Video Blog: Vulcano

Travelling is fun. Hiking around islands in the Mediterranean is especially fun. Putting these adventures on the record for my esteemed readership sometimes feels like work. Work is no fun at all.

That’s why, during the ascent of the highest point of the island of Vulcano, I had the idea of turning my blog into a video blog. I don’t have to take any more notes, nor do I later have to decipher them, I don’t have to take any photos, I don’t have to think a lot about my words. I will speak into the camera spontaneously and you will see the environment in the background. Simple and practical.

In the following video, I try to explain how my ascent onto the 500-meter high summit is made harder by volcanic activity. Fumaroles are emitting smoke and toxic gases. The temperature is several hundred degrees. Sulphur and other toxins are dissolving my shoes as soon as I remain standing in one spot for too long. I stand at the edge of the Great Crater and one wrong gust of wind would throw me into the claws of the brewing volcano.

The wind was a problem indeed, not only due to the increased danger to my life, but also because it makes it unable for you to follow my eloquent and informative presentation. Therefore I subsequently limited myself to filming the volcanic activity itself, without me talking in between or squeezing myself into the frame.

Due to the bad sound quality, it looks like I will still have to publish a full report on my ascent of that volcano soon.

warning sign Vulcano(Diesen Video-Blog gibt es natürlich auch auf Deutsch.)

Posted in Cinema, Italy, Sicily, Technology, Travel | Tagged , , | 11 Comments

Sun, Rain and the Sea

In case you can’t decide which of the forces of nature you like most, I have combined them all in this one shot which I took during a hike along the west coast of Lipari:

sun rain sea Lipari

Posted in Italy, Photography, Sicily, Travel | Tagged | 8 Comments

Malta is for Sale

When I lived in Malta, I was rather surprised by how much was on sale. When I wanted to purchase a bus ticket from the vending machine, it sometimes happened that a helpful bus driver came up to me and sold me a “spare” ticket for less than the official price. Some of my acquaintances were trading in everything from receipts (for VAT fraud) to residence permits. I heard that you could also buy building permits, hunting licences, mobile phone access for prison inmates, government jobs and an extra goal in a football match. I personally only got a police conduct certificate (2.50 EUR), which I could use for a gun license in Germany, and a Maltese ID card (free of charge), both of them completely legally of course.

maltese_passportBut now, the Republic of Malta will top this firesale: its parliament has passed a law allowing the sale of Maltese citizenship and passports for 650,000 EUR.

“But who wants to move to this tiny island in the Mediterranean?”, I hear you ask. Well, that’s the thing: you don’t need to move to Malta under the new citizenship-for-sale scheme. There is no requirement to live or to invest the amount in Malta. You only need to pay. (Preferably in cash, I assume.) As Malta is a member state of the European Union, you will get EU citizenship with it. Buy one, get one free. Anyone with the necessary money will then be able to reside in any of the 28 EU countries, travel freely between them and vote in municipal and European elections.

My first reaction was one of shock and horror, especially because I remember the “our country is too crowded already” arguments from my time in Malta. They were raised each time a boat with refugees was on its way from Africa. Poor people fleeing famine are apparently less welcome than shady businesspeople. In extreme cases, the warlords or arms dealers fuelling civil wars in Africa will buy Maltese citizenship, while their victims will be turned back by the Maltese Navy – or will die on the sea.

One the other hand, I have to admit that in this respect, Malta is at least honest. Most countries view citizenship and residency applications of individuals with lots of money more favourably than those of poor chaps. Although no country in the EU is as brazen as Malta, giving away citizenship without any residency or investment requirement, if you have 650,000 EUR that you don’t need, you can effectively get the citizenship of a large number of countries. In the EU, Austria, Hungary, Portugal and Ireland are other examples. I work as an immigration advisor for people interested in obtaining German citizenship, and although Germany has no similar scheme, it still makes it much easier if you are wealthy, whether you use your funds for an investment in Germany or to buy real estate or to attend university for a few years, after which you can apply for German citizenship, or to “convince” someone to get married to you. People without money don’t have these options, or at least not as easily.

I have two naive hopes:

– I would hope that this reciprocal generosity between Malta and rich applicants will make it harder for Malta to argue that the island is overcrowded when the next boat with half-starving, half-dead refugees will arrive. Also, only 650,000 EUR from one new citizen will go a long way in providing help for refugees in need.

– As the other EU countries are understandably pissed about Malta selling out, maybe this will push the issue of a true European citizenship and European immigration policy onto the agenda.

But I also have two fears, which are probably more realistic:

– The Maltese government has teamed up with some shady consultancy, which will implement the passport-for-cash programme. Either the Maltese government thought its own civil servants are too corrupt (because evaluating the simple question whether somebody has paid 650,000 EUR can hardly be a question of competence) or – and this is my guess – they want to put a third party between them and the applicants, so that they can later deny all responsibility. I can already smell the corruption now.

– EU citizenship not only comes with the right to take part in elections, but also to stand for election. I wouldn’t be surprised if more millionaires and billionaires will move to Europe and try to influence politics. For a Russian oligarch or a Saudi prince, European politics might be an entertaining and profitable hobby. And who knows, even Mr Berlusconi might make the move to Malta.

Imagine how many Maltesers you could buy for 650,000 EUR!

Imagine how many Maltesers you could buy for 650,000 EUR.

(Zur deutschen Version dieses Artikels.)

Posted in Europe, Immigration Law, Law, Malta, Politics | Tagged , , | 52 Comments

ECJ ruling on asylum for homosexuals

On 7 November 2013 the European Court of Justice (ECJ) ruled that homosexual asylum seekers in the EU are protected as a “social group” under the Asylum Qualification Directive (Directive 2004/83/EC) and that EU member states have to grant asylum if the refugee’s home country actively persecutes homosexuals and implements severe penalties.

The case originated in the Netherlands, where three homosexual men from Senegal, Uganda and Sierra Leone had applied for asylum. The Dutch court had requested the ECJ to make a preliminary ruling on the applicability and the interpretation of the European Asylum Qualification Directive.

homosexual relationships criminal lawThe ECJ held that persecution of homosexuals is sufficient reason to grant asylum if the criminal statutes in the refugee’s home country are not only on the statute books, but are actively applied and if homosexuals in that country face severe penalties, like imprisonment or even death. It is not required that the individual asylum seeker has already been the subject of persecution.

There are 76 countries with criminal laws against homosexuality. 7 countries impose the death penalty: Iran, Saudi Arabia, Mauritania, Nigeria, Somalia, Sudan and Yemen. Many other countries, especially in Africa and the Middle East and Asia punish homosexuality with lengthy prison terms, many of them with prison for life.

The ECJ also overruled an argument that national courts have often used to deny such asylum claims: the homosexual applicant cannot be expected to return to his/her native country and conceal his/her sexuality. In effect, some courts had been asking homosexuals to remain in the closet. This ECJ ruling is especially relevant for Germany, where an administrative court had for example ruled in March 2012 that an Iranian lesbian woman could be expected to return to Iran and to lead a discrete and cautious life. This argument, which in a way blames the victim for the persecution, will no longer be permissible. The absurdity of that idea becomes evident even if you are heterosexual, if you try to live for a week without showing any signs of your heterosexuality. The ECJ’s ruling is in line with a ruling on religious persecution from September 2012, in which the ECJ stated that religious persecution is also a reason for asylum if the applicant could have concealed his/her religiosity.

For the legal nerds among you, here is the full text of the ruling by the European Court of Justice. You find more of my comments below the court’s decision.

= = = full text of the ECJ ruling = = = 

JUDGMENT OF THE COURT (Fourth Chamber)
7 November 2013 (*)
(Directive 2004/83/EC – Minimum standards relating to the conditions for granting refugee status or subsidiary protection status – Article 10(1)(d) – Membership of a particular social group – Sexual orientation – Reason for persecution – Article 9(1) – Concept of ‘persecution’ – Well-founded fear of being persecuted on account of membership of a particular social group – Acts sufficiently serious to justify such a fear – Legislation criminalising homosexual acts – Article 4 – Individual assessment of the facts and circumstances)
In Joined Cases C‑199/12 to C‑201/12,
REQUESTS for a preliminary ruling under Article 267 TFEU, from the Raad van State (Netherlands), made by decision of 18 April 2012, received at the Court on 27 April 2012, in the proceedings
Minister voor Immigratie en Asiel
v
(C-199/12),
(C-200/12),
and
Z
v
Minister voor Immigratie en Asiel (C-201/12),
intervening parties:
Hoog Commissariaat van de Verenigde Naties voor de Vluchtelingen (C‑199/12 to C-201/12),
THE COURT (Fourth Chamber),
composed of L. Bay Larsen (Rapporteur), President of the Chamber, K. Lenaerts, Vice-President of the Court, acting as Judge of the Fourth Chamber, M. Safjan, J. Malenovský and A. Prechal, Judges,
Advocate General: E. Sharpston,
Registrar: V. Tourrès, Administrator,
having regard to the written procedure and further to the hearing on 11 April 2013,
after considering the observations submitted on behalf of:
–        X, by H. M. Pot and C. S. Huijbers, advocaten,
–        Y, by J. M. Walls, advocaat,
–        Z, by S. Sewnath and P. Brochet, advocaten, and K. Monaghan and J. Grierson, Barristers,
–        the Hoog Commissariaat van de Verenigde Naties voor de Vluchtelingen, by P. Moreau, acting as Agent, and M.-E. Demetriou, Barrister,
–        the Netherlands Government, by B. Koopman, C. S. Schillemans, C. Wissels and M. Noort, acting as Agents,
–        the German Government, by T. Henze, N. Graf Vitzthum and A. Wiedmann, acting as Agents,
–        the Greek Government, by G. Papagianni and M. Michelogiannaki, acting as Agents,
–        the French Government, by G. de Bergues and S. Menez, acting as Agents,
–        the United Kingdom Government, by L. Christie, acting as Agent, and S. Lee, Barrister,
–        the European Commission, by M. Condou-Durande and R. Troosters, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 11 July 2013,
gives the following
Judgment
1        These requests for a preliminary ruling concern the interpretation of Article 9(1)(a) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or Stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12) (‘the Directive’), read in conjunction with Article 9(2)(c) and Article 10(1)(d) thereof.
2        The requests have been made in proceedings, first, between the Minister voor Immigratie en Asiel (Minister for Immigration and Asylum, ‘the Minister’) and X and Y, nationals of Sierra Leone and Uganda respectively, in Cases C-199/12 and C-200/12, and second, in Case C-201/12, between Z, a Senegalese national and the Minister, concerning the rejection by the latter of their applications for residence permits for a fixed period (asylum) in the Netherlands.
 Legal context
 International law
 The Convention Relating to the Status of Refugees
3        The Convention Relating to the Status of Refugees, signed in Geneva on 28 July 1951 (United Nations Treaty Series, vol. 189, p. 150, No 2545 (1954)), entered into force on 22 April 1954. It was supplemented by the Protocol Relating to the Status of Refugees, concluded in New York on 31 January 1967, which entered into force on 4 October 1967 (‘the Geneva Convention’).
4        The first subparagraph of Article 1(A)(2) of the Geneva Convention provides that the term ‘refugee’ is to apply to any person who ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country’.
 The European Convention for the Protection of Human Rights and Fundamental Freedoms
5        The European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), provides, in Article 8, entitled ‘Right to respect for private and family life’:
‘1.      Everyone has the right to respect for his private and family life, his home and his correspondence.
2.      There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’
6        Article 14 of the ECHR, entitled ‘Prohibition of discrimination’, provides:
‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’
7        Article 15 of the ECHR, entitled ‘Derogation in time of emergency’, is worded as follows:
‘1.      In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
2.      No derogation from Article 2 [“Right to life”], except in respect of deaths resulting from lawful acts of war, or from Articles 3 [“Prohibition of torture”], 4 (paragraph 1) [“Prohibition of slavery”] and 7 [“No punishment without law”] shall be made under this provision.
…’
 European Union law
 The Charter of Fundamental Rights of the European Union
8        The rights which cannot be subject to any derogation under Article 15(2) of the ECHR are enshrined in Articles 2, 4, 5(1) and 49(1) and (2) of the Charter of Fundamental Rights of the European Union (‘the Charter’).
 The Directive
9        Recital 3 in the preamble to the Directive states that the Geneva Convention provides the cornerstone of the international legal regime for the protection of refugees.
10      As follows from recital 10 in the preamble to the Directive, read in the light of Article 6(1) TEU, the Directive respects the rights, freedoms and principles recognised by the Charter. In particular, it seeks to ensure, on the basis of Articles 1 and 18 of the Charter, full respect for human dignity and the right to asylum of applicants for asylum.
11      Recitals 16 and 17 in the preamble to the Directive are worded as follows:
‘(16) Minimum standards for the definition and content of refugee status should be laid down to guide the competent national bodies of Member States in the application of the Geneva Convention.
(17)      It is necessary to introduce common criteria for recognising applicants for asylum as refugees within the meaning of Article 1 of the Geneva Convention.’
12      In accordance with Article 1 of the Directive, its purpose is to lay down minimum standards as regards, first, the requirements to be met by third-country nationals or Stateless persons in order to receive international protection and, second, the content of the protection granted.
13      Article 2(c) and (k) contains the following definition, for the purposes of the Directive:
‘(c)      “refugee” means a third-country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country …;
(k)      “country of origin” means the country or countries of nationality or, for Stateless persons, of former habitual residence.’
14      Article 4(3) of the Directive defines the conditions for the assessment of the facts and circumstances and provides:
‘The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account:
(a)      all relevant facts as they relate to the country of origin at the time of taking a decision on the application; including laws and regulations of the country of origin and the manner in which they are applied;
(b)      the relevant statements and documentation presented by the applicant including information on whether the applicant has been or may be subject to persecution or serious harm;
(c)      the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant’s personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm;
…’
15      Under Article 4(4) of the Directive, the fact that an applicant has already been subject to persecution, or to direct threats of such persecution, is a ‘serious indication of the applicant’s well-founded fear of persecution’, unless there are good reasons to consider that such persecution will not be repeated.
16      Article 9(1) and (2) of the Directive defines acts of persecution:
‘1.      Acts of persecution within the meaning of Article 1(A) of the Geneva Convention must:
(a)      be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the [ECHR]; or
(b)      be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a).
2.      Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of:
(c)      prosecution or punishment, which is disproportionate or discriminatory;
…’
17      In accordance with Article 9(3) of the Directive, there must be a connection between the reasons for persecution mentioned in Article 10 and the acts of persecution.
18      Article 10 of the Directive, headed ‘Grounds for refusal or invalidity’, provides:
‘1.      Member States shall take the following elements into account when assessing the reasons for persecution:
(d)      a group shall be considered to form a particular social group where in particular:
–        members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it; and
–        that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society;
–        depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States …
…’
19      Under Article 13 of the Directive, a Member State is to grant the applicant refugee status if that person meets, inter alia, the requirements laid down in Articles 9 and 10 of the Directive.
 Netherlands law
20      Article 28(1)(a) of the Law of 2000 on foreign nationals (Vreemdelingenwet 2000, Stb 2000, No 495) empowers the Minister to accept, to refuse or not to consider an application for a residence permit for a fixed period.
21      In accordance with Article 29(1)(a) of that law, a residence permit for a fixed period, as referred to in Article 28, may be granted to a foreign national ‘who is a refugee under the terms of the [Geneva] Convention’.
22      The Guidelines on the Implementation of the Law on foreign nationals of 2000 (Vreemdelingencirculaire 2000) (‘the Guidelines’), in its version in force at the date on which the applications concerned were lodged, provides, in point C2/2.10.2:
‘If an asylum applicant relies on the fact that he or she has experienced problems as a result of his or her homosexuality, it can under certain circumstances lead to the conclusion that the person concerned is a refugee within the meaning of the [Geneva] Convention. …
If punishment is possible on the basis of a penal provision which applies only to homosexuals, it is an act of persecution. That is the case, for example, if being homosexual or expressing specifically homosexual feelings is made a criminal offence. To support the finding that the person concerned has refugee status the punitive measure concerned must be of a certain level of severity. A simple fine would thus generally be insufficient to lead to the conclusion that refugee status is warranted.
The mere fact that homosexuality or homosexual acts are criminalised in a country does not automatically lead to the conclusion that a homosexual from that country is a refugee. The asylum applicant must make a plausible case (if possible with supporting documents) that he personally has a well-founded reason to fear persecution.
Persons with a homosexual orientation are not expected to conceal that preference on their return.
…’
 The disputes in the main proceedings and the questions referred for a preliminary ruling
23      X, Y and Z, who were born in 1987, 1990 and 1982 respectively, lodged applications for residence permits for a fixed period (asylum) in the Netherlands on 1 July 2009, 27 April 2011 and 25 July 2010.
24      In support of their applications, they claim that they should be granted refugee status on the ground that they have reason to fear persecution in their respective countries of origin on account of their homosexuality.
25      They claim, in particular, to have been subject, in different respects, to violent reactions by their families and entourage, or to acts of repression by the authorities in their respective countries of origin on account of their sexual orientation.
26      It is clear from the orders for reference that, in the countries of origin of X, Y and Z, homosexuality is a criminal offence. Thus, in Sierra Leone (Case C-199/12), under Section 61 of the Offences Against the Person Act 1861, homosexual acts are punishable by a sentence of imprisonment of 10 years to life. In Uganda (Case C-200/12), under Article 145 of the Penal Code Act 1950, anyone found guilty of an offence described as ‘carnal knowledge of any person against the order of nature’ is liable to a term of imprisonment for which the maximum sentence is life. In Senegal (Case C-201/12), under Article 319.3 of the Senegalese Penal Code, any person found guilty of homosexual acts is to be sentenced to a term of imprisonment of 1 to 5 years and a fine of CFA francs (BCEAO) (XOF) 100 000 to XOF 1 5000 000 (approximately EUR 150 to EUR 2000).
27      By decrees of 18 March 2010, 10 May 2011 and 12 January 2011, the Minister refused to grant residence permits for a fixed period (asylum) to X, Y and Z.
28      According to the Minister, although the sexual orientation of the applicants is credible, they have not proved to the required legal standard the facts and circumstances relied on and, therefore, have failed to demonstrate that on return to their respective countries of origin they have a well-founded fear of persecution by reason of their membership of a particular social group.
29      Following the rejection of their applications for residence permits for a fixed period (asylum), X and Z appealed before the Rechtbank ’s-Gravenhage. Y lodged an application for interim measures before the same court.
30      By judgments of 23 November 2010 and 9 June 2011, the Rechtbank ’s-Gravenhage upheld X’s appeal and Y’s application. That court took the view, in particular, that, although he Minister could reasonably consider that the accounts in X and Y’s applications were not credible, he had none the less given insufficient reasons in both of those cases as to whether, having regard in particular to the criminalisation of homosexual acts in the countries of origin concerned, X and Y’s fear of being persecuted on account of their homosexuality was well-founded.
31      By judgment of 15 August 2011, the Rechtbank ’s-Gravenhage dismissed Z’s appeal. It held that not only was the Minister entitled to consider that Z’s account was not credible but, further, it did not appear from the statements and documentation produced by Z that in Senegal homosexuals are routinely persecuted.
32      The Minister appealed before the Raad van State against the two judgments which annulled his decisions rejecting the applications brought by X and Y.
33      Z appealed to the same court against the judgment dismissing his appeal against the Minister’s decision rejecting his application.
34      The Raad van State pointed out that, in the three cases in the main proceedings, neither the sexual orientation of the applicants, nor the fact that the Minister could reasonably consider that the accounts in the applications for asylum were not credible are contested on appeal.
35      Furthermore, according to that court, the Minister argued, inter alia, that although he did not expect foreign nationals to conceal their sexual orientation in their country of origin, in accordance with the policy laid down in point C2/2.10.2 of the Guidelines, that did not mean that they must be free to publicly express it in the same way as in the Netherlands.
36      The Raad van State also observed that the parties in the main proceedings are not in agreement as to the extent to which fully expressing a sexual orientation, such as that shared by X, Y and Z, is protected by Articles 9 and 10 of the Directive.
37      In those circumstances, the Raad van State decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling which have been formulated in almost identical terms in each of the three cases:
‘(1)      Do foreign nationals with a homosexual orientation form a particular social group as referred to in Article 10(1)(d) [of the Directive]?
(2)      If the first question is to be answered in the affirmative: which homosexual activities fall within the scope of the Directive and, in the case of acts of persecution in respect of those activities and if the other requirements are met, can that lead to the granting of refugee status? That question encompasses the following subquestions:
(a)      Can foreign nationals with a homosexual orientation be expected to conceal their orientation from everyone in their [respective] country of origin in order to avoid persecution?
(b)      If the previous question is to be answered in the negative, can foreign nationals with a homosexual orientation be expected to exercise restraint, and if so, to what extent, when giving expression to that orientation in their country of origin, in order to avoid persecution? Moreover, can greater restraint be expected of homosexuals than of heterosexuals?
(c)      If, in that regard, a distinction can be made between forms of expression which relate to the core area of the orientation and forms of expression which do not, what should be understood to constitute the core area of the orientation and in what way can it be determined?
(3)      Do the criminalisation of homosexual activities and the threat of imprisonment in relation thereto, as set out in the Offences against the Person Act 1861 of Sierra Leone (Case C-199/12), the Penal Code Act 1950 of Uganda (Case C-200/12) or the Senegalese Penal Code (Case C-201/12) constitute an act of persecution within the meaning of Article 9(1)(a), read in conjunction with Article 9(2)(c) of the Directive? If not, under what circumstances would that be the case?’
38      By order of the President of the Court of 19 June 2012, Cases C‑199/12 to C‑201/12 were joined for the purposes of the written and oral procedure and of the judgment.
 Consideration of the questions referred
 Preliminary observations
39      It is apparent from recitals 3, 16 and 17 in the preamble to Directive 2004/83 that the Geneva Convention constitutes the cornerstone of the international legal regime for the protection of refugees and that the provisions of the Directive for determining who qualifies for refugee status and the content thereof were adopted to guide the competent authorities of the Member States in the application of that convention on the basis of common concepts and criteria (Joined Cases C-71/11 and C-99/11 Y and Z [2012] ECR I-0000, paragraph 47 and the case-law cited).
40      The Directive must, for that reason, be interpreted in the light of its general scheme and purpose, and in a manner consistent with the Geneva Convention and the other relevant treaties referred to in Article 78(1) TFEU. As is apparent from recital 10 in the preamble thereto, the directive must also be interpreted in a manner consistent with the rights recognised by the Charter (Case C‑364/11 Abed El Karem El Kott and Others [2012] ECR I-0000, paragraph 48 and the case-law cited).
 The first question
41      By its first question, in each of the cases in the main proceedings, the referring court asks essentially whether Article 10(1)(d) of the Directive must be interpreted as meaning that, for the assessment of the grounds of persecution which are relied on in support of an application for refugee status, homosexuals may be regarded as being members of a particular social group.
42      In order to answer that question, it must be borne in mind that, under Article 2(c) of the Directive, the term ‘refugee’ refers, in particular, to a third-country national who is outside the country of his nationality ‘owing to a well-founded fear of being persecuted’ for reasons of race, religion, nationality, political opinion or membership of a particular social group and is unable or, owing to such fear, unwilling to avail himself of the protection of that country.
43      The third-country national concerned must therefore, on account of circumstances existing in his country of origin and the conduct of actors of persecution, have a well-founded fear that he personally will be subject to persecution for at least one of the five reasons listed in the Directive and the Geneva Convention, one such reason being ‘membership of a particular social group’.
44      Article 10(1) of the Directive gives a definition of a particular social group, membership of which may give rise to a genuine fear of persecution.
45      According to that definition, a group is regarded as a ‘particular social group’ where, inter alia, two conditions are met. First, members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it. Second, that group has a distinct identity in the relevant country because it is perceived as being different by the surrounding society.
46      As far as concerns the first of those conditions, it is common ground that a person’s sexual orientation is a characteristic so fundamental to his identity that he should not be forced to renounce it. That interpretation is supported by the second subparagraph of Article 10(1)(d) of the Directive, from which it appears that, according to the conditions prevailing in the country of origin, a specific social group may be a group whose members have sexual orientation as the shared characteristic.
47      The second condition assumes that, in the country of origin concerned, the group whose members share the same sexual orientation has a distinct identity because it is perceived by the surrounding society as being different.
48      In that connection, it should be acknowledged that the existence of criminal laws, such as those at issue in each of the cases in the main proceedings, which specifically target homosexuals, supports a finding that those persons form a separate group which is perceived by the surrounding society as being different.
49      Therefore, the answer to the first question referred in each of the cases in the main proceedings is that Article 10(1)(d) of the Directive must be interpreted as meaning that the existence of criminal laws, such as those at issue in each of the cases in the main proceedings, which specifically target homosexuals, supports the finding that those persons must be regarded as forming a particular social group.
 The third question
50      By its third question, referred in each of the cases in the main proceedings, which must be examined before the second question, the referring court asks essentially whether Article 9(1)(a) of the Directive, read together with Article 9(2)(c) thereof, must be interpreted as meaning that the mere fact that homosexual acts are criminalised and accompanying that criminalisation with a term of imprisonment is an act of persecution. If the answer is negative, that court wishes to know in what circumstances an act is to be classified as an act of persecution.
51      In order to answer that question, it must be recalled that Article 9 of the Directive defines the elements which support the finding that acts constitute persecution within the meaning of Article 1(A) of the Geneva Convention. In that regard, Article 9(1)(a) of the Directive, to which the national court refers, states that the relevant acts must be ‘sufficiently serious’ by their nature or repetition as to constitute a ‘severe violation of basic human rights’, in particular the unconditional rights from which there can be no derogation, in accordance with Article 15(2) of the ECHR.
52      Moreover, Article 9(1)(b) of the Directive states that an accumulation of various measures, including violations of human rights, which is ‘sufficiently severe’ as to affect an individual in a manner similar to that referred to in Article 9(1)(a) of the Directive, must also be regarded as amounting to persecution.
53      It is clear from those provisions that, for a violation of fundamental rights to constitute persecution within the meaning of Article 1(A) of the Geneva Convention, it must be sufficiently serious. Therefore, not all violations of fundamental rights suffered by a homosexual asylum seeker will necessarily reach that level of seriousness.
54      In that connection, it must be stated at the outset that the fundamental rights specifically linked to the sexual orientation concerned in each of the cases in the main proceedings, such as the right to respect for private and family life, which is protected by Article 8 of the ECHR, to which Article 7 of the Charter corresponds, read together, where necessary, with Article 14 ECHR, on which Article 21(1) of the Charter is based, is not among the fundamental human rights from which no derogation is possible.
55      In those circumstances, the mere existence of legislation criminalising homosexual acts cannot be regarded as an act affecting the applicant in a manner so significant that it reaches the level of seriousness necessary for a finding that it constitutes persecution within the meaning of Article 9(1) of the Directive.
56      However, the term of imprisonment which accompanies a legislative provision which, like those at issue in the main proceedings, punishes homosexual acts is capable, in itself of constituting an act of persecution within the meaning of Article 9(1) of the Directive, provided that it is actually applied in the country of origin which adopted such legislation.
57      Such a sanction infringes Article 8 ECHR, to which Article 7 of the Charter corresponds, and constitutes punishment which is disproportionate or discriminatory within the meaning of Article 9(2)(c) of the Directive.
58      In those circumstances, where an applicant for asylum relies, as in each of the cases in the main proceedings, on the existence in his country of origin on legislation criminalising homosexual acts, it is for the national authorities to undertake, in the course of their assessments of the facts and circumstances under Article 4 of the Directive, an examination of all the relevant facts concerning that country of origin, including its laws and regulations and the manner in which they are applied, as provided for in Article 4(3)(a) of the Directive.
59      In undertaking that assessment it is, in particular, for those authorities to determine whether, in the applicant’s country of origin, the term of imprisonment provided for by such legislation is applied in practice.
60      It is in the light of that information that the national authorities must decide whether it must be held that in fact the applicant has a well-founded fear of being persecuted on return to his country of origin within the meaning of Article 2(c) of the Directive, read together with Article 9(3) thereof.
61      Having regard to all of those considerations, the answer to the third question is that, in each of the cases in the main proceedings, Article 9(1) of the Directive, read together with Article 9(2)(c) thereof, must be interpreted as meaning that the criminalisation of homosexual acts alone does not, in itself, constitute persecution. However, a term of imprisonment which sanctions homosexual acts and which is actually applied in the country of origin which adopted such legislation must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution.
 The second question
 Preliminary observations
62      By its second question, referred in each of the cases in the main proceedings, the referring court asks essentially whether, if a homosexual applicant were to be regarded as being a member of a particular social group for the purposes of Article 10(1)(d) of the Directive, a distinction must be made between homosexual acts which fall within the scope of the directive and those which do not and therefore cannot lead to the grant of refugee status.
63      In order to answer that question, that the referring court has divided into several parts, it must be observed that it refers to a situation in which, as in the cases in the main proceedings, the applicant has not shown that he has already been persecuted or has already been subject to direct threats of persecution on account of his membership of a particular social group whose members share the same sexual orientation.
64      The lack of such a serious indication of a well-founded fear on the part of the applicants, within the meaning of Article 4(4) of the Directive, explains the referring court’s need to know to what extent it may be open to it, where an applicant cannot base his fear on persecution already suffered on account of his membership of that group, to require that, on return to his country of origin, he should continue to avoid the risk of persecution by concealing his homosexuality or, at the very least, that he should exercise restraint in expressing his sexual orientation.
 The second question, parts (a) and (b)
65      By its second question, parts (a) and (b), referred in each of the cases in the main proceedings, which it is appropriate to examine together, the referring court asks essentially whether Article 10(1)(d) of the Directive, read together with Article 2(c) thereof, must be interpreted as meaning that it is unreasonable to expect that, in order to avoid persecution, an asylum seeker must conceal his homosexuality in his country of origin or exercise restraint in expressing it. Furthermore, that court wishes to know, where appropriate, whether such reserve must be greater than that of a heterosexual person.
66      In that connection, it must be stated that, under Article 10(1)(d) of the Directive, sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States.
67      Apart from those acts considered to be criminal in accordance with the national law of the Member States, nothing in the wording of Article 10(1)(d) suggests that the European Union legislature intended to exclude certain other types of acts or expression linked to sexual orientation from the scope of that provision.
68      Thus, Article 10(1)(d) of the Directive does not lay down limits on the attitude that the members of a particular social group may adopt with respect to their identity or to behaviour which may or may not fall within the definition of sexual orientation for the purposes of that provision.
69      The very fact that Article 10(1)(b) of the Directive expressly states that the concept of religion also covers participation in formal worship in public or in private does not allow the conclusion that the concept of sexual orientation, to which Article 10(1)(d) of that Directive refers, must only apply to acts in the private life of the person concerned and not to acts in his public life.
70      In that connection, it is important to state that requiring members of a social group sharing the same sexual orientation to conceal that orientation is incompatible with the recognition of a characteristic so fundamental to a person’s identity that the persons concerned cannot be required to renounce it.
71      Therefore, an applicant for asylum cannot be expected to conceal his homosexuality in his country of origin in order to avoid persecution.
72      As regards the restraint that a person should exercise, in the system provided for by the Directive, when assessing whether an applicant has a well-founded fear of being persecuted, the competent authorities are required to ascertain whether or not the circumstances established constitute such a threat that the person concerned may reasonably fear, in the light of his individual situation, that he will in fact be subject to acts of persecution (see, to that effect, Y and Z, paragraph 76).
73      That assessment of the extent of the risk, which must, in all cases, be carried out with vigilance and care (Joined Cases C-175/08, C-176/08, C-178/08 and C‑179/08 Salahadin Abdulla and Others [2010] ECR I-1493, paragraph 90), will be based solely on a specific evaluation of the facts and circumstances, in accordance with the rules laid down in particular by Article 4 of the Directive (Y and Z, paragraph 77).
74      None of those rules states that, in assessing the extent of the risk of actual acts of persecution in a particular situation, it is necessary to take account of the possibility open to the applicant of avoiding the risk of persecution by abstaining from the religious practice in question and, consequently, renouncing the protection which the Directive is intended to afford the applicant by conferring refugee status (see, by analogy, Y and Z, paragraph 78).
75      It follows that the person concerned must be granted refugee status, in accordance with Article 13 of the Directive, where it is established that on return to his country of origin his homosexuality would expose him to a genuine risk of persecution within the meaning of Article 9(1) thereof. The fact that he could avoid the risk by exercising greater restraint than a heterosexual in expressing his sexual orientation is not to be taken into account in that respect.
76      In the light of those considerations, the answer to parts (a) and (b) of the second question, referred in each of the three cases in the main proceedings, is that Article 10(1)(d) of the Directive, read together with Article 2(c) thereof, must be interpreted as meaning that only homosexual acts which are criminal in accordance with the national law of the Member States are excluded from its scope. When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation.
 The second question, part (c)
77      Having regard to the reply given to the first question, parts (a) and (b), there is therefore no need to reply to part (c) of the second question.
78      Nevertheless, it must be recalled that, for the purpose of determining, specifically, which acts may be regarded as constituting persecution within the meaning of Article 9(1) of the Directive, it is unnecessary to distinguish acts that interfere with the core areas of the expression of sexual orientation, even assuming it were possible to identify them, from acts which do not affect those purported core areas (see, by analogy, Y and Z, paragraph 62).
 Costs
79      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Fourth Chamber) hereby rules:
1.      Article 10(1)(d) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or Stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted must be interpreted as meaning that the existence of criminal laws, such as those at issue in each of the cases in the main proceedings, which specifically target homosexuals, supports the finding that those persons must be regarded as forming a particular social group.
2.      Article 9(1) of Directive 2004/83, read together with Article 9(2)(c) thereof, must be interpreted as meaning that the criminalisation of homosexual acts per se does not constitute an act of persecution. However, a term of imprisonment which sanctions homosexual acts and which is actually applied in the country of origin which adopted such legislation must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution.
3.      Article 10(1)(d) of Directive 2004/83, read together with Article 2(c) thereof, must be interpreted as meaning that only homosexual acts which are criminal in accordance with the national law of the Member States are excluded from its scope. When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation.

= = = end of the full text of the ECJ ruling = = = 

While this is an enormous progress for the protection of human rights, it still leaves a large group of homosexuals unprotected: those who live in countries where they do not face direct criminal persecution, but where the government either does not protect them from discrimination, harassment and physical violence, or where the government even actively advocates such measures. Russia comes to mind. Even some EU countries display aspects of such an approach, but at least their citizens don’t need to revert to asylum law in order to move to another EU country.

Lastly, I hope that this will increase the motivation of EU governments to exercise more pressure on those states in Africa and Asia with whom we are doing business or who benefit from our development aid, while their prisons are full of people who have done nothing wrong except that they fell in love with someone.

(If you have any questions on asylum or immigration law or the status of gay rights in Germany, please feel free to contact me. Diesen Artikel gibt es auch auf Deutsch.)

Posted in Europe, Family Law, Human Rights, Immigration Law, Law, Politics | Tagged , , , | 12 Comments

Don’t buy Twitter shares!

A few friends of mine in California calling themselves “Twitter“ asked me if I want to buy 70 million of their shares at 26 $ a pop. I did a quick calculation and noticed that I don’t have enough money. Because of this, they are now having a yard sale which they call “IPO” for some inexplicable reason.

It may not be nice of me to tell you this behind my friends’ back, but I warn you: Don’t buy Twitter shares! They are a bad investment.

  1. Twitter doesn’t produce or sell anything that people need. Who needs a website or service where friends tell me how hungover they are, newspapers write what I already read in the morning paper and people try to show off photos of their ugly babies? Nobody needs that.
  2. “But,” I hear you say “Twitter has 200 million daily users. That shows how popular they are.” Sure. But these users don’t pay anything. It’s like these free newspapers you get in the Metro or like porn websites: you use them because they are for free, but you would never pay for them.
  3. Also, this number of users should be taken with a large barrel of salt. After refusing to get a Twitter for a long time, I finally signed up and I am now on Twitter myself. But that doesn’t mean that I use it every day or that I take it seriously. If I had to drop one of the social media services I am using, Twitter would be the first to go. It is the least useful one and it’s main purpose is killing time while on the phone with my Mom. That’s hardly a business model worth billions of dollars.
  4. What is more: Twitter will never be able to charge its users. Unlike quality publications like the New York Times or this blog who can switch from a free provision of services to a paywall model, nobody will pay for Twitter because it’s not unique. If Twitter started charging users, most of them would leave right away. And I bet that within a week, somebody else will have set up a site where you can upload short messages for others to read. It’s not a hard thing to copy really.
  5. The only way Twitter actually earns revenue is advertising (unless they also sell your personal data like other social media companies), but I doubt this business model will work. Online ads work well for Google because I use a search engine to search for stuff. If I look for dentists, it makes sense if some ads for local dentists appear. But Twitter is not used for searches, and thus advertising will not be considered as useful.
  6. The reliance on advertising revenue also means that the only way to increase revenue is to put up more ads. Doing this would annoy users and drive them away.
  7. Online hypes come fast, but they also die fast. I remember when a few years ago everybody was hyped up about “Second Life”. I never got around to having a look at it, and by now I think it is dead.
  8. Ask Rupert Murdoch about his investment in MySpace or the people who bought shares in GroupOn.
  9. Last month, Twitter announced its most recent financial data: in the 3rd quarter it had doubled its revenues (to 168 million $). In the same time, it managed to triple its losses to 64 million $. – Seriously, if I came to you asking for money for a business whose losses were rising faster than the revenues and which had never made a profit, you’d think I was insane. But if you invested money in such a business, you’d be insane too.

twitter-bird-deadHaving said that, if you manage to get some shares in the IPO, you may be able to make a quick buck: on 4 October 2013, shares of Tweeter, a retail chain which had gone bankrupt in 2007 but whose shares were still being traded at rock-bottom prices, shot up by 1,500% in the aftermath of Twitter’s IPO announcement. Apparently, investors had confused the two companies and hadn’t realized that Twitter had not yet gone public and that it would probably not go public with penny stocks. So much for the rationality of the markets.

Posted in Economics, Technology | Tagged , , , , | 9 Comments

Arafat poisoned with Polonium

The news that Yasser Arafat was poisoned with polonium should not come as a surprise for those who know what his favourite restaurant was.

Polonium RestaurantWell, Polish cuisine is not for everyone.

Posted in Food, Israel, Poland, Politics | Tagged , , , | 4 Comments

Inside Al-Qaeda

“Here you are, Emir: the drink that you requested. Cold.” Ahmed smiled as he offered the canned beverage to the older and bearded man sitting on the floor among some pillows and books. His smile could easily have been mistaken for one of politeness, of servility or even of happiness, but in reality it was what remained of a humorous smile which he had only half-managed to suppress. Humour, for Ahmed had – all the way back from the main bazaar in Mianwali – toyed with the idea of returning to his master and presenting the desired beverage with the words “a can of Dr Pepper for Dr Zawahiri”. He had of course decided against it, not only because he was chronically unsure if his sense of humour would be shared by his peers, but also because he knew that he was already very different from the men with whom he shared the house in a small alley off Ballo Khel Road. And his very life depended on hiding these differences.

Oddly enough, his lighter skin and his grey-blue eyes were not the problem. Nor was his hair, the colour of which was described as light brown in his home country and as blonde in the country of his current residence. It was true that Ahmed (which was not his real name anyway) did not look like the Afghans, the Saudis, the Pakistanis and the Somalis whom he was living with, but at least his language skills were no problem. For at least 10 years, Western intelligence agencies had argued that they couldn’t get good (human) intelligence on Al-Qaeda or other Islamist terrorist groups because they had no access to native speakers who could penetrate one of these terrorist cells in the Middle/Far East. When Ahmed had reached Pakistan, by way of Macedonia, Turkey and Iran, he was surprised how many fellow young men he found, whose Arabic or Urdu was even more rudimentary than his. But then, they admittedly hadn’t received a 6-month crash course in Surrey by a very attractive language teacher from Palestine, who had not only introduced Ahmed to Arabic morphology, but who also gave him something to dream about and to long for in these lonely nights during which his colleagues dreamt of God, paradise, 72 virgins or maybe a different language teacher or – as Ahmed suspected about some of them – of each other. In fact, there were so many guys from Europe travelling eastward on a similar mission that Ahmed had feared that he would bump into somebody with whom he had once been to university in England or in Germany.

Besides Dr Zawahiri, there were five men living in the house. Many journalists and some American politicians liked to refer to their dwelling – without knowing even its approximate whereabouts – as “some cave in the mountains between Afghanistan and Pakistan”, but they actually lived rather comfortably. After the Asr prayer, they had dispatched Ahmed, who was the youngest recruit, to the bazaar to get some chaat and pakoras as well as gulab jamun for dessert. Ahmed was angry that Khalid had only given him 2,000 rupees for his trip to the bazaar, because these limited resources meant that he couldn’t get another drink for himself. He was so tired of chai and longed for something fizzy gurgling down his dry throat. It also meant that he couldn’t be generous towards the shopkeepers – or rather the shopkeepers’ children because the shopkeepers themselves would still be enjoying their afternoon nap at this time of day -, which Ahmed found to be a shame because he knew that the people whom he lived with had more money than they could reasonably spend, while most of those working in the bazaar were struggling to make ends meet. Ahmed believed in redistribution of wealth, although cynics might have pointed out that it is easy to hold such a belief if one doesn’t have anything to redistribute oneself.

Returning to the house 42 minutes later with several bags that emitted an assortment of different smells, each of which alone might have smelt delicious, but which taken together were more attractive to flies than to humans, Ahmed noticed that everyone seemed to be in good mood. Had he missed somebody’s birthday? It was 4 August. No, the reason for this rarely seen festive mood seemed to emanate from the MacBook on the floor, around which the men had hunkered down and on which they were watching the live stream of Al Jazeera.

“Look what we did! We brought the American pigs to their knees,” said, no, shouted, Karim, ever the one to speak like a terrorist in a cartoon by Hergé. “The infidels are trembling with fear.” Ahmed knew that if it weren’t for the Emir’s presence, Karim would have used a much more expletive term in his last sentence. Al-Jazeera was reporting that the US had closed 21 of their embassies in the Middle East and in Africa. More embassies might get closed soon. Some US personnel were leaving their host countries.us-embassies-will-stay-closed-all-week Britain, France and Germany dutifully closed some of their embassies too. The US State Department had also issued a worldwide travel alert, which some of the men in the room, having only a vague idea of the relationship between governments and their citizens, interpreted as a ban on US citizens to leave their country. US politicians were speaking of the largest terror threat since 2001, scaring their constituents and at the same time exciting the men in Mianwali and thousands like them around the world.

Apparently, the CIA, the NSA, MI6 or some other abbreviation had intercepted phone calls between Dr Zawahiri and Nasser al-Wuhayshi, the leader of AQAP. A few weeks ago, the two of them had been discussing plans for a new campaign, as they liked to call it. They had discussed plots including planes, but had dismissed that idea because it would look like an attempt to copy 9/11; an attempt that was likely to fail because security restrictions at airports were now so tight that most innocent passengers were treated like terror suspects.

They had also discussed striking at embassies, preferably those of the US and the UK and maybe France for its involvement in Mali. They hated Israel more, but she didn’t have many embassies in the region. “How about Germany? They have been on the Americans’ side in Afghanistan,” asked Wuhayshi. “And they allow a woman to be President,” he added with disgust, confusing the posts of the German head of state with the head of government, as so many people do. “They do deserve to die like all the other infidels and invaders,” Zawahiri had replied, “but I fear that even if their ambassador got killed, they couldn’t be drawn into the response that we want. They are as timid as a camel’s ass at the North Pole. We would be wasting our resources.” By “resources”, Zawahiri meant the young men in his house. The plan to attack US embassies was not dropped, because they knew it had to elicit a strong response after the criticism that President Obama had been subjected to after the attack on the US Consulate in Benghazi in 2012, but they wanted to find something more creative, something which was not a re-run of Kenya and Tanzania.

The two leading figures of Al-Qaeda had discussed several other ideas: Attacking mass transport infrastructure (nothing new and no long-term economic damage). Blowing up a stock exchange (surely there were backups of the computer system somewhere, which would be activated soon after the attack). Targeting the Football World Cup (they had no people in Brazil and also they feared a backlash or at least a loss in support from the Muslim population who was by and large as fanatical about football as the regulars at a pub in Leeds; they had to keep an eye on the Muslim world and often felt they were fighting against the millions of softened, Westernized Muslims just as much as against the infidels).

With this last thought in mind, Zawahiri had said, with an authority in his voice which signalled that this would not be subject to discussion: “No, we need to strike at something which the whole Ummah will recognize as a legitimate target. Some campaign that Muslims from Morocco to Jakarta will rejoice about.” He was of course not really driven by the fear of public opinion, because Al-Qaeda was after all no democratic organization, nor did it strive to become one. No, these thoughts of the man who had taken over from Osama bin Laden were motivated by a desire to be accepted as an equal to that spoilt brat from Riyadh, on whom he secretly looked down for his lack of theological training and his personal lifestyle, which for a long time had been that of a playboy instead of a mujahid. Also, Al-Qaeda had to reposition itself as the global leader in jihad. Too many other groups had sprung up in recent years and were vying for a piece of the pie in donations, recruits and attention: al-Shabab, Boko Haram, IJU, Ansar al-Sharia, the Brotherhood of the Two Mosques. And the military junta in Egypt might yet turn the Muslim Brotherhood into a much more radicalized underground organisation.

Thus, the brainstorming between the two Al-Qaeda big-shots had continued, mentioning ideas from attacking US warships (maybe a suicide mission disguised as pirates who would pretend to get caught or disguised as fisherman pretending to be in distress after narrowly having survived a staged pirate attack) to attacking the US military in Djibouti (maybe through food poisoning at McDonalds) to blowing up a cruise ship in the Red Sea (would it be enough to cause a tsunami to destroy Eilat?) to a new type of explosives which would be woven into fabric, making it harder to be detected.

“These ideas are getting sillier and sillier,” thought Ahmed who had overheard fragments of one side of the phone conversation when he had come into the room to serve tea and fruits, purposefully leaving the door to the corridor open as he left the room. He had wondered how much of this bullshit he should mention in his next report, because not only were these ideas ludicrous, but from the tone of Dr Zawahiri’s voice and his almost childlike joy in coming up with ever crazier ideas, Ahmed had realized that at least Zawahiri himself knew they were ludicrous. This was not the serious planning of terrorists, this was the pastime of old men who wanted to feel young again.

Ahmed was a quick thinker, something which he needed to hide if he wanted to avoid arousing suspicion. But he was after all also a civil servant and as such, he was required to report anything which he saw or heard. Providing facts, names, dates, numbers was his task. The analysis would be done by others, probably by people who enjoyed a 90-minute lunch break every day and left work early on Fridays. But, knowing that these stiff-assed bureaucrats were also his lifeline to the people who could – or would at least try to – get him out if things turned sour, he had decided to include everything in his report what he had overheard when he would have the next chance to drop off his handwritten summary at the Muhammad Feroz Shah Library, where he went every two weeks under the pretext of taking out books on loan. Leaving three A5 pages with narrow handwriting on both sides in a handbook on bridge and dam engineering for someone else to pick them up was of course very old-school. Not having lived through the Cold War himself, Ahmed thought that this is how his predecessors must have operated during the old days. But his employer had deemed it too risky to equip him with any electronic gadget, save for the tracking device implanted in one of Ahmed’s teeth. Thus headquarters could always see where he was, but not how he was. Apart from the absence of movement which usually goes hand in hand with such a change in one’s state, this little tooth implant would not even inform his superiors if he were to die.

His bearded housemates were still following the news on Al-Jazeera, even though it was the same images which were played over and over again: embassies, cars leaving embassies, the US State Department and outdated photos of Al-Qaeda leaders, among them the man in their midst as he had looked many years ago. “Those fucking sons of bitches derailed our plans before we even got started,” Mahsood foamed. “Did they?” Zawahiri asked, trying to look as mysterious as a Sphinx. “Think of it, my fellow mujahideen: we managed to push the USA to their knees. They closed their embassies, their diplomats are scared to death, their citizens can no longer besmirch our Holy Lands. And we did all of this from the comfort of our home. It didn’t cost us anything.” He paused, having realized that this last point could actually be used as an argument against suicide missions in the future. Zawahiri was not at all prepared to give up this option of using young men, who were willing to sacrifice themselves for his purpose. Hence he quickly added: “And we will of course still continue with our plans. Nothing can stop us!” The four other men in the room knew what was expected of them after such a statement. “Allahu akbar,” they shouted in unison. “Terrorism for couch potatoes,” Ahmed thought, wise enough to keep the remark to himself, but secretly wondering what had been made of the report he had filed a week earlier.

“Ahmed, it’s time to enjoy some of the food you brought,” Zawahiri ordered before Ahmed could even sit down among the men. The harshness of the command did not fit the mood in the room, and Ahmed noticed Karim glancing at him uneasily, perhaps perturbed by how Ahmed got pushed around.

Back in the kitchen, Ahmed removed the foil in which the food had been kept warm and protected against the flies, distributed it evenly on six plates (for he was an egalitarian), and when taking the spoons from the drawer with cutlery, he was so much looking forward to a good meal (“finally something different than meat and rice”) that he almost overlooked that the large knives and the meat cleaver were missing from the drawer.

The time it took him to process that observation was longer than the time it took his brain to inform his stomach. All his appetite was immediately gone. He thought of taking one of the butter knives to keep it on him, but he knew it would be pointless. By tomorrow morning this whole terror scare would indeed have cost the life of someone. Worse than realizing this was the realization that he had not been – contrary to what he had always believed – the smartest guy in the house. He had been outwitted and turned into an unknowing tool in this latest form of terrorism. “Al-Qaeda 2.0,” Ahmed thought, as an inkling of a smile rushed across his face for one last time.

Posted in Islam, Terrorism | Tagged , , , , | 10 Comments

How fucked up is US immigration policy?

Dear United States of America, you know your immigration policy is fucked up when some start-up entrepreneurs are so fed up with your strict visa requirements for people who wish to work, invest, start companies and create jobs, that they propose leasing a ship and mooring it outside of your territorial waters.

This is what is happening with Blueseed, a project to put a start-up office-park on a ship outside of American territorial waters off the Californian coast. They chose the location because of its proximity to Silicon Valley.

Blueseed-map-with-ship-buoys-and-distanceWhile I am generally very sympathetic towards schemes that circumvent immigration law, I am not convinced by this particular project.

  • Blueseed caters towards non-Americans who cannot obtain a work visa for the US, but wants to moor close to Silicon Valley to allow regular trips. Well, if you don’t get a work visa, you may get a tourist visa (still a big if, depending on your nationality), but then if you use that to go the US mainland for a visit, you are not allowed to do any work during that time.
  • One of the main problems with US immigration since 2001 is that even people who have a visa or who don’t need one because their country falls under the visa waiver program, still get denied entry once they reach a US airport or seaport. Sometimes it’s arbitrary, sometimes it’s because some terror suspect has a similar name to yours, sometimes it’s because the NSA found something suspicious in your e-mails or your Skype chats. – If you recognize that US immigration is a problem, why put up a ship close to Silicon Valley where you will again depend on US immigration for every visit ashore?
  • For those who only want to use the ship without visits to the US, there are much cheaper and better options. Many countries try to attract start-up businesses and are extremely helpful with immigration. Estonia, Chile or Bulgaria may not sound as cool as Silicon Valley, but you’ll have far lower expenses and you might even be treated as an entrepreneur, not as a potential terrorist.
  • If you insist on staying somewhere from where you can easily try to travel to California, why not set up shop in Mexico?
  • Blueseed states that it wishes to position the vessel outside of the territorial zone of 12 nautical miles, putting it in the “contiguous zone” according to the UN Convention of the Law of the Sea (UNCLOS), but fails to mention (1) that the US has neither signed, nor ratified this UN Convention, and (2) that according to Art. 33 I a of UNCLOS, Part II, “the coastal state may exercise the control necessary to prevent infringement of its […] immigration […] laws”.

Overall, the only useful thing I see in this venture is that it points out how ludicrous and harmful US immigration policy is.

Posted in Economics, Immigration Law, Law, Travel, USA | Tagged , , | 7 Comments

Three Kinds of Service

I have always been telling this to my clients. I am happy it has finally been made into a nice graphic.

Offer Services

Posted in Law | Tagged , , , , | 5 Comments

How different countries catch their “most wanted”

How different countries go about finding their “most wanted” tells a lot about the respective country.

USA:

The US invades the country where the culprit is located, sometimes invading another country in the process. It locks up hundreds of people, regardless of whether they actually have anything to do with the person they are after. It reads all your e-mails and spies on every country in the world. Thousands of people are killed in the process, which takes at least a decade and costs a trillion dollars. During that time, US citizens are advised not to travel anywhere. In the end, Osama bin Laden is found, possibly after giving himself up, and killed in a daring and admirable raid.

Oddly enough, after this success, the US continues to keep the hundreds in Guantanamo locked up and it continues to read your e-mails. With no end in sight.

Belgium:

Belgian police arrested two Somali pirates which it sought for masterminding the hijacking of a Belgian ship in 2009. How did they get them? The Belgian officers posed as a film crew and over several months gained the trust of the pirates, until they lured the pirates to Brussels, where the contract for the documentary film was allegedly to be signed.

Smart and creative, and even though the planned documentary on the pirates may have fallen through, this story is worthy of a film itself. A bit like Argo.

Germany:

Germany uses a completely different approach, especially when it concerns Nazi criminals like Adolf Eichmann or Aribert Heim.

It pretends that it doesn’t know where they are. If pressure to arrest them mounts, the suspects always receive a tip off in due time and manage to escape to South America or to an Arab country. Then Germany will again pretend for several decades that they don’t know where the fugitives are, until they die of old age. Curiously, German intelligence files will then often reveal that the German government knew exactly where these mass murderers were.

Posted in Belgium, Germany, History, Holocaust, Law, Terrorism, USA | Tagged , , , | 9 Comments