Forum: Disaster Risk Governance and COVID-19 – Accountability, Transparency, and Corruption

Written by Hugo Cahueñas*

With devastating effects across the globe, the COVID-19 pandemic constitutes a “slow-onset disaster” [1] and warrants analysis through a disaster risk reduction framework. [2]  Several countries, including Ecuador, have already recognized the need to use a disaster risk reduction lens, having responded to the pandemic through their disaster risk management systems. [3] To reduce the risk of disasters, the United Nations General Assembly has adopted the Sendai Framework, which lists among its priorities “strengthen[ing] disaster risk governance to manage disaster risk,” [4] thus reducing vulnerabilities and underdevelopment. [5]

Governance is also used here in a broad sense, comprising all formal governmental institutions and all stakeholders, including networks and markets.[6] Disaster governance under the Sendai Framework includes three main components: a) authority; b) decision-making; and c) accountability.[7] Accountability refers to the idea of calling someone to account for their actions.[8] Moreover, corruption and a lack of transparency reduce people’s trust in a government, which consequently inhibits effective disaster governance.[9] This piece will discuss these three related elements of disaster risk governance: accountability, transparency, and corruption. I will also provide examples of disaster risk governance in response to COVID-19 that illustrate these themes. Recent research focused on the response to the COVID-19 pandemic in Nigeria, for instance, has found that the absence of accountability and transparency measures creates a trust issue between the governed and the government. [10] Citizens will be more trusting of a government with improved disclosure and impact reporting, and any effective anti-corruption strategy needs to enforce sanctions against government institutions that do not report.[11] Ultimately, the handling of the COVID-19 pandemic demonstrates the need for updating the accountability and transparency standards for Disaster Risk Reduction (DRR), with a particular emphasis on the health-systems approach to preparedness and response.

Accountability

While hazards are unpredictable and uncontrollable, government actions and responsibilities are not. [12] It is crucial to enhance accountability for disasters by establishing institutional and technical mechanisms to address risk. [13] To reinforce disaster risk governance at the global and regional levels, the Sendai Framework recommends strengthening international voluntary mechanisms to monitor and assess disaster risks, including mechanisms that promote the exchange of non-sensitive information to the relevant national governing bodies and stakeholders in the interest of sustainable social and economic development. [14]

Regretfully, the Sendai Framework is a soft law instrument, thus its “focus is on voluntary, rather than compulsory mechanisms coupled with sanctions.” [15] Consequently, consensus and broad incentives are the pathways available for improving governance accountability for DRR globally. [16]

Accountability requires “[…] the definition of roles and responsibilities, the granting of adequate powers to discharge such responsibilities, the existence of adequate means and resources and, finally, relevant mechanisms which can bring people and institutions to account.” [17] Such mechanisms can be judicial, quasi-judicial, administrative, political or social and may perform both prescriptive—focusing on the internalization of norms and adjustment of conduct through continual dialogue and policy—and retrospective—assessing conduct after the fact to obtain reparations—functions. [18]

The Sendai Framework acknowledges the need for enhanced accountability for reducing existing risks and preventing new ones.[19] This framework, however, only refers to accountability, but does not intend to guarantee accountability. [20] Therefore, implementation of the Sendai requires taking meaningful actions to ensure accountability. [21] As such, it is necessary to look beyond the Sendai to see what actions have been taken to hold states responsible for disaster risk management (DRM.) In a few disaster-related cases, for instance, the European Court of Human Rights (ECtHR), held that states which did not undertake preventive measures in DRM were accountable for violating rights recognized in the European Convention on Human Rights (ECHR), a legally binding treaty. [22]

States also need to take steps to enhance individual accountability by government officials in disasters. [23] At the national level, criminal and civil courts have already resolved cases relating to individual negligence linked to disasters. In one case in Italy, seven scientists were held criminally liable for erroneously downplaying the risks related to the seismic developments in a town just days before the 2009 L’Aquila earthquake. [24] Similarly, in Chile, four government officials stand accused of failing to issue a timely tsunami alert following the country’s 2010 earthquake. [25]

Disaster risk governance requires new accountability structures and frameworks, including explicit measures  that contemplate and redefine questions about “to whom” accountability is owed and “from whom” accountability stems. [26] Redefining these questions is necessary in order to properly evaluate the performance and effectiveness of those laws, regulations, and procedures. Critical to this reconceptualization is holding all stakeholders accountable, not only governmental entities, [27] which can be achieved through clear institutional rules and demarcation of roles. [28]

The COVID-19 pandemic has had implications for this understanding of accountability in DRM, ” underscor[ing] the need for governments to improve their outbreak preparedness and response by incorporating a health-systems approach.” [29] For instance, following recommendations from the WHO’s health systems framework and other national and international public-health guidance, every country should:

  1. Improve public health communication and health literacy.
  2. Facilitate robust surveillance and reporting.
  3. Develop pandemic preparedness, with an emphasis on maintaining sufficient qualified healthcare workers and medical equipment.
  4. Strengthen health systems through widespread funding increases.
  5. Ensure health and social equity.
  6. Ensure that strategies to restrict people’s movement take into account health and socioeconomic effects. [30]

In Ecuador, the Constitutional Court has stated that the National Assembly must assume a proactive role in this health crisis by adopting special regulations based on technical criteria coordinated with health and risk institutions. [31] The delay in taking these essential measures to tackle the pandemic and its economic consequences exemplifies that public authorities are “not exercising, with adequate seriousness, their duty to coordinate actions to fulfill their purposes and to make effective the exercise of constitutional rights that are being threatened[…].” [32]  Consequently, the lack of an institutional response “is not attributable only to the harmful and unpredictable consequences of the pandemic caused by COVID-19, but also is direct responsibility of the State […].” [33]  Under DRR standards, this lack of an adequate response at the different levels of Ecuadorian government would need to be addressed through accountability mechanisms. As Ecuador’s case shows, the demarcation of roles and responsibilities in government actions is fundamental to risk reduction. Moreover, DRR accountability requires effective mechanisms and compulsory rules applicable to all stakeholders.

Transparency

Transparency plays a vital role in promoting accountability by allowing actors to employ markets, discourses, and norms against various global institutions, including states, international organizations, and transnational corporations. [34] In order to ensure a transparent assignment of tasks and make policy action predictable, a disaster risk governance approach would take into account the broader framework of public policymaking, which encompasses the executive branch of government at the national and local levels, the interface of the public and the private sector, and the actors who may be directly or indirectly affected by disasters. [35] Disaster risk governance requires improving “relevant mechanisms and initiatives for disaster risk transparency, which may include […among others…] reporting requirements and legal and administrative measures.” [36]

In the context of the COVID-19 pandemic, Transparency International has called on “governments to act with greater transparency to improve the procurement of lifesaving medicines and vaccines, promote open and transparent contracts, prevent price gouging of drugs and medical supplies[…].” [37] The Ecuadorian Constitutional Court has expressed a similar idea in its recent rulings, noting that  “authorities in charge of public procurement must guarantee transparency, render accounts, inform, promote, publicize the entire cycle of public procurement, and inform the State Comptroller General about the anomalies found.” [38] Transparency in government actions during the pandemic is crucial to reducing disaster risk.

Corruption

Besides accountability and transparency, corruption is also a challenge for effective disaster risk governance. [39] Regretfully, the Sendai Framework does not meaningfully confront the problem of corruption. In discussing the aftermath of a disaster and the “Build Back Better” [40] approach during the phases of recovery, rehabilitation and reconstruction, however, Sendai’s Priority 4 mentions that the “construction industry […]  is one of the sectors most susceptible to corruption.” [41] Corruption exacerbates disaster vulnerability, [42] thus it is a crucial part of disaster risk governance that should no longer be ignored. [43] The aftermath of the 2008 Sichuan earthquake in China illustrates the centrality of corruption to a disaster risk governance analysis. School buildings in the affected area were severely impacted by the earthquake because these constructions did not meet regulatory standards as a result of the mismanagement of public funds. [44] Similarly, the Turkish earthquake disasters of 1999 and 2003 that claimed over 40,000 lives and destroyed over 300,000 homes can be “attributed in large part to government and industry corruption, gross negligence and state links to organized crime, [including corruption] in the form of privileged access to public procurement, unwarranted loans and bribes for politicians.” [45] Finally, research on the transfers from Bulgaria’s central government to municipalities intended to aid reconstruction following torrential rain in 2004 and 2005 concluded that “increased disaster aid led to more corrupt spending by local governments.” [46]

This risk of corruption has increased during the COVID-19 pandemic. In Colombia, a study [47] concluded that “the pandemic increased the incidence and the value of discretionary contracts, especially in places that have traditionally had low levels of state capacity and high levels of corruption.” [48] The simplification of procurement rules “increases the discretion of public officials, [which] may create corruption opportunities that could offset the full potential benefits of the policies aimed at promoting short-term relief spending in the face of large negative shocks.” [49]

In Ecuador, the Constitutional Court has highlighted every citizen’s constitutional duty to denounce and combat acts of corruption. The Ecuadorian Attorney General’s Office is tasked with investigating alleged corruption, while judges and courts must do their part by sanctioning those who commit corruption-related offenses. [50] The Attorney General’s Office has created a “task force” specifically aimed at fighting against corruption during the pandemic. [51] As of September 2020, this office has already investigated 95 corruption cases . [52] Similarly, in Bulgaria, the Prosecutor General has set up a organization for combatting crime during the state of emergency that was imposed in response to COVID‑19.[53] Corruption undermines all institutions, thereby increasing the risk of disasters.

Conclusion

The COVID-19 pandemic has highlighted the need for updating the accountability and transparency standards for DRR, with a particular emphasis on a health-systems approach to preparedness and response. DRR accountability and transparency mechanisms should be mandatory, not only voluntary. Moreover, DRR standards need to hold all stakeholders accountable, not only governmental entities. In Ecuador’s case, an effective accountability mechanism would identify the different levels of government—both national and local—and the various branches of government—particularly the National Assembly—that are responsible for the country’s inadequate response to the COVID-19 pandemic.

In response to crises and disasters, transparency in the management of public resources facilitates accountability and inhibits corruption. Thus, public procurement systems must include regulations that guarantee transparency and establish authorities in charge of investigating any anomalies.  Corruption underscores existing vulnerabilities and the risk of corruption during disasters. Consequently, individuals and public authorities must combat and denounce corruption as part of a response to COVID-19.

As the Ecuadorian Constitutional Court has indicated, it is necessary to assume a proactive role in the COVID-19 public health emergency. Based on technical criteria developed in coordination with health and risk institutions, public authorities must adopt special regulations to control the spread of COVID-19 and protect human rights that are threatened by the pandemic and other crises. In Ecuador’s case, this means adopting a disaster risk management law that not only anticipates this kind of event but also accounts for the phases after a disaster; namely recovery, rehabilitation and reconstruction.

*Law Professor, Universidad San Francisco de Quito, Ecuador (USFQ); Ph.D. Candidate, World Trade Institute, University of Bern. My gratitude to Felipe Idrovo, student at the USFQ, for his permanent support as research assistant.

[1] A slow-onset disaster emerges gradually over time and could be associated with drought, desertification, sea-level rise, epidemic disease. See U.N. General Assembly, Report of the Open-Ended Intergovernmental Expert Working Group on Indicators and Terminology Relating to Disaster Risk Reduction, United Nations (2016) at 13,  https://www.preventionweb.net/files/50683_oiewgreportenglish.pdf.

[2] Id. (“Disaster is “[a] serious disruption of the functioning of a community or a society at any scale due to hazardous events interacting with conditions of exposure, vulnerability, and capacity, leading to one or more of the following: human, material, economic and environmental losses and impacts”)

[3] Hugo Cahueñas, Gobernanza Del Riesgo de Desastres Frente al COVID-19 En Ecuador, in Derecho de Los Desastres: Covid-19 (Lima, Perú: Pontificia Universidad Católica del Perú, 2020).

[4] Sendai Framework for Disaster Risk Reduction 2015-2030, UNDRR, (March 2015), Priority 2 at para. 20,  https://www.preventionweb.net/files/43291_sendaiframeworkfordrren.pdf.

[5] Joachim Ahrens and Patrick M Rudolph, The Importance of Governance in Risk Reduction and Disaster Management, 14 Journal of Contingencies and Crisis Management 212 (2006).

[6] B Guy Peters and Jon Pierre, Governance, Government and the State, The State: Theories and Issues 210 (2006). See Ahrens and Rudolph, supra note 7, at 212 (discussing many informal governance structures and mechanisms).

[7] Emmanuel Raju and Karen da Costa, Governance in the Sendai: A Way Ahead?, Disaster Prevention and Management: An International Journal 280 (2018).

[8] Ahrens and Rudolph,  supra note 7.

[9] Melanie Gall, Susan L Cutter, and K Nguyen, Governance in Disaster Risk Management (IRDR AIRDR Publication No. 3),  Beijing: Integrated Research on Disaster Risk 9 (2014).

[10] Nkechi Cordelia Ojiagu et al., Accountability and Transparency in Nation Building: A Covid-19 Experience in Sub-Saharan Africa, 7 International Journal of Public Policy and Administration Research 31 (2020).

[11] Id.

[12] Kristian Cedervall Lauta, New Fault Lines: On Responsibility and Disasters, 5 European Journal of Risk Regulation (EJRR) 142 (2014).

[13] Raju and da Costa, supra note 9 at 284.

[14] Sendai Framework for Disaster Risk Reduction, supra note 6,  at para. 28 (f).

[15] Raju and da Costa, supra note 9, at 280.

[16] Id.

[17] UNISDR, Reading the Sendai Framework for Disaster Risk Reduction 2015 – 2030, (2015) at para. 81, https://www.preventionweb.net/files/46694_readingsendaiframeworkfordisasterri.pdf.

[18] Dug Cubie and Marlies Hesselman, Accountability for the Human Rights Implications of Natural Disasters: A Proposal for Systemic International Oversight, 33 Netherlands Quarterly of Human Rights 22 (March 1, 2015), https://doi.org/10.1177/016934411503300103.

[19] Raju and da Costa, supra note 9, at 281 (referencing UNISDR, 2015a, p.1).

[20] Raju and da Costa, supra note 9, at 282.

[21] Id.

[22] “The explosion claimed 39 human lives (ECtHR, 2004, Case of Oneryildiz v. Turkey). Another case refers to mudslides, known to occur in a small Russian village recurrently, and which in a particular year claimed eight lives (ECtHR, 2008. Budayeva v. Russia),” Raju and da Costa, supra note 9, at 282.

[23] Raju and da Costa, supra note 9, at 285.

[24]. “This court believes that not enough was done to avoid the catastrophic results” of the quake, Judge Ponciano Sallés said. “Any reasonable analysis would conclude that the risk was greater by not evacuating the population than by doing so,” he said, adding that “information was concealed.”

See Pascale Bonnefoy, Chilean Judge Upholds Manslaughter Charges Linked to 2010 Tsunami, The New York Times, (May 16, 2016), http://www.nytimes.com/2013/05/17/world/ americas/chilean-judge-upholds-manslaughter-charges-against -officials-over-tsunami-alert.html.

[25] See Lauta, supra note 14, at145; Raju and da Costa, supra note 9, at 283.

[26] Gall, Cutter, and Nguyen, supra note 11, at 12,16.

[27] Gall, Cutter, and Nguyen, supra note 11, at 16.

[28] Ahrens and Rudolph, supra note 7, at 212.

[29] Jeffrey V Lazarus et al., Keeping Governments Accountable: The COVID-19 Assessment Scorecard (COVID-SCORE), Nature Medicine 1005 (2020).

[30] Id. at 1005–1007.

[31] Corte Constitucional de Ecuador, Case No. 5-20-EE, at para.100.

[32] Corte Constitucional de Ecuador, Case No. 3-20-EE, at para.50.

[33] Corte Constitucional de Ecuador, Case No. 5-20-EE, at para.33.

[34] Thomas N. Hale, Transparency, Accountability, and Global Governance, 14 Global Governance 91 (2008).

[35] Ahrens and Rudolph, supra note 7, at 212.

[36]  Sendai Framework for Disaster Risk Reduction, supra note 6, at para. 27(a)(iii).

[37] Corruption and the Coronavirus, Transparency International, (Mar. 18, 2020), https://www.transparency.org/en/news/corruption-and-the-coronavirus.

[38] Corte Constitucional de Ecuador, Case No. 3-20-EE, at para.129.

[39] Raju and da Costa, supra note 9, at 285.

[40] “Build Back Better (BBB): The use of the recovery, rehabilitation and reconstruction phases after a disaster to increase the resilience of nations and communities through integrating disaster risk reduction measures into the restoration of physical infrastructure and societal systems, and into the revitalization of livelihoods, economies, and the environment.” United Nations General Assembly, Report of the Open-Ended Intergovernmental Expert Working Group on Indicators and Terminology Relating to Disaster Risk Reduction, (2016), Seventy-First Session, Item 19(c), A/71/644.

[41] Raju and da Costa, supra note 9, at 285.

[42] Kathleen Tierney, Disaster Governance: Social, Political, and Economic Dimensions, 37 Annual Review of Environment and Resources 347 (2012), https://doi.org/10.1146/annurev-environ-020911-095618.

[43] Raju and da Costa supra note 9, at 287.

[44] Id. at 285.

[45] Penny Green, Disaster by Design: Corruption, Construction and Catastrophe, 45 The British Journal of Criminology 1-2 (July 1, 2005) https://doi.org/10.1093/bjc/azi036.

[46] Elena Nikolova and Nikolay Marinov, Do Public Fund Windfalls Increase Corruption? Evidence from a Natural Disaster, 50 Comparative Political Studies 1481 (2017).

[47] The research analyzed administrative data for almost 360,000 contracts procured around the first confirmed COVID-19 case in March 2020.

[48] Jorge A Gallego, Mounu Prem, and Juan F Vargas, Corruption in the Times of Pandemia, (July 25, 2020), Available at SSRN: https://ssrn.com/abstract=3600572 or http://dx.doi.org/10.2139/ssrn.3600572 at 2.

[49] Id. at 1-2.

[50] Corte Constitucional de Ecuador, Case No. 3-20-EE, at para.52.

[51] La Fiscalía de Ecuador crea una fuerza para combatir la corrupción bajo el COVID-19, (Jun. 1, 2020), El Diario, https://www.eldiario.es/politica/fiscalia-ecuador-combatir-corrupcion-covid-19_1_6033423.html.

[52] Fernando Medina and Diego Puente, 95 expedientes por corrupción durante la pandemia, El Comercio, (Sep. 21, 2020), https://www.elcomercio.com/actualidad/expedientes-corrupcion-pandemia-coronavirus-emergencia.html.

[53] Venelin Terziev and Marin Georgiev, Increasing the Risk of Corruption Activities during a COVID-19 Pandemic, Available at SSRN: https://ssrn.com/abstract=3674427 or http://dx.doi.org/10.2139/ssrn.3674427 (August 12, 2020), at 58.

Forum: The ICC and Afghanistan – Time to End Impunity?

Written by Mehdi J. Hakimi*

Following the Taliban’s announcement of their annual spring offensive, violence has ratcheted up across Afghanistan. According to the UN Assistance Mission in Afghanistan (UNAMA), the Afghan conflict resulted in more than 10,000 civilian casualties in 2017 alone. The mounting atrocities in Afghanistan have finally prompted the International Criminal Court (“ICC” or the “Court”) to consider launching a formal investigation.

On November 20, 2017, Fatou Bensouda, the chief prosecutor of the ICC, requested judicial authorization to commence a formal investigation into alleged war crimes and crimes against humanity committed in Afghanistan since May 1, 2003. The 181-page request (not including annexes) was submitted by Bensouda’s Office of the Prosecutor (OTP) to a three-judge panel in the ICC’s Pre-Trial Chamber (PTC). In its request, the OTP sought authorization to investigate alleged crimes committed by the Taliban and their affiliates, the Afghan National Security Forces (ANSF), and the U.S. military and the CIA. This essay surveys the OTP’s charges against these actors and provides preliminary reflections on the task before the Court.

The Taliban and Haqqani Network

The OTP attributes the bulk of the atrocities to the Taliban and their affiliated Haqqani Network, alleging that these two groups have committed the following crimes against humanity: murder; imprisonment or other severe deprivation of physical liberty; and persecution against any identifiable group or collectivity on political and gender grounds.[1] In addition, both groups are alleged to have committed the following war crimes: murder; intentionally directing attacks against the civilian population, humanitarian personnel, and protected objects; enlisting children under fifteen or using them in hostilities; and killing or wounding treacherously a combatant adversary.[2]

In its request, the OTP did not consider the conduct of other terrorist groups operating in Afghanistan, such as Daesh/Islamic State Khorasan Province (Daesh/ISKP). This is mainly due to the OTP’s limited powers during preliminary examination, the lower evidentiary threshold at the pre-investigative stage, and the ambiguous relationship between the Taliban and other terrorist groups.[3] For example, Daesh/ISKP claimed a recent attack in Kabul, but the U.S. military believed that the Taliban were the true authors of the attack. Similarly, the Taliban and Daesh seem to have acted in concert in the massacre of ethnic Hazara civilians in the Mirza Olang village of Sari Pul province in August 2017. As the OTP acknowledged, once the investigation is authorized, it will be necessary (and more feasible) to closely examine the violence perpetrated by these other groups and their links with the Taliban.

Perhaps the biggest omission in the OTP’s request is the crime against humanity of persecution against any identifiable group or collectivity on ethnic and religious grounds. In particular, the widespread and systematic attacks against the ethnic Hazara population, of largely Shia denomination, are conspicuously missing in the submission. Adding to their historical persecution, the Taliban and Daesh affiliated groups have launched an onslaught of attacks against Hazaras in both Afghanistan and Pakistan in recent years. Yet the OTP only cites one such attack—the killing of 11 people in the Khas Uruzgan district on June 24, 2010[4]—in charging the Taliban and affiliated armed groups with the crime against humanity of murder, not persecution on ethnic and religious grounds.

The absence of the additional charge from the OTP’s request, at least at this preliminary stage, may be due to the perceived politically sensitive nature of the issue. The Afghan government has not exactly taken a kind stance toward Hazaras. For instance, against the recommendation of an independent German engineering firm tasked with evaluating potential routes,  the government recently scrapped a plan to implement a major electricity project through the Hazara-populated regions. The government’s decision prompted a public outcry and protests in Kabul. The protests were attacked by terrorists reportedly affiliated with Daesh, resulting in approximately 500 civilian casualties, almost all of whom were Hazara. Despite the potential sensitivity of the issue, the omission of this charge from the OTP’s request does not preclude its examination once the PTC authorizes a formal investigation.[5] Given the preliminary nature of the pre-investigative stage, a formal investigation could—and should—be expanded to examine other potential crimes, including ethnicity and religion-based persecution.

Afghan National Security Forces

The OTP is also scrutinizing the role of the Afghan government in the conflict. The OTP alleges that the Afghan National Security Forces (ANSF) committed the war crimes of torture and cruel treatment, outrages upon personal dignity, and sexual violence against conflict-related detainees.[6] The OTP accuses members of the National Directorate for Security (NDS) and the Afghan National Police (ANP) of perpetrating these Article 8 crimes on a large scale.

For these charges to continue, the Court must have jurisdiction over the case, and the case must be admissible. As a State Party to the Rome Statute, Afghanistan is subject to the Court’s jurisdiction for all crimes committed within its territory since May 1, 2003. With regard to admissibility, Article 17 of the Rome Statute stipulates that for a case to be admissible, (1) the State that would normally have jurisdiction must be “unwilling or unable genuinely to carry out the investigation or prosecution”; (2) any decision not to prosecute by the State must have “resulted from the unwillingness or inability of the State genuinely to prosecute”; (3) the defendant must not have been tried before; and (4) the case must be sufficiently grave.[7] The first three factors are sometimes referred to as the “complementarity” component of the admissibility test, while the fourth element forms the “gravity” component. The OTP argues that the case here satisfies all of the above criteria. It found that no national investigations or prosecutions have been conducted or are ongoing against those most responsible for the alleged crimes,[8] and that the gravity of the alleged conduct warrants prosecution.[9]

One obstacle to the Court’s exercise of authority is Afghanistan’s 2007 amnesty law, which pardons perpetrators of war crimes and crimes against humanity. [9] In its request, the OTP rightly criticizes the law of contributing to a culture of impunity within the country.[10] For example, the Afghan government invoked the amnesty law in its peace deal with Hezb-e-Islami, a previously terrorist-designated group led by the notorious warlord Gulbuddin Hekmatyar. After the government pardoned him, Hekmatyar was taken off the UN sanctions list, and his fighters have been released from prison—only to join the Taliban and resume fighting. Since returning to Kabul, Hekmatyar has sowed discord and even endorsed suicide attacks.

The ongoing peace process with the Taliban will further complicate the task of investigating the alleged crimes. Buoyed by the Hekmatyar deal, President Ghani has continued Karzai’s policy of wooing the Taliban, the group responsible for most of the alleged crimes. Ghani’s recent unilateral ceasefire with the Taliban resulted in thousands of insurgents pouring into major cities and even occupying areas in Kabul. Such “peace” deals with the Taliban—in which key stakeholders such as victim representatives and human rights groups are not given a voice—will inevitably pose major challenges to the OTP’s proposed investigations of the atrocities.

U.S. Armed Forces and the CIA

In addition to the Taliban and Afghan officials, in an unprecedented move, the OTP has proposed investigation of alleged war crimes by U.S. authorities. In particular, the PTC must decide whether to authorize investigation of the following alleged Article 8 crimes by the U.S. armed forces and the CIA: torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence.[11] The alleged crimes include those committed in Afghanistan, as well as those committed in other States Parties that have a nexus to the Afghan conflict: Poland, Romania, and Lithuania. These alleged acts were committed against suspected Taliban and Al Qaeda detainees, primarily during the period from 2003 to 2004. Having deemed the alleged crimes sufficiently grave, the OTP has further contended that domestic investigations and proceedings by the United States have focused on the rank-and-file rather than those most responsible for the alleged crimes.[12]

So far, the U.S. government has argued that the ICC lacks jurisdiction over American nationals because the United States is not a party to the Rome Statute. However, pursuant to Article 12(2), the Court has jurisdiction over any crimes committed on the territory of Afghanistan since May 1, 2003, regardless of nationality. According to the former chief prosecutor of the ICC, a better argument might be based on the Status of Forces Agreement (SOFA) between the United States and Afghanistan, which could preclude the ICC from exercising jurisdiction over American nationals. But SOFA-based arguments, like the one raised by Michael Newton,[13] are also susceptible to challenges. This is because of at least four reasons:

First, such arguments typically fail to distinguish between the existence of jurisdiction and its exercise.[14] Broadly speaking, jurisdiction entails two distinct aspects: jurisdiction to prescribe and jurisdiction to enforce. Prescriptive jurisdiction, also known as legislative jurisdiction, refers to the state’s authority to assert the applicability of its laws to given conduct. Meanwhile, enforcement jurisdiction, also called executive jurisdiction, is the state’s right to enforce its laws through its investigative and coercive powers. Unlike enforcement jurisdiction, prescriptive jurisdiction can be extraterritorial.

Under Article 98(2) of the Rome Statute, certain international agreements, like the SOFA, may constrain the exercise of domestic enforcement jurisdiction by a State Party. However, such agreements do not extinguish a State Party’s plenary prescriptive jurisdiction.[15] Prescriptive jurisdiction is an inherent attribute of a state’s sovereignty—that is, the “exclusive competence of the State in regard to its own territory”[16]—and, as such, cannot be contracted out through the SOFA.

Second, the Rome Statute’s structure suggests that the Court’s jurisdiction is not precluded by bilateral agreements like the SOFA. Article 98, on which Newton’s argument rests,[17] is located within Part XI of the Rome Statute, which addresses international cooperation, rather than Part II, which addresses jurisdiction.

Third, a distinction should be made between the ICC’s jurisdiction over the crime of aggression on the one hand, and the Court’s jurisdiction over war crimes and crimes against humanity on the other. While Article 15 bis (5) expressly excludes the Court’s jurisdiction over the crime of aggression committed by nationals of non-States Parties, the Rome Statute provides no such exclusion in respect of war crimes and crimes against humanity.[18]

Finally, other major international conventions provide similar criminal jurisdiction over nationals of non-States Parties. Examples include the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention against Transnational Organized Crime.[19] For these reasons, the Court should not be in want of legal ammunition as it considers asserting jurisdiction over the United States.

Besides the substantive legal points, however, the OTP’s proposed investigation into U.S. conduct in Afghanistan also raises significant political and prudential questions. The Trump administration, known for its hostility toward international agreements and institutions, seems poised to adopt a particularly combative stance toward the ICC. Last year, now-National Security Advisor John Bolton condemned the OTP’s plan in this case, arguing that “the Trump administration should not respond to Ms. Bensouda in any way that acknowledges the ICC’s legitimacy.” Indeed, Bolton suggested, “[e]ven merely contesting its jurisdiction risks drawing the U.S. deeper into the quicksand.” Recently, the United States also boycotted an informal UN Security Council meeting marking the Rome Statute’s twentieth anniversary. Such a decision is rare for a permanent member of the Council, and reflects the Trump administration’s particular disdain for the Court.

The Trump administration’s stance towards the Court represents a marked shift from the policy of strategic collaboration that prevailed during the second half of the Bush administration and under President Obama. It harkens back to—and builds upon—the United States’ historical antagonism with the Court. Back in 2002, when the Court was founded, Congress passed the American Service-Members’ Protection Act (ASMPA), a bill designed to limit cooperation with the Court. Meanwhile, the Bush administration tried to isolate the Court and prevent it from acquiring further legitimacy by not only “unsigning” the Rome Statute, but also entering into more than one hundred bilateral immunity accords with States Parties. These “Article 98 agreements” were designed to exempt Americans from ICC jurisdiction. (The SOFA with Afghanistan is one such agreement.)

This history and recent actions by the Trump administration suggest that the OTP will likely encounter significant resistance from U.S. authorities in its investigation (assuming that it is approved by the PTC).

Conclusion

Afghans anxiously await the ICC’s (likely affirmative) decision to authorize a formal investigation. Despite the difficulties the OTP encountered in reaching out to victims, the victim representations it received overwhelmingly support the investigation into war crimes and crimes against humanity in Afghanistan. Taking advantage of an increasingly feckless, and at times conniving, Afghan government, the Taliban and their affiliates continue to inflict bloodshed and suffering on the Afghan people. A formal investigation into the atrocities in Afghanistan is long overdue, and will be an uphill battle. But justice demands an emphatic answer to those who’ve grown accustomed to, and profited from, impunity—no more.

 


* Mehdi J. Hakimi is the executive director of the Rule of Law Program and lecturer-in-law at Stanford Law School. Mr. Hakimi was the former chair of the law department at the American University of Afghanistan.

[1] Situation in the Islamic Republic of Afghanistan, No. ICC-02/17, Request for Authorisation of an Investigation Pursuant to Article 15, ¶ 72 (Nov. 20, 2017), at https://www.icc-cpi.int/CourtRecords/CR2017_06891.PDF [hereinafter “OTP Request”]; Rome Statute of the International Criminal Court arts. 7(1)(a), (e), (h), opened for signature July 17, 1998, 2187 U.N.T.S. 90 [hereinafter “Rome Statute”].

[2] OTP Request, supra note 1, at ¶ 123; Rome Statute art. 8.

[3] See OTP Request, supra note 1, at ¶¶ 37, 62-63.

[4] Id. at ¶ 100.

[5] See, e.g., Situation in the Republic of Kenya, No. ICC-01/09, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ¶¶ 74-75 (Mar. 31, 2010), at https://www.legal-tools.org/doc/f0caaf/pdf/ (“The Chamber also underlines that in the development of the proceedings the Prosecutor is neither bound by his submissions with regard to the different acts constituting crimes against humanity, nor by the incidents and persons identified in the annexes appended to the Prosecutor’s Response. . . .”).

[6] OTP Request, supra note 1, at ¶ 161.

[7] Rome Statute art. 17(1).

[8] OTP Request, supra note 1, at ¶¶ 269, 276.

[9] See id. at ¶¶ 337, 344.

[10] Id. at ¶ 5.

[11] Id. at ¶ 187.

[12] See id. at ¶¶ 299-300.

[13] See Michael A. Newton, How the International Criminal Court Threatens Treaty Norms, 49 Vand. J. Transnat’l L. 371, 405 (2016) (arguing that the SOFA between the United States and Afghanistan obviated the latter’s ability to delegate jurisdiction over U.S. nationals for crimes committed in its territory to the ICC).

[14] For analysis of the differences between the various aspects of state jurisdiction, see generally Roger O’Keefe, Response: “Quid,” Not “Quantum”: A Comment on “How the International Criminal Court Threatens Treaty Norms”, 49 Vand. J. Transnat’l L. 433, 435 (2016); Carsten Stahn, Response: The ICC, Pre-Existing Jurisdictional Treaty Regimes, and the Limits of the Nemo Dat Quod Non Habet Doctrine—A Reply to Michael Newton, 49 Vand. J. Transnat’l L. 443, 450 (2016). See also Roger O’Keefe, Universal Jurisdiction—Clarifying the Basic Concept, 2 J. Int’l Crim. Just. 735, 736-37 (2004).

[15] A state’s “title to exercise jurisdiction rests in its sovereignty.” SS Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 19.

[16] Island of Palmas (Neth. v. U.S.), 2 R.I.A.A. 829, 838 (Perm. Ct. Arb. 1928).

[17] See Newton, supra note 13, at 391 (discussing the intent of Article 98).

[18] In full, Article 15 bis (5) states: “In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.” Rome Statute art. 15 bis.

[19] See Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 5, Dec. 10, 1984, 1465 U.N.T.S. 85; Convention against Transnational Organized Crime art. 15, Nov. 16, 2000, 2225 U.N.T.S. 209.

Forum: Reflections on a Potential Peace Treaty for the Korean Peninsula

Written by Jonathan Worboys* and Laura Edwards**

Introduction

The first half of 2018 saw a welcome de-escalation of tensions on the Korean Peninsula. In particular, two unprecedented events heightened the anticipation for an official end to the Korean War: the Inter-Korean Summit Meeting at Panmunjeom on April 27, 2018, and the Singapore Summit between the United States and North Korea on June 6, 2018.

These events have catalyzed discussions regarding the establishment of a lasting peace regime for the Korean Peninsula. Recognizing the express intentions of the parties to bring an official end to the Korean War, this article provides initial reflections on and outlines the international law implications of a potential peace treaty for the Korean Peninsula. Furthermore, because peace talks between North Korea, South Korea, and the United States are still in their early stages, this article seeks to highlight some of the critical questions for consideration as the parties try to move toward a fully-formed peace treaty.

What form would an agreement take? 

For the past sixty-five years, an armistice agreement has regulated hostilities on the Korean Peninsula. The agreement came into effect in 1953 after it was negotiated by military representatives from the two Koreas, China, and the United States, with the United States representing the United Nations Command.[1] Unlike a formal peace treaty, which officially terminates war, an armistice agreement simply “suspends military operations.”[2]

The Panmunjeom Declaration, signed on April 27, 2018,[3] outlines the intention of the two Koreas to turn the 1953 Armistice Agreement “into a peace treaty.[4] However, the recent joint statement released by President Donald Trump and North Korea’s Kim Jong Un at the Singapore Summit (Joint Kim-Trump Statement) does not refer specifically to the creation of a “peace treaty,” but rather to a “lasting and robust peace regime.”[5] While the term “treaty” typically denotes an agreement that is binding in international law, states may choose from an array of other instruments, such as a “Memorandum of Understanding,” “Convention,” or “Protocol,” to potentially create legally binding relations. Whether or not an agreement between states is designated a “treaty” is therefore a matter of substance, not just definition.

Although there appears to be some uncertainty about the exact description of the instrument in this case, we expect that the parties will enter into a treaty within the meaning of Article 2(1) of the Vienna Convention on the Law of Treaties (VCLT). Such a treaty would create rights and obligations that are enforceable under international law and potentially possess the endorsement of the UN Security Council as well. This is notwithstanding the fact that North Korea is not a party to the VCLT,[6] as Article 6 of the VCLT affirms that every state possesses the capacity to conclude treaties.

Who would be the parties to a peace treaty?

It is clear that both Koreas would need to be formal parties to the agreement in order to achieve lasting peace. The inclusion of both Koreas should not be treated as a foregone conclusion, however, as North Korea has attempted to exclude South Korea from a peace treaty with the United States on several previous occasions.[7] Nevertheless, both Koreas expressed their intention to work together at the April 2018 Inter-Korean Summit, as the two leaders agreed to convert the Korean Armistice Agreement into a full peace treaty. Subsequently, the parties expressly affirmed this commitment in the Panmunjeom Declaration.[8]

The Panmunjeom Declaration also perceives a direct role for both the United States and China in the peace talks, because it stipulates that the two Koreas will pursue trilateral meetings with the United States, or quadrilateral meetings with the United States and China.[9] Following the Singapore Summit on June 6, 2018, it became even clearer that the parties intend the United States to play a direct role in the peace process, including an eventual peace treaty. The United States has a significant stake in the peace process as well, since it hopes to see an end to North Korea’s nuclear weapons and ballistic missile programs, which pose a grave security threat to both the United States and to key allies in the region. However, as already highlighted, the Joint Kim-Trump Statement that was issued at the conclusion of the Singapore Summit does not make any express reference to a peace treaty per se, nor does it explicitly refer to the role of the United States in this regard.

A conceivable alternative is for the United States to simply endorse an inter-Korean peace treaty without itself becoming a treaty party.[10] The United States has a long history of acting as a witness to such inter-state agreements, including the Algiers Agreement between Eritrea and Ethiopia in 2000,[11] the Itamaraty Declaration of Peace between Ecuador and Peru in 1995,[12] and the Washington Declaration between Israel and Jordan in 1994.[13]

Commentators have also raised the possibility that any government that contributed armed forces to the United Nations Command (“contributing governments”) could have a legitimate claim to be party to a subsequent peace treaty.[14] At the moment, however, this option remains a remote possibility given that the two Koreas have identified only the United States (and possibly China) as legitimate negotiating partners for the peace talks. Since the Panmunjeon Declaration was signed, no contributing governments are known to have expressed an interest in expanding the number of treaty signatories at this time.

What are the possible legal implications of a peace treaty?

As with all inter-state peace agreements, a formal peace treaty is capable of being legally binding and would have the foremost effect of officially terminating the Korean War.[15] Assuming that the terms of the treaty are binding on the same parties to the 1953 Armistice Agreement, a peace treaty may also supersede the agreement by operation of law, or by making the latter obsolete.[16]

A formal peace treaty would also affect the tenuous legal and socio-legal frameworks that have developed since the 1953 Armistice Agreement was originally implemented. For instance, the peace treaty might also regulate the presence of foreign armed forces on the Korean Peninsula.[17] In The Case Concerning Armed Activities,[18] the International Court of Justice highlighted the importance of outlining a modus operandi for military presence in a peace treaty.[19] In particular,  a key issue of contention in the case was whether certain provisions of the Lusaka Ceasefire Agreement constituted consent by the Democratic Republic of the Congo to the presence of Ugandan troops in border areas.[20] Neither the Panmunjeom Declaration nor the Joint Kim-Trump Statement makes any reference to troop presence. However, with recent signs that the United States and South Korea plan to halt their joint military exercises, a modus operandi on troop presence may be an especially important consideration when negotiating a peace treaty in this case. [21]

Beyond use of force and military arrangements, twenty-first century peace treaties also frequently refer to obligations under international humanitarian law. Recent events have already highlighted two important issues relevant to international humanitarian law for a future Korean peace treaty: the return of POW/MIA remains[22] and the reunion of separated families.[23] To further ensure that these obligations are binding on the parties (and perhaps more importantly, observed in practice), the peace treaty may refer to the 1949 Geneva Conventions, which are the central international laws governing states’ actions in war.  Specifically, the peace treaty may cite Additional Protocols I[24] and II[25], which regulate POW/MIA remains and the reunion of separated families, respectively.

At this stage, it is not yet clear whether a Korean peace treaty would also refer to general obligations under human rights law. To date, inter-state peace treaties have rarely featured general human rights commitments beyond the status of the party states’ nationals.[26] Nevertheless, given the particular nature of the human rights situation in North Korea, which has been identified by Human Rights Watch as “one of the world’s most repressive states,”[27] a peace treaty may provide an opportune moment to consider the role of human rights commitments in inter-state peace agreements.  Such obligations could, for example, commit North Korea to engaging more closely with the United Nations human rights mechanisms, possibly by taking action on the findings of the 2014 UN Commission of Inquiry Report. Other pertinent commitments may also include obligations to accept humanitarian aid, to take steps to release prisoners and detainees held for activities that should not be criminalized under international law (e.g. exercising free speech), and to put an end to the involuntary separation of families.

Finally, there remains the critical question of denuclearization in relation to a potential peace treaty. While both the Panmunjeom Declaration[28] and the Joint Kim-Trump Statement[29] refer to “complete denuclearization” of the Korean Peninsula, the complexities associated with achieving this goal are undoubtedly significant.

Although many factors relating to denuclearization and the peace process remain unsettled, a final peace treaty could conceivably refer to North Korea’s ratification of the Treaty on the Non-Proliferation of Nuclear Weapons and any legal obligations that may arise as a result. Leading up to the conclusion of a peace treaty, both sides could also consider working towards a performance-based plan for achieving denuclearization with the possibility of linking denuclearization to other issues of concern, such as the ratification of human rights treaties and the easing of UN Sanctions. Performance-based plans are not new to peace processes, with the most prominent example being the (unimplemented) Performance-based Roadmap to a Two-State Solution to the Israeli-Palestinian Conflict.[30]

Legal validity of a peace treaty and the question of breach.

The final consideration for a potential Korean peace treaty relates to the legal validity of the treaty and the question of breach. It is clear that all parties would be bound to observe their commitments under the peace treaty, in accordance with the principle of pacta sunt servanda.[31]

In order to ensure compliance, a future Korean peace treaty may also consider delegating verification and monitoring functions to members of the international community. Twenty-first century peace treaties frequently delegate such functions to the United Nations in the form of peacekeeping missions, but a growing number of agreements have delegated those duties to other interested parties as well. In the present context, it is likely that any monitoring or verification mission to North Korea would involve the International Atomic Energy Agency and the United Nations.

Regarding treaty breach, international law has clearly established that a breaching party accrues state responsibility. Furthermore, in the event of a treaty breach, the prohibition on the use of force under Article 2(4) of the UN Charter would remain unaffected.[32] In other words, a breach of the peace treaty could not, under any circumstances, lead to the use of force to ensure compliance with it.

Conclusion

This article has outlined some initial reflections on a potential peace treaty for the Korean Peninsula.

There is no doubt that the treaty we have contemplated here would have a profound impact on the international peace regime, with the potential of bringing stability to both the Korean Peninsula and the greater East Asia region. While the prospect of a peace treaty has only just begun to develop, this article highlights some preliminary considerations from an international law perspective, including the form of the agreement, the parties involved, possible legal implications, and the issue of breach.

First, with respect to form, any agreement would likely be a treaty within the meaning of Article 2(1) of the VLCT and international law would apply. Second, with respect to the parties, both Koreas, the United States, and China could all play a role as formal signatories, but there remains the possibility of a purely inter-Korean treaty. Third, as the discussion above outlined, there are several possible legal implications of a binding agreement, including the treaty’s foremost effect of terminating the Korean War and superseding the 1953 Armistice Agreement. The legal consequences of denuclearization, international humanitarian law, and human rights law also all ought to be considered and will undoubtedly be affected by an inter-state treaty.

Finally, all parties to the treaty would be legally obliged to respect their commitments in accordance with the principle of pacta sunt servanda. A breach of the treaty would likely entail state responsibility, but a breach could not, under any circumstances, justify the use of force to ensure compliance with the treaty.

 


Barrister and visiting lecturer in public international law at King’s College London, former Assistant Legal Adviser at the Foreign & Commonwealth Office.

** Legal consultant specializing in mediation, peace processes and government advisory work.

[1] Agreement Concerning a Military Armistice in Korea, July 27, 1953, T.I.A.S. No. 2782, 4 U.S.T. 234.

[2] Hague Convention (IV) Respecting the Laws and Customs of War on Land art. 36, Oct. 18, 1907, 36 Stat. 2227; Hague Convention (II) with Respect to the Laws and Customs of War on Land art. 36, July 29, 1899, 32 Stat. 1803.

[3] Panmunjeom Declaration for Peace, Prosperity and Unification of the Korean Peninsula, (Apr. 27, 2018), full text at http://english1.president.go.kr/BriefingSpeeches/Speeches/32 [hereinafter Panmunjeom Declaration].

[4] Id., art. 3(3).

[5] Joint Statement of President Donald J. Trump and Chairman Kim Jong Un at the Singapore Summit, para. 2 (June 6, 2018), full text at http://www.whitehouse.gov/briefings-statements/joint-statement-president-donald-j-trump-united-states-america-chairman-kim-jong-un-democratic-peoples-republic-korea-singapore-summit/ [hereinafter Joint Statement].

[6] Vienna Convention on the Law of Treaties art. 2(1), opened for signature May 23, 1969, 1155 U.N.T.S. 331.

[7] Anthony DiFilippo, North Korea’s Denuclearization and a Peace Treaty, 7 North Korean Rev. 1, 7-8 (2011).

[8] Panmunjeom Declaration, supra note 3, art. 3(3).

[9] Id.

[10] Patrick M. Norton, NAPSNet Policy Forum Online #2 — Norton, “Ending the Korean Armistice,” Nautilus Inst. for Security & Sustainability: NAPSNet Pol. F. (Mar. 29, 1997), http://nautilus.org/napsnet/napsnet-policy-forum/napsnet-policy-forum-online-2-norton-ending-the-korean-armistice/.

[11] Agreement between the Government of the State of Eritrea and the Government of the Federal Democratic Republic of Ethiopia (Algiers Agreement), Dec. 12, 2000, 40 I.L.M. 260.

[12] Declaración de paz de Itamaraty, Ecuador-Peru, Feb. 17, 1995, full text at http://peacemaker.un.org/ecuadorperu-itamaratydeclaration95.

[13] Washington Declaration, Jordan-Isr., July 25, 1994, full text at http://www.kinghussein.gov.jo/w-declaration.html.

[14] Norton, supra note 10.

[15] Martin Wählisch, Peace Settlements and the Prohibition of the Use of Force, in The Oxford Handbook of the Use of Force in International Law, 964 (Marc Weller ed., 2017).

[16] Norton, supra note 10; see also Vienna Convention on the Law of Treaties, supra note 6, art. 59.

[17] Wählisch, supra note 15, at 966.

[18] Case Concerning Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Rwanda), Judgment, 2005 I.C.J. 168 (Dec. 19).

[19] Wählisch, supra note 15, at 966.

[20] Case Concerning Armed Activities on the Territory of the Congo, 2005 I.C.J. at 211.

[21] Reuters, US, South Korea Agree to Suspend Joint Military Exercise, Int’l Bus. Times (June 18, 2018), http://www.ibtimes.com/us-south-korea-agree-suspend-joint-military-exercise-2692215.

[22] Joint Statement, supra note 5, para. 4.

[23] Panmunjeom Declaration, supra note 3, art. 1(5).

[24] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) art. 34, June 8, 1977, 1125 U.N.T.S. 3.

[25] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol II) art. 4(3)(b), June 8, 1977, 1125 U.N.T.S. 609.

[26] See, e.g., Framework Agreement on the Status of Nationals of the Other State and Related Matters between Sudan and South Sudan, Sept. 27, 2012, full text at http://peacemaker.un.org/sudansouthsudan-framework-nationals2012.

[27] Human Rights in North Korea: June 2018 Briefing Paper, Human Rights Watch, http://www.hrw.org/news/2018/06/05/human-rights-north-korea.

[28] Panmunjeom Declaration, supra note 3, art. 3(4).

[29] Joint Statement, supra note 5, para. 3.

[30] A Performance-based Road Map to a Permanent Two-State Solution to the Israeli-Palestinian Conflict, Apr. 30, 2003, full text at http://2001-2009.state.gov/r/pa/prs/ps/2003/20062.htm.

[31] Wählisch, supra note 15, at 986.

[32] Id. at 976.