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Home Human Rights Archive for category "European Convention on Human Rights" (Page 3)

Better Get A Lawyer: Are Legal Constraints Defeating Britain’s Armed Forces on the Battlefield?

Published on October 25, 2013        Author: 

Aurel SariAurel Sari is a Lecturer in Law at the University of Exeter and an affiliated member of its Strategy and Security Institute.

Last Friday, the Policy Exchange, a British think tank dedicated to the development and promotion of new policy ideas, published a Report entitled ‘The Fog of Law: An Introduction to the Legal Erosion of British Fighting Power’. The Report makes fascinating reading and deserves serious attention. Written by Thomas Tugendhat and Laura Croft, its aim is to explain how the cumulative effect of legal developments taking place over the past decade has undermined the ability of Britain’s armed forces to operate effectively on the battlefield. The Report questions the desirability of what it calls ‘legal mission creep’ and offers seven policy recommendations designed to reverse it or at least arrest its future development.

Undermining the warfighting ethos

Flexibility, initiative and the acceptance of risk and responsibility are central to British military doctrine. As the British Defence Doctrine puts it, one of the key components of the ‘British way of war’ is ‘a style of command that promotes decentralised command, freedom and speed of action and initiative’. ‘The Fog of Law’ brings together a considerable body of examples to suggests that the growing legal regulation and civilian oversight of the armed forces—in particular the spread of inquiries, the extension of civilian duty of care standards and the constant threat of litigation—have begun to undermine the warfighting ethos of the military and restrict commanders’ freedom to act. A series of legal developments have contributed to this change. However, Tugendhat and Croft direct their fiercest criticism against the European Convention on Human Rights, which they describe as the ‘main weapon used in the legal challenge against the [UK Ministry of Defence]’ (p. 17). In their view, the extension of ‘a civilian understanding of duty of care and rights guaranteed by the ECHR’ to combat operations represents a ‘legal intrusion into decisions made in a time of war’ (p. 28).

It is important to stress that ‘The Fog of Law’ does not advocate the complete exemption of the armed forces from the rule of law. The Report makes abundantly clear Tugendhat and Croft’s view that the problem is not the imposition of legal constraints on the armed forces as such, but the extension of civilian law to the military. Indeed, their entire discussion seems to be predicated on an underlying assumption that civilian law and military law are distinct normative regimes and that their respective spheres of application can, and should, be neatly separated from one another. Civilian law and oversight are thus depicted as alien forces which ‘intrude’, ‘assault’ and ‘intervene’ into the military sphere, ‘encircling’ it and ‘encroaching’ upon its autonomy. This is the stuff of high drama, but the accuracy of the picture painted is open to question. The assumption that there is law for civilians and law for the military seems to mistake both the nature of the problem and its solution. Read the rest of this entry…

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Freedom of Religion and Religious Symbols: Same Right – Different Interpretation?

Published on October 10, 2013        Author: 

stephanie berryStephanie E. Berry is Lecturer in Public Law at the University of Sussex.

As the debate over the wearing of religious attire in State institutions in Western Europe has reignited over previous weeks, it is pertinent to consider the protection provided under international law to those who wish to exercise this element of freedom of religion. As has been well documented, the European Court of Human Rights (ECtHR) has been willing to accept restrictions on the right to manifest religion by wearing religious attire under article 9(2) of the European Convention on Human Rights on the grounds of the ‘rights and freedoms of others’ (specifically gender equality, pluralism and tolerance and State neutrality) (see, for example, Dahlab v Switzerland; Şahin v Turkey) and public order and safety (Phull v France; El-Morsli v France). However, the wide margin of appreciation afforded to States and the failure of the ECtHR to probe whether restrictions on the right to manifest religion are proportionate have been the subject of criticism.

Until recently the right to manifest religion by wearing religious attire under the International Covenant on Civil and Political Rights (ICCPR) had rarely been considered by the UN Human Rights Committee (HRC) (see Singh Bhinder v Canada and Hudoyberganova v Uzbekistan). Notably, however, the HRC does not recognise that States have a margin of appreciation. Thus, in two recent cases concerning the right to manifest the Sikh religion by wearing religious attire, a significant divergence between the approach of the HRC and the ECtHR can be observed.

800px-Sikhs_on_the_move!In Mann Singh v France and Ranjit Singh v France the ECtHR and HRC, respectively, considered the right of a Sikh man to manifest his religion by wearing a turban on a photograph affixed to an identification document. In Mann Singh v France, the ECtHR acknowledged that the requirement that the applicant appear without his turban in the photograph affixed to his driving license constituted an interference with the right to manifest religion. However, the ECtHR accepted that the restriction was justified on the grounds of ‘public safety’ and ‘public order’ under article 9(2) ECHR. Notably, the ECtHR deferred to the discretion of the State and, thus, did not examine the legitimacy of the State’s assertion that the removal of the turban was necessary to allow the identification of the driver and to avoid fraud. (photo credit)

Similarly, in Ranjit Singh v France the HRC considered the requirement that Sikhs remove their turbans in photographs affixed to residents permits, (paras 2.12-2.2) a requirement again justified by France on the grounds of public order and public safety (para 5.3) under article 18(3) ICCPR. Although the HRC recognised that the aim of the restriction was legitimate, (para 8.4), in direct contrast to the ECtHR, the HRC found:

 [T]hat the State party has not explained why the wearing of a Sikh turban covering the top of the head and a portion of the forehead but leaving the rest of the face clearly visible would make it more difficult to identify the author than if he were to appear bareheaded, since he wears his turban at all times. Nor has the State party explained how, specifically, identity photographs in which people appear bareheaded help to avert the risk of fraud or falsification of residence permits. (para 8.4)

The HRC continued to consider the potential for this interference to result in continuing violations of the applicant’s rights ‘because he would always appear without his religious head covering in the identity photograph and could therefore be compelled to remove his turban during identity checks’ (para 8.4). By exercising a higher level of scrutiny of the justifications given by the State for the restriction of the right to manifest religion, than the ECtHR in Mann Singh v France, the HRC was able to assess the proportionality of the interference and found a violation of freedom of religion. Read the rest of this entry…

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Mothers of Srebrenica: The Obligation to Prevent Genocide and Jus Cogens – Implications for Humanitarian Intervention

Published on September 6, 2013        Author: 

Manuel J. Ventura is a Director of The Peace and Justice Initiative and Dapo Akande is editor of EJIL:Talk!

The June 2013 decision of the European Court of Human Rights (ECtHR) in Stichting Mothers of Srebrenica and Others v. The Netherlands is the latest phase in the attempts by the relatives of those killed in Srebrenica, Bosnia and Herzegovina to hold the UN (and/or The Netherlands) responsible for the inaction of the UN Protection Force (UNPROFOR) – made up of Dutch peacekeepers – who stood aside while Srebrenica was overrun in July 1995. The subsequent events at the Srebrenica ‘safe area’ and the deaths of between 7,000-8,000 persons are by now well known. In the underlying proceedings in the Dutch Courts, the complainants did not seek to hold the UN responsible for the commission of genocide, but rather for the failure, in the applicant’s view, of the UN’s duty to prevent genocide. The Dutch courts held that the UN had immunity from domestic suit, even in the face of violations of jus cogens norms. The ECtHR agreed with the Dutch rulings on the immunity of the UN. It followed the ICJ’s holding in Jurisdictional Immunities of the State (Germany v. Italy; Greece Intervening) that ‘[i]nternational law does not support the position that a civil claim should override immunity from suit for the sole reason that it is based on an allegation of a particularly grave violation of a norm of international law, even a norm of ius cogens’ [para. 158, ECtHR decision]. It also held that the recognition of immunity does not ipso facto constitute a violation of the right of access to a court [para. 164]. As a result, the ECtHR concluded that ‘the grant of immunity to the UN served a legitimate purpose and was not disproportionate.’ [para. 169]

However, the decisions of the Dutch courts and the ECtHR are unsatisfactory in one respect. They all ignore an important issue: the exact status of the obligation to prevent genocide in international law. These courts simply assumed that just as the obligation not to commit genocide is a rule of jus cogens, the obligation to prevent genocide is also a norm of jus cogens. The ECtHR simply stated (at para. 157) that: “The Court has recognised the prohibition of genocide as a rule of ius cogens  . . .” However to suggest that a jus cogens norm is involved simply because the prohibition of genocide is a jus cogens norm is a big legal leap that simply cannot be assumed. Otherwise we simply have jus cogens by association! To come to that conclusion, careful analysis was required as it is a proposition that is not at all clear from international law as it presently stands. Read the rest of this entry…

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Mr. Kadi and Article 103 (A Poem)

Published on July 29, 2013        Author: 

Professor James Crawford SC FBA is Whewell Professor of International Law at the University of Cambridge

While wandering through a wadi
in the wastes of Saudi
I came across Mr KadiKadi
cracking rather hardy.

I said ‘you must feel blue
at what they’ve done to you’;
he said to me ‘that’s true,
but I’ve got the CJEU,

lacking whose authority
the P5 sorority
are now a small minority,
who’ve lost their old priority.’

And so went Mr Kadi
wandering down his wadi:
‘it’s all because of me;
I killed Article 103!’

_________________

* Editors’ note: We are delighted to publish Professor Crawford’s poem, which he first presented last week during a lecture at The Hague Academy of International Law. Previous posts about Kadi here(Kadi pictured above, credit.)

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The Role of the European Convention on Human Rights in the Wake of Kiobel

Published on July 25, 2013        Author: 

Kirshner JodieJodie Adams Kirshner is the University Lecturer in Corporate Law at the University of Cambridge and a fellow of Peterhouse College, Cambridge. Her research concerns cross-border and comparative issues in corporate law. She contributed to an amicus brief to the U.S. Supreme Court in Kiobel in support of petitioners.

SCOTUSThe decision of the U.S. Supreme Court (photo credit) in Kiobel v. Royal Dutch Petroleum has generated concerns that a governance gap will emerge for corporations that commit human rights violations abroad. As American courts become less open to extraterritorial claims, however, recognition of the global context gains importance. The current climate presents opportunities for other judicial systems to step forward. Kiobel gives the European Court of Human Rights the occasion to interpret the European Convention on Human Rights to require the right to an extraterritorial forum and counterbalance the shift that has occurred in the United States.

Article 6 of the European Convention on Human Rights offers a potential pathway to jurisdiction over extraterritorial corporate human rights claims. The European Court of Human Rights (ECHR) has already interpreted Article 6 of the Convention broadly, and some national courts that are signatories to the Convention have suggested that the article could support extraterritorial jurisdiction. Article 6 guarantees the right to a fair trial. Subsection 1 states, “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. . . .”

The ECHR has encouraged an expansive reading of Article 6. In Delcourt v. Belgium (1970), 1 Eur. Ct. H.R. 355 (1993), the Court stated that “in a democratic society within the meaning of the Convention, the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of Article 6 (1) would not correspond to the aim and purpose of that provision.” It has also maintained that rights under the Convention must be “practical and effective and not theoretical and illusory.” (See, e.g., Airey v. Ireland, 9 October 1979, § 24, Series A no. 32; Artico v. Italy, 3 Eur. H.R. Rep. 1, para. 33 (1980); Mehmet Eren v. Turkey, Eur. Ct. H.R. App. No. 32347/02, 50 (2008).).

The ECHR (photo credit), furthermore, has held that, though the text does not expressly include one, the Convention encompasses a right of access to court. Read the rest of this entry…

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Human Rights: Member State, EU and ECHR Levels of Protection

Published on June 7, 2013        Author: 

Article 53 of the Charter of Fundamental Rights of the European Union caused, already at its inception, a hermeneutical conundrum:

Nothing in the Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognized, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the [ECHR] and by the Member States’ constitutions.

Article 51, which defines the Charter’s field of application, provides:

 The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.

What if in, say, the implementation of Union law, it is found that the Union law violates a constitutional provision of the Member State protecting fundamental human rights?

Under the pre-Charter regime the resolution of such a conflict would proceed as follows. First, under CILFIT (Case 283/81 of 6 October 1982) the validity of the Union law would rest in the hands of the ECJ. A Member State court, even a court against whose decision there was a judicial remedy, would be required to make a preliminary reference for a finding of invalidity. Second, the ECJ would review the Union measure according to its human rights standards (informed, of course, by the constitutional traditions common to the Member States and the ECHR). The applicable human rights norm could not be dictated by the standard of level of protection of any given Member State (Hauer, Case 44/79 of 13 December 1979). If the ECJ were to find that the Union measure was not violative of human rights as defined by the ECJ, it would, by virtue of the principles of supremacy and equality of application of Union law, have to be followed by and within the Member States, even if a similar national measure would violate Member State constitutional provisions. There was a period in which some authors suggested that the ECJ would always have to adopt the highest level of protection to be found among the Member States. That nonsense has luckily been purged from most treatments of the subject matter.

Article 53 seemed to call that orthodoxy into question since an implementing measure could be thought to fall within both the sphere of application of the Union and a Member State. Article 53 could, thus, suggest that the prior understanding would mean that the constitutional protection in a Member State would be restricted and/or adversely affected if it afforded more extensive protection than the Union standard applied by the ECJ. Read the rest of this entry…

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In Defence of a More Sophisticated and Nuanced Approach To Abortion: A Response to Gregor Puppinck

Rumyana Grozdanova, Alice Panepinto and Konstantina Tzouvala are PhD Candidates at Durham University Law School, UK.

The primary purpose of this response is to re-evaluate the jurisprudence of the European Court of Human Rights (“the Court”) on abortion, which we found to be misrepresented in Mr Puppinck’s recent EJIL: Talk! piece. Even though the Court has admittedly not recognised a general right to abortion, it has systematically been pressing more conservative Member-States to respect their own legislation and relax the absolute prohibition of abortion under certain circumstances. While the Court may have been too shy in its push for expanded protection of women’s reproductive rights instead of having a more muscular approach, the trend is visible and is gaining momentum.  In this context, it is vital to appreciate the rulings of both domestic courts and the ECtHR on this issue in their entirety in order to have a comprehensive understanding of the current legal concerns and potential future solutions. The international human rights project seeks to provide fundamental freedoms and rights for each and all of us. Mr Puppinck’s attitude towards the ‘free will of women’ combined with his (mis)representation of abortion is not particularly constructive and his legal analysis is not sufficiently nuanced.

In the late 2012 P. and S. v. Poland case, the Court stated that Poland’s failure to protect a 14-year-old rape victim from harassment, due to her decision to have an abortion (available under Polish law in the circumstances), and the fact that legal proceedings were initiated against her for “illicit sexual relations”, amounted to violations of Art. 3 regarding inhuman and degrading treatment; of her right to privacy and family life (Article 8), to liberty and security (Art. 5 par. 1). Read the rest of this entry…

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Russian Prisons: Still inhuman, Still degrading

Published on February 27, 2013        Author: 

Natasha Simonsen is a DPhil student in the Faculty of Law, University of Oxford. She was previously a consultant to UNICEF and has interned with the Office of the United Nations High Commissioner for Refugees in Pakistan

This month, the European Court of Human Rights handed down two more judgments finding Russia to be in breach of Articles 3 and 13 of the Convention with respect to the appalling conditions in its remand centres, and the lack of a domestic remedy for claims of ill-treatment in detention. In the cases of Yefimenko (February 12) and Zuyev (February 19) (not to mention last month’s contribution in Reshetnyak, January 8) the Court’s First Section unanimously found violations of Articles 3 and 13 by the Russian Federation, yet again. These judgments are significant because they reflect the failure of the European Court’s ‘pilot judgment’ policy to stem the flow of applications by detainees in Russian prison and remand facilities.

The problem with Russian prisons is symptomatic of the wider issue of the clogging of the Court by so-called ‘repetitive applications’ (defined by the Court as those relating to ‘structural issues in which the Court has already delivered judgments finding a violation of the Convention and where a well-established case law exists’). This problem persists despite the various efforts by contracting states to reform the structural problems of the Court, and the Court’s introduction of a ‘priority policy’ to manage its extensive workload. The Court’s provisional annual report for 2012 (available here) admits there are almost 30,000 pending cases allocated to judicial formation against Russia alone. The second ‘worst offender’ is Turkey, with a little over half of that number, and Italy in a close third place with almost 15,000 pending cases (see p149 of the report). Those three states together account for almost half of the 128,000 cases currently pending before the Court. The violations by country-and-Article breakdown (p152-3 of the report), reveals that in 2012 there were 75 findings of violations of Article 3 by Russia last year, which amounts to 27% of the total number of Article 3 violations across the contracting states in that period. Russia has a serious problem in its detention centres—and it seems that the Court (not to mention the Council) has a serious problem with Russian compliance with the Convention. Read the rest of this entry…

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The European Court of Human Rights Gets It Right: A Comment on Eweida and Others v the United Kingdom

Published on January 19, 2013        Author: 

Dr Erica Howard is senior lecturer in law at Middlesex University and the author of Law and the Wearing of Religious Symbols: European Bans on the Wearing of Religious Symbols in Education (Routledge, 2012).

The European Court of Human Rights has delivered its Chamber judgment in the case of Eweida and Others v. the United Kingdom application nos. 48420/10, 59842/10, 51671/10 and 36516/10).

These cases concerned four practicing Christians. Ms Eweida, who worked for British Airways as check in staff, and Ms Chaplin, who worked as a nurse, both wanted to wear a cross in a visible way with their uniforms. Ms Ladele, a registrar of births, deaths and marriages, and Mr McFarlane, a relationship and psycho-sexual counsellor, both believed that homosexual relationships are contrary to God’s law and complained that they had been dismissed for refusing to carry out certain parts of their duties which they considered condoned homosexuality.

The European Court of Human Rights held that Ms Eweida’s and Ms Chaplin’s wish to wear a cross in a visible manner was a manifestation of their belief (paragraphs 89 and 97). In relation to Ms Eweida, the Court held that a fair balance had not been struck between her right to freely manifest her religion and British Airways wish to protect its corporate image and that the domestic courts had given too much weight to the latter (paragraph 94). Therefore, her right to manifest her religion under Article 9 was violated and it was not necessary to examine the claim under article 14 separately (paragraph 95).

Read the rest of this entry…

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Greek Court Acquits Immigrants who Escaped Appalling Detention Conditions

Published on January 12, 2013        Author: 

In the midst of ever deepening economic woes, Greece is struggling with yet another crisis, this time of a humanitarian character. It is no secret that thousands of immigrants crossing into Greece mainly from Asia and Africa are held in appalling conditions in Greek detention centres. The UN Special Rapporteur on the human rights of migrants visited such centres just before the end of 2012 and faced a bleak situation (the relevant report is still forthcoming, but see the Reuters report here), while the Grand Chamber of the European Court of Human Rights found already in January 2011 that returning an asylum seeker to Greece under Dublin II violates Article 3 of the ECHR (see M.S.S. v Belgium and Greece, paras 344 seq, along with a description of the horrible conditions of detention facing immigrants and asylum seekers in Greece).

Today, media in Greece are reporting that the single-judge formation of the Criminal Court of First Instance of Igoumenitsa in northwestern Greece (Μονομελές Πλημμελειοδικείο Ηγουμενίτσας) has returned a remarkable decision (Nr 682/2012) in a prosecution brought against a number of immigrants awaiting expulsion who escaped a local detention centre. Relevant reports in the Greek press can be found here and here, and a redacted version of the rather short decision is published here (all three documents are in Greek) Read the rest of this entry…

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