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Home Archive for category "Human Rights"

The European Convention on Human Rights in Non-International Armed Conflict – Revisiting Serdar Mohammed

Published on August 22, 2016        Author: 

The UK Government’s re-commitment in May to replacing the Human Rights Act (HRA) immediately followed the Supreme Court’s further hearings on one of the more controversial cases under the Act – the Serdar Mohammed claim against the Ministry of Defence (on which additional hearings are expected later this year). The claimant, who on the assumed facts was a Taliban commander detained by the UK military in Afghanistan for 110 days in 2010, alleges a breach of his right to liberty under the European Convention on Human Rights (ECHR).

As readers will recall, the lower courts upheld this claim, prompting controversy in the press and in academia. Preventative detention (or “internment”) of the enemy is widely regarded as an essential incident of armed conflict. The suggestion that the ECHR prohibited the UK from detaining a Taliban commander to prevent his engagement in hostilities against British forces raised obvious concerns about the application of the ECHR in armed conflict, also fuelling further criticism of the HRA.

Since international humanitarian law (IHL) norms designed for the context of hostilities do not prohibit internment in non-international armed conflicts (NIACs) like the Afghan conflict in 2010, much of the legal debate focused on the content of these norms and their relationship with the ECHR. The High Court decision, declining to use IHL to override the ECHR, was criticised as “an outright rejection of the applicability of IHL to the question of who may be detained for what reasons and following which procedure” in NIACs.

Rather than rehearsing the extensive debates (see a small sample here and here) over whether IHL norms authorise detention in NIACs, this post challenges an assumption about the interpretation of the ECHR which underlies the arguments raised by both parties to the claim. Its focus is on a specific provision of the ECHR and its application to situations like that in which the claimant was detained – state participation in NIACs outside their own territory (extra-territorial NIACs).

The result is an alternative approach, based on a context-sensitive interpretation of the ECHR complemented by IHL, which helps address the concern that the ECHR and HRA are inherently unsuited to conditions of armed conflict. Read the rest of this entry…

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Turkey’s Derogation from Human Rights Treaties – An Update

Published on August 18, 2016        Author: 

In an earlier post of 27 July I provided a first assessment of Turkey’s declared derogation from the European Convention on Human Rights (ECHR) and an assessment what kind of measures could be expected, as derogations both from the ECHR and the International Covenant on Civil and Political Rights (ICCPR). This new post provides an update, partly in response to commentators.

On 11 August, the United Nations published Turkey’s notification notification of derogations from the ICCPR. According to its text, the actual measure was ‘effected’ more than a week earlier, on 2 August. Turkey’s notification, dated on 21 July, refers to the 90-day state of emergency that had been declared on 20 July under domestic law. The most interesting element in Turkey’s ICCPR notification is that it provides a list of articles from which Turkey ‘may’ derogate:

The decision was published in the Official Gazette and approved by the Turkish Grand National Assembly on 21 July 2016. In this process, measures taken may involve derogation from obligations under the International Covenant on Civil and Political Rights regarding Articles 2/3, 9, 10, 12, 13, 14, 17, 19, 21, 22, 25, 26 and 27, as permissible in Article 4 of the said Covenant.

Again Turkey follows the recent example of France in specifying the articles under the ICCPR but not under the ECHR, and by not being explicit what the actual derogations are, instead only stating that derogations from the ICCPR ‘may’ result from measures taken pursuant to the state of emergency.

Read the rest of this entry…

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Justice for Syria? Opportunities and Limitations of Universal Jurisdiction Trials in Germany

Published on August 12, 2016        Author: 

During the ongoing conflict in Syria, horrific international crimes are being committed on a daily basis. With impunity for these crimes prevailing on an international level, the attention of Syrian and international actors is turning towards trials under the principle of universal jurisdiction in national courts. This blog post provides a systematic overview of current trials and investigations in Germany relating to Syria and discusses the possibilities and limitations of such trials.

Impunity Prevailing on International Level

Many of the grave human rights violations in Syria are well documented by international bodies, international NGOs such as Amnesty International and Human Rights Watch (which rely on evidence from Syrian activists who are documenting these kind of crimes under great personal risk), and national organizations such as the Syrian Network for Human Rights, the Syrian Observatory for Human Rights and the Violations Documentations Centre.

However, geopolitical concerns impede effective and timely prosecution of human rights violations and international crimes: The hands of the International Criminal Court (ICC) appear to be tied and a double Security Council Veto by the permanent members, Russia and China, blocked a resolution to refer the situation to the Court. Despite the draft of a Statute as early as 2013, the call for the establishment of a hybrid tribunal by the UN Commission of Inquiry and academic support for this approach as the next best alternative (Van Schaack, Just Security; Sayapin, EJIL Talk), no tangible mechanism has resulted thus far. It follows that the only remaining and realistic avenue to seek justice for international crimes perpetrated in Syria is for other countries to prosecute these crimes by way of universal jurisdiction. Read the rest of this entry…

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Strasbourg Censures Georgia over Detention of Former Prime Minister – the impact of an Article 18 violation

Published on August 2, 2016        Author: 

In December 2013, former Georgian Prime Minister Vano Merabishvili was hauled out of his Tbilisi prison cell in the middle of the night, and, with his head covered, was driven to an unknown destination. On arrival, he found himself before the Chief Public Prosecutor and the head of the Georgian prison service. Merabishvili was offered a ‘deal’, and was asked for information about the death of the former Prime Minister Zurab Zhvania in 2005, and to provide information about secret offshore bank accounts which they claimed were owned by the former President, Mikheil Saakashvili. Merabishvili turned down any deal, describing what he had been told as a conspiracy theory and nonsense. The Chief Prosecutor then told Merabishvili that his detention conditions would worsen if he did not agree to cooperate with the authorities. In his statement to the European Court, Merabishvili said that the ‘deal’ proposed also involved his release and guarantees to leave the country with his family.

Within three days of the incident, when Merabishvili next appeared at the city court in Tbilisi, he described what had happened to him. Immediately, the Prime Minister, Minister of Prisons and Chief Public Prosecutor all denied that the events happened at all and rejected out of hand calls for an investigation.

However, in a judgment published on 14th June the European Court of Human Rights described Merabishvili’s account as ‘particularly credible and convincing’ Read the rest of this entry…

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Headscarves and the Court of Justice of the European Union: Two Opposing Opinions

Published on August 1, 2016        Author: 

The Court of Justice of the European Union (CJEU) has to decide on two cases on the wearing of Islamic headscarves at work. Both concern headscarves, which cover the hair and neck, but which leave the face free. The cases were heard together on the 15 March 2016 and the Advocate General’s (AG’s) opinions have been issued, so now it is up to the CJEU to decide. But this is not made easier because the two opinions (one by AG Kokott and the other by AG Sharpston) seem to contradict each other in a number of ways. This post will consider the difference in the interpretation of ‘genuine and determining occupational requirements’. Both cases concern discrimination on the grounds of religion or belief contrary to Directive 78/2000/EC. Article 4(1) of this Directive determines that:

Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.

This article thus creates an exception to the prohibition of discrimination in situations where having a protected characteristic is a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. For example, a Catholic school can require a teacher of religious studies to be Catholic.

The first case (Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v. G4S Secure Solutions NV), referred by the Court of Cassation in Belgium, concerns a Muslim woman, who worked for G4S as a receptionist and who was permanently contracted out to a third party. She informed G4S that she wanted to start wearing an Islamic headscarf and was told that this was against the employer’s strict neutrality rule in the workplace. When she refused to take off her headscarf at work, she was dismissed. Read the rest of this entry…

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Turkey’s Derogation from the ECHR – What to Expect?

Published on July 27, 2016        Author: 

In the aftermath of the failed 15 July coup, Turkey’s government declared a state of emergency and subsequently on 21 July notified the Council of Europe that it “may” derogate from the European Convention on Human Rights (ECHR).  So far there is no information of a possible notification to the United Nations concerning derogations from the International Covenant on Civil and Political Rights (ICCPR).

Turkey’s ECHR formal notification was preceded by widely reported expectations, fuelled also by a Council of Europe press release, that it was going to “suspend” the ECHR (presumably as a whole) and, interestingly, followed by a 25 July communication to the Council of Europe (see below) that appears to downplay the severity of the derogations.

Derogations from some but not all human rights are permissible under ECHR Article 15 and, similarly, under ICCPR Article 4 when a state is faced with a public emergency that threatens the life of the nation and officially proclaims a state of emergency. A failed military coup would prima facie qualify as serious enough a situation that can be addressed through declaring a state of emergency in the process of restoring normalcy.

Basing myself on the assumption that Turkey’s decision to derogate from some of the ECHR rights as such is to be assessed as permissible, I will below address the constraints that a country is facing under human rights law when lawfully derogating. Read the rest of this entry…

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Beyond the Mantra, Towards the Granular: The Special Rapporteur on Freedom of Expression’s Report on the Private Sector in the Digital Age

Published on July 5, 2016        Author: 

I. Introduction

“To what extent should the private sector be responsible for the promotion and protection of freedom of opinion and expression?” This is the question at the heart of the latest report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Professor David Kaye (“Special Rapporteur”), which he presented at the 32nd session of the Human Rights Council, which ended last week. The current report does not purport to offer comprehensive answers, but instead maps out the myriad of ways in which the private sector impacts upon freedom of expression in the digital age, the “regulatory ecosystem on the Internet”, and the legal and policy issues that deserve particular attention. Surprisingly, UN human rights bodies only began really grappling with the challenges of the Internet five years ago. In this period, there have been reports of the Special Rapporteur and his predecessor on encryption and anonymity tools, mass surveillance, and the Internet as well as a series of Human Rights Council and General Assembly resolutions on human rights on the Internet and the right to privacy in the digital age. Such texts have made the statement that “the same rights that people have offline must also be protected online, in particular freedom of expression” into a mantra. Against this backdrop, the current report is pioneering for several reasons.

II. Breaking new ground

First and foremost, the report is comprehensive in its mapping of the digital environment and related freedom of expression challenges. As the delegation of the Netherlands recognised, it is the “first full overview of all private actors in ICT whose actions impact freedom of expression and opinion”. The report disaggregates the “vast” and “overlapping” range of roles played by private sector actors in “organising, accessing, populating and regulating the Internet” and distinguishes certain pressing legal and policy issues, concerning content regulation, surveillance and digital security, transparency and remedies. In doing so, it identifies the array of private actors including telecommunications and Internet service providers, web hosting services, hardware firms, search engines and social media platforms, media companies, companies producing surveillance technologies and multi-stakeholder processes. It also, importantly, draws on examples from many countries around the world, including Sweden, Russia, Uruguay, Brazil, China, India, South Africa, Tanzania, the UK and the US.   Read the rest of this entry…

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The New Arbitrariness and Competing Constitutionalisms: Remarks on ECtHR Grand Chamber Al-Dulimi

Published on June 30, 2016        Author: 

In a judgment published on 21 June 2016, the ECtHR Grand Chamber confirmed a violation of Art. 6(1) ECHR by Switzerland. The history of the case is summarized in my post on the chamber judgment of 26 November 2013. Al-Dulimi was considered by the relevant UN sanctions committee to be the former head of finance of the Iraqi secret service under Saddam Hussain (a fact which he apparently never denied), and he ran the firm Montana Management, registered under the laws of Panama. Al-Dulimi’s bank accounts in Switzerland had been frozen in 2004 by Switzerland pursuant to Resolution 1483 (2003). The main findings of the new Grand Chamber judgment are reported by Marko Milanovic in his post.

As Marko already pointed out, the reasoning of the Grand Chamber was carried only by a slim majority. The judgment followed the Chamber judgment in three points: First, it sought to harmonize the obligations of Member States under the UN Charter and under the ECHR, and thereby denied the conflict and evaded the question of legal consequences flowing from Art. 103 UN Charter. Second, the Grand Chamber found that although the Swiss authorities’ and courts’ refusal to review the complaint pursued the legitimate objective of maintaining international peace and security, the denial of any substantive review was disproportionate and therefore impaired “the very essence of the applicant’s right of access to a court“ (para. 151). Third, as the Chamber had done before, no just satisfaction was awarded to the applicant.

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Grand Chamber Judgment in Al-Dulimi v. Switzerland

Published on June 23, 2016        Author: 

This week the Grand Chamber of the European Court of Human Rights delivered a major judgment in Al-Dulimi and Montana Managment Inc. v. Switzerland, no. 5809/08. This is the latest in a long and complex line of cases dealing with the negative human rights impact of sanctions mandated by the UN Security Council, raising inter alia the legal effects of the supremacy clause in Article 103 of the UN Charter. For background, see these two earlier posts on the Al-Jedda and Nada cases, and Anne Peters’ excellent post on the Chamber judgment in Al-Dulimi.

By 15 votes to 2 (judges Ziemele and Nussberger dissenting), the Grand Chamber found a violation of Article 6(1) ECHR, because Swiss courts did not provide meaningful judicial review of the applicants’ listing by the Sanctions Committee of the Security Council. The size of the majority belies the amount of disagreement among the judges; of the 15 judges in the majority, 6 concurred in the result but not in the reasoning – in other words, the line of reasoning that the Court ultimately followed was in fact adopted by the barest of majorities, 9 votes to 8.

So what did the Court decide? It essentially pushed to its very limits the presumption it established in Al-Jedda, para. 102, ‘that the Security Council does not intend to impose any obligation on member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a United Nations Security Council resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law.

The Court held in Al-Dulimi that because the relevant SC resolutions did not exclude domestic judicial review expressis verbis, the resolutions, when properly interpreted, left the door open for such review, which was required by Article 6 of the Convention. However, that review would be relatively minimal, ensuring that the listing of the person in question was not arbitrary. In so doing, the Court avoided (yet again!) ruling on whether Article 103 of the Charter is capable of displacing the Convention in the first place, in case there is a genuine norm conflict. Here are the key paragraphs of the Court’s reasoning:

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UN Human Rights Committee Finds that Ireland’s Abortion Ban Violates the ICCPR

Published on June 13, 2016        Author: 

Last week the UN Human Rights Committee delivered an important decision in Mellet v. Ireland, finding that, as applied to the claimant, the Irish ban on abortion violated several articles of the ICCPR. This was because the ban extended even to pregnancies, like the claimant’s, where the foetus was diagnosed with a fatal abnormality, so that it would either die in utero or shortly after delivery. The claimant was thus forced by Irish law to choose between carrying the baby to term, knowing that it would inevitably die in her womb or immediately after birth, or having to travel to the UK to get an abortion. The claimant chose the latter option, at great personal expense and with a lot of pain and indignity along the way, including having the ashes of her baby unexpectedly delivered to her by courier a few weeks after the abortion.

The Committee was unanimous on the bottom line of the case, which is that the abortion ban, as applied to the claimant, constituted cruel, inhuman or degrading treatment in violation of Article 7 of the Covenant, as well as a violation of her right to privacy under Article 17 of the Covenant. While the reasoning of the Committee is at times laconic (as is unfortunately the norm with its views), the basic idea behind the decision was essentially that even if the claimant’s rights were subject to an implicit or explicit balancing exercise, in light of the fact that her unborn child would inevitably die there was nothing to balance with the intrusions into her own interests. In other words, Irish law forced her to endure significant suffering for no real purpose, since the unborn child would die anyway.

The Committee’s views in this case are thus confined to its specific circumstances; it has not created a right to abortion on demand or asked Ireland to liberalize access to abortion fully, but to (at the very least) create an exception to its ban that would accommodate women in the claimant’s situation. The main problem here is that the Irish abortion ban stems from a constitutional provision, which was interpreted by the Irish Supreme Court as only allowing for an exception if there is real risk to the life, but not to the health, of the mother. Ireland can thus comply with the Committee’s recommendation only if the Supreme Court revisits the issue and carves out another exception, or if the Constitution itself is amended, which requires a popular referendum. In other words, this is one of those rare cases where domestic constitutional provisions as authoritatively interpreted by domestic courts are themselves violative of international human rights law; this does not change anything as a matter of international law, but clearly it creates specific political challenges for compliance (cf. the Sejdic and Finci judgment of the Strasbourg Court). See more on this point in this post by Fiona de Londras on the Human Rights in Ireland blog; this post by Mairead Enright has more analysis of the Committee’s decision.

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