Geoff Gilbert

The Legal Protection Accorded to Minority Groups in Europe

At the meeting of the Conference on Security and Co-operation in Europe in Moscow in September 1991, Mikhail Gorbachev, the former President of the old Soviet Union, in his opening speech, raised the problem of minority rights in the newly emerging States of Eastern Europe and the Baltics. With the movement of the many different ethnic groups throughout the former Soviet Union since 1917, the rush to independence by the various republics creates new and, in many cases, substantial minority groups. The violence seen in Azerbaijan between Azeris and Armenians may presage events throughout Europe if care is not taken to protect minority rights. Often through naivete or in a blatant attempt to stir up national fervour in the new State, the delicate task of defusing ethnic frictions in the creation of open, stable and successful societies is being mishandled. The crisis is sufficient for the Council of Europe to have deferred the applications for membership of Latvia, Lithuania and Estonia while their constitutional provisions for minority groups are examined. The former Eastern bloc States are in a period of transition as old nationalisms buried by Stalinism are reawakened – the issue of minority groups within States created out of the collapse of the Ottoman and Austro-Hungarian empires has taken on fresh life.

Religio—nationalist minorities and the development of minority rights law

The end of the Soviet period in Central and Eastern Europe and the Balkans has seen the open development of tensions in the region based on the presence of minority groups in states trying to reassert their individual identity. There has been a flurry of international activity by various organizations to establish minority rights standards and to ensure their implementation. It is the thesis of this article that the idea of minority rights in international law stems originally from the treatment of religious minorities, and subsequently minorities defined in other terms, in this region, and that modern mechanisms to guarantee minority rights can be seen to have developed from the perceived need to make minority rights a matter of international concern rather than one solely for the kin-state. The various mechanisms in use now directly build upon the perceived successes and failures of earlier systems.

I. The Northern Ireland Peace Agreement, Minority Rights and Self-Determination

The Northern Ireland Peace Agreement 1 was concluded following multi-party negotiations on Good Friday, 10 April 1998. It received 71 per cent approval in Northern Ireland and 95 per cent approval in the Republic of Ireland in the subsequent referenda held on Friday 22 May, the day after Ascension. To some, it must have seemed that the timing was singularly appropriate following 30 years of “The Troubles”, which were perceived as being between a “Catholic minority” and a “Protestant majority”. While there are some minority groups identified by their religious affiliation that do require rights relating only to their religion, such as the right to worship in community, 2 to practise and profess their religion, 3 to legal recognition as a church, 4 to hold property 5 and to determine its own membership, 6 some minority groups identified by their religious affiliation are properly national or ethnic minorities–religion is merely one factor which distinguishes them from the other groups, including the majority, in the population. One example of the latter situation is to be seen in (Northern) Ireland where there is, in fact, untypically, a double minority: the Catholic-nationalist community is a minority in Northern Ireland, but the Protestant-unionist population is a minority in the island of Ireland as a whole. 7 The territory of Northern Ireland is geographically separate from the rest of the United Kingdom. The recent peace agreement addresses a whole range of issues for Northern Ireland, but included are, on the one hand, rights for the populations based on their religious affiliation, their culture and their language and, on the other, rights with respect to their political participation up to the point of external self-determination. It is a holistic approach. Like any good minority rights agreement, 8 it deals with both standards and their implementation and, like any good minority rights agreement, it is not a minority rights agreement but, rather, a peace settlement.

Responding to International Crime

Preface Acknowledgements Case List Chapter One International Criminals and the Legal Process Chapter Two Mechanisms for International Surrender Chapter Three Effecting the Response through International Criminal Procedures Chapter Four Restrictions on Return Chapter Five The Political Offence Exemption Chapter Six Irregular Responses to International Crimes Chapter Seven Responding to War Crimes Crimes Against Humanity and Genocide Chapter Eight Refuge and Return Appendix European Arrest Warrant (extracts) Rome Statute of the International Criminal Court (extracts) The London Scheme for Extradition within the Commonwealth Index.

Exclusion under Article 1F since 2001: Two steps backwards, one step forward

Exclusion from refugee status is in a state of flux. From a time when, apart from a very few States, it was used very rarely, it is now a regular feature in refugee status determination hearings. The trigger for the increased use was undoubtedly the terrorist attacks in the United States on 11 September 2001 and the subsequent Security Council resolutions that unjustifiably linked the granting of refugee status with terrorism. However, it also allowed States to address directly those applying for status who had participated in the various armed conflicts that had become prominent from the 1990s onwards. In the period after 2001, inclusion within Article 1A(2) of the 1951 Convention Relating to the Status of Refugees was being increasingly narrowed for a variety of reasons to do with migratory trends, while the scope of Article 1F seemed to be expanding to exclude ever more applicants for refugee status who would otherwise qualify for protection against refoulement. This is not to say that refugee status should not properly be confined to those not falling within Article 1F, but that Article 1F needs to be understood and interpreted in its context as part of a treaty designed to protect the rights of individuals. Fortunately, more recent decisions of courts carrying out refugee status determination have shown a greater degree of nuancing in their interpretation of Article 1F.

International Refugee and Migration Law

The chapter focuses on the protection of refugees and asylum seekers under international law, which requires that they have crossed an international border and are unwilling or unable to avail themselves of the protection of their country of nationality. The chapter will address other individuals of concern to the United Nations High Commissioner for Refugees (UNHCR), conflict-driven internally displaced persons (IDPs) and stateless persons, especially where statelessness is the consequence or cause of displacement, and migrants, too.

Terrorism and international refugee law

The United Nations Security Council publicly linked international terrorism to refugees in UN Security Council Resolution 1373 (2001) in the wake of the attacks of 11 September 2001. Yet not a single refugee was involved in any of those attacks. As the UN High Commissioner for Refugees (UNHCR) stated soon after 9/11: Equating asylum with a safe haven for terrorists is not only legally wrong and thus far unsupported by the facts, but it serves to vilify refugees in the public mind and promotes the singling out of persons of particular races or religions for discrimination and hate-based harassment. International refugee law relates to terrorist activities in a number of ways. This chapter will first consider how far the threat of terrorism can form the context for persecution for the purpose of obtaining refugee status. It secondly explores how involvement in terrorism should be addressed in the law on exclusion from refugee status.

International Criminal Law Is not a Panacea - Why Proposed Climate Change ‘Crimes’ Are Just Another Passenger on an Overcrowded Bandwagon

There have been various responses to global warming. More recently, attempts have been made to utilize international criminal law. This article focuses on the criminalization of global warming as it might most directly affect humanity: climate change induced displacement. This article considers how criminalization takes place at the domestic and international levels and the additional constraints with respect to the latter, particularly as regards victims and perpetrators. It then examines how far existing international criminal law, especially as set out in the Rome Statute of the International Criminal Court, might already apply to climate change induced displacement. Finally, it challenges the appropriateness of further extending international criminal law for this task; criminalizing climate change induced displacement could be “simply too all-encompassing to be meaningful”, helpful or effective.

The Contribution of the European Court of Human Rights to the Promotion of the Effective Participation of National Minorities: Groping in the Dark for Something that Might Not Be There

This article addresses how far the effective participation of national minorities is expressly articulated by the European Court of Human Rights in its reasoning and, more fully, how far the jurisprudence of the European Court of Human Rights can protect effective participation by national minorities. To that end, it adopts a broad understanding of the protection and implementation of effective participation and examines case law dealing with several different rights that impact upon the participation of national minorities. Finally, the more general issue of whether a judicial process can adequately achieve effective participation on its own and which non-judicial mechanisms are better placed is also discussed.

What Price Justice? Prosecuting Crimes Post-Conflict

This chapter focuses how international law has approached bringing alleged international criminals to justice post-conflict. It reviews the activities of the various tribunals established since 1990 to prosecute the crimes committed in the former Yugoslavia, Rwanda, Sierra Leone, Kosovo, East Timor, Cambodia and Iraq, as well as considering the future role of the International Criminal Court. In response to the crimes committed in the former Yugoslavia and Rwanda, the Security Council established the two ad hoc tribunals in 1993 and 1994, respectively. A hybrid tribunal has been established for Sierra Leone; one was originally planned for Cambodia to deal with the past history of atrocities, but that particular tribunal never came to fruition. Cambodia first asked the United Nations in 1997 about establishing a court akin to the ICTY/ICTR to try Khmer Rouge leaders for the crimes committed between 1975 and 1979. Keywords: ad hoc tribunals; hybrid tribunal; ICTR; ICTY; post-conflict; Security Council