in Europe and beyond. In this ence international relations.”40 al dialogue to unravel the log- sense, as explained by United In other words, not only states, ic behind the ‘islamisation’ of Nations University Research but also international organiza- terrorism and deconstruct the Fellow Valeria Bello, intercul- tions, NGOs and other civil soci- discourse behind the clash of tural dialogue, which happens ety groups should come together civilizations. These misleading between ‘civilizations’ and ‘cul- and create platforms to promote and deceptive narratives can tures’, is an emerging practice dialogue that aims at addressing only lead to further division that could effectively represent cross-community issues and and intolerance among popula- a way of deconstructing the build peace, respect and toler- tions and, ultimately, will only discourse on both violent and ance, so to facilitate the adoption contribute to fueling terrorism non-violent extremism, if those of effective counter-terrorism as well as ideologically empow- are to be understood as social- and counter-extremism policies.41 ering terrorist groups further, ly-constructed phenomena. As With this in mind, the invitation without offering hope of finally she advances, the role of non- is, therefore, to use intercultur- breaking the cycle of violence. state actors in this sense could be pivotal as, according to some, 40 Valeria Bello, International Migra- tion and International Security: Why they “hold the capacity to influ- Prejudice is a Global Security Threat (Taylor and Francis, 2017) 117. 41 Ibid..

The author

Alessia Vedano graduated in Politics and International Relations at the University of London Inter- national Programmes and is currently a student of the European Master’s in Human Rights and De- mocratisation at Utrecht University, where she is writing her thesis on areas of international human rights law and transitional justice. She has previously worked as a human rights officer at Geneva International Centre for Justice (NGO).

78 UNICRI: A POWERHOUSE OF CHANGE

Our rapidly changing and iperconnected world faces grave transnational challenges a ecting people’s security and rights. Conflicts, organized crime, terrorism, illicit tracking and the improper use of advances in technologies: our world is more fragile than ever and our answers to the challenges must be unified, multifaceted and based on strong synergies. Created in 1968 UNICRI serves the global community in formulating and implementing improved policies in the field of crime prevention and criminal justice. We contribute to understanding and addressing crime threats that impact on good governance, sustainable development, human rights and security by o ering a comprehensive range of evidence-based response options. In its 50-year history UNICRI has worked for a just, equitable, and secure world in which the needs of the most vulnerable are met and nobody is left behind.

CHANNELLING ENERGY TO MOVE THINGS

UNICRI’s mandate is to enhance knowledge and expertise to ﬁnd innovative and sustainable solutions to threats and injustice. Our overarching objective is to achieve the goals of the 2030 Agenda for Sustainable Development and in particular Goal 16: promoting peaceful, just and inclusive societies,79 free from crime and violence. Infcous

When Mafia and jihadists team together by Alessio Postiglione

80 © Gonzalo Alonso viaFlickr

81 F3 Magazine Justice is not a construct When Mafia and jihadists team together

Business is business. We might institutional polities, capturing Mexican and Colombian drug say this is the principle all the States, turning their gangs into cartels, actors from all over the illegal activities follow, when the ruling élites of new Mafia world are playing the game. In criminal ethics meets the spirit States. a moment in which States are of capitalism, to paraphrase Max replaced by mega-cities compet- Weber. Today, a new violent In our recent book, “Sahara the ing over connectivity more than cartel rules the Mediterranean; desert of mafia and jihadists”, borders, as to quote Parag Khan- an unholy alliance between in- Italian journalist Massimiliano na, the most networked criminal ternational mafia groups and Boccolini and I have highlighted gangs will win. jihadists, which spans from the the emergence of new unexpect- northern to the southern flanks ed ties between godfathers and of the Mare Nostrum: human jihad affiliates. Italy, located in A new violent trafficking, drugs and weapons the very centre of the Mediter- cartel rules the smuggling, and new criminal part- ranean, is obviously a main hub, nerships have developed across thanks to its well established and Mediterranean; the sea. A mobsters’ new entente influential mafia groups: Sicilian an unholy cordiale aimed at perpetuating Cosa Nostra, Calabria’s ‘Ndrang- illicit trafficking and destabiliz- heta, Neapolitan Camorra and alliance between ing the whole region. Because Apulian Sacra Corona Unita. At international both jihadists and mafia groups any rate, this criminal partner- share criminal but also politi- ship is an international network: mafia groups and cal goals, including subverting from Cechenian Obishna, to the jihadists F3 Magazine Justice is not a construct When Mafia and jihadists team together

However, the pivotal actor is egies, like during the “strategy of through Sahel - Mali, Niger, and Italy, due to its central geopo- tension” years, a period of social then Libya -, mainly drugs and litical location and the straight and political turmoil, marked by human beings are smuggled: relational-political nature of its numerous acts of political ter- Highway 10, the 10th parallel gangs. In fact, the foremost crim- rorism. It is not by chance that marine and aerial routes linking inal affinity between jihadists the use of uploading on YouTube South America and West Afri- and Italian mafia groups lies in video of beheadings to scare the ca, the shortest route between the political role the latter have enemies was firstly started by the two continents, has become always played. As jihadists aim at Mexican cartels, lately imitated the preferred lane used by traf- establishing new States, like ISIS by jihadists, thus supporting the fickers for shipping multi-tons - but also other lesser known en- existence of an exchange between of cocaine from Mexico and tities such as the Caucasus Emir- the two entities, not only at an Colombia to Europe. The fur- ate -, so Italian Mafias have al- economic level, but also on ethical thest destinations of this route ways done. During its existence, and aesthetic grounds. A jihadist are intertwined with jihadism. Cosa Nostra has dealt with “de- such as Mahmood Omar Khabir Through Boko Haram’s con- viated” secret services; liaised has been living in Mexico in re- trolled areas in the Sahel region, with élites during Risorgimento; cent years, working with Ismael new illicit traffic caravanserais infiltrated a Sicilian separatist “el Mayo” Zambada from the are flourishing. Migrants and political party, whose objective Sinaloa drug cartel. people trafficked from all over was to establish an independent Africa are gathered at the border region; negotiated with “deviat- between Niger and Libya and ed” Italian functionaries, after Italian mafia then smuggled through Fezzan, the Portella della Ginestra mas- groups have also Southern Libya, towards Eu- sacre and the period of ‘92 and rope. Judiciary sources includ- ‘93 manslaughters, when mafi- always relied on ed in our book prove how mafia osi murdered renowned judg- terrorist strategies groups, especially Neapolitan es Giovanni Falcone and Paolo camorra, provide vital expertise Borsellino and several other in counterfeiting documents to anti-Mafia activists. In doing so, Jihadists and mafia gangsters help migrants and also terrorists Italian mafia groups have also both share a criminal econo- to move freely inside the EU’s always relied on terrorist strat- my. From the Gulf of Guinea, Schengen area. Many victims of

83 F3 Magazine Justice is not a construct When Mafia and jihadists team together

© Ikechukwu Ibe viaFlickr human trafficking are enlisted in Western Sahara ots to religious fanaticism. El- Italian mafia ranks or involved oquently, Western Sahara may in illegal activities that fund may become become increasingly permeable terrorist attacks in Europe. The to the interests of groups such 2004 Madrid train bombings at increasingly as al-Qaida. The overall pover- the Atocha Railway Station were permeable to the ty of youth, disillusioned with financed by drug smuggled at the elites establishment, accused Santa Maria Capua Vetere, close interests of groups of misspending the economic to Naples, with the cooperation resources is triggering a sort of of Camorra. Mokhtar Belmokhtar, such as al-Qaida paradigm change: some young a key leader of AQUIM - Al Qaeda people seem to flee the secular in Islamic Maghreb - who start- At the present stage, we are wit- values and are turning to jihad- ed his career in Afghan and Al- nessing two trends: on the one ism, seduced by its political dis- gerian civil wars, is nicknamed hand, there is an alliance be- course. A belief is growing that Mr. Marlboro, due to his main tween many subversive move- jihad is a better way to amelio- funding activity, yet has been ments which share populist rate living conditions, when po- involved into different turmoils and anti Western values; on the litical leaderships are accused of associated with “liberation” other hand we observe a shift corruption and marxist ideol- movements and separatism. from secular-revolutionary ri- ogy has lost its grip on the hopes 84 F3 Magazine Justice is not a construct When Mafia and jihadists team together

© UN Photo/Staton Winter of the youth. Similarly, terror- is an iconic narco-emir, associ- rightist groups, in Europe, which ist-salafi groups such as the MU- ated with another milestone ac- are sympathetic with the anti JAO (Movement for Unity and tivity of the criminal economy: liberal and anti capitalist stance Jihad in Western Africa) and ransoms. of Salafi terrorists. Ansar Eddine, the former led by Belmokhtar and Abu Walid In our book, we cover the case The enemies of the open social Sahrawi, the latter by Iyad Ag of Italian tourist Maria Sandra ety cooperate. This implies its Ghaly gained ground by exploit- Mariani, kidnapped on February supporters must collaborate at ing disillusioned youth or fragile the 2nd 2011 in Djanet, south- any level and in any place to territories. Ag Ghaly is a billion- ern Algeria, who recounted be- cope with these threats. The es- aire who started his career with ing held hostage by Adnan Abu tablishment of a common Eu- secular movements, became a Walid al-Sahrawi and his mili- ropean Public Prosecutor’s Of- Malian diplomat, led the Tuareg tants, all young people purport- fice which cooperates with its rebellion against his govern- edly from the Tindouf Camp. homologues worldwide may be ment, lastly affiliated to Nusrat Having said that, there is some the right answer. In a connected al-Islam, a qaedist group formed evidence that this tactical al- world, networked criminals can- by branches of AQUIM, some liance between mafia and ji- not be countered individually. Talibans and the Macina Libera- hadists might include also sub- tion Front. Abu Walid al Sahrawi versive extremists leftist and

The author

Alessio Postiglione is a journalist and political adviser. He works as a research assistant at the Euro- pean University Institute (Centre for Media Pluralism & Freedom); he teaches at several universities; he writes op-eds for newspapers (including la Repubblica) and he is a political analyst working with televisions and radios such as Radio France Internationale and Sky. His latest book, “Sahara, deserto di mafie e jihad”, investigates the link between mafias and jihadists. He has lectured at the Italian and European Parliament, and at the UN Headquarter in New York.

85 © UN Photo/John Isaac The truth in international criminal trials: a chance to write history? by Andrés Felipe Morales Arias

Since it was first addressed as the right to know the fate of missing and dead persons under international humanitarian law,1 the idea of a ‘right to truth’ has gradually expanded into other fields of law such as human rights law and international criminal law.2 Though this right has not been codified in a legally binding instrument of international law, the Human Rights Council (HRC), as the monitoring body of the International Covenant on Civil and Political Rights (ICCPR), has interpreted that there is a right to truth and that it is a development of the right to remedy. This has been the theme of various of its Res-

1 Articles 32 and 33 of the API GC of 1949. 2 UN-OHCHR, Report on the right to truth (UN-OHCHR, 8 February 2006) 1-62. 86 F3 Magazine Justice is not a construct The truth in international criminal trials: A chance to write history? olutions.3 The United Nations Human Rights similarly recog- al criminal law. It was (and still General Assembly Resolutions nized the right to truth, this time, is) a matter of State responsibil- are no different as they also un- as an extension to the right to ity, not thought as an element derstand the truth as a right.4 The access to justice. It is because of of personal liability. This is im- jurisprudence of the European5 this wide recognition that some portant because it shows that the and Inter-American6 Courts of commentators, including Yas- right to truth was not conceived 7 3 Human Rights Council Resolu- min Naqvi, researcher at the originally as part of internation- tion, Right to truth (2014); Human ICRC, consider this right to be a al criminal law and that in an Rights Council Resolution, Forensic general practice of internation- effort to implement it, the in- Genetics and Human Rights (2010); al law which grants it the status ternational criminal procedure Human Rights Council Resolution, Right to truth (2009); Human Rights of a norm of customary law. has suffered substantial changes, Council Resolution, Forensic Genet- But, even if considered a right trying to imitate a human rights ics and Human Rights (2009); Hu- because of its customary status, tribunal or a truth commission. man Rights Council Res. 12/12, 12th what does the right to truth en- sess., Promotion and protection of tail? What is its content? What all Human Rights, Civil, Economic, The right to truth Social and Cultural Rights, Including are its contours? These are ques- the Right to Development: Right to tions that remain unanswered. comes from norms the truth. (Oct. 12, 2009). 4 General Assembly Resolution, Right of international to truth, Report of the special rap- One thing is clear however: the porteur on the promotion of truth, right to truth comes from norms humanitarian justice, reparation and guarantees of of international humanitarian non-recurrence (2017). law and human rights law and law and human 5 See, inter alia, Judgment of 25 May it then moved into internation- 1998, Kurt v. Turkey, Application rights law and it No. 24276/94; Judgment of 14 No- vember 2000, Tas v. Turkey, Appli- 1999, Case of Ignacio Ellacuría et al then moved into cation No. 24396/94; and Judgment v. El Salvador. of 10 May 2001, Cyprus v. Turkey, 7 Yasmin Naqvi, The right to the truth international Application No. 25781/94. in international law: fact or fiction? 6 Inter-American Commission, (Geneva: International Review of criminal law Report No. 136/99, of 22 December the Red Cross, 2006) 245-273.

87 F3 Magazine Justice is not a construct The truth in international criminal trials: A chance to write history?

Regardless of the ambiguity of what truth are international tri- ICTR conduct their proceedings this concept and as mentioned als supposed to unveil? Second, in an attempt to reach a material above, the right to truth was im- can international criminal trials truth, though these proceedings ported to the field of interna- establish such a truth? Finally, follow a common-law-oriented tional criminal law. Consequent- should international criminal scheme in which two equal par- ly, this changed the nature of the tribunals do so? ties present their cases. The ICC ascertainment of the truth in the These questions are not meant also attempts to find a material criminal trials, from unveiling to be answered in this article. truth as a result of the proceed- the guilt or innocence of an indi- But, addressing them in the fol- ings and, while maintaining its vidual, to a much broader objec- lowing sections, will hopefully common-law features, it moves tive. The truth that international provoke discussion around the towards the civil-law tradition in criminal procedure pursued be- objectives of international crimi- allowing the involvement of the came a very complex and ample nal law and the content and scope judge and the victims in estab- concept that goes as far as setting of the truth in international crim- lishing the truth. down a historical record that in- inal proceedings. But besides the common-law cludes all the circumstances sur- and civil-law traditions that gov- rounding the perpetration of an ern these tribunals, the influence international crime.8 What is truth in the interna- of the concept of a right to truth, tional trials? born in human rights and hu- Though the resolutions estab- In common-law systems, the manitarian law, has exalted the lishing the International Crim- notion of establishing truth in importance of the truth of criminal Tribunals for the former criminal proceedings is limited inal proceedings to the point of Yugoslavia (ICTY) and Rwan- to the by-product of presenting becoming the core objective of da (ICTR), and their respective and refuting evidence concerning international criminal law. In- statutes, make no reference to individual criminal guilt or inno- ternational criminal tribunals such a complex concept, truth cence. This has been referred to not only determine the guilt or has been considered the main as “procedural” truth.10 In a civ- innocence of the accused, but objective of the jurisprudence il-law system, in contrast, the also look for the facts and es- of these tribunals.9 The Interna- truth is defined as a factually ac- tablish a historical record of the tional Criminal Court (ICC) went curate verdict that goes beyond circumstances surrounding in- a step further by acknowledging the truth of the parties directly ternational crimes.12 This is the this purpose in its statute, par- involved in the case. This model type of truth that international ticularly in articles 54(1)(a) and calls for the intervention of the criminal trials look for, and for 69(3). International criminal tri- parties, the judge and participants the purpose of this article will be bunals thereafter have taken a with the aim to achieve a “mate- considered the “historical truth.” similar approach. rial”, “substantial” or “ontological” As argued before, importing the truth regarding the guilt or inno- Can international criminal tri- right to truth from human rights cence of the accused.11 bunals establish a historical law and humanitarian law into In the context of international truth? international criminal law led criminal law, common-law and While it has been one of the to recognizing an ample and civil-law traditions influence main objectives of international complex truth as the heart of in- the approach to the truth that the criminal tribunals to achieve a ternational trials. This raises at tribunal may have. The ICTY and truth that involves establishing a least three questions: First of all, historical record of the circum- 10 Yasmin Naqvi, The right to the truth in international law: fact or fiction? stances surrounding the perpe- 8 Ibid. (Geneva: International Review of tration of international crimes, 9 Prosecutor v. Deronjic, T. CH. Judg- the Red Cross, 2006) 245-273. in practice, that objective usu- ment on sentence, IT-02-61-T, 30 11 Caroline Buisman, Ascertainment of ally falls short for a number of March 2004, para. 133; Prosecutor v. the truth in International Criminal reasons. Akayesu, T. Ch. I. Judgment, ICTR- Justice (Brunel University, 2012) 95-4-T, 2 September 1998, para 131. 1-355. 12 Ibid. 88 F3 Magazine Justice is not a construct The truth in international criminal trials: A chance to write history?

Peter Denton via Flickr

Look for the facts and making them more efficient, then convicted for war crimes as well as obtaining informa- only and after her early release and establish tion, otherwise never obtained. she renounced her admission of However, these agreements are guilt. As a consequence, Plavšić’s a historical considered controversial as they involvement in the crime of record of the imply limiting clarity on the genocide will remain forever un- circumstances of the crime and known. To date, twenty of these circumstances may obscure the true facts of agreements have taken place.15 A surrounding the case.13 In fact, ICTY judge similar approach was followed Wolfgang Schomburg, presiding at the ICTR, where seven of the international judge in the Deronjic case, crit- thirty-seven people convicted icized these agreements as they pleaded guilty as a result of an crimes conflicted with the mission of agreement with the prosecutor.16 establishing the truth.14 That can This approach implies, by defi- First of all, the use (and mis- be seen in the case of Biljana nition, making it impossible to use) of plea bargains and charge Plavšić, the former co-president establish a truth that allows for a bargains have made it difficult of the Republika Srpska (who robust historical truth. to achieve a historical truth. As was sentenced 11 years in pris- seen in the previous section, on). The prosecutor dropped the At the ICC, departing from the though the ICTY includes ele- charges for genocide as part of a experiences in the former Yugo- ments of both traditions of law, charge agreement. Plavsic was slavia and Rwanda, no plea bar- the model put in place is heavily gains have taken place. Also, the oriented towards a common-law 13 Turner, Jenia Iontcheva, Plea Rome Statute - which established system. This opened the possi- Bargain in International Criminal the ICC - in articles 54(1)(a) and bility of plea bargains and charge Justice (U. Pacific Law Review, 2017) 69(1)(3) takes on a broader un- bargains. This common practice 219-239. consists of an agreement be- 14 ICTY, Prosecutor v. Deronjic, Case 15 ICTY, Key Figures of the ICTY (May No. IT-02-61-S, Sentencing Judge- 20, 2012). tween the parties made with the ment, Dissenting Opinion of Judge 16 ICTR, Status of Cases, (August 15, purpose of shortening the trial Schomburg. (May. 30, 2004). 2011). 89 F3 Magazine Justice is not a construct The truth in international criminal trials: A chance to write history?

derstanding on the truth in the For the sake of clarity, the use truth in international trials, may proceedings. First, Article 54(1) of plea bargains and charge bar- have the opposite effect. This is (a) recognizes as a duty of the gains has proven to make trials because it is assumed that the prosecution to extend the inves- more efficient. However, this participation of victims in the tigation to cover all facts in or- practice is not compatible with proceedings will reveal the true der to establish the truth. Later, the concept of a historical truth facts behind the circumstances Article 69(1)(3) allows the Court and it makes more difficult to of crimes. Far from that, victims’ to request the submission of all achieve a right to truth. Victims participation in certain cases has evidence, be it inculpatory or should then apply to the realm taken the form of inconsisten- exculpatory, with the purpose of of human rights law and look for cies and false testimonies that establishing the truth in the pro- a truth that meets their demands detract from the truth.17 ceedings. This approach is more either before national or region- likely to fulfil the requirements al human rights courts. To conclude, many elements pres- of establishing a holistic truth ent in international criminal trials in international criminal trials. like plea bargains, charge bargains Nonetheless, the provisions of The use of plea and victims’ participation have the Rome Statute do not rule out bargains and been necessary to conduct the the possibility of plea bargains proceedings and even to guar- or charge bargains, as it contains charge bargains antee the ascertainment of the provisions regarding the admis- has proven to truth (be it procedural, materi- sion of guilt. Therefore, there is al or historical). But, these very still room for trials that use plea make trials more tools may in some cases render bargains and charge bargains in establishing a historical truth the ICC and that achieve a mere efficient impossible. Taking the experi- procedural truth instead of the 17 ICC, The Prosecutor v. Thomas intended historical truth. Secondly, the participation of victims in the proceedings, viewed as Lubanga Dyilo, Transcripts Closing submissions by the Defence (26 a means to guarantee the right to August 2011). 90 F3 Magazine Justice is not a construct The truth in international criminal trials: A chance to write history? ences from the former Yugosla- not a matter of international impunity, deters and prevents via and Rwanda, it can be argued criminal law. This means that to further violations, re-establishes that the recurrent use of plea satisfy the right to truth is a re- the rule of law and reaffirms the bargains and charge bargains sponsibility of a State and should principle of legality.19 Howev- led to a mere procedural truth, be addressed in a national or re- er, it is clear that the same ob- making a historical truth un- gional court of human rights, not jectives can be met with a more reachable. Likewise, despite the an international criminal tribu- traditional approach to what effort of the ICC to depart from nal. Therefore, the recognition truth is in a criminal procedure, the procedural truth by giving of such truth as the core value meaning, establishing the guilt or judges a more active role in the of international criminal trials innocence of the accused. Thus, search for the truth, the possibil- is the result of a confusion be- the usefulness behind historical ity of plea bargains and charge tween two different bodies of truths remains uncertain. bargains still remains. As to the law. In other words, an interna- victims’ participation in the pro- tional criminal tribunal should ceedings, allowing victims’ voic- not have the burden of satisfying Achieving a es to be heard in trial may help victims’ right to truth, as it is not historical truth to establish a holistic truth. But, a human rights tribunal. as shown in practice,18 victims could be beneficial voices have also led in some cas- as it fights es to false testimonies and in- This practice is not consistencies that are divorced compatible with impunity, deters from the facts. Therefore, victims’ participation must be lim- the concept of a and prevents ited to the role of a witness to historical truth further violations, deprive other interests to conflict with the search for the truth and it makes more re-establishes and limit to the extent possible the rule of law that external factors interfere difficult to achieve with the proceedings. a right to truth and reaffirms

Should international criminal Plea bargains, the principle of tribunals establish a historical charge bargains legality truth? In addition to the practical dif- and victims’ Finally, far from achieving the ficulties international criminal participation have goals of international crimi- tribunals face in establishing nal law or satisfying victims’ historical truth, one has to won- been necessary rights, the role of international der: is that an appropriate role criminal tribunals as histori- for international criminal trials? to conduct the cal-truth-seekers entails many proceedings and dangers. As the Finnish inter- First of all, let us bear in mind national lawyer Martti Kosken- that the historical truth that in- even to guarantee niemi20 argues, giving interna- ternational criminal trials seek came from the notion of a right the ascertainment 19 Yasmin Naqvi, The right to the truth in international law: fact or fiction? to truth in international human of the truth (Geneva: International Review of rights law. This means that the the Red Cross, 2006) 245-273. satisfaction of a right to truth is Secondly, it could be argued 20 Martti Koskenniemi, between a matter of human rights law, impunity and show trials (The that achieving a historical truth Netherlands: Max Planck Yearbook could be beneficial as it fights of United Nations Law, Volume 6, 18 Ibid. 2002) 1-35. 91 F3 Magazine Justice is not a construct The truth in international criminal trials: A chance to write history?

© UN Photo/Eric Kanalstein tional criminal tribunals the place will increase the chances torical truth can hardly be cre- power to write history, instead of making international criminal ated by international criminal of only determining the guilt or proceedings a show trial that in- tribunals, and such truth has not innocence of the accused, will tends to educate people on his- proven to be beneficial for the make the line between justice, torical truths through law. aims of international criminal history and manipulation invis- law. Moreover, to pursue this ible. truth endangers the legitimacy Conclusions of international criminal tribu- As argued in this article, the right nals as it gives the procedure a The right to truth, to truth, deeply rooted in human political hue. With that in mind, deeply rooted in rights and humanitarian law, has it can be argued that interna- permeated international crimi- tional criminal law should fo- human rights and nal law. As a result, international cus on determining the guilt or humanitarian law, criminal tribunals have taken on innocence of the accused, as as- the challenge to provide a truth suming such lofty objectives as has permeated that goes beyond establishing the writing history and achieving an guilt or innocence of the accuse. uncontested truth may be any- international This truth has been expand- thing but beneficial. criminal law ed to the point of searching for all aspects related to the crime This is because the highly po- committed, its context, reasons, litical context under which in- etc., in order to set a historical ternational criminal trials take record. Nonetheless, such a his-

The author

Andrés Felipe Morales Arias is a Colombian lawyer from Los Andes University, with specialized studies on Human Rights Law and International Criminal Law from the Alfonso X El Sabio University and the United Nations Interregional Crime and Justice Research Institute. Morales Arias has worked in these fields at the Colombian Constitutional Court, the International Criminal Tribunal for the Former Yugoslavia, the Mechanism for International Criminal Tribunals and more recently at the Special Jurisdiction for Peace in Colombia where he currently works as a legal officer.

92 Funded by the European Union

UNICRI is implementing a pilot project on Countering Violent Extremism (CVE) in Burkina Faso, Chad, Libya, Mali, Mauritania, Morocco, Niger and Tunisia. The project is piloting most diverse grass-root initiatives in collaboration with more than 60 civil society organizations, proposing successful practices for countering violent extremism.

The project involves:

Conducting field research in low, medium and high-risk environments Identifying, vetting, selecting, engaging and micro-financing grass-root projects Enhancing the resilience of local communities via early warning mechanisms Enhancing the resilience of local communities via continuous vocational training, education and awareness raising Building the capacity of progressive local religious leaders, civil society organisations and youth 93 Photo Reportage Restoring dignity and hope for refugees by Valentina Tamborra

A photographic journey into an unprecedented migration crisis

Valentina Tamborra is a 35 year-old photographer born in Milan, Italy, where she currently lives and works. Her photography, largely consisting of reportages and portraits, is a successful attempt to combine storytelling with pictures.

Within a wider range of projects and exhibitions spanning mainly the years 2016 and 2017, she devoted much of her latest works to the cause of migrants, by reporting through photographic diaries her firsthand experiences in some of the most crowded and unsafe refugee camps.

From the Dandora dump – Nairobi, Kenya – to the hotspots of Ventimiglia, at the border between Italy and France, and Moria, on the island of Lesbos, the photographer collects and tells us about the stories of thousands of refugees living in inhuman conditions. 94 95 96 97 From Ventimiglia to Lesbos

Ventimiglia

From September to December 2017, Valentina works on a project entitled La sottile linea rossa (The thin red line), developed in cooperation with Médicins Sans Frontière - MSF. She witnesses and documents the stories of refugees that she describes as being “stucked in a limbo” in Ventimiglia, at the border between France and Italy. A tiny strip of land where “never-ending dramas, unfulfilled hopes and shattered dreams are part of their daily lives”. 98 99 The bridge under the SS20 highway – hundreds of people living on the banks of the river

100 Passo della Morte – the bridge marking the beginning of the long, deadly route from Italy to France Hope – looking forward to a better life. On the other side, France is a promised land.

Mohamed – a 15 year-old migrant living under the bridge101 who has been denied access 3 times when trying to reach France 102 103 Lesbos

As her photographic journey continues, Valentina is committed to reporting on the astonishing living conditions of refugees in the hotspot of Moria – Lesbos, where about 6000 migrants live in a camp of a maximum capacity of 2000. The shoots, collected in one of her most recent exhibitions – Lesbos: Stories of migrants, depict and appalling situation where people struggling to survive are con- stantly seeking for asylum or waiting to be returned to their countries of origin. 104 105 Inside Moria’s camp

106 Outside Moria’s camp 107 The 70 year-old grandpa desperately waiting for a healthcare provider. “Doctor” is the only English word he learned “Overlapping faces. Untold stories. Thousands of men and women whose identities have been denied. Who became nothing but numbers and labels of an endless list”

108 109 110 111 The Dandora dumpsite

“I went to Nairobi – Kenya and thanks to Amref Health Africa social workers I documented the story of the children living in dumpsites and their re-birth thanks to recycling materials found in the garbage to make musical instruments”. Valentina Tamborra summarizes in a nutshell her astonishing visit at the Dandora dumpsite, Nairobi, where she contributed to the social workers’ rescue operations and followed the kids inside Amref centres, where they receive education, healthcare and practical assistance.

CHOKORA – The singing tin

It’s pronounced “Cho ko rah” and in Swahili means trash. This is the name given to the Nairobi street kids. Kids who live in the trash, or to better say: survive. From the immense Dandora dumpsite to Dagoretti slum and Amref HW, we’ll tell their stories and a tin one. It’s a story of re-birth, childhood that can be finally lived, hope. It’s the story of a piece of garbage which becomes music, play, new life.

112 113 Kibera - one of the largest slumps in Kenya

114 Kids sniffing glue The effects of glue on a kid: suppresses hunger and cold, annihilates senses while destroying life.

Dandora – people collecting materials for resale to buy food115 and clothes. 116 117 118 119 © contributor/IRIN news

The return of hybrid courts: omen or promise? by Davide Brunone

According to Greek mythology, chimeras were monstrous hybrid creatures made up of the parts of different animals, usually a lion, a goat and a snake. These monsters were regarded as nature’s abortions and their appearance was considered an omen for disaster.

Just like chimeras, hybrid courts are courts whose staff and applicable law consist in a combination of heterogeneous elements: the international and the domestic. However, should the return of hybrid courts on the international stage be considered as ominous as that of their mythological ancestors?

During the last decades, the hybrid design slowly emerged as the standard design for transitional justice courts, its success relying largely on its ability to get the best of both worlds: respect for international fair trail standards and a decent degree of domestic ownership. Unlike purely international courts, hybrid F3 Magazine Justice is not a construct The return of hybrid courts: omen or promise?

© UN Photo/UNHCR/Roger LeMoyne courts are said to enjoy greater ulation 64 Panels, the Bosnia’s Most recently, after a phase of legitimacy, since they rely heav- War Crimes Chamber (BWCC) both “practical obsolescence ily on local staff, lay their seat in were established and the cre- and theoretical disfavour”,1 the the countries where the atroc- ation of the Special Tribunal for hybrid design has regained the ities occurred, apply a blend Lebanon (STL) was already un- spotlight as several hybrid crim- of international and domestic derway. inal justice mechanisms have law and set out legacy-building been set up, such as the Spe- mechanisms. On the other hand, And yet, after the creation of cialist Chambers for Kosovo, unlike purely domestic courts, the International Criminal Court the Special Jurisdiction for they stir international capacity (ICC), few would have guessed Peace in Colombia, the Special into the domestic judicial sys- such a bright destiny for hybrid Criminal Court for the Central tem, promote compliance to in- courts. Squeezed between the African Republic and the Afri- ternational legal standards and universal mandate of the ICC and can Union-backed Hybrid Court ensure the independence of pro- domestic prosecution of interna- for South Sudan. ceedings. tional crimes, their survival on the international stage appeared This revival of the hybrid design After the adoption of the Rome unrealistic, as no room had been comes with a question: have hy- Stature, but before it became left for a third actor in the bina- brid courts kept their promise? fully operational, hybrid courts ry (domestic/international) sys- The original promise of hybrid tem envisaged by Art. 17 of the enjoyed their golden age: be- Rome Statute. In the face of the courts lay in the capacity of such tween 2002 and 2006 the Spe- ICC’s complementarity regime, courts to overcome the draw- cial Panels for East Timor, the their role was to be secondary 1 P. Mcauliffe, “Hybrid Tribunals at Special Tribunal for Sierra Le- and short-lasting, and those who Ten: How International Criminal one (STSL), the Extraordinary already celebrated the “promise Justice’s Golden Child became an Chambers in the Courts of Cam- of hybrid courts” were regarded Orphan”, Journal of International bodia (ECCC), the Kosovo’s Reg- as romantic and naïve. Law and International Relations, 2011, Vol. 7, p. 5. 121 F3 Magazine Justice is not a construct The return of hybrid courts: omen or promise? backs of both domestic courts process leading from UN-based countability, it is by successful- and ad hoc international tri- ad hoc tribunals (such as the ly bringing to justice the perpe- bunals while drawing on their ICTY and the ICTR) to domes- trators of the gravest breaches respective strengths in terms tic courts enforcing universal of international criminal law, of ownership, legacy-building jurisdiction and, eventually, to rather than by relying on their and rule-of-law enforcement. hybrid courts. This enthusiastic capacity-building mechanisms. Whether hybrid courts have de- propaganda created false expec- livered this promise or not, how- tations, portraying hybrid courts ever, is a question that does not as a panacea for every setback in In each case, the have, nor deserves, an answer. international justice, as well as circumstances unnecessary concerns, raising “Hybrid courts” is a definition the suspicion that hybrid courts under which the encompassing a patchwork of were secretly spoiling the ICC court operates, transitional justice mechanisms, of its jurisdiction by overriding each one displaying its specific the complementarity regime es- the challenges it design as shaped by the histori- tablished by Art. 17 of the Rome cal, geographical, social and legal Statute. faces and the aims context in which it is embedded. it chases must be As a consequence, there is no On the one hand, the promise way to assess the promise of hy- of a long-lasting legacy of rule- taken into account brid courts per se. In each case, of-law in the countries where the circumstances under which hybrid courts have been estab- On the other hand, the assump- the court operates, the challeng- lished is deceptive. As stated in a tion that hybrid courts would es it faces and the aims it chases recent report by the Office of the override the ICC’s complemen- must be taken into account. United Nations High Commis- tarity regime is misleading and sioner for Human Rights, “lega- reveals a poor comprehension cy needs a strategy and will not of the dynamics of the unfolding The original necessarily happen automatical- international justice system. promise of hybrid ly or by osmosis.”2 Hybrid courts have so far been designed as ad Legacy needs a courts lay in hoc courts with a relatively short the capacity of lifespan and no other major task strategy and will than to provide accountability such courts to for the atrocities perpetrated. In not necessarily fact, policy-makers have always happen overcome the been more concerned about drawbacks of building agile and cost-effective automatically or transitional courts, rather than by osmosis both domestic all-round, all-purpose courts. In courts and ad most cases, capacity and legacy The ICC’s complementarity rebuilding schemes have been sec- gime encourages the enforce- hoc international ondary to the delivery of early ment of universal jurisdiction tribunals convictions. In other words, if at its earliest stage by letting the there is one way hybrid courts Court step in only when domes- have achieved a lasting legacy tic courts are unable or unwilling Besides, this promise has been and promoted a culture of ac- largely misplaced. Since its first to carry out the investigations appearance, the hybrid design 2 Report by the Office of the High or the proceedings. This, how- has been advertised as the ulti- Commissioner for Human Rights on ever, is also the case when the mate stage of an evolutionary “Rule-of-law Tools for Post-Conflict establishment of a hybrid court States”, 2008, p. 5. 122 F3 Magazine Justice is not a construct The return of hybrid courts: omen or promise?

is taken into consideration. In “a relatively small and juris- nature, while domestic and hy- fact, transitional justice takes dictionally constrained institu- brid courts take on the burden place, by definition, right in the tion with a fairly low budget.”3 of prosecution. Therefore, it is aftermath of wars or civil con- As a consequence, its jurisdic- because of the congenital short- flicts, when domestic capacity tion is, as a matter of fact, con- comings of the ICC’s jurisdic- is too scanty, biased or flawed to fined to the prosecution of those tion, rather than despite them, deliver meaningful justice. And who were most responsible for that hybrid courts should back yet, according to their detrac- the commission of the most se- up its action. tors, hybrid courts would usurp rious crimes. There is actually a ICC’s jurisdiction by sneaking high chance that, at least in the A remarkable example in this in between unwilling or unable near future, the ICC’s outreach respect is the Special Criminal domestic courts and the Court will remain soft and symbolic in Court (SCC) for Central African itself. Republic. Since the outbreak of This allegation largely overrates 3 M. Holvoet, “The Continuing Rel- an armed conflict between the the centrality of the ICC within evance of Hybrid Criminal Courts Islamic rebel group of the Sélé- the international justice frame- in the Era of the ICC”, 9 November ka and the Christian/Animist 2015, http://law.wustl.edu/harris/ work. The ICC was designed as lexlata/?p=801 Anti-Balaka militias following a 123 F3 Magazine Justice is not a construct The return of hybrid courts: omen or promise?

failed coup d’état to overthrow cial Criminal Court to investigate a case-load sharing scheme al- president Francois Bozizé in and prosecute grave violation of ready rehearsed by the Bosnian December 2012, impunity has human rights and international War Chambers and the Interna- spread across the country. CAR’s humanitarian law committed in tional Criminal Tribunal for the situation has been under scruti- the country since January 2003. former Yugoslavia. Whereas it ny by the ICC since 2004. Considering it is the first time is naïve to believe that the SCC a hybrid tribunal has been set will bring peace and justice to up in a country that is also un- CAR by itself, its example could Policy-makers der investigation by the ICC, set a strong case of horizontal have always the creation of the SCC marks cooperation between the ICC an unsteady first step towards and hybrid courts in prosecuting been more a partnership between hybrid international crimes. concerned about courts and the ICC where the former are a complement, rather Hybrid courts will also play a building agile and than an alternative, to the latter. leading role in combating im- Because the SCC is part of the punity for crimes falling outside cost-effective judicial system of CAR, its re- the ICC’s ambit. This could be transitional courts, lationship with the ICC falls unjust the case of the Hybrid Court der the complementarity regime for South Sudan (HCSS) which, rather than all- of Art. 17 of the Rome Statute, despite the resistance put up by round, all-purpose which gives primacy to domestic the South Sudanese government prosecution. However, given the and the countless challenges courts high number of indicted expect- standing in its way, could be a ed and the budgetary bonds of game-changer in the eradication Most recently, on the 3rd of June ICC, it is expected that the bulk of the “entrenched culture of im- 2015, current interim president of prosecution will be borne by punity”4 spread across country. Catherine Samba-Panza pro- the SCC, with the ICC going af- 4 Final report of the African Union mulgated a law creating a Spe- ter the “big fishes”, according to Commission of Inquiry for South Sudan, 14 October 2014, § 991. 124 F3 Magazine Justice is not a construct The return of hybrid courts: omen or promise?

Transitional er of the Sudan People’s Liber- of the creation of a hybrid court ation Movement and former for South Sudan will lie entirely justice takes place, Vice-President, which formally on the African Union, but also settled the armed conflict raging that the eagerly-awaited court by definition, right in the country since December will play the lead in the fight in the aftermath 2013, dedicates an entire section against impunity in South Sudan to the establishment of an hybrid and get a chance to reiterate the of wars or civil court “to investigate and pros- success already gained by other conflicts, when ecute individuals bearing the hybrid courts. responsibility for violations of domestic capacity international law and/or appli- As these recent examples show, cable South Sudanese law.”5 Be- the return of hybrid courts still is too scanty, cause South Sudan did not ratify holds a good deal of promise. biased or flawed to the Rome Statute, nor did the Se- Rather than evanescent all-pur- curity Council consider a refer- pose courts, rather than usurpers deliver meaningful ral to the ICC, the Court cannot of ICC’s jurisdiction, rather than justice claim any jurisdiction over the chimeras, hybrid courts have crimes committed in the coun- been, and will remain, an asset The August 2015 Agreement try. This means that the burden in the fight against impunity for international crimes. between President Salva Kiir 5 Agreement on the Resolution of the and Riek Machar, military lead- Conflict in the Republic of South Sudan, § 3.1.1.

The author

Davide Brunone studied law at the University of Naples “Federico II”. After a study period abroad at the University of National and World Economy of Sofia, he graduated with a thesis on hybrid courts and their juridical nature, where he focused on the case of the Extraordinary Chambers in the Courts of Cambodia. Most recently, he attended the Specialized Training Course on International Crime and Global Threats to Peace and Security held by UNICRI and worked as a legal intern at the Internation- al Criminal Tribunal for the former Yugoslavia.

125 Infcous

THE ART OF CRIME New models of governance, compliance and accountability for the art world by Marcílio Franca

126 © Photo by Christian Fregnan on Unsplash

127 F3 Magazine Justice is not a construct THE ART OF CRIME New models of governance, compliance and accountability for the art world

Issue 29/2005 of German mag- ly easy to steal and sell art to of buyers and sellers tend to be azine Der Spiegel announced raise funds. As an example, still kept anonymous, leaving law that, according to German Police in the 1960s, the Unione Corse enforcement authorities with findings, terrorist Mohammed - a mafia organization that op- the hard work of guessing who Atta possibly tried to finance erated in Corsica and Marseille - was involved, where the money the attacks of 11 September 2001 stole works by Picasso, Cézanne, came from and whether or not through illegal art trade. Accord- Van Gogh and many other au- the price was suspicious. The ing to the publication, Atta had thors in the French Riviera. The “prestige” or “elegance” of the offered antiques to a Professor Camorra and the ‘Ndràngheta person who steals art (so differ- of the University of Göttingen, have all used similar procedures. ent from shoplifters, for exam- who suspected the origin of the In the 1980s, Pablo Escobar, the ple); the development of online artwork and declined. Despite Colombian king of cocaine, was sales; and the lack of regulation the world’s astonishment at such known to have used priceless in the sector, are conditions that revelation, Al Qaeda was not the works by Dalí, Rodin, Botero and can all be conducive to a number first terrorist organization to Picasso to launder money. of crimes involving works of art, use the art and antiques market especially money laundering. to finance their criminal opera- Criminal groups soon realized tions, a market that only in 2016, how easy it is to cross borders Like terrorism and the mafia, handled an officially reported with a rolled-up canvas; prices corruption also is closely linked amount of 45 billion dollars, ac- can be raised or lowered by mil- with the art market. Take Brazil’s cording to the TEFAF Report lions in few months in the art current scenario: in the middle 2017 on the global art market. market; the tangle of conflicts of of a political crisis, highlighted by interest can contaminate the re- the corruption scandal involving Criminal organizations have known sult of expert reports and tech- the giant contractor Odebrecht, for over 50 years that it is relative- nical opinions, and the names many works of art used to ei- 128 F3 Magazine Justice is not a construct THE ART OF CRIME New models of governance, compliance and accountability for the art world ther corrupt public authorities Although there have long been his lectures would be the liter- or hide or launder money that many good instruments of hard ary values that deserved to be originated in corruption acts, law against money laundering in preserved in the course of the have been apprehended. A sin- the field of criminal law, admin- new millennium which was to gle Brazilian museum, the Oscar istrative law, economic law and start some years later. However, Niemeyer Museum, in Curitiba, international law, the State/do- Calvino passed away in Septem- has already received nearly 150 mestic law has not been enough ber 1985, shortly before setting works of art, including paintings to regulate the ever bigger and off to the United States. Post- by Miró and Dalí, confiscated more opaque art market. humously, the five conferences from individuals involved in the written so far were collected in corruption scandal. Power, se- one volume whose English ver- crecy and mobility are together Colombian king sion is entitled Six Memos for in this market. The Panama Pa- of cocaine, was the Next Millennium. The first pers and Paradise Papers pro- conference he wrote was about vide an unprecedented look at known to have lightness. Italo Calvino starts his the connection between inter- used priceless lesson on lightness by remem- national art trade, money laun- bering that “to cut off Medusa’s dering, corruption and offshore works by Dalí, head without being turned to secrecy. stone, Perseus supports himself Rodin, Botero and on the very lightest of things, the Criminal Picasso to launder winds and the clouds [...].” organizations have money With that in mind and since money laundering in the art known for over In 1984, Italo Calvino – one of market is a complex, wide- 50 years that it is the most important Italian writ- spread and multi-faceted activi- ers of the 20th century – was ty, it must be tackled nowadays relatively easy to invited by Harvard Universi- from several different angles, ty to deliver the Charles Eliot far from domestic criminal law steal and sell art to Norton Poetry Lectures for the alone. One of the new angles to raise funds 1985/1986 academic year. Calvi- face this issue may be precisely no decided that the theme of corporate self-regulation and

129 F3 Magazine Justice is not a construct THE ART OF CRIME New models of governance, compliance and accountability for the art world

soft law, like codes of conduct, monised, efficient, global legal ket players as tools to prevent compliance tools, governance regime for the art market is still raising risks and confidence loss. methods, accountability mecha- far from existing. However, it nisms and legal principles. is worth mentioning that enter- prises and legal entities of the Like terrorism art sector like Sotheby’s, Chris- and the mafia, Criminal groups tie’s, Allianz Versicherung, SGS soon realized how Logistics, ARIS Insurance, ING corruption also Bank, the Conseil des Ventes is closely linked easy it is to cross Volontaires, the International borders with a Council of Museums (ICOM), with the art Art Basel, for example, already rolled-up canvas; do have corporate codes. An market International code of ethics for prices can be dealers in cultural property has It is obvious that one does not buy raised or lowered been adopted by the UNESCO art merely to hide or to launder in 1999. In January 2017, a group money of illicit origin. It would by millions in few of Geneva-based art institutions be tremendously prejudiced or months in the art known as the Responsible Art naive to think so. In an increas- Market Initiative (RAM) pub- ingly aesthetic and visual world, market lished their first set of direc- in addition to individual collec- tives on anti-money laundering tors whose access to works and While different anti-money laun- best practices. This means that auctions has been democratized dering regimes have been adopted methods of self-regulation are with the Internet, private muse- around the globe, a single, har- already in sight for the art mar- ums, non-profit institutions and 130 F3 Magazine Justice is not a construct THE ART OF CRIME New models of governance, compliance and accountability for the art world

© UN Photo/Bikem Ekberzade companies have been achieving ket, strategic, philosophical or art is so creative, why can’t such an increasingly important role even status-based reasons, it is creativity contaminate the world in art and culture through their fundamental that the art market of art law to cause the discussion corporate collections, their pa- be protected more and better of new models of regulation and tronage policies (acquisitions, against its use for unlawful pur- cooperation of the sector? I am sponsorships, prizes, grants and poses, preserving its image and sure that UNICRI, its research- artistic residencies) and even solidity as well as guaranteeing ers and its long and deep exper- their art investment funds. In security, certainty, confidence tise have a fundamental role in view of this strengthened im- and predictability to its many this debate! portance, whether for cultural, operators. Against this backdrop, political, imaginary, social, mar- here is what is left to find out: if

The author

Marcílio Franca is Professor of Public Law at the Federal University of Paraíba and Prosecutor at the Prosecution Office at the Audit Court of Paraíba, Brazil. He is also Research Fellow at the Collegio Carlo Alberto (Turin, Italy) and Member of the Executive Council of the International Law Associ- ation (ILA), London, UK. He is serving as Alternate Arbitrator at the Permanent Review Tribunal of MERCOSUR (Asunción, Paraguay). He holds a Ph.D. in Law (University of Coimbra, Portugal, 2006) with a post-doctorate in Law (European University Institute, Florence, 2007-2008). He is member of the International Association of Constitutional Law (IACL), of the International Society of Public Law (ICON), of the International Art Market Studies Association (TIAMSA) and of the Instituto Hispano-Luso-Americano de Derecho Internacional (IHLADI). Marcílio Franca is former Visiting Professor of the Turin Law Faculty, Italy, and former Legal Advisor at the United Nations Office in Timor Leste (UNOTIL). Email: [email protected].

Is there a unique perspective to transitional justice? Ordinary justice and transitional justice are significantly and distinctively different. As many studies will show, the qualities of ordinary justice assume there is in place a reasonable democratic system. This paper will identify the features of ordinary justice compared to transitional justice. The focus will be on: definitional perspective, timing arguments, and limitations of transitional justice both substan- tive and procedural. The general hypothesis is: a level of uncertainty makes transitional justice unique because it requires a fresh perspective every time. There is indeed something unique that arises from uncertainty.

Transitional justice defined The International Center for Transitional Justice (ICTI) defines transitional justice as “a range of ap- F3 Magazine Justice is not a construct Is there a unique perspective to Transitional Justice? proaches that societies under- ment often faces one common transition, there is no conceptu- take to reckon with legacies of challenge: whether to use retro- al difference from ordinary and widespread or systematic hu- active systems for criminal and transitional justice. man rights abuse as they move civil justice from the old regime from a period of violent conflict or to develop new ones. Fur- or oppression towards peace, thermore, the author posits that The transitional democracy, the rule of law, and there are arguments that there government respect for individual and col- is no such thing as transitional lective rights.”1 Historically, the justice and that it is just ordinary sets standards definition of transitional justice justice applied to a transitional and legitimizes is: “conception of justice in pe- period of a regime. A common riods of political transition.”2 argument is that an established procedures Transitional justice studies and democratic regime can practice literature find specific jurispru- transitional justice.4 However, for societies dence, moral and system and in- since states within the regime transitioning after stitutional issues of transitional are not in fact in a period of governments. According to Mur- a long period phy,3 the transitional develop- of Political Reconciliation. Cam- bridge, Cambridge University Press of conflict and 1 International Center for Transi- 4 Posner E.A. & Vermeule, A. (2004). tional Justice. (n.d.). https://www. Transitional Justice as Ordinary Jus- repression ictj.org. tice. Harvard Law Review, 117(3), pp. 2 Teitel, R. (2000). Transitional Jus- 761-825; Murphy, C. (2010) A Moral Where a mere series of chang- tice. New York: Oxford University Theory of Political Reconciliation. es within an already established Press. Cambridge, Cambridge University 3 Murphy, C. (2010) A Moral Theory Press. democratic regime may claim

133 F3 Magazine Justice is not a construct Is there a unique perspective to Transitional Justice? to be practicing a transition in public at large. As a response to transitional period and the new their justice system, these ex- “systematic or widespread vio- regime when the legal reform isting democracies are not old lations of human rights,”7 transi- takes place and often those in of- regimes emerging from times of tional justice associates with the fice maintain their roles through war or becoming democracies, regime authority and regime le- the transitional period into the therefore they are not practic- gitimacy. There exists a level of new. Rebuilding the system ing transitional justice. These uncertainty within a transitional needs a complex set of changes are systems and institutions of period of a fallen regime, that and procedures that basic exist- an existing democracy that may requires community healing and ing concepts do not address and be in the process of systematic interest-based justices for mass are necessary for political rec- reform, but they are not practic- violence and oppression which onciliation to be possible. How- ing transitional justice because is often caused by the authori- ever, to challenge this idea, we they are not created post-conflict tative system that pre-existed. must consider that in transition- during a political transition.5 The timing is a distinctive trait al contexts the old order was not within an emotional environ- liberal and the transitional peri- ment surrounding transitional od differs from it completely in During a governments. character. transitional Timing arguments The timing and duration of tran- period, standards During a transitional period, sition for fallen governments for the legitimate standards for the legitimate ex- into democracy is a critical one. ercise of power by the state are It is important to keep in mind exercise of power in flux, with past standards not that the government’s transi- yet completely repudiated and tion does not end at the signing by the state are in new standards not yet fully con- of peace agreements, yet con- flux solidated. Whereas in an ordi- tinues for long periods thereaf- nary context of a stable, demo- ter. Transitional justice studies The transitional government cratic regime there is a stable and literature identify specific sets standards and legitimizes conception of justice, that legit- jurisprudence, moral and system procedures for societies tran- imizes the exercise of a state’s and institutional issues of transitioning after a long period of power. Some challenges to this sitional governments. The tran- conflict and repression from argument focus on the similar- sitional development often faces their regime.6 For a transition- ities between transitional and one common challenge: whether al government to be successful, ordinary contexts. Posner and to use retroactive systems for the repression and wrong-doings Vermeule8 argue that there may criminal and civil justice from must be addressed and then fur- in fact be nothing distinctive the old regime or to develop new ther communicated to the com- about transitional justice com- ones. munity directly wronged and the pared to those of stable consolidated democracies, that have the 5 Posner E.A. & Vermeule, A. (2004). same changes of political order The timing Transitional Justice as Ordinary Jus- tice. Harvard Law Review, 117(3), pp. and justice. Furthermore, an ar- and duration 761-825; Winter, S. (2013).Towards gument could be made that there a Unified Theory of Transitional is an overlapping between the of transition Justice. International Journal of Transitional Justice, 7, pp. 224-244. for fallen 6 Murphy, C. (2010) A Moral Theory 7 International Center for Transi- of Political Reconciliation. Cam- tional Justice. (n.d.). https://www. governments into bridge, Cambridge University Press; ictj.org. Winter, S. (2013).Towards a Unified 8 Posner E.A. & Vermeule, A. (2004). democracy is a Theory of Transitional Justice. Transitional Justice as Ordinary International Journal of Transitional Justice. Harvard Law Review, 117(3), critical one Justice, 7, pp. 224-244. pp. 761-825. 134 F3 Magazine Justice is not a construct Is there a unique perspective to Transitional Justice?

Limitations to transitional sustainable. The concepts in lit- of gross human rights violations justice erature and research of recon- - for the first time in the history The current available studies ciliation, political and civil, are of such commissions amnesty and literature highlight that jus- unsophisticated for rebuilding was granted when specific con- tice during a government tran- communities that have suffered ditions were met. This was based sition from authoritative to severe human rights violations on a more active victim-perpe- democratic requires a public dis- because they are specific to is- trator reconciliation. Through closure of past wrongs. The di- sues and building relationships its contributions the TRC aided lemma surrounding punishment during transitions. the transformation of South Af- arises in the aftermath of a fall- rican society from an unjust to a en regime where there may be just one where justice refers to a high demand that the immor- Justice during a kind of order that is valuable al acts actions should be subject a government to the community to make their to severe punishment. Often own decisions for political is- during this shift, the persons to transition from sues in a civil manner. be punished are officials or pow- authoritative er holders of the old regime. A Transitional justice is nothing new conception of justice which to democratic like ordinary justice, and it is transcends upon the use of com- unique and distinctive because munity-based interests and rec- requires a public each transitional government onciliation has developed. Fur- disclosure of past will have its own set of wrongdo- thermore, for restoration and ings and human rights violations a reasonable expectation for wrongs to address. There is no “one- social order to be possible, in- size-fits-all” model and this is dividual victims and individual Consider the South African why each time a government or perpetrators must be addressed Truth and Reconciliation Com- regime falls, the transitional will otherwise the restoration of the mission (TRC) that in some cases be distinctive to the issues and new government will not be granted amnesty to perpetrator past wrongdoings at hand.

135 F3 Magazine Justice is not a construct Is there a unique perspective to Transitional Justice?

References

International Center for Transitional Justice. (n.d.). https://www.ictj.org Murphy, C. (2010) A Moral Theory of Political Reconciliation. Cambridge, Cambridge University Press. Pham, P. & Vinck,P. (2007). Empirical Research and the Development and Assessment of Transitional Justice Mechanisms. International Journal of Transitional Justice, 1(2), pp. 231-248. Posner E.A. & Vermeule, A. (2004). Transitional Justice as Ordinary Justice. Harvard Law Review, 117(3), pp. 761-825. Teitel, R. (1997). Transitional Jurisprudence: The Role of Law in Political Transformation. The Yale Law Journal, 106(7), pp. 2009-2080. Teitel, R. (2000). Transitional Justice. New York: Oxford University Press. Winter, S. (2013).Towards a Unified Theory of Transitional Justice. International Journal of Transition- al Justice, 7, pp. 224-244.

The author

Ms. Golriz Moezzi received her Bachelor’s Degree from the University of California, Irvine in Crim- inology, Law and Society, a Jurist Doctor from the University of West, Los Angeles, and a Master’s Degree from California State University, Dominguez Hills in Negotiation, Conflict Resolution and Peace Studies. Ms. Moezzi wrote her thesis on introducing restorative practices to transitional governments. She has a passion in reformation to the transitional justice practices and intentional criminal justice.

136 CENTRE FOR ARTIFICIAL INTELLIGENCE AND ROBOTICS IN THE HAGUE, THE NETHERLANDS Understanding the Security Implications of Artiﬁcial Intelligence and Robotics

The benefits of Artificial Intelligence (AI) and robotics will be of paramount importance for society in the years to come. Critical areas such as health, education, energy, economic inclusion, social welfare, the environment, as well as crime prevention, justice, security and stability, will benefit from the progress being made. However, this growth will not be costless if societies will not be prepared to take up the gauntlet to address relevant challenges, for the greater good. Indeed, with every new technology comes vulnerability to new forms of crime and threats to security. A dedicated international discussion on the risks and benefits from a law enforcement and national security perspective is needed. UNICRI advocates for improved coordination, educational, awareness-raising, and outreach on the risk-benefit duality of AI and robotics in a balanced and comprehensive manner. UNICRI, with support of the Municipality of the Hague and the Ministry of Foreign Aairs of the Netherlands UNICRI signed the host country agreement for the opening of its Centre for Artificial Intelligence and Robotics in The Hague, the Netherlands, in September 2017. The Centre is dedicated to:

Advance knowledge of the potential implications of AI and robotics for crime prevention, criminal justice, as well as law enforcement and national security, focusing on both possible risks and beneﬁts.

Share and examine good practices on how AI and robotics can be used to counter crime and enhance security, and discussing the policies or legal frameworks that may be required to address the potential associated risks.

Development of a multi-perspective network of stakeholders committed to understanding and addressing the duality of AI and robotics.

Development and adoption, as appropriate, of informed approaches to address potential security implications of AI and robotics at the national, regional and international level.

Support the achievement of Goal 16 of the UN 2030 Agenda for Sustainable Development on peace, justice and strong institutions. 137 Infcous

Is Italy facing a migration emergency? Italy’s challenge and its new legal framework by Clarissa Spada

139 F3 Magazine Justice is not a construct Is Italy facing a migration emergency? Italy’s challenge and its new legal framework

This essay aims to analyse the economic factors are also forc- of common standards for the new 2017 Italian law established ing large numbers of people to treatment of asylum seekers for the improvement of both leave their countries of origin in and applications, aimed in par- the asylum procedures and the Africa and Asia. This mixed-mi- ticular at managing migration contrast of illegal migration in gration movement composed of flows, creating an efficient sys- a context in which Europe is re- asylum-seekers and economic tem for allocating asylum appli- quired to improve procedures` migrants poses serious challeng- system was consolidated. Nowadays, efficiency without undermining es for asylum processes in Euro- further reforms are ongoing. In the rights of people in need of pean countries. 2016, a fourth revision of the Dublin protection. agreement was proposed with the main idea of improving the reset- When debating refugee protec- tlement mechanism and to establish Europe is experiencing an un- tion and related procedures, the a better system for identifying the precedented migration crisis. main challenges always lie in state competent to asses asylum ap- The phenomenon per se is not and derive from politics. Some plications. v.. chetail, the Common European Asylum System: Bric-a- new but the Continent has seen scholars keep restating that the brac or system? Criminal Justice, a remarkable increase in terms so-called migration crisis is, in Borders and Citizenship Research of arrivals over the last few reality, nothing but a refugee Paper No. 2564990, 2016. European years. On the one hand, the Arab crisis deriving from the continu- Union, (2014). A Common European 1 Asylum System. Publications Office Spring triggered widespread po- ing failure of the CEAS - a set of the European Union. URL: http:// litical instability, and wars in ec.europa.eu/dgs/home-affairs/e- countries such as Syria and Lib- 1 The CEAS has been subjected to two library/docs/ceas-fact-sheets/ ya have pushed massive flows main reform packages. The first ceas_factsheet_en.pdf. package (1985-1999), when the sys- Dublin IV, http://ec.europa.eu/ of migrants towards European tem was firstly established, and the transparency/regdoc/rep/1/2016/ countries. On the other hand, second one (2004-2013), when the EN/1-2016-270-EN-F1-1.PDF 140 F3 Magazine Justice is not a construct Is Italy facing a migration emergency? Italy’s challenge and its new legal framework cations among Member States real attempts have been made to - which has halted the massive and establishing harmonised solve this situation. This can be influx of migrants from Turkey protection standards and rights inferred, for example, from the to Greece and Eastern Europe - for asylum seekers throughout choice of preferring directives Italy has become the European the EU - rather than arrivals in rather than regulations.4 country most affected by migra- se.2 Nowadays, Member States tion, with daily arrivals in the face two main challenges: a) Doubtfully the various changes order of the thousands. ensuring the protection of peo- to the CEAS legal framework ple escaping from persecution have been able to solve this and armed conflicts; b) the con- refugee crisis, shifting more re- When debating trast of illegal migration and the sponsibilities on countries at refugee protection threat of extremists infiltrations the EU borders, such as Italy among migrants arriving mainly and Greece. Furthermore, as a and related on boats. consequence of the EU-Turkey procedures, the Despite the various reforms over statement of March 18, 20165 the last few years, the CEAS is main challenges fragile and still contain several 4 Regulations are immediately applicable and enforceable by law in all always lie in unfilled gaps. One of the main Member States. As good practice, deficiencies derives from the Member States issue national leg- and derive from implicit assumption about the islation that defines the competent existence of a harmonised sys- national authorities, inspection and politics 3 sanctions on the subject matter. tem regarding asylum proce- Directives, instead, are applicable dures and reception conditions to all Member States but they set Although accurate data are of- among Member States. Despite certain aims, requirements and con- ten difficult to collect, the fig- this not-harmonised system, no crete results that must be achieved ures released by Frontex show in every Member State. Further- the seriousness of the situation. more, they set a process for it to be 2 v. chetail, Looking Beyond the Rhet- implemented by Member States. According to the agency, a total oric of the Refugee Crisis: the failed National authorities must create or of 181.376 migrants reached the Reform of the Common European adapt their legislation to meet these Asylum System, European Journal aims by the date specified in each europa.eu/en/press/press-releas- of Human Rights, 2016/5. given Directive. es/2016/03/18/eu-turkey-state- 3 v. chetail, op.cit. 5 Available at http://www.consilium. ment/

141 F3 Magazine Justice is not a construct Is Italy facing a migration emergency? Italy’s challenge and its new legal framework

Italian coasts in 2016. In 2017, in some cases, try go elsewhere Although accurate instead, 118.962 illegal-border in Europe to apply for asylum. crossings have been detected Against this backdrop, irregular data are often in the Central Mediterranean migration becomes another ur- route6 - a significant drop in term gent and pressing challenge to difficult to of arrivals, but numbers are still tackle. Moreover, the imperfect collect, the figures noteworthy. Approximately 90% functioning of the EU relocation of sea arrivals in Italy left from system, which was regulated un- released by Libya, in particular from the ports der the European Agenda on Mi- Frontex show the of Tripoli, Benghazi and Zu- gration in 2015, is overwhelm- warah. The majority of detect- ing the Italian reception system seriousness of the ed migrants in 2017 came from with disproportionately high Guinea, Nigeria, Senegal and numbers of migrants. situation Bangladesh but the number of The consequences of this un- How does Italy internally regu- arrivals of Somali, Eritrean and precedented situation are, on late the migration crisis? Ethiopian nationals through the one hand, the potential infringe- Italy has established a huge, so- Central Mediterranean route is ment of asylum seekers’ rights phisticated reception system increasing. It should also be not- and conditions and, on the oth- under the EU regulations and ed that not every newly arrived er, tensions within Italy’s social directives (a complex topic de- migrant applies for internation- and financial structures. These serving a separate analysis). But al protection and many of them challenges partially overlap with it has also recently modified part try to stay illegally in Italy or, those posed by illegal criminal of the legal framework concern- networks and terrorist groups. At- ing disputes on international tempts to tackle these issues have 6 Frontex, Risk Analysis 2018. Avail- protection and the fight against able at https://frontex.europa.eu/ therefore unsurprisingly been at human trafficking and illegal assets/Publications/Risk_Analysis/ the forefront of the political and Risk_Analysis/Risk_Analysis_ migration. The law regulating legislative debate in Italy. for_2018.pdf 142 F3 Magazine Justice is not a construct Is Italy facing a migration emergency? Italy’s challenge and its new legal framework

© Emergency - IRIN these matters, law n. 46 of April appeal courts are located. failed release, renewal or sus- 13, 2017 – previously, decree law The specialized sections have ju- pension of the residency permit; n.13/20177- modifies various risdiction over several disputes, denial of the authorization of previous norms in light of the in particular related to: inter- entry for family reunification necessity to adopt faster proce- national protection recognition; and of the residency permit for dures to assess the claims of the appeal of measures adopted by family reasons; verification of huge number of migrants and the authority in charge of estab- stateless and Italian citizenship asylum seekers reaching Italy. lishing the State competent to status and appeal of public safety This new law aims at better pro- assess the asylum claim; failed and public order banishment act tecting the rights of the migrants recognition of residence permit for EU citizens.9 10 and deserves special attention for EU citizens and relatives;8 The creation of these new sec- since the “urgent provisions” it lays down seem to represent a 8 The Legislative Decree 30/2007, 9 In the first two cases, the special- sort of alarm call to draw atten- art.7, provides criteria according ized sections will rule en banc. which a EU citizen can remain in Otherwise, and in exception to the tion on the Italian case. Italy longer than three months: common procedures, sections sit as 1) study reasons 2) work 3) if the single judge. The law gives spec- Specialized Sections individual has enough economic re- ification on the composition and First of all, the most significant sources to live in the country with- structure of the specialized sections out requiring any public support 4) and on judges` skills. (art 3). innovation introduced by the if the individual is a relative of an 10 The Legislative decree 30/2007 law 46/2017 is the creation of EU citizen holding one of the above provides details on when an EU 26 specialized sections (the de- mentioned criteria. Art 14 gives citizen can be removed from Italy: cree-law 13/2017 had foreseen 14 specifications how an EU citizen in case of public safety and public can acquire a permanent residence order. In cases of EU citizens with specialized sections) based out of permit in Italy and thus, when the a permanent residence permit, they the ordinary tribunals where the individual have lived legally and can be removed only in cases of se- continuously for five years. Art rious circumstances of public safety 7 The decree, then converted into 15 foresees situations in which an and public order. The principle of law, was issued by Marco Minniti, EU citizen can acquire the perma- proportionality must be always former Minister of the Interior and nent status before these five years. respected. (art. 20). Available at Andrea Orlando, former Minister Available at http://www.camera.it/ http://www.camera.it/parlam/leg- of Justice. parlam/leggi/deleghe/07030dl.htm. gi/deleghe/07030dl.htm. 143 F3 Magazine Justice is not a construct Is Italy facing a migration emergency? Italy’s challenge and its new legal framework tions with specialized personnel the renewal on expiry and for visions in order to better comply is unprecedented. The goal be- the Italian citizenship after five with the Dublin Regulation. First hind them is to accelerate all re- years of residence; 2) subsidiary of all, under the terms of article lated procedures, provide appli- protection – included in article 2 27 of the Dublin III Regulation, cants with additional rights and (g), Legislative Decree 251/2007 the law establishes specific pro- ensure the procedures’ fairness. – is provided for third country visions regarding the possibility These sections have territorial nationals or stateless persons for the party to appeal against jurisdiction based on the place who do not qualify as refugees, transfer decisions issued by the where the authority (Territorial but who – based on substantial Territorial Commissions on in- Commissions) that has adopted grounds – would face a real risk ternational protection granting. the appealed measure is located. of suffering serious harm in case Italy’s Constitution prohibits the of return in their state of origin. creation of special or extraor- This kind of protection is valid When asylum dinary judges; yet, specialized for three years and renewable seekers submit commissions do not run afoul on expiry, and provides appli- of the provision as, according cants with the possibility to have a claim for to article 102 of the Italian Con- a permit of stay for work rea- international stitution, they are specialized sons; 3) humanitarian protection sections established within ordi- – from 6 months up to 2 years protection, they nary judicial venues. – it is a residual form of protec- tion11 available to those who are are granted a Territorial Commissions and not eligible for refugee status or temporary permit transfer measures subsidiary protection but can be The so-called Territorial Com- granted a permit of stay by the of stay in the missions (Commissioni Terri- police authority – upon request Italian territory toriali), revised by Legislative of a Territorial Commission – Decree n. 220, of December 22, because of serious reasons of for a period of six 2017 – which entered into force humanitarian nature. In this on January 31, 2018 – are the case the benefits differ from months bodies in charge of examining those guaranteed by the first two international protection claims protections – defined in article The appeal has to be submitted filed by migrants through the 5, Legislative Decree 286/1998. within 30 days of the notifica- police. They are issued in a max- When asylum seekers submit a tion of the transfer decision. The imum number of 20, distributed claim for international protec- specialized section deliberates throughout Italy, and composed tion, they are granted a tempo- in closed session and has to issue of four members: a prefect, a porary permit of stay in the Ital- a verdict within 60 days after lice officer, a representative of a ian territory for a period of six the appeal has been lodged. The territorial entity and a UNHCR months, renewable according to party can only appeal against the representative. Asylum seekers the procedural time for examin- measure before the Supreme can be granted three different ing the claim. Court (Corte di Cassazione) protections: 1) refugee status, within 30 days of the notifica- which gives a 5-year internation- Beyond the increase in resourc- tion of the measure. In this way, al protection. People considered es for Territorial Commissions, the number of appeals allowed meeting all criteria mentioned law n. 46 has amended the previ- in case of rejection of the asy- in the 1951 Geneva Convention ous Legislative Decree n. 25, Jan- lum application is reduced from – ratified and implemented with uary, 2008 and added new pro- three to two levels of judgement, thus resulting in faster and sim- Italian law n. 722/1954 – can 12 enjoy this kind of protection, 11 It is a peculiar form of protection pler procedures. It should be since Italy is the only member state which entitles them to apply for providing asylum seekers with a 12 Disputes are directly brought before third possibility. the Supreme Court and not before 144 F3 Magazine Justice is not a construct Is Italy facing a migration emergency? Italy’s challenge and its new legal framework noted that 1) the effectiveness cording and relative transcripts The amendments of the appealed measure can be – are stored in an appropriate suspended when serious and computer archive for a period of provide for a detailed reasons exist; 2) the 3 years in order to guarantee the Territorial Commission has the documents` integrity. new legal process right to bring legal proceedings lasting up to four and issue a defence statement Furthermore, law n. 46 provides including proof or circumstan- for the possibility for the appli- months and taking tial evidence constituting the cant to submit a reasoned claim place in closed grounds of the transfer decision; against being video recorded. 3) the applicant can also submit The final decision issued by the session defence statements; 4) the judge Commission cannot be appealed. can ask for the summoning and The law also set out some condi- The party has the right to appeal appearance of the parties only tions – including technical issues within 30 days of the notifica- when he/she deems it necessary – according to which the video tion of the measure or, if he/ for the decision. recording cannot take place. It is she does not live in Italy, within worth nothing that, in compari- 60 days. Except for some cases son to article 5 of the Dublin III (for example, when the appeal The law Regulation, this new Italian pro- is considered to be invalid), the establishes vision on personal interviews appeal has the effect of suspend- provides the applicant with ing the measure’s enforceable specific provisions more guarantees. Indeed, while effectiveness. The appeal noti- regarding the Dublin III limits them to the fication is sent to the Ministry presence of a qualified interpret- of the Interior, to the Commis- possibility for the er, a comprehensible language sion or Section which adopted for the applicant and a clear sum- the measure and – limited to the party to appeal mary of the interview, Italian law cases of cessation or withdrawal against transfer (by also introducing the video of international protection – to recording and the relative ap- the National Commission for the decisions peal), increases the protection Right of Asylum. The appeal is of the applicants’ human rights. then sent to the public prosecu- Video recording Furthermore, while article 5 of tor who draws the conclusions By modifying article 14 of legis- the Dublin III Regulation pro- and identifies any potential rea- lative decree n. 25, January 28, vides for the presence of the in- sons against the granting of in- 2008, the law has introduced terpreter only when necessary, ternational protection. Within video recordings of the inter- the new Italian provision states 20 days after the appeal has been views in which applicants re- that the interpreter is present in notified, the Ministry can sub- quest international protection all cases. mit a defence note. Within the before the Territorial Commis- same terms, the Territorial Com- sion. The video recording is then Disputes on granting interna- mission has to disclose a copy translated into Italian, but the tional protection of the international protection applicant has the right to read all The law in question has also claim, the video recording and relative transcripts in a language partially modified the 2008 Leg- all related documents, includ- that he/she understands and islative Decree with regard to ing those showing the econom- with an interpreter’s support. the granting and withdrawing of ic, political and social situation The applicant will then receive a refugee status. The amendments of the country of origin of the copy of the transcript in Italian. provide for a new legal process applicant (that the judge shall All documents – the video re- lasting up to four months and also consider in issuing the de- taking place in closed session. cision). As provided by law n.46, the Appeal Court (Corte d`Appello). the judge can order the personal 145 F3 Magazine Justice is not a construct Is Italy facing a migration emergency? Italy’s challenge and its new legal framework

© Paulo Palermo/AccoglieRete - IRIN appearance of the parties when fore the Appeal Court. In case of on a voluntary basis and without 1) despite the video recording, rejection, in fact, the party can remuneration. In order to fund there is a need to hear the ap- only bring the case before the these projects, municipalities plicant; 2) the judge considers Supreme Court within 30 days can use European resources ear- that further clarifications are of the communication of the marked for the immigration and necessary from the parties 3) verdict. The Supreme Court has asylum sector. the judge requests technical ad- six months from the complaint’s vice. Moreover, the parties shall filing to issue its final decision. be convened when at least one While reducing the number of Law n. 46 aims at of the following circumstances appeal proceedings allowed, the integrating both applies: 1) the video recording law seeks to intensify the pro- is not available; 2) the inter- tections granted by Territori- refugees and ested party has requested to be al Commissions, making them asylum seekers in heard and his/her motivations identical to those previously are well-founded and essential granted in second instance. the social fabric for the decision; 3) new ele- It should be also noted that law ments have emerged. It should n. 46 aims at integrating both Illegal migration be noted that the applicant can refugees and asylum seekers Among the various provisions also submit a defence note. The in the social fabric by includ- law n.46 also attempts to accel- Tribunal has to reach a decision ing the possibility for Prefects erate return and readmission on whether to grant internation- (the State’s representative in a procedures. In this regard, the al protection or not within four province) to issue memoranda amendments introduced by the months of the filing of the ap- of understanding or other kinds new law seem to reflect the peal. Regardless of whether in- of agreements with municipali- general spirit of the European ternational protection is granted ties and NGOs for the promotion Union and the United Nations. or not, the final decision of the of socially useful work projects, The importance of improving Tribunal cannot be brought be- which asylum seekers can join the existing return and read- 146 F3 Magazine Justice is not a construct Is Italy facing a migration emergency? Italy’s challenge and its new legal framework

© Louise Hunt - IRIN mission policies has also been Voluntary Return (AVR). During ian provisions of law on migra- stressed by the European Com- the Third Berlin Roundtable on tion issues. First of all, it states missioner for Migration, Home Refugee and Migration in May that when a person is detected Affairs and Citizenship, Dimi- 2017, Commissioner Dimitris while illegally crossing Italian tris Avramopoulos, who, during Avramopoulos stated that the borders or rescued at sea, he/ a meeting with the Italian Min- high number of arrivals in Italy she should first be brought to ister of the Interior on January this year is a “call for actions.”14 reception centres located at 12, 2017 in Rome,13 pointed out dedicated hotspots. Here, the the need to regulate and imple- migrant will be provided with ment return and readmission The amendments medical treatment and subject- policies. Indeed, the European introduced by the ed to identification procedures Union believes that “an effec- – such as taking a digital finger- tive and humane return policy new law seem to print and photograph – accord- is a necessary part of a compre- reflect the general ing to European Regulation n. hensive migration policy and 603/2013. On that occasion, the does not contradict a more open spirit of the migrant will be also informed migration policy. Ensuring the about the possibility of AVR. The return of irregular migrants is European Union above-mentioned European Reg- in fact absolutely essential in and the United ulation prescribes identification order to enhance the credibili- procedures also for everyone ty of policies in the field of in- Nations found illegally on the Italian ter- ternational protection and le- ritory. However, any repeated gal migration.” Accordingly, the Law n. 46 has modified many refusal to submit to identifica- newly amended policies shall aspects of Legislative Decree n. tion procedures is considered to also 1) be in line with the EU 286/1998 – concerning the Ital- be compelling proof of a risk of Charter of Fundamental Rights 14 https://ec.europa.eu/commis- absconding for the purposes of and 2) be based on the principle sion/commissioners/2014-2019/ detention in what are now called of giving preference to Assisted avramopoulos/announcements/ “Detention Centres for Repatri- remarks-commissioner-avramo- ation” (CPRs). Indeed, it should 13 http://europa.eu/rapid/press-re- poulos-3rd-berlin-roundtable-re- lease_STATEMENT-17-56_en.htm. fugees-and-migration_en. be highlighted that law n. 46 has 147 F3 Magazine Justice is not a construct Is Italy facing a migration emergency? Italy’s challenge and its new legal framework changed the name of previous son will be held in detention at der to make repatriations more detention centres for the repa- the nearest CPR no longer than effective. Otherwise, these peo- triation and expulsion of irregu- the strictly necessary amount of ple would be released and their lar migrants from Identification time. However, the above provi- illegal stay would continue. On and Expulsion Centers (CIEs) to sions do not apply to unaccom- this regard, it should be high- Detention Centers for Repatria- panied minors. With regard to lighted how the new law does tion (CPRs). These new centres expulsion measures issued by not provide a proper explana- will be distributed throughout the Minister of the Interior, the tion on when major difficulties Italy in a number of 18 with a ca- law establishes the adoption of arise, giving a sort of margin of pacity of 100 people per centre an abbreviated trial procedure appreciation.15 and located far from cities and (the so-called, “rito abbreviato”) closer to airports in order to fa- in cases including reasons of Final considerations cilitate expulsions. A guarantor public order and State’s security Inevitably, return and readmis- of the human rights of detained (article 13, Legislative Decree n. sion policies have to be sup- people with monitoring powers 286, July 25, 1998) and terrorism ported by cooperation, in the will be also provided in order to prevention (article 3, Law De- form of multilateral or bilateral ensure fair treatment and good cree n. 144, July 27, 2005). The agreements with relevant par- conditions within the centres. Legislative Decree n. 286 states ties. Yet, their implementation According to law n. 46, both the that a person can be detained in could encounter practical obsta- centres’ management and the ex- these centres for a maximum of cles. This is because repatriation pulsion measures’ implementa- 90 days and provides that people is a complex process involving tion will be financed through the already detained for 90 days can nationality identification proce- AMIF (Asylum, Migration and be detained for an extra 30 days. dures and the need to gather all Integration Fund), co-funded by Law n.46 adds, in cases where documents required to return the European Union within the major difficulties in the identi- migrants. There are many chal- programming period 2014/2020. fication procedures and the or- lenges to be addressed such as: Furthermore, the new law stip- ganization of repatriation arise, 1) the lack of automatically con- ulates that, when an immediate the time-limit can be extended nected systems between coun- expulsion cannot be ordered for a further 15 days following due to temporary circumstanc- validation by the Justice of the 15 http://www.altalex.com/docu- es hampering the repatriation peace (Giudice di pace). This ex- ments/news/2014/04/08/tes- or the expulsion itself, the per- tension has been provided in or- to-unico-sull-immigrazione-titolo-ii#titolo2.

148 F3 Magazine Justice is not a construct Is Italy facing a migration emergency? Italy’s challenge and its new legal framework

© Fred Abrahams/Human Rights Watch - IRIN tries slows down the identifica- made in order to counter crim- these resolutions, the four coun- tion process 2) the repatriation inality and terrorism. Lastly, the tries involved have established process could represent an ad- Italian Minister of the Interior a monitoring body that will pe- ditional burden for the security recently hosted a roundtable riodically conduct internal con- apparatus of countries that are with authorities from Chad, Lib- sultations. already facing various domestic ya and Niger with the aims of: challenges. Furthermore, some 1) intensifying cooperation on What can be done? countries may be not interested counter-terrorism and human The spirit of the analysed law – or unable to take part in search trafficking; 2) supporting mil- seeks to enhance and improve and rescue operations and de- itary training 3) helping Niger the ability to respond to refu- ploy more security personnel to and Chad create new reception gees and asylum seekers as soon arrange and check the arrival of centres for irregular migrants as possible trying to ensure that irregular migrants. Italy is mak- in accordance with internation- fair process and justice are fully ing major efforts in enhancing al humanitarian standards 4) respected. Nevertheless, the ne- cooperation with Libya, one of building a legal economy which cessity to cope with illegal mi- the most crucial partners in the may replace illegal networks, gration and the threat of extrem- Mediterranean. However, due to especially human trafficking ists’ infiltration into Italian soil the country’s political instabili- and 5) providing substantial sup- have induced the government to ty, goals are quite far away from port to the reception centres for reinforce the expulsion and de- being achieved. Moreover, fur- irregular migrants in Libya. In tention system. ther monitoring efforts will be order to effectively implement 149 F3 Magazine Justice is not a construct Is Italy facing a migration emergency? Italy’s challenge and its new legal framework

Inevitably, return cretion which would potentially The main pathway to pursue this exposed to the risk of abuses. goal is improving relationships and readmission The Italian government, the EU with crucial countries of origin and the international commu- and transit of migrants. As pre- policies have nity have an important role to viously highlighted, this form of to be supported play to promote stabilization and cooperation could lead to miti- peace by assisting in strength- gate the migration crises, count- by cooperation, ening the judicial, political and er the smuggling of migrants, hu- in the form of social systems of various Afri- man trafficking and the threat of can countries. Most recently, terrorism. multilateral this point has been particularly stressed during the G20 Afri- or bilateral ca Partnership in Berlin. Pri- The main pathway agreements with vate and public investments in to pursue this migrants’ African countries of relevant parties origin and transit would have a goal is improving positive impact on their devel- relationships with Given this, the new system is not opment and security. The main without imperfections. Some goal should be the introduction crucial countries provisions should be better reg- of common best practices for the ulated – i.e. grounds allowing to management of migration flows of origin and longer detentions - in order to from many African countries. transit of migrants avoid an excessive margin of dis-

The author

Clarissa Spada is a LLM student in International Law in Armed Conflict at the Geneva Academy, following a specialization on European migration policies. She holds a law degree with a specialization in International Law from LUISS Guido Carli, Rome. She had working and training experiences at the Italian Embassy and the European Delegation in Washington, DC; and UNICRI. Clarissa Spada is currently Project Manager and Head of Research of a project on organized crime and terrorist infiltrations inside Italian seaports.

150 See Lampedusa and live

If I had not lived in Lampedusa, I would have never found the inner resilience to narrate these stories of migration through drawings. Moreover, at the age of 40-something, I would have never depicted the emotions making me able to describe these last four years spent on working along this European-Med- iterranean border.

I began making those drawings quite by accident, during the hot and sleepless nights when the dusty winds blowing across the sea from North Africa almost suffocate you. I have tried blending my colours scattered on a palette to give an account of what has been happening in Lampedusa.

While I was drawing what I was seeing around me, I found a common thread in different meanings. I expressed something inside myself that was still to be settled. It was the need to address the feeling of being powerless: instead of being able to help, I could do nothing but counting dead people.

In these drawings, I wanted to harness my anger and remember what made me angry. Drawing, to me, means a soul searching to narrate what is happening inside: a picture becomes a key to open the door of a tale that crosses the borders.

My drawings tell stories that otherwise would have been consigned to the oblivion of the sea. These stories fit perfectly together. They can be used like tarot cards to tell the story of humanity, to both predict the future and explain the present. There is something epic in what is happening today in the Mediterranean Sea, where death and rebirth are creating a founding myth for a new humanity. Ulysses and Ithaca; the mermaids’ song; Neptune and the Trojan War, Moses’ exodus and the passion of Christ are all coming back again.

My works are essential and everything is drawn exactly just as it is. My drawings are completed in a matter of minutes, by means of hopeful vivid colours that are in contrast with the pain they recount. The colours, scrawled onto the page, swirl as in the vortex of a storm; they almost tear the paper on which they are drawn. My works depict the struggles of the wretched of the earth. My illustrations depict the oppressive barriers that surround migrants: the barbed wire and the indifference. My drawings are an act of love for humanity – I would consider them emblems of justice and freedom.

Mediterranean Hope

Mediterranean Hope (MH) - Refugees and Migrants Program was initiated by the Federation of Prot- estant Churches in Italy (FCEI) to strength the action and advocacy for the displaced and the asylum seekers. MH performs different actions: reception activities of the migrants and the menagement of the Ob- servatory on the Mediterranean migrations in the island of Lampedusa. Furthermore, the MH House of Cultures in Scicli, (Ragusa, Sicily) takes care of unaccompanied minor migrants and vulnerable women while the relocation desk and a coordination desk in Rome, liaise with the national and international partners, the institutions and the ecumenical bodies. Among the actions implemented by MH, the Humanitarian Corridors managed with the Community of Sant’Egidio, aimed at opening safe and legal passages to vulnerable refugees from North Africa and Middle East.

The author

Francesco Piobbichi is a social designer and works as an operator of the MH project promoted by the FCEI. Drawings from the border is his first work narrating MH’s four years of activity in Lampedusa, Morocco and Lebanon during which Francesco Piobicchi has been involved in the development of humanitarian corridors. Mr. Piobicchi has always been committed to social rights and anti-racism, for this reason he uses illustrations as a communication tool to raise awareness on social issues. © UN Photo/Sudhakaran Equality of arms: the continued development of due process rights at courts of international character by Bradley Alan Fuller, J.D.

Audi Alteram Partem, the Latin phrase meaning, “the other side shall be heard as well,” enshrined on the walls in City Hall of The Hague.

A fundamental principle of any fair and civilized criminal justice system is that the accused be given the opportunity to meaningfully respond to and attack the allegations against them. This idea of equality to both sides of a legal matter before a tribunal, dates back at least as far as the ancient Greeks, and can also F3 Magazine Justice is not a construct Equality of arms: the continued development of due process rights at courts of international character be found in traditional Islamic This idea of many legal historians agree that law texts.1 Though this basic due even at Nuremberg there were process guarantee of the right to equality to both several gross violations of the mount a defense has been gen- defendant’s basic due process erally accepted throughout the sides of a legal rights, including the deprivation civilized world in domestic set- matter before a of appellate review.3 Perhaps the tings for centuries, defeated war most profound injustice was the criminals have only recently be- tribunal, dates complete failure of the tribunal gun to enjoy such protections on back at least as to allow the defense teams ade- the international stage. Though quate time and facilities to prop- there have been several ad hoc far as the ancient erly prepare and present their military tribunals throughout world defense.4 history such as the Leipzig War Greeks Crimes Trials following the First Though the defendants at Nurem- The proceedings at Nuremberg, World War, those tribunals are berg were indeed represented in which high ranking members largely regarded as having been by bright attorneys, the defense of Nazi leadership were prose- insufficient or even farcical.2 teams were exclusively com- cuted for the atrocities commit- prised of German personnel ted during World War II, are cor- who had very little experience rectly lauded as a turning point 1 E.g. Aeschylus, The Eumenides 431, 435, See also: Imam Abu Dawud. in the handling of war crimi- 3 Simpson, above n 115, at 115; 2008. Sunan Abu Dawud Vol. 3 nals by the victors of hostilities. Jonathan A Bush “Lex Americana: (Translated to English by Ahmad These trials marked a genuine Constitutional Due Process and the Hasan). Riyadh: Darussalam, Hadith effort on behalf of global civil Nuremberg Defendants” (2001) 45 No. 3575, Grade: Hasan. St Louis U LJ 515 at 530. 2 http://ww1.habsburger.net/en/ society to deliver justice to sus- 4 Charles Anthony Smith, “The Rise chapters/leipzig-trials-1921-1927- pected war criminals in a fair and and Fall of War Crimes Trials from between-national-disgrace-and-ju- principled manner. However, Charles I to Bush II” (Cambridge ridical-farce. University Press, New York, 2012).

161 F3 Magazine Justice is not a construct Equality of arms: the continued development of due process rights at courts of international character

© via Flickr - Tarek RABAA’s case with Anglo-American proce- Fully developing process rights as absolute in fed- dure.5 Moreover, these lawyers, eral prosecution.7 who were hastily struggling to an adequate familiarize themselves with a America’s ideals of fairness and brand new legal environment, defense for judicial process predate even its were only given thirty days be- serious and Constitution. On March 5, 1770, tween indictment and trial to several British soldiers were in- prepare their defense. Fully de- complex charges volved in a skirmish with the cit- veloping an adequate defense can take months izens of Boston that resulted in for serious and complex charges gunfire, leaving five Americans can take months, or even years. Despite these shortcomings, the dead. This tragic day has come Consider that the prosecution due process protections that to be known as the Boston Mas- in Nuremberg submitted tens of were afforded to the defendants sacre. Though many Americans thousands of pages of evidence at Nuremberg did indeed por- were calling for the immediate 6 to the tribunal. Expecting a de- tend the creation of a truly le- capture and hanging of the ‘red fense team to adequately review gitimate and fair international coats’, the young British soldiers such a mountain of materials in mechanism for prosecuting war were given a fair jury trial. Tal- such a short time was indeed ab- crimes. This shift was due in no ented young lawyer, and future surd, and clearly a breach of tra- small part to the growing inter- president, John Adams, repre- ditional notions of fairness and national influence of the Unit- sented they and even earned an justice. ed States of America, a country acquittal for several of the sol- 8 with a truly honorable tradition diers. 5 Andreas Krieg “The Nuremberg of protecting defendant’s rights. Trials: An Attempt of Bringing War One hundred and fifty years A century later, in 1865, the Criminals to Justice” (2009), The United States was dealing with Pica Project. before Nuremberg, the United 6 Hans Laternser “Looking Back at States ratified the Bill of Rights, the Nuremberg Trials” in Guenael ten constitutional amendments 7 U.S. Const. amend. V. Mettraux (ed) Perspectives on the 8 Zobel, Hiller B. The Boston Mas- Nuremberg Trial (Oxford University that enshrined, among other sacre. [1st ed.]. New York: W. W. Press, New York, 2008). things, an accused person’s due Norton, 1970. 162 F3 Magazine Justice is not a construct Equality of arms: the continued development of due process rights at courts of international character

© via Flickr - pingnews.com the aftermath of an unspeakably Franklin D. Roosevelt, British Though the Nuremberg trials bloody civil war. Again, many Prime Minister Winston Chur- were a landmark step in the di- people, including military and chill, and Soviet Premier Joseph rection of civilized international government officials, advocat- Stalin all signed a document tribunals that would ensure due ed for the capture and summary which stated that German war process rights for accused war execution of Confederate war criminals should be, “judged on criminals, it wasn’t until July criminals. However, even egre- the spot by the peoples whom 17, 1998 that the International gious offenders such as Cap- they have outraged.”10 In 1944, as Criminal Court (ICC ) was estab- tain Henry Wirz who presided people were exterminated in the lished. Again, it was an Ameri- over the most awful and deadly concentration camps, Churchill can who spearheaded the cre- southern prisoner of war camp, declared that Nazi leadership ation of the ICC. Ben Ferencz, a Andersonville, was given a trial should be, “hunted down and war hero and former prosecutor before a special military com- shot.”11 Even in the middle part at Nuremberg published a book mission with a competent attor- of the twentieth century, it is in 1975 entitled, “Defining Inter- ney, the right to confront state no surprise that many civilized national Aggression: The Search witnesses, and the right to pres- persons throughout the world for World Peace”, in which he ent his own case.9 advocated for the summary exe- argued for the creation of an In- cution of German war criminals ternational Criminal Court that As the hostilities of World War given the unfathomable scope of would have served as a world- II wound down, allied leader- their savagery. Nevertheless, the wide tribunal of last resort to ship convened on multiple occa- Americans, led by Secretary of prosecute instances of crimes sions to discuss the prospect of War and prominent lawyer Hen- against humanity, war crimes, bringing Hitler and his Nazis to ry Stimson, advocated for prop- and genocides. justice for their multiple atroci- er judicial proceedings.12 ties. In the Moscow Declaration Mr. Ferencz, and many oth- of 1943, United States President 10 United Nations Documents 1941- er prominent men and women 1945. Oxford University Press for the Royal Institute Of International from the United Nations Member 9 Trial of Henry Wirz, A Congres- Affairs. 1946. States around the world were in- sionally Mandated Report Summa- 11 Kazmi, Salman, Is Victor’s Justice strumental in creating the Rome rizing the Military Commission’s in Nuremberg Trial Justified or Not, Proceedings, United States. 40th http://www.academia.edu/6881861/ Congress, 2d Session. 1867-1868. Is_Victors_Justice_in_Nuremberg_ The Life and Wars of Henry Stim- House Executive Document No. 23, Trial_Justified_or_not. son, 1867-1950” (New York: Knopf, December 7, 1867. 12 Hodgson, Godfrey. “The Colonel: 1990) 163 F3 Magazine Justice is not a construct Equality of arms: the continued development of due process rights at courts of international character

Statute, the treaty which estab- roe Leigh once said, “The list of However, even at the ICC there lished the ICC. due process rights guaranteed by may be a major institutional the Rome Statute is, if anything, disadvantage that unfairly prej- The Rome Statute contains an more detailed and comprehen- udices defendants. The Office impressive list of due process sive than the one of the Amer- of The Prosecutor (OTP) is ex- protections to be enjoyed by ican Bill of Rights.”14 pertly trained, highly organized, all accused persons brought be- and well funded. Perhaps most fore the ICC such as: the right importantly, the OTP is a per- to remain silent, the right to an The Rome Statute manent organ of the ICC, while attorney, the right to present contains an defence teams are made up of evidence, the right to confront private attorneys who are not as- the prosecution’s witnesses, the impressive list sociated with the Court.15 While right to be present at trial, the of due process the ICC does ensure that de- right to have the charges proved fendants receive adequate legal beyond a reasonable doubt, the protections to be representation by requiring all protection against double jeop- defence counsels to be listed on ardy, and, perhaps most impor- enjoyed by all and meet the strict qualifications tantly, the presumption of inno- accused persons for their attorney registry, there cence.13 In fact, former U.S. State is no permanent defense organ Department Legal Advisor Mon- brought before the at the Court. This imbalance cre- ICC ates some obvious concerns for 13 UN General Assembly, Rome advocates of true “equality of Statute of the International Criminal Court (last amended 2010), 17 July arms” (procedural equality). 1998, ISBN No. 92-9227-227-6, avail- 14 Human Rights Watch, “Myths and able at: http://www.refworld.org/ Facts about the International Crim- docid/3ae6b3a84.html [accessed 15 inal Court”, http://www.hrw.org/ 15 https://www.icc-cpi.int/about/ June 2017] campaigns/icc/facts.htm defence 164 F3 Magazine Justice is not a construct Equality of arms: the continued development of due process rights at courts of international character

The term equality of arms dates persons who have been crim- How can it be said that the pros- back to medieval times when dis- inally accused the traditional ecution and defense are on equal putes were often settled through due process rights which have footing when the attorneys at violent battle. Naturally it was been previously mentioned in one end of the courtroom be- only fair to ensure that both this article. Additionally, Article long to a permanent organ of combatants entered the clash 6 states that everyone charged the Court, while the attorneys at with equal weaponry and ar- with a crime shall be provided the other do not. In an attempt mor.16 The modern conception the free services of an interpret- to correct this obvious structur- of equality of arms is articu- er and shall have adequate time al imbalance, the ICC created lated in Article 6 the European and facilities for the preparation the Office of Public Counsel for Convention on Human Rights. of his defense.17 the Defense (OPCD) in 2006. The language of the convention As a component of the Registry specifically bestows upon all 17 Council of Europe, European Con- which is a permanent organ of vention for the Protection of Human the Court, the OPCD provides a 16 Jay Sterling Silver, “Equality of Rights and Fundamental Freedoms, Arms and the Adversarial Process: as amended by Protocols Nos. 11 and A New Constitutional Right” (1990 14, 4 November 1950, ETS 5, avail- docid/3ae6b3b04.html [accessed 16 Wisconsin Law Review) 1007. able at: http://www.refworld.org/ June 2017]. 165 F3 Magazine Justice is not a construct Equality of arms: the continued development of due process rights at courts of international character number of services to defense entire pre-trial defense team nent defense organ, independent teams, including, “facilitating consisted of one attorney, one from the Registry called the De- the protection of confidentiality, co-counsel, one legal assistant, fense Office. This is certainly a providing support during the in- and a case manager. The pros- bold step towards true equality vestigation’s activities conduct- ecution on the other hand has of arms. Chad Mair, a defense ed in the field, assisting the ac- teams of lawyers consulting with attorney at the STL SCSL de- cused to obtain legal advice and numerous experts and special scribes the situation as follows; the assistance of legal counsel.”18 advisors. Though the defense “One constant in internation- Upon request, defense teams may was eventually granted a meager al tribunals is the existence of also be provided with certain lo- budget to hire a single investi- a permanent prosecution, with gistical support such as temporary gator, the prosecution benefit- experienced lawyers and inves- equipped office space to work on ed from twenty researchers in tigators, a wealth of institutional their cases. the field making a case against knowledge, and the capacity to Lubanga.20 share information and documents from a single evidence database. The term equality In January of 20092 the Special The existence of an independent of arms dates back Tribunal for Lebanon Court for defense organ helps to balance Sierra Leone (STL)(SCSL) was this by providing institutional to medieval times established to prosecute those insight and support, the capacity when disputes responsible for the 2005 assas- to conduct research and main- sination of the former Lebanese tain a legal library available to were often settled Prime Minister and 21 others. all defense teams, and a budget gross violators of humanitari- created and maintained sole- through violent an law during the Sierra Leone ly by an independent organ of battle Civil War. The Court was unique the court. Thus, an independent in that it established a perma- defense organ is important for Nevertheless, it has been high- equality of arms as it improves conscripting children under the the imbalance inherent in inter- lighted that the resources of the age of 15 years and using them to independent appointed counsel, participate actively in hostilities. national tribunals.” even with the limited assistance He was sentenced on 10 July 2012 As one can see, the protection of the OPCD, pale in comparison to a total of 14 years of imprison- of due process rights have un- ment. The verdict and sentence was doubtedly expanded at courts to that of the prosecution. This confirmed by the Appeals Chamber was flagrantly visible in the Dy- on 1 December 2014. Mr Lubanga of international character since ilo Lubanga19 case. Mr Lubanga’s was transferred to a prison facility Nuremburg. However, the prin- in the DRC to serve his sentence of ciple of a true equality of arms is 18 https://www.icc-cpi.int/about/ imprisonment. still a challenge in international defence. 20 Osasona, Toson. “Equality of Arms” 19 Mr. Dyilo Lubanga was the former And Its Effect On the Quality of Jus- criminal law. President of the Union des Patriotes tice at the ICC. https://acontrarioicl. Congolais. He was found guilty com/2014/04/10/equality-of-arms- by the ICC, on 14 March 2012, of and-its-effect-on-the-quality-of- the war crimes of enlisting and justice-at-the-icc/#_ftn14.

The author

Bradley Fuller is an associate attorney with Illinois Advocates, a prominent general litigation firm in the heart of Chicago, Illinois. Mr. Fuller focuses his practice on criminal defense and has successfully litigated thousands of cases from simple traffic matters to serious felonies including multiple first degree murder trials.

166 CALL FOR CONTRIBUTORS: INNOVATIVE IDEAS AND NEW SOLUTIONS TO MITIGATE EMERGING RISKS OF ADVANCES IN BIOTECHNOLOGY

Deadline: 27 August 2018

Advances in biotechnology are rapidly changing what is possible in several ﬁelds, from medicine to agricul- ture. All the progresses that have been made so far suggest that the XXI century deﬁnitely prove to be the “Century of Biology”. With this capacity, however, there also exist new possibilities for deliberate misuse.

We are looking for innovative ideas and new solutions that can concretely contribute mitigating emerging and future risks posed by advances in biotechnology

The call is for security experts and representatives from industry, academia, civil society organizations and international organizations. Those interested to share innovative ideas and new solutions will be invited to a UNICRI meeting in Geneva on 7 September 2018. the results will be used to prepare a “Report on Emerging and Future Risks” that will scan the horizon of technology solutions to anticipate and mitigate risks posed by the advances in technology

The call is organized by UNICRI within the framework of the SIRIO Initiative in Geneva. If you are willing to join, please contact Mr. Francesco Marelli ([email protected]) or Mr. Marco Musumeci (marco.musume- [email protected]) 167 Infcous

Preventing crime and violent extremism by strengthening youth resilience: Implementation of the BOUNCE resilience tools in 10 European cities by Christiaens, E., Hardyns, W., Pauwels, L & Klima, N.

A new trend in prevention pol- Introduction is still very limited to date. As icies is the focus on resilience, Could you lower youngsters’ sus- for any crime prevention pro- which particularly for young- ceptibility to delinquency and rad- gramme, evaluation research is sters is said to lower their sus- icalization by making them more fundamental for enhancing the ceptibility to criminal behaviour ‘resilient’ against adversities in working methods of youth re- and radicalization. To that end, their lives? Resilience seems to silience trainings, but also for the “BOUNCE programme” aims be a buzzword in the current supporting their practical im- to strengthen youngsters’ resil- prevention literature, and pol- plementation in diverging local ience by means of a 10-session icy-makers have followed this contexts. group intervention. Over the shift to consider resilience as past year, ten European pilot cit- a promising prevention tool. A One such youth resilience train- ies have been introduced to the wide range of resilience training is the EU-funded interven- BOUNCE resilience tools and ings have been designed for tion called ‘BOUNCE’, an early are now left to implement the many purposes: to prevent de- preventative intervention for youth training on their own. The pressions, anxieties, or negative youngsters. The BOUNCE pro- case of BOUNCE confirms the coping, but also with a view on gramme was developed in 2010 need for integrated implementa- preventing (youth) delinquen- in the framework of “Strength- tion strategies to obtain effective cy and recently even violent ening Resilience against Violent early prevention of youth delin- extremism. Yet, evaluation re- Radicalisation” (STRESAVIORA), quency. search of resilience trainings a project of Belgium’s Federal 170 F3 Magazine Justice is not a construct Preventing crime and violent extremism by strengthening youth resilience: Implementation of the BOUNCE resilience tools in 10 European cities

Public Service Home Affairs. It BOUNCE consists of three inter- over the past two years BOUNCE was funded by the Internal Secu- connected tools: BOUNCEYoung, has opened its emphasis towards rity Fund of the European Union a 10-session resilience training general promotion of youth and conducted in partnership for youngsters; BOUNCEAlong, wellbeing. It has been estab- with Arktos vzw, RadarAdvies, an open awareness-raising tool lished that many risk and protec- the European Forum for Urban for parents, teachers and first- tive factors for a wide array of Security (EFUS), Thomas More line workers; and BOUNCEUp, negative outcomes (e.g. juvenile University College and Ghent a train-the-trainer course for delinquency, troublesome youth University. youth workers and first-line group involvement, and extrem- practitioners, teaching them ist violence) are similar, so pro- As for any crime how to work with BOUNCEYoung moting youngsters’ wellbeing is prevention and BOUNCEAlong. Through this a form of general early preven- threefold model, the BOUNCE tion. To this end, BOUNCEUp programme, programme aims to make young- train-the-trainer courses were sters less vulnerable to violence given in ten European cities in evaluation and criminal behaviour but also order to incite local stakehold- research is to internalising conditions such ers to implement the BOUNCE fundamental for as anxieties or depression. programme. enhancing the Whereas its original focus was The question at this point is set on preventing violent rad- whether these newly-trained working methods icalisation of youngsters only, BOUNCE trainers will eventu-

171 F3 Magazine Justice is not a construct Preventing crime and violent extremism by strengthening youth resilience: Implementation of the BOUNCE resilience tools in 10 European cities ally spread the BOUNCE tools is targeted at setting a goal for the al theories with regard to re- in their city – and thus, make future. By means of kickboxing silience and crime prevention, youngsters more resilient. A methods, the youngsters build which are not entirely new, full-year evaluation was con- up strength in order to break a but rather a combination of ex- ducted to follow-up on every wooden plank with their bare isting youth training methods. city, and our findings will be dis- hand. The plank then represents The concept of resilience – i.e. cussed in this article. their sense of purpose and their the skill of positively adapting mental strength to reach their oneself to adversity – already personal goals. arose in developmental psychology in the 1970s. However, Second, the BOUNCEAlong train- only since the early 2000s was ing aims to assist parents and it applied into public health and teachers in their communication prevention discourses. The shift with youngsters. The sessions occurred together with a gener- focus on using positive language al paradigm shift towards “pos- and open communication to- itive psychology” at the time. wards youngsters, on knowing Therapies and trainings start- when to worry and who to con- ed to focus less on risk factors tact in case of concerns. Third and problems, and put a stron- and finally, the BOUNCEUp train- ger emphasis on protective el- The BOUNCE programme ing teaches first-line workers ements and positive emotions. As explained, the BOUNCE pro- how to use both tools. In addi- The rationale is that, while risk gramme is built along three in- tion to the BOUNCEYoung exercis- factors remain important, pre- terconnected tools in order to es and the BOUNCEAlong sessions, vention workers need to work reach the youngsters, but also participants receive additional with the individuals’ capacities. their surrounding adults. First, theory on early prevention, re- Resilience is one application the BOUNCEYoung training con- silience and radicalisation. of this positive psychology dis- sists of ten sessions, each build- course: by strengthening per- ing towards a different aspect of sonal resilience, trainings hope resilience. The first three ses- The BOUNCE to enhance positive, protective sions focus on acquaintance in factors among the youngsters. the group, creating trust and rais- programme is Examples are assertiveness, crit- ing self-esteem by focusing on built along three ical thinking styles, self-knowl- all children’s talents. The fourth edge, social skills and a sense of and fifth sessions focus on the interconnected purpose. These factors are also youngsters’ posture, how they part of youth interventions that can listen to their body clues tools in order aim at reducing all kinds of juve- and set their personal boundar- to reach the nile delinquency. ies. The following three sessions focus on understanding feelings, youngsters, The theoretical assumption is prejudices, information from but also their that resilience might protect media, and group conformity. against and thus prevent certain The aim of these sessions is to surrounding adults behaviour, both internalising enhance critical thinking styles and externalising conditions. and raise awareness of their own The emphasis on promoting re- It is on this same theoretical preconceptions. The ninth ses- silience is interesting as this fits basis that the (implicit) logic sion focuses on where youngster into general trends into psychol- model of BOUNCE is founded: can find supportive resources, ogy with a focus on personal by strengthening youngsters’ for example in their social net- strengths and positive attitude. resilience and raising aware- works. Finally, the tenth session BOUNCE makes use of sever-

172 F3 Magazine Justice is not a construct Preventing crime and violent extremism by strengthening youth resilience: Implementation of the BOUNCE resilience tools in 10 European cities

© Photo by Anthony Intraversato on Unsplash ness among their surrounding During a first phase of the questions and/or to try out the adults (parents, teachers, prac- BOUNCE project (STRESAVIO- BOUNCEYoung exercises on a local titioners), BOUNCE aims to pre- RA I, 2013-2015), relevant tools group of youngsters. The BOUN- vent violent radicalisation at an were disseminated in different CEUp training was thus meant as early stage, through universal Belgian cities. The second phase a first step into local implemen- (primary) prevention. (STRESAVIORA II, 2015-2018) tation of the BOUNCE tools. aimed to train more BOUNCE Accordingly, the scientific eval- trainers on a European level, uation of the BOUNCEUp tool By strengthening by providing 3-day BOUNCEUp was intended to distinguish which personal trainings in ten European pilot contextual preconditions are rec- cities. This BOUNCEUp training ommended for successful imple- resilience, introduced the full BOUNC- mentation of the BOUNCE tools. trainings hope to EYoung programme to local It is highly useful to evaluate pre- youth workers, complemented vention programmes not only enhance positive, with additional theory on pre- on their inherent programme vention, radicalisation and re- characteristics, but also on the protective factors silience. After approximately six contextual preconditions that among the months, all cities received three allow for programme success. days of implementation support, The latter relates to the field of youngsters mostly used to answer pending implementation science, which 173 F3 Magazine Justice is not a construct Preventing crime and violent extremism by strengthening youth resilience: Implementation of the BOUNCE resilience tools in 10 European cities

is a relatively recent topic in the Evaluating the BOUNCEUp pro- always be possible. For exam- prevention literature. gramme ple, as no secluded BOUNCEYoung When evaluating youth inter- activities have yet been organ- Finding such promising practices ventions, public authorities are ised, it has not been possible to of the BOUNCEUp programme is in favour of the establishment conduct an experimental study useful both for the continuation of evidence-based actions. This on their effectiveness. Similar- of the programme itself as well means that a causal link between ly, the BOUNCEUp training could as for prevention strategies in the aspired outcomes and the not be evaluated through experi- general. By providing empiri- programme techniques should mental studies as all participants cal data on BOUNCEUp, we may be present. A classical evalua- received the intervention, so guide policy-makers in their tion method to this end is the that there was no control group choice for adequate prevention experimental design, whereby in place. plans, and youth workers in their two randomised groups are com- practical application of the three pared (intervention versus con- A more adequate research de- BOUNCE tools. The ultimate trol group). However, striving sign would also take a deeper goal is to enhance youngsters’ for such evidence-based work- look at the situation and context resilience and wellbeing, and to ing methods might overlook in which the BOUNCE tools are prevent juvenile delinquency important contextual factors implemented. As BOUNCEUp is more effectively and more inte- in the implementation of these trialled in ten different pilot cities, grally. interventions. It might also not this means ten different working 174 F3 Magazine Justice is not a construct Preventing crime and violent extremism by strengthening youth resilience: Implementation of the BOUNCE resilience tools in 10 European cities contexts as well. It is more rec- well-founded evaluation should en in different European pilot ommendable to focus on working first evaluate the preconditions cities in the Netherlands (Am- elements of the training outline and process patterns of a pro- sterdam, Groningen), Germany and implementation strategy. If gramme, before evaluating the (Düsseldorf, Augsburg), Sweden we find patterns of working ele- outputs and outcomes. The bet- (Malmö, Landskrona), Belgium ments across cities, we can estab- ter the process patterns, the bet- (Leuven, Liège) and France lish clear recommendations for ter the results will likely be. (Montreuil, Bordeaux). In to- BOUNCE projects in other cities tal, this led to 101 newly trained as well. Hence, instead of evalu- BOUNCE trainers – being youth ating solely what works through A realist workers and social workers (quasi) experimental designs, evaluation wants from all ten cities involved. we aim to focus on what’s promising, within the framework of a to find out what A well-founded realist evaluation. A realist eval- works for whom in uation wants to find out what evaluation should works for whom in what situa- what situation and tion and in what respect (how). first evaluate the Its methods are of a more qual- in what respect preconditions and itative nature, to test linkages (how) between contexts, theories, and process patterns of outcomes. The BOUNCEUp teaches first- a programme line practitioners how to work BOUNCE aims to with the BOUNCEYoung and Participants have indicated that BOUNCEAlong tools in their own they enjoyed the training, partic- prevent violent city. Hence, evaluating BOUN- ularly the open and equal train- radicalisation at CEUp should mean checking ing style by the two BOUNCEUp whether the two other tools are trainers. Some participants also an early stage, clearly explained, whether the mentioned that the BOUNC- participants feel motivated to EYoung exercises opened their through universal spread these tools, and whether own views as youth workers by (primary) they actually set up BOUNCE making them aware of their own actions in their cities. The latter prejudices and attitudes towards prevention is the most important outcome youngsters. The sequence of the to verify. However, much of this ten BOUNCEYoung sessions was This threefold structure means practical implementation will described as a very effective that a thorough evaluation of depend on the local context, the way to work towards a more re- BOUNCEUp should assess its train- level of external support for ear- silient personality. On the con- ing processes (descriptive), its ly prevention and the inherent trary, the BOUNCEAlong training working theories (theoretical) characteristics of the BOUNCEUp did not have a similarly fixed and its programme outcomes training. This means that imple- training outline and is recom- (indicative). Whether the out- mentation support should go be- mended to be developed includ- comes are in fact caused by the yond the content of the training ing clear exercises. training (causality) cannot be only. proved at this point. Hence the The question at stake is whether level of evidence of our evalua- Short and long-term imple- these 101 new BOUNCE trainers tion will only be of descriptive, mentation of the BOUNCE will also start to organise their theoretical and indicative na- tools own BOUNCE actions in their ture, but it may provide a basis Over the course of 2017, ten respective cities. In the short- for future research. Moreover, a BOUNCEUp trainings were giv- term, this year’s project has not

175 F3 Magazine Justice is not a construct Preventing crime and violent extremism by strengthening youth resilience: Implementation of the BOUNCE resilience tools in 10 European cities led to an immense outburst of to the existence of similar pre- accordingly should be in a posi- BOUNCE actions in the ten in- vention projects, in sum, to what tion to implement the tools af- volved cities. Only one com- extent BOUNCE might provide terwards. This means that they plete BOUNCEYoung programme an added value in the city. should ideally be experienced has been finalised, two others External support also depends with youth work in a group set- are planned in two schools. Two upon organisational factors at the ting, that they should work in a BOUNCEYoung youth camps have policy-level. Cities with strong setting that allows for the imple- been organised as well. This continuity of (policy) staff will mentation of the tools, and that seems little for a project that has likely be more involved in the they should be supportive of been unrolled in ten cities, but BOUNCE project. Switching the open, early preventative ap- interestingly, in all cities, partic- project partners has proven to proach of BOUNCEYoung. Only with ipants are still enthusiastic about slow down the implementation such adequate selection of partici- the BOUNCE rationale and of the BOUNCE tools. Another pants may the continuation of the many of them wish to organise governance factor is the level BOUNCE tools be guaranteed. BOUNCE actions in the future. of cooperation between youth As the motivations of partici- services in the city. When the A long-term pants (incited by the training work of youth services is very outline of BOUNCEUp) are like- fragmented, the opportunities implementation ly not the problem, it is needed for multi-agency cooperation strategy of to evaluate what impedes the are lower and thus organisation- practical implementation of the al support for BOUNCE as well. preventative BOUNCE tools on a contextual Secondly, when external sup- level. A long-term implemen- port is present, it should be de- projects should tation strategy of preventative cided who will facilitate the look beyond the projects should look beyond the BOUNCE projects. A project co- mere training outline of a youth ordinator with clear tasks should mere training intervention. Several precondi- be appointed to inform the par- outline of a youth tions for implementation are at ticipants, communicate to the stake. relevant stakeholders, ensure intervention that the end objectives of the First, there should be an ade- local BOUNCE project remain Consequently, only once these quate level of external support clear, and generally keep the three first steps have been tak- in the city, corresponding to the BOUNCE participants organised en, should the BOUNCEUp train- provision of financial means, after their training as well. The ing be introduced. In the past staff and organisational support. facilitator is recommended to be pilot project (2015-2018), it has The level of support will like- a member of the city’s preven- been too often the case that cit- ly depend upon the framing of tion services, however, he or she ies were not correctly informed the BOUNCE project: if a city may also be a participant of the about the required external has a high political agenda to BOUNCEUp training (bottom-up). support, facilitation and selec- prevent violent extremism, and Third, when a local facilitator is tion criteria for participants. It BOUNCE is framed as an early assigned, the participants of the is thus needed to reinforce this preventative project to this end, BOUNCEUp training may be se- required commitment from all the city may provide more fi- lected and informed about the stakeholders in order to come nancial support for BOUNCEYoung expected commitment to the to long-term implementation trainings. Similarly, cities with programme. The participants of of the BOUNCE tools. After the strong early prevention services the BOUNCEUp training are ex- BOUNCEUp training has been giv- might finance BOUNCE from pected to become BOUNCEYoung en, participants should receive a general wellbeing promotion and/or BOUNCEAlong trainings ongoing implementation support perspective. This will also relate after their 3-day training, and from their BOUNCEUp trainers. This support can be given in the 176 F3 Magazine Justice is not a construct Preventing crime and violent extremism by strengthening youth resilience: Implementation of the BOUNCE resilience tools in 10 European cities

Figure 1: Implementation cycle for long-term implementation of the BOUNCE tools form of supervision, coaching- BOUNCE actions after one, two When the work of on-the-job and an (online) plat- or three years, and the specific form to discuss implementation set-up of these BOUNCE actions. youth services is ideas and answer pending questions. The new BOUNCE web- In sum, a long-term implemen- very fragmented, site1 will provide such a platform tation strategy for the BOUNCE the opportunities for knowledge-exchange across programme should include a cities and trainers. supportive policy-basis, a facili- for multi-agency Subsequent steps in the long- tating actor and a well thought- cooperation are term implementation relate out selection of new BOUNCE to continuous registration and trainers. The train-the-trainer lower evaluation of the newly imple- sessions and the additional im- mented BOUNCE actions. More- plementation support should Discussion: Lessons learnt for over, as no evaluation research only be given after these first implementing early preven- of BOUNCEYoung has been con- three steps. Later, all subse- tion projects ducted, it is needed to evaluate quent BOUNCE actions should The evaluation of BOUNCEUp these youth interventions based be continuously registered on does not only bring us lessons on their process patterns and their processes and outcomes, for the implementation of the their outcomes in different cit- with the aim of informing the BOUNCE tools, it also builds ies. It is also needed to contin- external supportive climate and upon previous research find- uously register the outcomes of adapting the prevention strate- ings from prevention science the BOUNCEUp trainings, most- gies in order to provide locally and adds content to the policy ly emphasising the number of suitable BOUNCEYoung activities choices concerning resilience participants who still undertake for youngsters. This ‘implemen- trainings. tation cycle’ of seven core steps The pilot project of ten BOUN- 1 https://www.bounce-resil- is depicted in figure 1. CEUp trainings has shown that ience-tools.eu/ 177 F3 Magazine Justice is not a construct Preventing crime and violent extremism by strengthening youth resilience: Implementation of the BOUNCE resilience tools in 10 European cities a promising training such as schools. A combination of in- search for adequate prevention BOUNCEUp will not lead to prac- terventions is needed in order strategies. Still, whereas more tical implementation of its two to enhance social cohesion and evaluation research is required, preventive tools BOUNCEYoung collective efficacy at the neigh- previous studies have shown and BOUNCEAlong without a co- bourhood level, to strengthen that resilience trainings may inherent implementation strategy, youngsters’ protective factors so deed be a first step into the pre- embedded in the city’s preven- as to lower their chances of en- vention chain. By focusing on tion plan. In line with previous gaging in criminal activities. positive and protective factors, research, durable prevention In order to conclude such as- early resilience trainings may will depend on multi-agency sumptions we recommend the counter-balance more repres- cooperation, which requires a framework of resilience to be sive discourses on crime and stakeholder analysis and clear researched more in-depth by extremism, allowing for a shift communication about all part- means of practical case stud- from fear to openness. ners’ commitment. The integral ies of BOUNCEYoung. During approach of projects such as this year’s project, a long-term References BOUNCE is of high importance, evaluation tool was developed The full evaluation study of the as a single prevention project for the BOUNCEUp tool, allow- BOUNCEUp tool can be consulted cannot prevent youth delin- ing cities to register their own via: quency and radicalization on its BOUNCE actions and follow-up Christiaens, Hardyns & Pauwels own. Rather, prevention should on the results. Such continuous (2018) Evaluating the BOUN- be ensured by a variety of so- registration of youth resilience CEUp Tool: Research Findings cietal actors, going from public trainings and their outcomes and Policy Implications. Re- agencies, police, civil society is needed so that policy-mak- trieved from www.bounce-re- actors, youth organisations and ers can be informed in their silience-tools.eu/research.

The authors

Eva Christiaens is a Researcher of Criminology in the Department of Criminology, Criminal Law and Social Law at Ghent University. She is member of the Institute of International Research on Criminal Policy (IRCP) since 2017. Her current interests are urban sociology, social cohesion and local policy-making.

Wim Hardyns is Professor of Criminology in the Department of Criminology, Criminal Law and Social Law at Ghent University. He is member of the Institute of International Research on Crimi- nal Policy (IRCP) since 2015. His current interests are crime mapping and statistics, environmental criminology, crime prevention, new security technologies, big data, radicalization and terrorism.

Lieven J. R. Pauwels is Professor of Criminology at the Department of Criminology, Criminal Law and Social Law at Ghent University. He is the Director of the Institute of International Research on Criminal Policy (IRCP) since June 2015. His current interests are crime causation theories, unifying frameworks and empirical tests, philosophy of causation and innovative methods in quantitative criminology. He teaches courses on the etiology of crime, quantitative methods, statistics and crime prevention.

Noël J. Klima is Research Coordinator at Ghent University’s IDC consortium ‘Crime, Criminology & Criminal Policy’ and postdoctoral researcher at the Institute for International Research on Criminal Policy (IRCP). His current interests are on crime risk assessment, resilience measurement and impact evaluation.

178 It was six men of Indostan, And happening to take About the beast to grope, To learning much inclined, The squirming trunk within his Then, seizing on the swinging Who went to see the Elephant hands, tail (Though all of them were blind), Thus boldly up and spake: That fell within his scope, That each by observation "I see," -quoth he- "the Elephant "I see," -quoth he,- "the Might satisfy his mind. Is very like a snake!" Elephant Is very like a rope!" The First approach'd the The Fourth reached out an eager Elephant, hand, And so these men of Indostan And happening to fall And felt about the knee: Disputed loud and long, Against his broad and sturdy "What most this wondrous beast Each in his own opinion side, is like Exceeding stiff and strong, At once began to bawl: Is mighty plain," -quoth he,- Though each was partly in the "God bless me! but the Elephant "'Tis clear enough the Elephant right, Is very like a wall!" Is very like a tree!" And all were in the wrong!

The Second, feeling of the tusk, The Fifth, who chanced to touch MoRaL Cried, -"Ho! what have we here the ear, So, oft in theologic wars So very round and smooth and Said- "E'en the blindest man The disputants, I ween, sharp? Can tell what this resembles Rail on in utter ignorance To me 'tis mighty clear, most; Of what each other mean; This wonder of an Elephant Deny the fact who can, And prate about an Elephant Is very like a spear!" This marvel of an Elephant Not one of them has seen! The Third approach'd the Is very like a fan!" animal, The Sixth no sooner had begun

The famous Indian fable of blind men and an elephant was very appropriately used during a training course on conflict prevention and management conducted in Chad. The training was conducted by a local non-governmental organisation, Action Tchadienne pour la Promotion des Initiatives Rurales (ATPIR) for young people at risk of social exclusion and recruitment by violent extremist groups. The fable is, however, very appropriate to describe the pilot project Countering radicalization and violent extremist in the regions of Sahel and Maghreb. The project is seeking to understand drivers that incite young people to join radical and violent extremist groups. Which issues, and their complex interplay at the level of community, region or country, create frustrations within young people that are so unbearable that they decide to take up arms? Once this understanding is reached, the challenge becomes defining an effective course of action. This, in short, is the objective of the project: to UNDER- STAND drivers and IDENTIFY best practices for preventing179 and countering youth radicalisation, terrorist recruitment and violent extremism. Infcous

On SDG 16: Peace, Justice, and Strong Institutions* by David M. Malone United Nations University

*This article was first published in Our World Magazine produced by United Nations University.

When the 2030 Agenda for Sus- was central for them and that itself faces domestic challeng- tainable Development and the their support for the 2030 Agen- es in addressing issues of vio- Sustainable Development Goals da hinged upon it. lence and homicide, particularly (SDGs) were adopted, Goal 16 against women and children. was seen as truly transforma- Nearly three years later, prog- tive, formally linking, for the ress on Goal 16 is uneven, and Canada is also facing challenges first time at the United Nations, there is considerable doubt that in other related areas of Goal 16. development, peace, justice, and it can be achieved at its current Issues of justice for Indigenous good governance. Some of its implementation rate. Challenges Peoples have been much debat- more ambitious targets include arise in all countries, including ed but insufficiently addressed significantly reducing all forms Canada, and are likely to be- over the past four decades. Com- of violence, ending abuse and come more acute given current prehensively combatting trans- violence against children, pro- trends, particularly those related national organised crime and moting the rule of law, reduc- to violence. illicit financial flows are elusive ing illicit financial flows and goals for Canada as well. corruption, and developing ac- Violence worldwide is on the countable and transparent insti- rise and becoming increasingly tutions. complex and multidimensional. The challenge Almost half the world’s people will be linking But Goal 16 was not adopt- have been affected by political ed without controversy. Many violence over the last fifteen these subnational countries argued against the years, with lower-income coun- priorities with intrusion of peace and secu- tries bearing a disproportionate- rity, and even more so jus- ly high share of the burden of national strategies. tice, considerations into the armed violence. Yet developed development sphere, and would countries are not immune — in A common impediment for have preferred that the goal be many parts of the developed countries attempting to imple- dropped altogether. Other coun- world, different forms of vio- ment Goal 16 is the yawning tries maintained that this goal lence are also on the rise. Canada gaps in reliable data, making it

182 F3 Magazine Justice is not a construct On SDG 16: Peace, Justice, and Strong Institutions

© UN Photo/Devra Berkowitz difficult to measure progress in 16 must be addressed at the sub- Positive initiatives are current- meeting the goal’s targets. Frag- national level. ly underway that illustrate how ile and conflict-affected states, this is happening. New forms of in particular, often have incom- In this context, one possible ap- participatory decision-making plete, imperfect, or a total lack of proach to accelerate the pace — such as in budgeting and in data. The countries of the world of implementation is to link enhancements to city housing, vary hugely in their capacity to national and local-level poli- service delivery, and slum con- collect, monitor, and track indi- cies, providing greater support ditions — have led to improve- cators. to subnational governance in- ments in public security and stitutions. Local and regional urban safety. Local governments Moreover, obstacles to reach- governments in many countries have been working interna- ing the goals of SDG 16 are in- have already recognised this, tionally and nationally to share creasingly encountered in urban arguing that new institutional relevant information and inno- areas. Populations in cities are arrangements and channels of vative, frequently data-driven, expected to increase to almost coordination need to underpin solutions. 70 per cent by 2050, and cities more effective, accountable, and register higher homicide rates transparent institutions, as well The challenge will be linking than rural areas. The challeng- as more responsive, inclusive, these subnational priorities with es found within ‘fragile cities’ participatory, and representa- national strategies. For example, — characterised by rapid, unreg- tive decision-making. This is Canada’s progress in implement- ulated urbanisation; high levels necessary for local governments ing its Federal Sustainable De- of inequality, unemployment, to become more responsive to velopment Strategy 2016–2019, and violence; poor access to key their communities, and for states which focuses on the environ- services; and exposure to cli- to deliver on Goal 16. mental aspects of the SDGs, does mate threats — mean that Goal not sufficiently account for Goal 183 F3 Magazine Justice is not a construct On SDG 16: Peace, Justice, and Strong Institutions

16, even though one of the aims particular. The plethora of tar- National governments will get of the strategy is to build safe, se- gets and indicators aiming to to showcase their achievements cure, and sustainable communi- guide them tends to create white at the United Nations High Lev- ties. However, at the provincial noise. Some countries have been el Political Forum, which is re- level, many strategies overlap felt disempowered by the ambi- viewing Goal 16 in 2019. Until with the SDGs — without specif- tion and wide spectrum of the then, greater effort is required ically mentioning them — focus- 2030 Agenda, as much as they nearly everywhere to achieve ing on employment, education, have been able to harness its implementation of national pol- and environmental concerns, potential for energising society. icies towards this goal. Improved but less commonly on violence This has represented an obvious links between the national and and justice. downside in practice to the Unit- subnational levels will move us ed Nations’ otherwise admirable all in the right direction. Achieving implementation of effort to design an all-encom- Goal 16 is a daunting task glob- passing agenda. ally, for poorer countries in

The authors

Prior to joining the United Nations University on 1 March 2013, Dr David Malone served (2008– 2013) as President of Canada’s International Development Research Centre, a funding agency supporting policy-relevant research in the developing world.

Dr Malone had earlier served as Canada’s Representative to the UN Economic and Social Council and as Ambassador to the United Nations (1990–1994); as Director General of the Policy, Interna- tional Organizations and Global Issues Bureaus within Canada’s Department of Foreign Affairs and International Trade (DFAIT, 1994–1998); and as President of the International Peace Academy (now International Peace Institute), a New York-based independent research and policy development institution (1998–2004). He oversaw Canada’s economic and multilateral diplomacy within DFAIT (2004–2006) and served as Canada’s High Commissioner to India and non-resident Ambassador to Bhutan and Nepal (2006–2008).

Dr Malone also has held research posts in the Economic Studies Program, Brookings Institution; Massey College, University of Toronto; and Norman Paterson School of International Affairs, Car- leton University. He has been a Guest Scholar and Adjunct Professor at Columbia University, and an Adjunct Professor at the New York University School of Law, where he is currently a Senior Fellow.

He holds a degree from l’École des Hautes Études Commerciales (Montreal); studied at the American University of Cairo; holds an MPA from Harvard’s Kennedy School of Government; and earned a DPhil in International Relations from Oxford University.

Dr Malone has published extensively, in both academic and lighter veins. His latest books are The UN Security Council in the 21st Century (as co-editor; 2015, Lynne Rienner Publishers) and the second edition of Law and Practice of the United Nations (co-authored graduate textbook; 2016; Oxford University Press).

In summer 2017, Dr Malone was reappointed for a second term as UNU Rector (2018–2023).

184 SUMMER SCHOOL ON ENVIRONMENTAL CRIMES Rome, 24-28 September 2018 Deadline for application: 16 September 2018

Organizing institutions: UNICRI and SIOI (Italian Society for International Organization). 5-day intensive course to enhance knowledge on environmental crimes and relevant counter-measures. International legal framework will be examined with a view to improve participants’ ability to address the issue in a comprehensive way and promote their role as advocates for an eective change in public policies, strategies and practices. Faculty composed by high level scholars and academics from leading universities and research institutes as well as representatives of the United Nations System and other international organizations. Course designed for university graduates in Law, Political Science, International Relations, Economics, Social Science or other relevant disciplines, and for young professionals working in governmental institutions, local authorities, international organizations, NGOs or the private sector seeking to deepen their understanding of environmental crimes. Opportunity to interact with internationally recognised experts, meet peers and build lasting professional relationships with young professionals and students from all over the world. For further information: [email protected] - [email protected]; Tel. (+39) 06 6789907 - (+39) 06 69207838 185 Max Planck Institute for Foreign and International Criminal Law

Max Planck Institute for Foreign and International Criminal Law

Günterstalstraße 73 79100 Freiburg i. Br.

Tel.: +49 (761) 7081-0 Fax: +49 (761)186 7081-294 E-Mail: [email protected]