This article examines how ‘international criminal lawfare’ (ICLf) has the potential to be a tool either to usher in a foundation of trust necessary to establish positive peace or to negatively affect post-conflict justice enterprises. It argues that problems that arise from ICLf through self-referrals to the icc can be alleviated if the Court would not need to rely on the cooperation and goodwill of parties to the conflict to pursue its investigations. Using the case study of the icc’s Uganda intervention, it contends that, despite its potential, the use of ICLf will not likely signal anything positive in situations where the judicial organ relies on a party to the conflict because the integrity of the process is undermined. This message is important in light of the icc Pre-Trial Chamber’s rejection of the Prosecutor’s request to investigate alleged crimes committed in Afghanistan on the basis of a lack of cooperation.
Despite the aspirations of the International Criminal Court (icc), it is unlikely to achieve an end to impunity for crimes of concern to the international community without acknowledgement of and due engagement with the politics of international criminal law. A major threat to the legitimacy of the Court is its relationship with the United Nations Security Council (unsc). unsc referrals of conflict situations under Article 13(b) of the Rome Statute remain subject to geo-political considerations. The exercise is thus arbitrary at best, and may render the icc an instrument of political coercion at worst. An apolitical approach to conflicts given this context is almost antithetical to justice and has already given rise to tensions between the Court and some affected member states. Managing the asymmetry created by unsc referrals and rethinking its seemingly unjustified encroachment in the affairs of less influential states should become the priority for the Court.
Almut Schilling-Vacaflor and Riccarda Flemmer
Based on rich empirical data from Bolivia, Colombia, and Peru – the three Latin American countries where the implementation of prior consultation processes is most advanced – we present a typology of indigenous peoples’ agency surrounding prior consultation processes and the principle of free, prior and informed consent (fpic). The typology distinguishes between indigenous actors (1) mobilising for a strong legal interpretation of fpic, (2) mobilising for meaningful and influential fpic processes, (3) mobilising against prior consultation processes, and (4) blockading prior consultation processes for discussing broader grievances. We identify the most prominent indigenous strategies related to those four types, based on emblematic cases. Finally, we critically discuss the inherent shortcomings of the consultation approach as a model for indigenous participation in public decision-making and discuss the broader implications of our findings with regard to indigenous rights and natural resource governance.
What are the institutional arrangements required to implement a genuine process of free, prior and informed consent (fpic)? This article provides a comparative perspective on the politics of consent in the context of relations between Indigenous peoples, states and extractive industries in Canada and Latin America. The case of Ecuador is presented as an emblematic example of a hybrid regime in which Indigenous communities have the right to free, prior and informed consultation, not consent, concerning planned measures affecting them, such as mineral, oil and gas exploitation. In the case of Yukon, Canada, the settlement of a comprehensive land claim with sub-surface mineral rights has provided the institutional basis for the implementation of a genuine fpic process, one that includes participatory decision-making power over natural resource development projects. The article concludes with a discussion on the necessary conditions for moving governments from a consultation to a consent regime.
Elena Butti and Brianne McGonigle Leyh
The town of San Carlos, highly affected by the Colombian conflict, is often presented as an example of a successful domestic reparations process. Yet not all victims agree with this assessment. A significant number of marginalised adolescents feel that their voices and realities are not reflected in the reparations programme provided by the 2011 Victims’ Law. While the programme promises to transform lives, it does little to change the lives of young people at the margins. This article compares and contrasts the legal framework on reparations for underaged victims with insights drawn from ethnographic research with these youths. The situation of these young people signals that transformative reparations are not working as they should. We argue that this failure is due to the mismatch between the conceptualisation of ‘vulnerable child-victims’ in the text of the law and these youths’ nuanced identities. Using intersectionality, we propose an alternative way forward.
M. Joel Voss
There is general agreement that families are considered an important building block of society. However, in international fora, there is significant disagreement about what constitutes family. This article discusses the development of the Protection of the Family initiative at the UN’s primary human rights body, the UN Human Rights Council. This article uses Protection of the Family resolutions at the Council to build upon theories of norm contestation in international relations and international law. Elite-level interviews and participant observation of Council meetings on the four Protection of the Family resolutions adopted at the Council show that both advocates and opponents of Protection of the Family argue that their positions adhere to universal rights and prior law while their opponents are revisionist. In addition, the article illustrates a series of new strategies adopted by advocates of Protection of the Family that may be used in other resolutions to advance human rights agendas.
Jayeel Cornelio and Robbin Charles M. Dagle
This article spells out the ways in which religious freedom has been deployed against proponents of same-sex marriage and gender equality in the Philippines. While the lesbian, gay, bisexual, transgender, and queer (LGBTQ) community and allies have appealed to religious freedom to gain equal rights under the law, conservative Christian entities have fought back by invoking the same notion. They have appropriated religious freedom, which has historically been interpreted by the courts in favour of individual liberties, to defend majoritarian values surrounding sexuality. This article describes this move as the weaponisation of religious freedom in defence of the dominant religion and an assumed majority of Filipinos whose moral sensibilities are purportedly under attack. Towards the end, the article relates this weaponisation to the experience of the Catholic Church in the contemporary public sphere and the militant character of Christianity that continues to view the Philippines as a Christian nation.
While international human rights law enshrines family life as a cornerstone of society, when it intersects with migration, issues and problems arise in countries where migration is high on the political agenda. This is true in a number of EU states. Both EU law and European human rights commitments, however, require states to provide for family reunification subject to a margin of discretion to the state. While family reunification for refugees and beneficiaries of international protection has been at the top of some political agendas in Europe, this article looks at family reunification (generally known as family reunion) for another group—nationals of the Member States. In particular it poses two questions: do EU Member States accept their own nationals to come back to their home state with third country national family members they have acquired while abroad? Secondly, to what extent do EU Member States discriminate against their own nationals in comparison with the generous EU rules of family reunion for nationals of other Member States who have exercised a free movement right in their country. This article is based on reports by experts from all EU Member States in light of the 2014 judgment in O & B (C-456/12) by the Court of Justice of the European Union.