Jan 20, 2011 | European Union, Human rights, Passage au crible (English)
By Catherine Wihtol de Wenden
Translation: Melissa Okabe
Passage au crible n°33
During the summer of 2010, the French government decided to redirect towards their country of origin – for the most part to Romania – the Roma camping in illegal zones in France. In return, the French government proposed provisions of 300 euros to those who volunteered to leave. The following argument, in which the Roma should be criminally responsible for their camps established in non-authorized zones, has been the main topic of discussion in European countries, the matter even reaching Brussels. In fact, the majority of those in question – with the exception of Ex-Yugoslavia – are citizens of European Union member states (including Romania and Bulgaria since 2007) and, as such, benefit from the freedom of passage among fellow EU countries.
> Historical background
> Theoretical framework
> Analysis
> References
Historical background
According to sources, the Roma population is composed of 9 to 12 million people. Originally, the Roma came from Indian populations who took flight over one thousand years ago. They crossed through Persia, then the Byzantine Empire and Central and Eastern Europe, before growing in Southern Europe, most notably in Spain. In other words, they have been part of European history since the Middle Ages. Henceforth, they are counted to be around 2.4 million in Romania (being 10% of the nation), 800.000 in Bulgaria (being 10% of the population), 800.000 in Spain, 600,000 in Russia, 600,000 in Hungary, 500,000 in Turkey, 400,000 in France, and 150,000 in the United Kingdom (according to given figures provided by La Croix in 2008).
Their presence has been equally large in the United States and Canada since the 19th century, as well as in Israel in the past 20 years. Similarly, Roma are noted to be present in Germany, and in Portugal which deported them toward its African colonies and towards Brazil since the 17th century. However they are especially numerous in Central and Eastern Europe where they form a non-negligible component of the population, between 5-10%. The majority has become sedentary, while others remain nomadic. In France, members of this latter group are called gypsies like the other non-Roma nomads. We emphasize that not all Roma are nomads nor are all gypsies Roma. Also, for example, certain French people have had mobile occupations – traders, traveling acts, the circus – for generations, without being considered Roma.
Theoretical framework
Let’s keep two main elements in mind:
1. The question of State control over its borders: France intervened in a European context where freedom of passage by Europeans within the EU is represented among the essential rights of European citizens.
2. The sovereignty of a European state on a largely Europeanized matter: This means that the management of migratory flows cannot rise from the sole competence or sovereign authority of a member state. The member state must evaluate and compromise with the authorities in Brussels.
Analysis
Certainly, the French government can infringe penal sanctions on the Roma and other nomads for illegal camps. However, a number of districts do not always respect the legislation enjoining them to make provisions for a stationing place if their population exceeds a certain number of habitants. Moreover, for all of this they cannot deport Europeans as they do with simple non-European migrants in irregular situations, even with the 300 euro compensation. The second problematic point remains that of ethnic targeting: how does one decide that it is the Roma if France does not have any official ethnic statistics? And yet, the August 5, 2010 bill coming from the Minister of the Interior, Brice Hortefeux, notably pointed them out, before quickly retracting it in the face of media reactions and in part by public opinion. Numerous ethical outrages of security by police forces have been brought to the forefront due to the Roma people. Obviously, the operation seems to be solely concerned to seduce a certain margin of the public opinion – more marked by the right – in the face of failure of the other enactments, such as the debate over national identity. This policy has without doubt appeared more legitimate to French authorities as much as France does not seem to be alone in this file. In Italy, for example, the capital was lost by the socialists of the far left in the last municipal elections over the theme of insecurity; the right had criminalized the Romani question after having successfully carried it to the heart of the electoral campaign.
On October 15, 2010, this redirecting of the Roma to the borders was condemned by recommendation of the European Parliament. This recommendation was followed by an intervention by the Commissioner for Justice, Viviane Reding, who compared the current period to that of the 1940s. At that time, a stance taken by the European Commission similarly went in this direction. The French policy was therefore discredited by Brussels and the case largely publicized in other countries. Indeed, the Roma represent a population who has already been the victim of persecution on many occasions. They have thereby been isolated for many centuries in Western and Eastern Europe before being gravely persecuted under Nazism. We recall that in Romania, they were subjugated to serfdom until 1865, then forced to settle under communism, they were treated likewise in other Central and Eastern European countries. Strongly discriminated against and deprived of their social benefits since the fall of the Berlin Wall, some of them became nomads once again, like their non-Roma compatriots from Romania and Bulgaria, their nomadic actions anticipating the legal freedom of movement from the start of 1990s. Finally, they have respectively acquired this freedom of passage in 2000 (Bulgaria) and in 2001 (Romania). And yet, they will not benefit from the right to work and to settle until 2014.
During the summer of 2010, the Roma affair appeared to reveal France’s improvised and unilateral treatment of this European question. France provoked the reaction of the Romanian government, with which the French officials have held many bilateral meetings dealing with this subject over the course of the past five years. Bucharest lamented that a confusion between Roma and Romanians could integrate into the minds of the general public. However, Romania has once more showed that Europe exists, as the guarantor and defender of Human Rights, when the limits of respecting these rights are found to be exceeded. In this respect, the response of the European parliament, jointly with that of the European Commissioner for Justice, and the outburst from the European Council in October 2010 reminds that Brussels remains vigilant when European rights are threatened.
References
About Roma in Europe: La Croix, 10 Août 2010
About Roma in general: Études tziganes series
Alain Reyniers (ULB) : http://www.iiac.cnrs.fr/lau/spip.php?article129
Jan 7, 2011 | Financial crisis, International Finance, Passage au crible (English)
By André Cartapanis
Translation: Davina Durgana
Passage au crible n°32
The G20 summit that was held in Seoul from November 11th-12th 2010, was made the object of discussion, if somewhat disillusioned. After the meeting in Washington (November 15th, 2008), which ambitioned to restructure Capitalism and prepare a new Bretton Woods, a greater mastery of distortions in exchange rates, often described as currency wars was expected. Lastly, one also hoped for new rules in monetary matters. Additionally, in this plan, the balance sheet of the G20 seems extremely disappointing. However, the heads of State or the government have, all the same, approved the outlines of a reform of the financial regulations that have proven to be ambitious. Yet, their application will not be effective overall in 2009.
> Historical background
> Theoretical framework
> Analysis
> References
Historical background
Since the onset of the systematic crisis, in autumn of 2008, the heads of State or government have quickly initiated collective action in adopting a vast plan of strengthening financial systems to avoid such a scenario being repeated in the future. The G20 of Washington has thus approved of a Plan of action that resembles a program of extension and deepening the regulations applied to financial intermediaries. On April 2nd, 2009, this roadmap was elaborated from the time of the Summit of the G20 in London, in order to render operational the options retained in Washington. The Summits of Pittsburgh, from September 24th-25th, 2009, and in Toronto, June 26th-27th, 2010 have followed this task, without major change on the terms of financial targets. At the same time, they have expanded the discussions to the governance of international institutions – the IMF in particular – and to the coordination of macroeconomic policies and exchange rate policies. Most recently, the Seoul Summit drew up a new Declaration including a Plan of action sustained by increased coordination of monetary policies and exchange rates. This text agrees with the propositions of the Counsel of Financial Stability and of the Basel Committee under the guise of a new set of macro-prudential standards – from this point forward named Basel III – that must be applied to banks.
Theoretical framework
1. Global Imbalance and currency wars. The financial crisis is in part tied to global imbalances in balance of payments that have accumulated since the 2000’s between emerging countries (China, Russia, OPEC) and the American economy. In fact, the accumulation of official reserves in Dollars made possible a very lively expansion of international liquidity. This was also accompanied by distortions in rates of exchange, certain currencies were devaluated – such as the Yuan – while the Dollar remained in a situation of heavy over-evaluation due to American competition. As for the Euro, it has maintained the same situation from before the crisis. This configuration has attributed to the Chinese policy of exchange because this was seen effectively as an anchoring of the Yuan to Dollar that favors a process of growth derived by exportation. And yet, one finds today comparable distortions, certain countries – China, Germany, Japan – continue to register very significant excesses in common balance of payments that feed massive transfers of capital and supports the over-evaluation of certain currencies in Asia and in Latin America. This causes in these economies new speculative spheres in the markets of financial assets or in real estate. Hence the idea of limiting global imbalances in a cooperative framework, for example according to the proposition of the American Secretary of the Treasury, Tim Geithner. In this instance, he suggests the imposing of an adjustment of macroeconomic policies as soon as the imbalance exceeds the line of 4% of GDP, in a situation of excess or of deficit of current payments. Another option consists of leaving the rate of exchange to adjust in response to the market forces in order to neutralize the risks of currency wars and manipulation of exchange rates.
2. Macro-prudential Regulation. The prudential regulation that is applied to banks functions to control risk behaviors and to minimize the probability of crisis has in view two objectives. It must contribute to the security of each intermediary bank in order to protect the depositors or the investors, in face of individual failures. Such is the traditional dimension of prudential arrangements – qualified by micro-prudential regulations and called Basel I or Basel II – which seek to limit the risk of financial distress for individual institutions independently of their impact on the rest of the economy. However, the banking regulations must also stabilize the monetary system and financial system in its overall architecture, considering macroeconomic responsibilities. In other words, it has as its goal to contain the systemic risk. It is therefore clear that the finality of such a macro-prudential approach consists of ensuring the stability and the continuity of exchanges in the heart of the financial sphere, even if it also implicates limiting the sources of excessive debt. Finally, it aims to curb all risks of financial distress which induce significant losses in terms of growth, just as was the case, for example, with the systemic crisis of 2008-2009.
Analysis
In the domain of the coordination of monetary policies or exchange policies, the Seoul Summit constitutes a failure. In fact, no political agreement was possible; China had been opposed as well on the reduction of global imbalances, on the global governance of monetary system and policies of exchange. Rather than adopting the new rules, the participants are just modestly content to trust the IMF with the task of furthering the reflection on the global compatibility of macroeconomic policies. In return, on that which concerns prudential regulation, the G20 of Seoul marks real progress, which has been underemphasized. The new micro-prudential system, which has already been named Basel III, anticipates significantly increasing provisions in equity banks and introducing new ratios – of liquidity and leverage – that they must imperatively respect. As much as measures that are of a nature to limit the risk-taking – illiquidity, insolvability, maturity transformations – of banks. As for risks of contagion and series of bank failures many action lines have been stopped: 1) to reduce the systemic importance of certain establishments in capping their size or in restricting the range of their operations in active markets; 2) strengthening the provisioning in capital stock, contingent on systemic risk carried by an establishment; 3) widening the perimeter of the prudential regulation of these establishments – such as Hedge Funds – or financial products such as derivatives – which we get away from here. In the future, contingent on their contribution to systemic risk, certain banks –qualified as too big to fail – must then be subject to the elevated provisions in equity capital than other more modest banking institutions. If all these measures are certainly in the right direction and mark a major change in the growth of financial deregulation, one would regret then that the calendar of application of these measures extend only until 2019. Finally, emphasized by the operational rearrangement of the basics, Basel III stays subject to the agreement of governments.
References
Cartapanis André, La Crise financière et les politiques macroprudentielles : inflexion réglementaire ou nouveau paradigme ?, Conférence présidentielle, 59e Congrès de l’AFSE, Université de Paris-Ouest-Nanterre-La Défense, 10 septembre 2010 : http://www.touteconomie.org/index.php?arc=v25. G20, The Seoul Summit Leader’s Declaration November 11-12, 2010: http://media.seoulsummit.kr/contents/dlobo/E1._Seoul_Summit_Leaders_Declaration.pdf
Cartapanis André, « Les architectes de la crise financière », in : Josepha Laroche (Éd.) Un monde en sursis, dérives financières, régulations politiques et exigences éthiques, Paris, L’Harmattan, 2010, coll. Chaos International, pp. 41-52.
Dec 15, 2010 | Human rights, Nobel Peace Prize, Non-state diplomacy, Passage au crible (English), Peace
By Josepha Laroche
Translation: Davina Durgana
Passage au crible n°31
Source: Wikipedia
This past 10th of December, during the award ceremony of the Nobel Peace Prize, the winner – Chinese dissident Liu Xiaobo – was absent because he is currently in his country serving a prison sentence of eleven years for “subversive activities”. Despite the pressure exerted on Peking, he has been considered for over a year as one of the main players. Finally, the Nobel committee has awarded him this prize on October 7th, 2010 “for his enduring non-violent efforts in support of human rights in China”, an award described as an “obscenity” by Chinese authorities.
> Historical background
> Theoretical framework
> Analysis
> References
Historical background
Since 1901, the Nobel Prize award ceremony has occurred every year on December 10th. This day marks exactly the anniversary of the death of Alfred Nobel (1833-1896), the founder of this prize system. Inventor, industrialist, financier, literary man, and additionally a pacifist, this Swedish philanthropist at the head of one of the first transnational firms, decided through his will on November 27th, 1985 to devote his immense fortune to the creation of five annual prizes, of which four would be awarded in Stockholm1: physics, physiology or medicine, and literature. As for the Peace Prize, Nobel expressly requested that the award would be granted within the Norwegian Parliament, the Storting. At that time, the chamber in Oslo represented, in effect, one of the rare assemblies in Europe, truly democratic. Additionally, an activity that has already been deployed in favor of peace seemed to Alfred Nobel more decisive than the Swedish-Norwegian conflict, but then very contested. The entrepreneur designated from the Norwegian Chamber in order to ensure the management of the prize selection, considered who was the most qualified and the most legitimate. As Nobel did not share the utopian views of his pacifist friends, he looked to promote a new pacifist technology to form a device both new and original. In order to do this, he conceived a symbolic tool branding the mark of humanitarianism, of science, and of ideological meritocracy. Therefore, what has taken form from over a century is a system of international gratifications that honors individuals and transcends State borders, while refusing the nationalism that its founder detested.
Recall that the Chinese dissident Liu Xiaobo has played a central role in the drafting of the Charter 08, a manifest published by intellectuals and militants reclaiming freedom of expression and pluralist elections in China. This former professor of literature had equally been one of the leaders of the student demonstrations in Tiananmen Square in 1989, events through the course of which he had notably led a hunger strike. In the matter of his absence from the ceremony, it must be noted that this is not the first time that a Nobel laureate has been unable to receive their prize. This interdiction has followed many similar decisions. In 1958, for example, Soviet writer Boris Pasternak, was not able to go to Stockholm to receive his Nobel Prize in Literature and the same occurred in 1970 for the novelist, Alexandre Soljenitsyne. More recently, in 1975, the academic and physicist, Andrei Sakharov, did not have the opportunity to obtain his visa from Soviet authorities to receive his Nobel Peace Prize. Finally, in the same fashion, the dissident opposing the Burmese Junta, Aung San Suu Kyi, was not permitted to go to Oslo in 1991.
Theoretical framework
A non-state diplomacy. The allocation of the Nobel prizes – which has been mentioned – has instituted as time has gone by, a diplomacy – the Nobel diplomacy – which is characterized by a strong global cohesion and a constant determination to prevail the Nobel glory in facing State actors. This is why, this process of Nobelization often has the finality of contradiction – that is to say condemn – the politics of one or many against each other.
A moral diplomacy. The Nobel Institution stands as a universal conscience and moral entrepreneur. In this aspect, it means to embody values such as liberty, knowledge and impartiality. It can be considered to this end as the most solid defender of human rights opposing the national interests of States. Through its laureates, the Nobel institution represents an elite militant, a true international ministry that grants a right of interference in the internal affairs of States in the name of the universality of human rights and the preservation of world peace.
Analysis
Regarding the radicalism of the Nobel diplomacy, Chinese authorities have been engaged in a vast diplomatic offensive from the beginning to attempt for the first time to modify the decision of the Committee and to prevent any distinction from being accorded to Liu Xiaobo. However, the proclamation on October 7th sounded like the first failure and stigmatization of their politics. For their part, the Chinese have intervened in gaining support from foreign chancelleries in order to have a massive boycott of the ceremony. However, despite their repetitive pressures, only twenty countries – among them, Afghanistan, Saudi Arabia, Cuba, Iran, Pakistan, Russia, Sri Lanka and Venezuela – have finally declined the invitation from the Nobel Institute. In return, the sixty-five countries, which have arranged for diplomatic representation at Oslo have decided that it is essential to be present. Among those who were present, we must quote for example, the United States, Germany, France, United Kingdom and Brazil which have decided not to give in to the warning and threats that have been significant by Peking.
The choice of Liu Xiaobo heralds a diplomatic line, which demonstrates that the Nobel diplomacy towards China has remained constant over time. In effect, one should not forget that in 1989, the jury of Oslo awarded the Prize to the spiritual leader of Tibet, the Dalai Lama, only four months after the Spring of Peking and thirty years after the uprising of Lhassa. At this time, this decision offered, in a very significant manner, international recognition to the Tibetan cause, which opened the Chinese to criticism as already encouraging spinelessness. In effect, if the living God has been attempting to obtain self-determination of Tibet through Pacifist means, he will yet stay that way until diplomacy is isolated. Many times it has been proposed to Peking to undertake very moderate compromises; suggesting for example, that Tibet would have a status similar to Hong Kong, in virtue of the principle of one country, two systems. In the designation of Xiaobo, the Jury of Oslo holds an emphasis on how the laureate was “systematically opposed to the recourse to violence”. In other words, this Prize represents all at once a condemnation of Chinese politics and an invitation directed at its leaders for the negotiation and settlement of the Tibetan question with the new laureate.
As China is not yet open to democracy, it has not stopped for over twenty years to reinforce their power on the global scene towards the end of becoming today the main rising challenger facing the American hegemon. In certain respects, does China not constitute from this point forward with this latest conflict, a world director, the G2? However, despite this new order, the Nobel line remains rigorously the same: it vacillates between moral condemnation and the incitement of dialogue. That is to say that when they decided to honor the fight of a Chinese citizen for peace, democracy and human rights, the Nobel Committee radically refused – whereas some States accepted – to recant their decision when faced with Chinese reproaches.
References
Laroche Josepha, Les Prix Nobel, Paris, PUF, 1995, the book will be soon republished.
http://nobelprize.org/nobel_organizations/
http://fr.rsf.org/chine-liu-xiaobo-biographie-28-10-2010,38695.html
http://fr.globalvoicesonline.org/2010/10/12/46516/
1. The Economics Prize was not created until 1968 by the Swedish Bank, on the occasion of its tercentennial and dedicated to the memory of Alfred Nobel.
Nov 13, 2010 | Humanitarian, North-South, Passage au crible (English)
By Clément Paule
Translation: Davina Durgana
Passage au crible n°30
On October 29th, 2010, many spokespeople for the humanitarian agencies of the United Nations have reaffirmed their worries regarding the fragile situation of millions of displaced Pakistanis. These alarming statements emphasize the lack of shelter and food with the approach of winter, three months after the downfall of torrential rain that have ravaged Pakistan. Since the 26th of July 2010, the massive floods have in effect reached almost a fifth of the country, from the province of Khyber Pakhtunkhwa – located in the Northwest – all the way to the Southern region of Sindh. For now, the human death toll has risen to nearly 1800 deaths and around 14 million victims. According to the material damages, it can be estimated that 43 million dollars from the agriculture sector – crucial to the national economy – has been deeply affected. According to U.N. officials, this could be the worst catastrophe in the history of Pakistan. Henceforth, many analysts have brought up the uncertain future of a destabilized State that will intensify the internal conflict of opposition to the authorities by Islamist groups.
> Historical background
> Theoretical framework
> Analysis
> References
Historical background
In the first place, it must be emphasized that Pakistan – the 6th most populated country in the world – is particularly vulnerable to natural risks, above all seismic and hydrological. Since the beginning of the 1990s, many significant floods have struck this territory equally vulnerable to earthquakes. Recall for example the 6 million people that were affected – including more than 1300 deaths – by the strong rains accompanying the monsoon of the winter of 1992. The Emergency Events Database of the Center for Research on the Epidemiology of Disasters has accounted for dozens of similar phenomena since 1900. For now, the rising numbers as well as the socio-economic costs tied to this type of disaster appear to have much greater of an impact than large earthquakes as well as incurring more deaths.
Then, it is important to recall certain historical precedents establishing a structural link between the management of catastrophes and the political situation. In this respect, the cyclone of Bhola that hit Eastern Pakistan – currently Bangladesh – in November 1970 seemed to reveal this interdependence. The passivity of the Federal Government had them stigmatized by the separatist opposition – The Awami League – allowing them at the last moment to win the provincial elections a month later and to proclaim the Bengali secession. If the success of this secession had a lot to do with the Indian involvement in the conflict, it was not less so than this natural disaster that was strongly exploited by political actors. Finally, the recent earthquake of October 2005 – which occurred in the disputed region of Kashmir – has equally evoked a powerful transnational mobilization. However, there are many tensions due to those opposed to Western non-governmental organizations and the Pakistani army critical of their supervision, minimize their assistance. Ultimately, the national agency, the Earthquake Reconstruction and Rehabilitation Authority that had been put in place by the authorities to centralize aid flows, were accused of corruption and massive embezzlement.
Theoretical framework
1. Internationalization of the Catastrophe. It is important to recall here that disaster is inscribed in a system of historical, political and strategic pressures. With this logic, the international dynamics of humanitarian intervention must be analyzed with a perspective to these regional issues.
2. Concurrent Aid Management. Obviously, there are many divides that pervade the space of the aid operators and determine the distribution of scarce resources and its terms. In other words, the dispersion of strategies – and of objectives – transforms aid into an object of competition, extending diplomatically to the heart of the Pakistani State.
Analysis
Clearly, in the first place, certain characteristics of this catastrophe present a slow process – contrary to the tsunami of 2004 or the Haitian earthquake – where the impact manifested in the mid-term. In this instance, the damages incurred by the floods are decreased by the economic crisis that has clamped down on this country that has recently called to the International Monetary Fund. Emphasized by the four million hectares of arable land that were submerged, Pakistan is restricted to the importation of foodstuffs to attempt to prevent a probable soaring in prices. And yet, this leaves the prediction of a rise in social tensions in a State already profoundly divided by ethnic conflicts – tied to a contested centralization – religious and overall political. In this regard, it is important to recall the specific role of military that took power from 1999 to 2008 with General Musharraf, and their ambivalent relations to the current civil government. In addition to this view, the national authorities – traditionally allied with the United States – have been facing for a decade an insurrection of armed groups tied to the Afghan Taliban. This complex configuration of opposing interests has been re-transcribed in the post-disaster crisis. Additionally, the management of the disaster seems to be a way of changing the existing relationships of power, for both local and international actors.
Behind the consensual rhetoric of the global solidarity demonstrates, in effect, a true catastrophe of diplomacy formed by the strategic objectives of donors. To this end, it must be mentioned that American aid has risen to almost a half-million dollars. If this commitment could permit the ameliorating of the image of Washington – marred by the mistakes in the war in Afghanistan – they could sustain overall a traditional and indispensible ally for their regional establishment. This imperative of national security, according to the expression of Senator John Kerry, has been confirmed by the recent announcement of military assistance of two million dollars in five years. In this same logic, the considerable mobilization of the Muslim world can hardly be reduced to a simple expression of mutual aid. Additionally, the Saudi contributions – 365 million dollars – and Iranian – 100 million – evokes their influence as an approach of soft power aiming to affirm their presence in the disaster-struck region. In the same manner, their Chinese neighbors, emergent donors, have promised nearly 250 million the 23rd of September 2010. In addition, the entanglement of symbolic and political dimensions is expressed in the refusal of the Pakistani Government to accept direct aid from its Indian rival.
Remarking equally on the process of the appeal of the United Nations – in requesting from this point forward 1.9 million dollars – have not assembled to this day, but 39% of the solicited sum. After the world crisis, the forms of financing allowed the explanation of this shortcoming: Muslim countries and China seemed to give priority to bilateral aid, while the Western donors do not trust them and attribute all of their funds to the United Nations System, to non-governmental organizations, or also to the International Movement of the Red Cross and the Red Crescent Movement. For now, the Pakistani authorities have recently attempted to affirm their leadership on the reconstruction plan in refusing the direct control of projects by external actors. This demand for control of aid seems to be vital for a weakened government, which was very criticized for its inefficiency, notably for their regional officials. Moreover, according to certain analysts, the strong mobilization of the army – 60,000 soldiers were deployed at the end of August – has eclipsed civil power and has made possible a coup d’État similar to that of 1999. Finally, other commentators have emphasized the growing role of Islamist organizations – such as Jamaat-ud-Dawa or Ahle Sunnat Wal Jamaat – in the assistance, likely to accentuate the delegitimizing of a regime allied with Americans. This extreme fragility of the Pakistani state, especially on their borders, reinforces the necessity of international aid where the donor’s local mastery is not crucial.
References
Jaffrelot Christophe (Éd.), Le Pakistan, carrefour de tensions régionales, Bruxelles, Complexe, 2002.
OCHA (Office for the Coordination of Humanitarian Affairs), FTS (Financial Tracking Service), Table A: List of All Commitments/Contributions and Pledges as of 02 November 2010, 2 Nov. 2010, consultation on the website: http://www.reliefweb.int/fts [Nov. 2 2010].
Questions internationales, « Les catastrophes naturelles », (19), May-June 2006.
Website of the pakistani agency NDMA (National Disaster Management Authority): http://www.ndma.gov.pk/.
Nov 12, 2010 | Human rights, International Justice, Passage au crible (English), Public international law
By Yves Poirmeur
Translation: Davina Durgana
Passage au crible n°29
On October 11th, 2010 French authorities arrested Callixte Mbarushimana, Executive Secretary of the Democratic Forces for the Liberation of Rwanda- Combatant forces Abacunguzi, endorsed by an arrest warrant by the ICC (International Criminal Court) for war crimes and crimes against humanity that he is presumed to have committed, in 2009, in the provinces of Kivu, in the East of the Democratic Republic of the Congo. This arrest by a Rwandan national who has been living in France since 2002, with the status of political refugee, shows the advances in the fight against impunity rendered possible by the creation of the ICC where France was one of the first European countries to ratify the Rome Statute (June 9th, 2000). France was able to make this arrest because she had adapted since 2002 (Law of February 26th, 2002) her penal procedure to respond to investigative requests and the arrest of imminent suspects of the ICC due to the differences in less collaborative states. However, the French legislation still leaves substantial space for impunity. In fact, the recent law of August 10th, 2010 that completes “the criminal law adaptation to the institution of the ICC” carries out a very restrictive synchronization of internal criminal law with the definition of incrimination retained by the Rome Statute. Furthermore, she maintains a very narrow conception of universal competency. This permits in consequence, for certain international criminals present on French territory to escape prosecution.
> Historical background
> Theoretical framework
> Analysis
> References
Historical background
The international repression of international crimes is difficult to institutionalize, throughout the 20th century, in an international society constituted of sovereign states saw all international undertakings on criminal responsibility of their rulers and soldiers as an unacceptable attack on their sovereignty. Appearing for the first time under the form of the ad hoc Tribunals of Nuremberg (1945) and of Tokyo (1946), the international criminal justice had known then a long eclipse bound to the East-West conflict. Then, international criminal justice took the form of special jurisdictions created by the Security Council of the United Nations to adjudicate the people responsible for violations of international humanitarian law in Yugoslavia – ICTY (1993) – and of the genocide in Rwanda – ICTR (1994). Finally, international criminal justice was allocated permanent jurisdiction by the Rome Convention (1998) in instituting the ICC with the mission of prosecuting and punishing war crimes, crimes against humanity, genocide and the crime of aggression for which the definition is still not clear. The open investigations for this jurisdiction, very recently are, for now, still very few in number, all as arrest warrants and the citations to appear before the court that are delivered. These investigations concern the Central African Republic, Darfur, Uganda, Kenya and the Democratic Republic of the Congo, as well as other situations certainly justifying investigations such as in the Ivory Coast, Guinea, Columbia and Palestine.
In the fight against impunity, the international criminal justice system is confronted with two main obstacles. The most obvious issue is that with only the 113 states that have, for now, ratified the Rome Statute, international criminals can then find refuge on the territory of countries that have not signed. The second obstacle resides in the fear of states to conserve their independence and notably, the prevailing of their idea of criminal law to ensure the impunity of certain crimes in the case that they are ever eventually potentially implicated. There is also the fault in the synchronization of incrimination of penal law by states parties with those of international penal law with the lack of adaptation in their criminal procedures to respond to the investigation requests and arrests of the ICC. Finally, it is equally overdue for overly restrictive definitions of their universal competence that leave legal shortcomings to allow each person suspected of an international crime of extreme gravity to escape all pursuit, both before national jurisdictions and before the ICC.
Theoretical framework
1. The principle of complementarity. The structure of the international criminal justice system, restrained by the Rome Statute (Article 1) to maintain a principle of complementarity giving the competency of national jurisdictions the priority to judge international crimes. It is only this subsidiary title – in the hypothesis where states are inefficient and do not exercise any pursuit – that the ICC’s competence is limitedly restricted to “the most serious crimes that affect the international community as a whole” (Article 5).
2. Universal competence. The operation of the Rome Statute demands that the state parties plainly exercise the universal competence that it internationally recognized to suppress the infractions committed by people to foreign countries, even in cases where the perpetrator or the victims are not citizens. In order to make legitimate – without incurring reproach for interfering in the affairs of another State or of exploiting justice for political means – it is necessary that these infractions under domestic penal law are conformed to those of international political law and incidentally that the judicial procedure – investigations, sentencing, trials – respect the principles of law in an equitable trail that offers similar guarantees to those of the ICC.
Analysis
In the same time that the ICC took the initiative of investigation and prosecution, the Code of Criminal Proceedings (Article 627-4 through 627-15) allowed France to efficiently collaborate with the ICC to insure impunity. In return, the Law of August 10th, 2010 brought into action universal competence for the crimes relevant to the Rome Statute the strong requirements that are exercised by the French courts that are potentially fully exceptional, also allow international criminals to slip between their repressive mesh nets. Additionally, this extraterritorial competence of jurisdictions is subordinate to four cumulative conditions: 1) the presumed perpetrator of these crimes must have a usual residence on the territory of the Republic; 2) the incrimination of these crimes by criminal legislation of the state or in the state where these crimes were committed or fall under the ratification by the state or by the state of which the perpetrator is a national according to the Rome Convention; 3) the prosecution of these crimes can not take place at the request of the public prosecutor; and finally 4) there is no international or domestic jurisdiction that can demand the return or the extradition of the perpetrator of these crimes, which the public prosecutor must ensure and notably verify that the ICC “expressly declines their competence” (Code of Criminal Proceedings, Article 689-11). The criterion of the usual residence overall just requires the simple presence of the alleged perpetrator of serious crimes on the national territory, which will be saved for France – to the great displeasure of human rights organizations – to require the judgment of many alleged perpetrators of international crimes passage to their own land, who could without great risk of continuing to make simple requests. As for the principle of complementarity, secured by the Rome Statute and giving the priority of prosecution to domestic jurisdiction, it seems to be the opposite of the subordination of their commitment to the condition that the ICC declined their competence beforehand. This is also a residual conception of universal competence for the most serious crimes that are founded on the idea that the legislators have a pretext of wanting to avoid the improbable concurrence between international and domestic jurisdictions. The law of 2010 then adapted the criminal code to the definitions of crimes according to the Rome Statute of the ICC, and have inserted there a new text dedicated to the repression of war crimes including the new incriminations – rape, murder… – and have completed the list of what constitutively makes a crime against humanity – voluntary attacks on life, attacks on liberty or the violence against people in all of its forms within the framework of a deliberate plan against a group of a civil population – and have precisely outlined the responsibilities of perpetrators of genocides, or the public incitement to commit genocide, and the order or committing of a genocide that was already sanctioned. If the repressive arsenal is happily reinforced today and the important gaps are crossed, the synchronization that has remained far off will be achieved. It is important that states recognize and observe soon that the instructions of war crimes established by the Criminal Code is a delay of 30 years, so that the Rome Statute retains the limitations of war crimes relevant to the competence of the Court (Article 29). In return, France participates efficiently and without risk in plainly cooperating with the ICC. It is less for the gaps of translating international crimes into domestic law than the restrictive concept of universal competence, that induce domestic governments to avoid political complications and diplomatic disagreements, that France expanded their direct services to the fight against impunity, committing as well to prosecution. It was the 3rd of November 2010 that the Court of Appeals of Paris ordered the placement of Mr. Mbarushimana to the Court at The Hague.
References
Florence Bussy, Yves Poirmeur, La Justice politique en mutation, Paris, LGDJ, 2010.
Xavier Philippe, Anne Desmarest, « Le projet de loi portant adaptation du droit pénal français à la Cour Pénale Internationale », Revue française de droit constitutionnel, (81), janvier 2010, pp. 41-65.
