Mugesera Deported

It has been a busy week for aficionados of International Criminal Law. One development that may have escaped notice concerns our neighbor to the north.

Rwandan Léon Mugesera recently lost appeals filed before provincial and federal courts in Canada seeking to prevent his deportation to Rwanda. Mugesera is known for an inflammatory speech given in 1992 that is believed to have helped trigger the genocide that engulfed Rwanda a year and a half later. After he successfully applied for permanent residence in Canada, Canadian immigration authorities commenced deportation proceedings against him. In 2005, the Supreme Court of Canada reversed an appellate court’s ruling that Mugesera did not deliberately incite murder,hatred or genocide. The Supreme Court concluded that there were “reasonable grounds to believe” that Mugesera committed crimes against humanity—the standard for deportation. The full speech is appended as appendix III to the Supreme Court opinion.
In an effort to avoid deportation, Mugesera invoked the non-refoulement principle, among other arguments, claiming that he would be subjected to persecution in Rwanda if he were returned. He filed an Article 22 individual petition before the Committee Against Torture, the body charged with enforcing the Convention Against Torture, seeking the Committee’s views on his vulnerability to torture. The Committee by letter requested Canadian officials to stay deportation so it could consider the petition. The Quebec Superior Court temporarily stayed the deportation, but then ruled that the Committee lacked the power to constrain states parties because it was limited to offering its views on individual petitions. It also determined that the responding to the Committee was an executive function, rather than a judicial one.

On January 24^th, after a 16 year legal battle, Mugeserawas deported and is now in custody in Kigali. This result, while welcomed by many, remained controversial, as many in Canada argued that Mugesera should have been prosecuted for his underlying crimes (including incitement to genocide) rather than simply deported.  So far, Canada has prosecuted only two individuals under its Crimes Against Humanity and War Crimes Act:

• Désiré Munyaneza and
• Jacques Mungwarere—both Rwandans.

(See our coverage of the Munyaneza case here). The current government has indicated an intention to streamline its laws (particularly the Immigration and Refugee Protection Act) to make deportation even easier. 

For more on Canada’s Crimes Against Humanity and War Crimes program, see here. Good coverage is also available on the website of theCanadian Center for International Justice). (We’ve covered the work of CCIJ before, see here (the effort to prosecute George W. Bush in Canada) and here (on Canada’s war crimes programgenerally and the prosecute v. deport debate)).

Issues in prosecuting piracy

(Delighted to welcome back alumna Milena Sterio, author of a forthcoming article on maritime piracy, who contributes this guest post)

After last week in the Seychelles, where, as posted, I attended meetings with the Seychelles’ Attorney General and Supreme Court judges, I am back in the United States. I would like to take this opportunity to reflect on some of the legal issues related to Somali piracy and prosecutions in the national courts of the Seychelles.

Jurisdiction
For any nation interested in prosecuting Somali pirates, the threshold issue is jurisdiction. In other words, if a country wants to prosecute pirates, it must amend and expand its jurisdictional statute to allow for such prosecution on the broadest possible basis.
The Seychelles (flag above) has thus revised its national law to allow for the prosecution of pirates captured on the high seas. This type of universal jurisdiction allows countries like the Seychelles to prosecute acts of piracy to which they have no nexus. (Such issues also have been discussed in prior IntLawGrrls posts, available here.)
Many countries, including the Seychelles before the recent revision, have jurisdictional statutes that allow for pirate prosecutions only if the act of piracy is committed in that country’s territorial sea, extending 12 nautical miles from the country’s shore. Thus, acts of piracy committed outside of such countries’ territorial sea cannot be prosecuted in those countries’ national courts because of a basic jurisdictional shortcoming.
Mauritius, another island nation in the Indian Ocean and another potential partner in the global fight against Somali piracy, has also started to consider expanding its jurisdictional statute to allow for national prosecutions of Somali pirates. It is unclear, however, how Mauritius will revise its statute. Some reports indicate that Mauritius’ law will only allow for prosecutions of piracy acts committed in the Mauritius exclusive economic zone, a stretch of sea extending 200 nautical miles from the country’s shore. This kind of a revision would seriously limit Mauritius’ ability to prosecute Somali pirates, as acts committed on the high seas would be excluded from Mauritius’ jurisdictional reach.
In the Seychelles, it appears that jurisdiction will not pose problems, in light of the new universal jurisdiction statute that this country passed.
One issue that remains unclear is whether the Seychelles’ government will demonstrate an ongoing political willingness to support piracy prosecutions on a true universal jurisdiction model. In fact, despite the mentioned universal jurisdiction statute, the Seychelles’ authorities may prove unwilling for policy reasons to extend their courts to prosecutions of Somali pirates who have not threatened the Seychelles’ national interests in any way.
Another possible mode of jurisdiction that countries like the Seychelles may adopt in the future is the protective principle – a type of jurisdiction that allows for prosecutions of acts which threaten the national interests of the prosecuting country. While traditionally this mode of jurisdiction has been used to prosecute offenses such as treason, immigration violations, and the counterfeiting of national flags, currency, and emblems, it is possible that acts of piracy could be conceived of as violating the national interests of certain countries and thus prosecuted under this model of jurisdiction.
The advantage of using the protective principle may be in the fact that it could allow for the prosecution of acts committed in preparation of piracy – acts that do not qualify as piracy itself.
Acts that do not constitute piracy, yet nonetheless may constitute presumptive offenses, include sailing on a skiff with a boarding ladder and weapons. For this type of preparatory act, universal jurisdiction is of no help, because universal jurisdiction statutes only cover true acts of piracy and do not extend to planning and preparatory offenses. Protective principle jurisdiction, on the other hand, could be used to cover these kinds of crimes; a country like the Seychelles may successfully make the argument that the planning of a piratical act could threaten its national interests, for the reason that the act of piracy, even if committed on the high seas, could be harmful if it can be shown that pirates were about to target the country's vessels or nationals or enter its exclusive economic zone.
Using a combination of universal jurisdiction to cover true acts of piracy, with the protective principle to cover preparatory offenses, would enable countries like the Seychelles to prosecute the maximum number of piracy-related violations occurring on the high seas.

Cooperation agreements
The next issue related to the prosecution of pirates for a country like the Seychelles is the ability to prosecute Somali pirates who are detained by the naval authorities of another country. Here, the Kenya model of transfer agreements or memorandums of understanding, which I discussed in my last post, proves useful.
The Seychelles, like Kenya (flag at right), has thus concluded transfer agreements with the European Union and the United Kingdom, pursuant to which Seychelles has accepted to prosecute Somali pirates detained by the EU or UK forces on the high seas.
The Seychelles’ Attorney General informed our delegation last week that eleven successful piracy trials had already taken place in the Seychelles’ courts; in all these cases the pirates had been detained by the European Union/British forces and transferred to the Seychelles.
The pirates have been prosecuted for the offense of piracy existing under the Seychelles’ domestic criminal law.
Moreover, pirates have been prosecuted under the theory of “common intention,” a mode of joint criminal liability which allows for combined prosecutions of all pirates involved in a single piracy incident. This has enabled the Attorney General to prosecute pirates in groups of ten or eleven, as well as to charge all those involved in a piracy incident with the same offenses, irrespective of their role in the incident itself. Thus, the prosecutors in these cases did not have to prove what exact role each pirate played in the piracy incident. Rather, each pirate was charged with the act of piracy itself, and each pirate would potentially be imposed the same criminal sentence. According to the Attorney General, convicted pirates have received sentences ranging from five to twelve years of imprisonment, and several other pirates are currently detained and awaiting trial.

Conditions of confinement
The next issue that countries like the Seychelles face is prison capacity and the adequacy of detainment conditions.
The Seychelles and Kenya both have benefited from financial assistance, from major maritime nations as well as the United Nations. Thus, in the Seychelles a new prison wing has been built; this wing is “reserved” for the detention of Somali pirates and arguably coincides with international detention standards.
This in turn will preempt non-refoulement, the human rights principle that prevents states parties to major human rights treaties from transferring pirates to any place where pirates would be likely mistreated. In fact, the Seychelles has clearly demonstrated that its prosecutions are fair and neutral, and that pirates are detained pre- and post-trial in humane conditions. Capturing nations should not face non-refoulement type issues when deciding whether to transfer detained Somali pirates to the Seychelles’ authorities.

After detention
Finally, countries like the Seychelles may be faced with post-detention issues – in other words, once Somali pirates have finished serving their sentences, they may choose to apply for political asylum in the Seychelles. While nobody should be blamed for wanting to live in this tropical haven, it is reasonable for the Seychelles’ authorities to question the need to extend their country’s protection to individuals who have committed heinous offenses such as piracy. It is one thing to detain Somali pirates for a set number of years, it is quite another to offer them political asylum and the possibility to freely live in the Seychelles forever. I would be loath to discourage countries like the Seychelles from prosecuting Somali pirates, but post-detention issues remain a complex issue that the Seychelles’ authorities may have to ponder in the near future.

I look forward to blogging about Somali piracy in the future, and hope that other countries, like Mauritius (flag at left), will follow in the footsteps of the Seychelles and seriously consider opening their courthouse doors to piracy prosecutions.

Refugee law meets international criminals

How should refugee determination processes address the alleged commission of international crimes by refugee claimants? In contrast with the question I discussed last week -- i.e. how should international criminal courts address refugee claims that arise as a result of involvement in their legal processes -- this problem is squarely addressed by the United Nations Convention Relating to the Status of Refugees.
But is the answer as clear as it seems in the text of the Refugee Convention? A recent case from South Africa demonstrates (1) the complicated interaction between the applicable Convention provision and the principle of non-refoulement and (2) the opportunities for creative interchange between refugee law and a system of international criminal law and transitional justice that has become significantly more robust since the Refugee Convention was drafted in 1951.
As any student of refugee law knows, Article 1(F), containing the exclusion clauses, mandates that the Refugee Convention is inapplicable if the adjudicator has "serious reasons for considering" that an applicant has committed a war crime or crime against humanity as defined in the relevant international legal instruments. While in some cases, it may be difficult to determine whether the "serious reasons for considering" standard has been met, in the case of Lieutenant-General Faustin Kayumba Nyamwasa, it is not. Nyamwasa, who held senior leadership positions in the Rwandan Patriotic Front and the Rwandan Patriotic Army, faces indictments in France and Spain for war crimes and crimes against humanity, plus a United Nations report implicates him in serious human rights violations after the Rwandan genocide.
Yet the South African government confirmed last month that it had granted Nyamwasa asylum. Though this decision violates the plain text of the Refugee Convention, the principle of non-refoulement complicates the question of how refugee law must deal with international criminals. Non-refoulement, or non-return to persecution, was created by Article 33 of the Refugee Convention, which applies the principle only to refugees. Article 3 of the UN Convention Against Torture expands the principle to protect any person (not only refugees) as long as there are substantial grounds for believing she would be at risk of torture. Nyamwasa, who has recently and vociferously criticized President Kagame and the RPF, is at serious risk of persecution and torture if returned to Rwanda. South Africa has no obligation under international refugee law to grant Nyamwasa refugee status, but is prohibited by the principle of non-refoulement from sending him back to Rwanda.
What's next for Nyamwasa? This briefing paper by two advocates of the South African High Court, Anton Katz and Max du Plessis, suggests some options. Withdrawal of refugee status may be appropriate if Nyamwasa omitted mention of his involvement in international crimes in his application. While South Africa can't return him to Rwanda, it can assist in ensuring that he is held accountable for these crimes, either through the exercise of universal jurisdiction or by sending him to France or Spain. Thinking creatively, the advocates suggest that the South African Minister of Home Affairs might allow Nyamwasa to remain in South Africa under the condition that he provide information about the human rights violations perpetrated by the Rwandan Patriotic Army -- a refugee law version of the South African Truth and Reconciliation Commission. As the interactions between principle of non-refoulement and international criminal law multiply and create similar challenges, it will be important to keep in mind the need for such innovative routes forward.

(Hat tip to the excellent Forced Migration Current Awareness blog, which also recently posted a collection of resources on international criminal law and refugee law.)

International criminal law meets non-refoulement

Two cases in the past few weeks have raised intriguing questions about the intersection of international criminal law and refugee law. The first, which I discuss below, asks how international criminal courts should address refugee claims that arise as a result of involvement in their legal processes. The second, which I will discuss next week, asks how refugee determination processes should address the alleged commission of international crimes by refugee claimants.
In the Katanga case before the International Criminal Court, the defense called three witnesses who were detained at the central prison in Kinshasa by the government of the Democratic Republic of Congo. After they testified publicly at the ICC, the witnesses' lawyer asked the Trial Chamber to present them to the Dutch authorities so that they could file asylum claims based on their fear of retaliation at the hands of the DRC government. By the time of the Court's decision, that question was moot as the asylum claims had been filed.
The Court's opinion nonetheless discusses two crucial questions concerning the intersection of refugee law and international criminal law: (1) which body is responsible for determining asylum claims by witnesses at international criminal courts and (2) how to address conflicts between international criminal law obligations and the non-refoulement principle.
With respect to the first question, the Court noted that its obligation to protect witnesses is limited to those risks they face as a result of their testimony. The Court is not required to address general human rights violations in the witnesses' country of origin nor must it determine the risks of persecution faced by witnesses applying for asylum. In other words, the responsibility for assessing the applicability of the non-refoulement principle lies with the Dutch authorities alone.
The Court also addressed the conflict between the non-refoulement principle and its obligation to return the witnesses "without delay" to the DRC under the Rome Statute. Defense counsel for Katanga claimed that the Dutch government's obligation to guarantee the rights enumerated in the European Convention on Human Rights override any agreement with the ICC. The Prosecutor, in contrast, argued that the witnesses remained Congolese detainees, with the Dutch authorities "merely facilitating" their detention in The Hague. The Registry came down similarly, noting that the Congolese authorities transferred the witnesses solely for the purpose of their testimony. The Dutch government also argued that the witnesses were not under their authority or jurisdiction but rather under the jurisdiction of the Court while they remained in the Netherlands.
The Court found, however, that the requirement of return "without delay" to the home state found in Article 93(7) of the Rome Statute must be interpreted consistently with the principle of non-refoulement and the right to an effective remedy. In practical terms, this means that the Court could return a detained witness only if the Dutch government rejected his asylum application.
It seems right that international criminal courts should not be involved in asylum determinations, but the oddity in this proceeding is that while the Dutch authorities were processing the asylum claim, the Registry was discussing with DRC authorities protective measures that might be applied to the witnesses. In most asylum proceedings, the identity of the applicants is kept strictly confidential in order to prevent retaliation by the home state either in the host country or, if the application is denied, upon return. One might argue that this differential treatment is appropriate here where the identity of the witnesses is well known to their government. Yet it's hard to get around the concern that the ongoing negotiations concerning the protective measures must undercut either the validity of the asylum claims or the Court's judgment in relying on the assurances of a state well known for its human rights abuses.
And while the non-refoulement principle should surely trump the ICC statute's requirement of return of detained witnesses, the ramifications of this decision may not be entirely positive. States may become unwilling to transfer such witnesses if they realize that asylum is an option. The Dutch government may be less than enthusiastic about the prospect of processing such claims, particularly given that detained witnesses for the defense may themselves have committed international crimes (consider that one witness for the Katanga defense was subject to a UN Security Council travel ban that had been lifted only so that he could testify before the ICC). There are no easy answers here, only a reminder that decisions at the intersection of the principle of non-refoulement and international criminal law must be assessed cautiously and holistically.

(Hat tip to the PhD Studies in Human Rights blog.)

Pushing Back Against Italy's "Push-Back" Policy

Last month, the United Nations High Commissioner for Refugees submitted a third-party written intervention to the European Court of Human Rights in the case of Hirsi and Others v. Italy. The case was filed last May by a group of Eritrean and Somali asylum seekers, including children and pregnant women. who attempted to reach Italy by boat from Libya. When they were thirty-five miles south of Lampedusa (pictured below left), the Italian Coast Guard and Navy interdicted these vessels and returned their passengers to the Libyan authorities in Tripoli. Italian officials made no attempt to identify, let alone interview these asylum seekers. Most remain in temporary detention centers while some are in Libyan prisons. The Italian Interior Minister confirmed that this interdiction and return was conducted pursuant to a bilateral treaty concluded with Libya aimed at reducing irregular migration.
The case raises several important legal issues to which the UNHCR brief responds, namely the practice of interdiction or "push-back" on the high seas, the reception conditions and asylum process in Libya, and the scope of the principle of non-refoulement on the high seas. On the first point, to justify its interdiction practices, it was interesting to see that rather than citing sovereignty concerns, the Italian government cited international law, namely its treaty with Libya and the Protocol Against the Smuggling of Migrants by Land, Sea, and Air (supplementing the United Nations Convention against Transnational Organized Crime). The UNHCR contends that neither of these treaties overrides the Italian government's duty of non-refoulement. To highlight the importance of applying this principle in the case of interdiction near Lampedusa, UNHCR noted that in 2008, 75% of sea arrivals applied for asylum and 50% of those received protection.
The return to Libya is also seriously problematic under international law. Libya has not joined either the UN Refugee Convention or its Protocol, and it has no domestic asylum legislation or processes. As a result, asylum seekers who are caught in "push-back" operations are considered illegal migrants and subject to detention. The poor conditions in Libyan detention centers range from sanitation problems to sexual assault. Even worse, the Libyan government has reportedly concluded an agreement with the Eritrean government for the return of Eritrean nationals -- a guarantee of non-refoulement violations.
All this of course raises the much larger question of the applicability of the non-refoulement principle on the high seas. While there is no right to asylum under international law, UNHCR notes that non-refoulement applies in any territory under a the jurisdiction of a State Party to the ICCPR and to any person within the actual control of a State Party to the ICCPR or UNCAT, irrespective of her physical location. As a result, de jure and de facto jurisdiction exist on board a boat of an intercepting state, requiring that the principle of non-refoulement be respected on such a vessel.
The Hirsi case raises enormously important questions that need thoughtful and creative solutions. Italy appears to be trying to create a legal black hole, an arena in which legal constraints can be ignored; the dangers of such an approach have been amply demonstrated in recent years. Yet the difficulties of addressing mass influxes of undocumented migrants are serious, and include not only severe administrative burdens and costs but potential risks to national security -- not to mention the risks to the migrants of attempting such journeys in less-than-seaworthy vessels. Though the "Fortress Europe" approach of building higher fences has created significant problems, the ECtHR may struggle to dismantle these policies effectively. The case poses a serious challenge to the court's ability to protect human rights while ensuring that its decision is respected and enforced by member states.

Refoulement Most Foul

The BBC reports that the Thai government has recently implemented a "brutal and inhuman response" to undocumented migrants from Bangladesh and Burma: tying their hands, forcing them into boats without engines and little or no food and water, and towing them out to sea. As one survivor noted, "The Thai soldiers clearly wanted us to die on the boats." Many died from dehydration and others jumped overboard. Sources in the Thai police and army confirm that at least some of those being pushed out to sea are asylum seekers.

Thailand's behavior violates fundamental provisions of international human rights treaties to which it is a party, most notably the right not to be arbitrarily deprived of one's life. So why did the Thai government feel empowered to so callously disregard the rights of these migrants? The reasons are obviously complex, but one answer may be that international law governing the rights of migrants lacks specificity, particularly in this region. None of the states involved -- Bangladesh, Burma, Thailand, and even India, which is currently caring for the refugees -- is a signatory to the United Nations Convention Relating to the Status of Refugees. While the principle of non-refoulement may have attained the status of customary international law, the regional failure to join the Convention may contribute to a regional view that protection of refugees is a favor rather than a duty. And if the rights of refugees are seen as optional, then economic migrants have little hope of robust rights protection.

So what's the solution? Apart from encouraging nations in the region to ratify the Refugee Convention, a regional treaty that affirms that rights extant in international human rights treaties apply to migrants might help to change attitudes. Countries that produce large numbers of regional migrants could take the lead in promoting protection for their citizens abroad. The non-binding "Bangkok Principles" for the protection of refugees were a preliminary step, back in 1966 -- it's high time now to take the next.

Athbhliain fé mhaise dhaoibh!

Athbhliain fé mhaise dhaoibh [or, in English, Happy New Year to you all]. I just thought I’d take this opportunity to point out a few things coming up on this (European) side of the Atlantic in 2009 that’s likely to catch our attention here.
► First of all Ireland will, it appears, get another opportunity vote on the Lisbon Treaty. As many of our readers will know, the Irish electorate voted ‘no’ to the ratification and incorporation of the Treaty last summer. We were the only European Union state to have a referendum on the Treaty and for those who wonder why we did, it’s because EU Treaty Law has supremacy over Constitutional law and, in Ireland, that has been interpreted since the case of Crotty v An Taoiseach (1986) as requiring a constitutional referendum on EU Treaties. Ireland has previously voted twice on an EU Treaty (Treaty of Nice) and ‘Lisbon II’ will be one of the political and legal events of 2009 here. The referendum is expected in 2009.
► The European Court of Human Rights will hear cases relating to abortion rights in Ireland and female genital mutilation/non-refoulement both of which emanate from Ireland. We previously discussed these cases on the blog, and the ECtHR’s decisions are anxiously awaited.
► Thirdly, we expect to see discussions about the placement of released Guantánamo Bay detainees in European states gain even more momentum in the next few months. Strategies for closing the detention centre are quite a hot topic here on IntLawGrrls and the role that European states’ will play in this process will be watched with great interest, particularly given the alleged role some European states (incl. Ireland, I’m afraid) are said to have played in getting people to Guantánamo by collusion in extraordinary rendition.
This is just a taster of the international law stories like to come from Europe over the course of the next 12 months, but as always it seems likely that it will be the unexpected occurrences that will most grab our attention. We look forward to discussing all this and more here on IntLawGrrls.

Diplomatic Assurances: A Structural Weakness in Human Rights Law?

As the Bush administration’s time in office comes to a close, it seems appropriate to start to reflect on the impact that policies pursued by this administration have had on law. These impacts have been plentiful and extend far beyond the realm of the United States into both international law and into the law and policies of other countries. From an Irish perspective the issue of transit states’ liabilities relating to extraordinary rendition has been particularly germane. This results from the fact that the United States has been given fly-over rights and been permitted to use Shannon Airport for the purposes of stop-over, refuelling etc., as indicated below. (image courtesy of the Council of Europe and Irish Council for Civil Liberties)

The concern in Ireland — shared by the European Union and the Council of Europe — is that these rights may have implicated Ireland in the practice of extraordinary rendition. As the European Convention on Human Rights is part of Irish domestic law (through the ECHR Act 2003), Ireland’s non-refoulement obligation might be called into question here and, to that end, the Irish government has sought and received comprehensive diplomatic assurances ("D.A.s") from the US government that no individuals have been, are being, or will be ‘rendered’ through Irish airspace. This has resulted in a quite concerted debate in Ireland about whether diplomatic assurances can ever satisfy a state’s obligation of non-refoulement under Article 3 of the ECHR.

In some recent work, forthcoming in the Irish Yearbook of International Law, I argue that diplomatic assurances can satisfy Article 3 provided they fulfil four criteria gleaned from case law:

► 1. The promise must be adequate;

► 2. The promisor must have effective control over the relevant circumstances;

► 3. The promisor must be credible in relation to the matter at hand; and

► 4. The Diplomatic Assurance must be capable in practice of protecting the individual(s).

For a human rights lawyer it is, of course, somewhat uncomfortable to argue that D.A.s can satisfy a state’s obligation to protect individuals from torture, inhuman and degrading treatment, and states’ practice in accepting such assurances arguably call that state’s real commitment to rights-protection into question. However, and this is really the gist of my argument in the IYIL piece, this exposes a structural difficulty with human rights law as much (if not more) than it does a political difficulty with state practice. In this respect, it may be more productive for us to parse judgments and principles to expose these weaknesses than to assert that D.A.s are not in fact acceptable in law.

The fact that the non-refoulement obligation, which is absolute in the ECHR, can be fulfilled through diplomatic practice rather than through effective rights protection perhaps exposes a weakness in human rights law that we can now focus on trying to mitigate, as perhaps the European Court of Human Rights has tried to do by seeming to raise the standards for satisfaction in the recent case of Saadi v Italy (judgment; case note; prior post).

Commentary on Saadi v Italy

Any readers interested in deportation and expulsion of individuals on national security grounds will be interested in the recent decision of the European Court of Human Rights in Saadi v Italy. I recently wrote about the case here and have now written an ASIL Insight on the case. The Insight is available here.

Check it out!

Human rights for hostes humanis?

Since the time of Grotius, a pirate has been considered to be hostis humanis generis, an enemy of mankind.

So write Ilias Bantekas and Susan Nash in their book International Criminal Law (2003). As a global enemy, the pirate was subject to prosecution in any country that managed to exercise jurisdiction over him -- or, in the case of pirates like my IntLawGrrls transnational foremother Grace O'Malley -- her. (credit)
Thus it's a bit of a surprise to read that Britain, the country that once claimed to rule the waves, is shirking from seizure of the 21st C. pirates about whom IntLawGrrl Naomi Norberg posted earlier this month. London's Sunday Times of London reported that the Foreign Office has instructed the Royal Navy "not to detain pirates because doing so may breach their human rights." The Times' Marie Woolf reports of the further concern regarding the "risk that captured pirates could claim asylum in Britain." This fear of inability to return the captives likely stems from Britain's non-refoulement obligations, explicit in treaty provisions such as Article 33 of the Convention relating to the Status of Refugees and Article 3 of the Convention Against Torture, and deemed implicit in provisions such as Article 3 of the European Convention on Human Rights and Article 7 of the International Covenant on Civil and Political Rights:

The Foreign Office has advised that pirates sent back to Somalia could have their human rights breached because, under Islamic law, they face beheading for murder or having a hand chopped off for theft.

Not all Britons share this view. The Times quoted Julian Brazier, a Conservative Member of Parliament:

'These people commit horrendous offences. The solution is not to turn a blind eye but to turn them over to the local authorities. The convention on human rights quite rightly doesn’t cover the high seas. It’s a pathetic indictment of what our legal system has come to.'

No doubt the notion that even hostes humanis have human rights also will trouble those who would use the old rule of free-rein-to-fight-pirates as a template for today's treatment of persons caught up in what the Bush Administration calls its "Global War on Terror."

(Cross-posted at Slate's Convictions blog. Subsequently, co-bloggers Benjamin Wittes posted this response, and Deborah Pearlstein this reply. Thanks to Berkeley Law student Lindsay M. Harris for the head's up on the Times story.)