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Home Archive for category "Human Rights"

Reflections on the European Committee on the Prevention of Torture’s Report on the UK

Published on April 21, 2017        Author: 

The European Committee on the Prevention of Torture (CPT), the Council of Europe monitoring body responsible for visiting places of detention in member states, recently published its report on its visit to the UK in 2016. The report was published at the request of the UK and a response is expected shortly.

The report is important in three respects. First, the report is striking in the number of concerns it raises about ill-treatment in places of detention in the UK, including inter-prisoner violence, a lack of safety in prisons, use of restraint and separation in psychiatric hospitals, solitary confinement of children and indefinite lengths of immigration detention. Second, the nature of the concerns raised in the report prompts questions on whether measures to eradicate ill-treatment are sufficient or whether in some instances the use and legitimacy of detention itself needs to be considered. Third, the report is part of a wider context of national reviews and reform and recent and forthcoming recommendations by the UN on the use, legitimacy and treatment in detention in the UK. This level of attention to detention in the UK raises interesting questions for scholars and practitioners on implementation and compliance with international human rights law and the conditions necessary to bring about change. Read the rest of this entry…

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United States’ Missile Strikes in Syria: Should International Law Permit Unilateral Force to Protect Human Rights?

Published on April 18, 2017        Author: 

A bounty of recent blog posts have poured over the legality of the Trump administration’s missile strikes against a Syrian airbase in response to President Bashar al-Assad’s use of chemical weapons (see, e.g, here, here, here, here and here). Possible justifications have recently come to light, but do not provide a sufficient basis for the administration’s actions under international law (which is the focus of this post). Most commentators conclude that, absent UN Security Council authorisation or a justifiable claim of self-defence, international law provides no clear right for states to use force in response to such grave violations of human rights. Therefore, the strikes most likely contravene Article 2(4) UN Charter. With that analysis, I agree. The question that then arises, and which has received much less attention (although, see here and here), is the normative question: should international law permit such unilateral action (either individually or collectively) outside of the UN Charter framework?

The understandable response is that ‘something’ must be done and at least President Trump has acted where the international community has previously failed to do so. This sentiment is reflected in the opinions of a number of world leaders who appear to be supportive of the strikes against the Assad regime. Yet, notably, where countries have expressed support for the United States’ actions, they have not presented a legal justification for it. Regardless of whether we agree that the missile strikes are the right thing to do in response to a criminal regime gassing its own people (and there are serious doubts as to whether these strikes are an adequate or effective response), how should international law respond to such horrors as a general matter? What is the legal framework on which states can rely to do what they think is right? Read the rest of this entry…

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Strasbourg Judgment on the Beslan Hostage Crisis

Published on April 13, 2017        Author: 

The European Court today issued a landmark right to life judgment in Tagayeva and Others v. Russia, dealing with the hostage crisis in the school in Beslan in 2004, in which hundreds of hostages lost their lives. The exceptionally detailed (and for the most part unanimous) judgment does the Court great credit, as does the nuance it shows in much of its factual assessment. (Kudos are also due to Kirill Koroteyev and the EHRAC/Memorial team representing some of the applicants). Together with the Finogenov v. Russia judgment, on the Dubrovka theatre hostage crisis, this will be a leading case on the right to life in extraordinary situations. Unlike in Finogenov, the Court here finds a violation of the preventative aspect of Article 2 – indentifying the risk engaging the positive obligation is perhaps the most innovative part of the judgment. The Court also finds violations with regard to the effectiveness of the investigation and the planning of the operation. All in all its approach is somewhat less deferential towards the state than in Finogenov. UPDATE: Ed Bates has some early comments here.

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A Critical Commentary on the ECJ’s Judgment in G4S v Achbita

Published on April 5, 2017        Author: 

In March of this year (23/3), Solon Solomon noted here on EJIL:Talk!, that the recent judgment rendered by the European Court of Justice (ECJ) in G4S v Achbita, seems to have given private companies in the EU the green light to indirectly discriminate against certain religious minorities, so long as they put in place general bans on religious attributes that are visible to external customers. While that commentary offered interesting and important reflections on the legal and socio-political context of the ECJ judgment and similar ones previously established by the European Court of Human Rights (ECoHR), this analysis brings forth a somewhat different critique, focusing more closely on the (lack of) motivations behind the Court’s conclusions.

First, to be clear, that indirect discrimination can sometimes be excused is neither what is new nor controversial about the case. According to the Council Directive (2000/78/EC) cited in the Court’s judgment, as well as the applicable international and European human rights law, indirect discrimination can be justified, but only on the condition of a “legitimate aim”. That aim must then (i) be prescribed by law, (ii) respect the essence of the fundamental rights and freedoms of others, and may (iii) only be pursued through measures that are appropriate, necessary and proportionate to achieve the aim (see art. 18 para 3 of the ICCPR; art. 9 para 2 of the ECHR; art. 52 of the EU Charter; Neptune Distribution SNC v. Ministre de l’Économie et des Finances).

Thus what is new and controversial is the Court’s interpretation of what may constitute a legitimate aim with regard to the imposition of limits to the freedom of religion. According to the Court’s decision, the:

“desire to display, in relations with both public and private sector customers, a policy of political, philosophical or religious neutrality must be considered legitimate” (para 37).

This, the Court declared, relates to the freedom to conduct a business, which is recognized in article 16 of the EU Charter. The Court then proceeded with its assessment of whether the general ban on visible religious attributes was appropriate and necessary to uphold the supposedly legitimate aim of neutrality. It is these sections of the judgment that expose the Court’s apparent failure to account for the principles governing the rights and conflicting interests at stake. Read the rest of this entry…

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The International Legal Framework Regulating Armed Drones

Published on March 25, 2017        Author: 

Last week I had the pleasure and honour of delivering the International and Comparative Law Quarterly’s Annual Lecture for 2017 together with Lawrence Hill-Cawthorne. Our lecture was based on an article – “International Legal Framework Regulating Armed Drones” – that we co-authored with Professor Christof Heyns and Dr Thompson Chengeta which was published in Volume 65 (2016) of the ICLQ. The article arose out of a project to support Christof’s work in his capacity as United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions. We began the collaboration in the summer of 2013 in the lead up to Christof preparing a report for the 68th session of UN General Assembly on “Armed Drones and the Right to Life”. The project commenced with an expert workshop organized by the Oxford Institute for Ethics, Law and Armed Conflict and the Oxford Martin Programme on Human Rights for Future Generations and has concluded with this article which is an expanded version of the UN GA report.

As the abstract of the article sets out:

This article provides a holistic examination of the international legal frameworks which regulate targeted killings by drones. The article argues that for a particular drone strike to be lawful, it must satisfy the legal requirements under all applicable international legal regimes, namely: the law regulating the use of force (ius ad bellum); international humanitarian law and international human rights law. It is argued that the legality of a drone strike under the ius ad bellum does not preclude the wrongfulness of that strike under international humanitarian law or international human rights law, Read the rest of this entry…

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The Right to Religious Freedom and the Threat to the Established Order as a Restriction Ground: Some Thoughts on Account of the Achbita Case

Published on March 23, 2017        Author: 

On March 15, 2016, the European Court of Justice (ECJ) heard two different cases, the case of Achbita and that of Bougnaoui. As noted here, while both cases had the wearing of the Islamic headscarf at work as a common factual background, the legal questions asked were different. The Achbita case, referred to the ECJ by the Belgian Cour de Cassation, concerned Achbita’s dismissal from work as a receptionist. The dismissal took place after she refused to comply with a prohibition to wear the Islamic headscarf when dealing with customers. The Bougnaoui case, referred by the French Cour de Cassation, focused on a similar dismissal after she refused to abide by her boss’ demands and take off her Islamic headscarf, following the relevant wishes expressed by one of the enterprise’s clients. Nevertheless, the two courts brought different questions before the ECJ for a preliminary ruling. The Belgian supreme administrative court asked the ECJ whether such a ban from wearing the headscarf at work constituted direct discrimination. Its French counterpart focused on the client and whether his will not to have services provided by an employee wearing a visible religious symbol or attire contravened EU law.

On Mach 14, 2017, almost a year after the hearing of the cases, the ECJ issued its judgments (here and here). In the case of Achbita, the ECJ ruled that employers, coming to pursue a policy of political, philosophical and religious neutrality, have the right to prohibit their workers from adhering to a specific religious dress code or from wearing at work visible religious symbols. On the contrary, in the Bougnaoui case, the court’s holding was that employers cannot discriminate between employees who wear religious symbols and those who do not, due to a customer’s demand. Accordingly, while the Bougnaoui judgment closes the door to any potential restricton of religious expression at work, this is not the case with the Achbita one. The latter can be seen as introducing a possible infringement on religious freedom even if the Court ruled that employers have the option and not the obligation to impose such a ban on visible religious symbols. Through the granting of such an option, the ECJ sends the message that an individual cannot cite religious beliefs in order not to comply with generally set applicable norms.

This has been palpably demonstrated in domestic jurisprudence on both sides of the Atlantic. For example, in the Employment Division v. Smith, the U.S. Supreme Court held that two Native Americans had been justifiably dismissed from their work after the ingestion of peyote, a powerful entheogen. The fact that their religious beliefs sanctioned such an ingestion was not a valid ground for them to contravene the laws of the State of Oregon which prohibited possession and use of the particular substance. Similarly, in the case of Bull v. Hall, the UK Supreme Court held that the religious beliefs of a hotel keeper could not justify discrimination against same-sex couples and justify a policy according to which the hotel suites destined for married couples would be given only to heterosexuals. Read the rest of this entry…

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Azerbaijan: Is it Time to Invoke Infringement Proceedings for Failing to Implement Judgments of the Strasbourg Court?

Published on March 22, 2017        Author: 

A year ago, on 17 March 2016, the European Court of Human Rights issued a landmark judgment against Azerbaijan finding a rare violation of Article 18 of the European Convention on Human Rights, and the first based on the repression of human rights defenders as a result of their human rights activities. The Court found that the pre-trial detention of a prominent Azerbaijani human rights defender, Rasul Jafarov, was unlawful and aimed ‘to punish the applicant for his activities in the area of human rights’, in violation of Article 18 (restrictions of rights for a purpose other than the one prescribed in the Convention) and also Article 5 (the right to liberty). That same day, after having spent 15 months in a prison cell, Rasul Jafarov was released under the presidential pardon decree.

In finding the violation of Article 18, the Court took note of the totality of repressive circumstances in which Azerbaijani human rights NGOs operated and the numerous statements of high ranking Azerbaijani officials criticising those NGOs and their leaders, including the applicant, and concluded that Jafarov’s case could not be viewed in isolation from this backdrop.

Earlier cases, such as Tymoshenko v Ukraine and Lutsenko v Ukraine, had found a violations of Article 18 due to the unlawful detention of political opposition leaders.

Although Article 18 cases are very rare in the Court’s practice, the Jafarov judgment is the second one in which the Court has found Azerbaijan’s actions in arresting its critics in violation of Article 18 of the Convention. In the case of opposition leader Ilgar Mammadov the Court established that his arrest and pre-trial detention aimed to punish him ‘for criticizing the Government’. Ilgar Mammadov has remained in prison for more than four years serving a seven-year sentence on charges of organising mass disorder and resisting arrest after he criticised the Government’s handling of demonstrations and unrest in the region of Ismayili. Read the rest of this entry…

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The ECtHR’s Ilias and Ahmed v. Hungary and Why It Matters

Published on March 20, 2017        Author: 

The European Court of Human Rights delivered a judgment last Tuesday in the case of Ilias and Ahmed v. Hungary, finding multiple violations of the European Convention as a result of Hungary’s border procedures and its treatment of asylum-seekers. The applicants, nationals of Bangladesh, spent over three weeks in the transit zone before being sent back to Serbia, considered a “safe third country” under a 2015 Governmental Decree. Both applicants were part of the first wave of asylum-seekers attempting to access Hungary after the entry into force of controversial new legislation in September 2015, which effectively led to the Western Balkans route turning towards Croatia over the course of the next few days.

In what constitutes its first verdict on Hungary’s latest practice – which involves deprivation of liberty and almost universal forced return to Serbia on the basis of the safe third country concept – the Court found violations of Arts 3, 5 and 13 in conjunction with Art. 3 of the Convention, namely because the applicants had been subjected to de facto deprivation of liberty with no adequate safeguards for over three weeks, didn’t have access to an effective remedy with respect to the conditions of their detention and ended up being sent back to Serbia without ever having the possibility of ill-treatment genuinely considered either by the asylum authority or the Szeged Administrative Court in their attempted appeals against the former’s ruling. In finding violations, the Court generally agreed with more-or-less all of the applicants’ arguments, however it did not agree with them that the conditions of their detention in the border zone reached the level of severity necessary for there to be a violation of Art. 3 in that respect.

The Implications Read the rest of this entry…

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Ukraine v Russia at the ICJ Hearings on Indication of Provisional Measures: Who Leads?

Published on March 16, 2017        Author: 

From the day Ukraine submitted its case against Russia at the ICJ, one could expect that the case would be extremely politicized and difficult to adjudicate. Oral proceedings on the request for provisional measures held on 6th -9th March 2017 not only demonstrated that parties disagreed on the major points of the dispute, but also revealed that both parties had adopted “alternative facts”, at times making it difficult to grasp if they actually had the same dispute in mind. Ukraine’s position is that Russia violates ICSFT by continuing to support pro-Russian separatist armed groups in eastern Ukraine that engage in the commission of terrorist acts against the civilian population. Ukraine also claims that Russia pursues “policies of cultural erasure and pervasive discrimination” against non-Russian ethnic population in Crimea (see my blog). In its counter-arguments, Russia submits that the supply of weaponry originated from the old Soviet stockpiles inherited by Ukraine as well as the retreating Ukrainian army. Although widespread reports on the human rights situation in Crimea indicate marginalization of non-Russian ethnic population, as do the hundreds of pending individual applications before the ECtHR, Russia maintains that it is fully compliant with CERD and that “the views [of international organizations] on the status of Crimea often prejudge the attitude towards the situation in Crimea itself”.

Oral proceedings provide valuable insights into Russia’s litigation strategy. Russia maintains that there is no factual or legal basis for the ICJ to adjudicate, claiming that the issues between Ukraine and Russia relate to the legality of the use of force, sovereignty, territorial integrity and self-determination and therefore go beyond the jurisdiction of the Court. Russia accused the Ukrainian government of using the Court “to stigmatize a substantial part of the Ukrainian population” in eastern Ukraine as terrorists, and Russia as a “sponsor of terrorism and persecutor”.

Prima facie jurisdiction

The ICJ has to be satisfied on a prima facie basis that its jurisdiction is well founded in order to indicate provisional measures. Read the rest of this entry…

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