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The Murder of Jamal Khashoggi: Immunities, Inviolability and the Human Right to Life – Part I: Introduction

Published on April 16, 2019        Author: 
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On 2 October 2018, Jamal Khashoggi, a dissident Saudi journalist residing in the United States, where he was a columnist for the Washington Post, was murdered in the Saudi consulate in Istanbul. He was visiting the consulate to obtain a certificate of divorce from his former wife, so that he could proceed to marry his Turkish fiancée, Hatice Cengiz, who was waiting for him in a car outside the consulate. According to media reports relying on the findings of the governments of Turkey and the United States, Khashoggi was killed by Saudi agents and his body was then dismembered with a bone saw; his remains are yet to be found.

It has now been six months since Khashoggi’s killing. Saudi Arabia is conducting a secret trial of 11 individuals accused of his murder; the trial is widely regarded as an attempt to whitewash the involvement in the killing of the highest levels of the Saudi government. The UN Special Rapporteur for extrajudicial, summary or arbitrary executions, Agnes Callamard, has launched an investigation into Kashoggi’s death as part of her mandate; as of the time of writing, she has published a set of preliminary observations and plans to submit a final report to the UN Human Rights Council in June. Her report, based inter alia on a field visit to Turkey, concluded (paras. 10 and 7) that the evidence ‘demonstrates a prime facie case that Mr. Khashoggi was the victim of a brutal and premeditated killing, planned and perpetrated by officials of the State of Saudi Arabia and others acting under the direction of these State agents,’ a ‘grave violation’ of the human right to life.

Some legal issues that arise in that regard are trivial, even if they are politically extremely controversial. For example, it is legally irrelevant whether, in fact, the Saudi crown prince Mohammed bin Salman ordered Khashoggi’s death or not. Per the customary rule codified in Article 7 of the ILC Articles on State Responsibility, Saudi Arabia incurs state responsibility for an internationally wrongful act committed by its organs acting in their official capacity, such as intelligence and state security officials, even if that act was committed ultra vires. Whether the crown prince’s underlings exceeded his orders or failed to inform him of the supposedly unauthorized operation – which involved a team of 15 agents, including a forensics expert specializing in rapid dissections, and two private jets – simply does not affect the attribution of, and hence responsibility for, the operation to Saudi Arabia.

It is similarly unquestionable, as Steve Ratner explained on Lawfare, that the Saudi operation against Khashoggi was a violation of Turkey’s sovereignty and of its rights under diplomatic and consular law. But while condemning Saudi Arabia for these violations would be both right and without difficulty, for international law to care only about the violations of the rights of the state in which he was killed would also profoundly fail to legally capture our sense of moral outrage over Khashoggi’s death. In addition to any criminal responsibility that may exist under either Turkish or Saudi domestic law, the most serious violation of international law at stake here is that of Khashoggi’s human right to life, and an attempt – ultimately unsuccessful due to the operation’s public exposure – to forcibly disappear him. This violation is compounded by that of the freedom of expression, since the reason for Khashoggi’s killing was his speech critical of the Saudi regime, and that of the prohibition of cruel, inhuman and degrading treatment regarding Khashoggi’s next of kin, due to the manner of his killing and the desecration and disappearance of his corpse.

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The Assange case and the UK’s global defence of media freedom

Published on April 15, 2019        Author: 
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Human rights advocates often point to the lack of consistency and coherence between states’ stated commitments, on the one hand, and their actions, on the other. Even then, the tensions surrounding the UK’s recent approach to the goal of protecting media freedom globally and its projection seem striking.

Within less than a week, the UK government has gone from showcasing its new campaign to defend media freedom – specifically the appointment of the Foreign Secretary’s Special Envoy and a panel of legal experts “to support countries to repeal outdated and draconian laws and strengthen legal mechanisms to protect journalists”, as well as an international conference to be held in London on 10 and 11 July, co-hosted with the Canadian government (on 5 April) – to facing a chorus of warnings from wide range of human rights organisations, authorities and activists  – including the American Civil Liberties Union, Human Rights Watch, the Committee to Protect Journalists, the Knight First Amendment Institute, the UN Special Rapporteur on freedom of expression, David Kaye, and Pentagon Papers whistleblower, Daniel Ellsberg – that the UK’s possible extradition of Julian Assange to the United States to face, at the moment, a single charge of conspiracy “to commit computer intrusion” would pose a threat the lawful and legitimate activity of journalists, especially their communications with their sources, setting a “dangerous precedent” for the future prosecution of “legacy” news media organisations.

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Drėlingas v. Lithuania (ECHR): Ethno-Political Genocide Confirmed?

Published on April 15, 2019        Author: 
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The European Court of Human Rights on 12th of March issued a judgment in the case of Drėlingas v. Lithuania (Application no. 28859/16). The case at the ECHR was considered under Article 7 and focused on the principle of nullum crimen sine lege. However, in broader terms this case dealt with the definition of genocide, and the protected group issue in particular. This judgement continues a series of judgements related to Soviet mass repressions in the Baltic States after they were occupied and annexed by the Soviet Union and “sovietised” in a most brutal way from 1940 up to Stalin’s death in 1953. In fact, this case is a continuation of the case Vasiliauskas v. Lithuania (Application no. 35343/05), discussed on this blog previously

The main facts of the Drėlingas case are as follows: Drėlingas was an operative of the soviet repression structures (MGB/KGB) and in 1956 he participated in the arrest of one of the most famous anti-soviet armed resistance (partisans) leaders – A. R. (nome de guerre “Vanagas”) and his wife B. M. “Vanda”. After being captured, Vanagas was horribly tortured, maimed, then tried by the Soviet court and eventually executed, his wife was deported to Siberia. These events happened after the active armed resistance was almost over, while Vanagas and his wife were still on the run. After restoring Lithuania’s independence in 1990, Drėlingas was put on trial in 2014 and sentenced for his participation in genocide, as an accessory to the crime.

The last sentence perhaps needs further explanation. Back in the 1990s, Lithuania was one of a handful of countries that adopted a broader definition of genocide in its national laws; it included political and social groups together with national, ethnic, racial and religious. The main aim of this was to address the historic Soviet crimes. However, it soon became clear that the direct inclusion of political and social groups in the genocide definition created a conflict with the internationally accepted definition of genocide. Another approach was needed, and it was tested in the case of Vasiliauskas (mentioned above). Read the rest of this entry…

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Germany and its Involvement in the US Drone Programme before German Administrative Courts

Published on April 8, 2019        Author: 
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On 19th March 2019, the German Higher Administrative Court for North Rhine-Westphalia rendered a highly interesting and important judgment. It addresses no less than the compatibility of US drone strikes in Yemen with international law, the role of domestic courts with regard to international law, and the scope – and limits – of judicial review in foreign affairs.

The case was brought by Yemeni claimants against Germany for its alleged involvement in the US drone programme. While Germany neither publicly supports nor actively participates in the US drone programme, it is nearly undisputed that the US Air Base in Ramstein, Germany, plays a vital role therein (see here). The Court held that, first, Germany is constitutionally obliged to ascertain that the US drone strikes conducted via Ramstein are compatible with international law. Secondly, in case the government finds the US practice to be legally contentious, German authorities have to take efforts in order to ensure that international law is complied with.

The full reasoning of the decision is not yet available in writing, but the press release (see here for an unofficial English translation) and the transcript of the oral pronouncement of the decision (see here) allow for some preliminary remarks. (Note that the Higher Administrative Court on the same day rendered a second judgment that concerned US drone strikes, albeit in Somalia (see here). This contribution, however, focuses on the “Yemen case”.)

The Facts

In 2012, Salem bin Ali Jaber, a Yemeni imam known for openly criticising Al Qaeda was invited to deliver a sermon at the local mosque of Khashamir, Yemen, where he attended a family wedding. In that course he was approached by three members of Al Qaeda requesting a meeting. Salem asked his relative, and local police officer, Waleed to accompany him. Shortly after the meeting commenced, US drones fired a series of four Hellfire rockets on the group killing both Salem and Waleed bin Ali Jaber as well as the three Al Qaeda members.

This prompted Read the rest of this entry…

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Lingering Asymmetries in SDGs and Human Rights: How Accountable are International Financial Institutions in the International Accountability Network?

Published on February 22, 2019        Author: 
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The recent US nomination (and thus de facto appointment) of well-known World Bank critic and US Treasury official, John Malpass, as the new World Bank President following the abrupt resignation of Jim Yong Kim (former Dartmouth College president who announced he was leaving the World Bank for opportunities in the private sector) brought a slew of criticisms (see here, here, and here) against the United States’ traditional prerogatives of appointing the World Bank President, in tandem with the European Union’s counterpart prerogatives in appointing the Managing Director of the International Monetary Fund (IMF).  The tradition arises from a “gentlemen’s agreement” struck at Bretton Woods at the inception of the World Bank and IMF.  Neither the IMF Articles of Agreement or the World Bank Group’s Articles of Agreement contain any whiff of this gentlemen’s agreement – but they are effectively carried out because of the United States’ overwhelming voting power at the World Bank and the European Union’s counterpart voting power at the IMF.  In any event, contestations over power and leadership of the Bretton Woods institutions are not exactly new – they are precisely the same matters that have impelled rival geopolitical powers such as China and Russia to set up new international financial institutions (IFIs) where their influence and leadership can be more palpable, as seen from the BRICS New Development Bank and the Asian Infrastructure Investment Bank. Leadership contests at the IFIs – often between one hegemon and other fellow hegemons in the international system – do not, however, scrutinize the real nature of accountability of IFIs under their development mandates, as to the populations for whom such mandates were created to begin with.  During his presidency at the World Bank, Jim Yong Kim was heavily criticized for soliciting private funders in Wall Street to finance the Bank, sourcing capital infusions beyond the traditional donations of governments.  World Bank staff challenged him for his managerial style and the lack of strategic direction, that was alleged to be inconsistent with the Bank’s actual development mandate.  

Even as the IFIs continued to tout “inclusive growth” at the November 2018 G20 meetings – a goal which the World Bank defines as “growth that allows people to contribute to and benefit from economic growth” – it is quite remarkable to this day that IFIs shirk from openly embracing their own member States’ human rights treaty obligations as the normative template for their development mandates, preferring to refer strictly to their internal mandates under their respective Articles of Agreement.  (On this point, see the interesting 2017 article by Thomas Stubbs and Alexander Kentikelenis).  It may be recalled that the UN Independent Expert for a Democratic and Equitable International Order, Mr. Alfred de Zayas, formally called on the World Bank in September 2017 to align their articles of agreement with human rights, and to ensure that development projects with Members’ own international human rights commitments, all the more so because the World Bank could not afford to be a “human rights-free zone”.  

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The Risk and Opportunity of the Humanisation of International Anti-Corruption Law: A Rejoinder to Kevin E. Davis and Franco Peirone

Published on February 18, 2019        Author: 
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Editor’s note: In the EJIL: Debate! section of the latest issue of EJIL (Vol. 29 (2018) No. 4), Anne Peters presents her provocative and disrupting idea of corruption as a violation of international human rights. Kevin Davis and Franco Peirone respond to this challenging thesis and Anne Peters rejoins in this post. 

1. Doctrine and Policy

The two comments on my article “Corruption as a Violation of International Human Rights” challenge various elements of both the doctrinal analysis and the normative assessment. I had developed and defended two propositions: First, corrupt acts or omissions can under certain conditions technically be qualified as violating international human rights (notably social rights), although the difficulty to establish causality remains the most important doctrinal obstacle. Second, I argued normatively that the principal added value of a reconceptualization of corruption as a human rights violation is to offer complementary forums for redress, notably the international human rights mechanisms.

The two commentators raise very valuable points for which I am thankful. In this rejoinder, I focus only on two arguments which appear in both comments. Their first critical observation relates to the doctrinal analysis and to the problem of causation. Franco Peirone finds that “[t]he idea of identifying citizens as victims of corruption in a one-to-one relationship with the state is particularly problematic”, and he asks: “How is it possible to maintain that an individual has suffered a human rights violation because of state corruption?“ Along the same line, Kevin E. Davis points out that if a:

“national health care system is so underfunded that the state has clearly failed to satisfy its obligation to fulfil the right to health [, t]his does not necessarily mean that corruption is the cause of the human rights violation. For instance, it is possible that, if the funds had not been diverted, they would have been allocated to the military or to higher education. In this case, it cannot be said that the corruption has caused the failure to realize the right.”

The second critique relates to my policy assessment. Both commentators point out that the human rights sanctions and state responsibility for human rights violations will ultimately burden members of the general population of the corrupt state (as opposed to the criminal individual, e.g. bribe-taker or receiver of kick-backs). Read the rest of this entry…

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Filed under: EJIL, EJIL: Debate!, Human Rights
 
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New EJIL: Live! Interview with Dr Veronika Fikfak

Published on February 15, 2019        Author: 
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In this episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Dr Veronika Fikfak, Senior Lecturer in Law at the University of Cambridge, whose article “Changing State Behaviour: Damages before the European Court of Human Rights”, appears in EJIL’s 29:4 issue.

In her pioneering article, Dr Fikfak analyses the ECtHR’s practice of awarding damages. She and a team of researchers spent three years coding 12,000 decisions of the Court, seeking to understand which variables in a case – relating to the victim, the state and the events that occurred – affect the amount of damages awarded and subsequent compliance. In this conversation Dr Fikfak talks about her motivation for undertaking this study, the premises upon which it is based and the surprising results that emerged. The interview was recorded at the IE Law School, Madrid.

EJIL: Live! is the official podcast of the European Journal of International Law (EJIL), one of the world’s leading international law journals. Regular episodes of EJIL: Live! are released following the publication of each quarterly issue of the Journal, and include interviews with the authors of articles appearing in that issue as well as news and reviews when possible. Additional episodes, EJIL: Live! Extras, are also released from time to time to address a range of topical issues. Episodes of EJIL: Live! can be accessed via the EJIL website and this blog. Comments and reactions to EJIL:Live! episodes are welcome, and may be submitted below. 

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A Positive Take on the Legacy of the 1978 Judgment in Ireland v. United Kingdom

Published on February 7, 2019        Author: 
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In September 2018, a request by the Irish Government to refer the Ireland v. United Kingdom revision case to the Grand Chamber of the European Court of Human Rights (ECtHR) was refused, closing a door that had been reopened after forty years. The fact that the ECtHR arrived at a finding of inhuman and degrading treatment ‘only’ has been maligned. In this post, I’d like to highlight an alternative perspective and suggest that this judgment elevated the gravity of the ‘other’ forms of treatment and set in motion a pioneering approach to the interpretation of Article 3 ECHR.

Subsequent to the Chamber judgment in March 2018, there was much debate (including in this blog) about whether the ECtHR should have revised its 1978 finding of inhuman and degrading treatment in light of the additional evidence. Some have supported the ECtHR’s exercise of restraint in the use of its exceptional revision powers under Rule 80 of the Rules of Court, pointing out the need for legal certainty. Others have critiqued the Court’s approach to the new evidence or have lamented the Court’s failure to follow the European Commission on Human Rights’ finding of torture, opening the door to manipulation of the torture-versus-ill-treatment distinction. All have opined that the facts of the case would give rise to a finding of torture today.

A further commonality across the commentary is that all refer to the finding of inhuman and degrading treatment ‘only’. The 2018 judgment itself describes the applicant Government’s request for the Court to find that the ‘five techniques’ ‘amounted to a practice not merely of inhuman and degrading treatment but of torture within the meaning of Article 3 of the Convention’ (para. 8). In the context of these debates, and the revision request itself, the distinction between torture and inhuman and degrading treatment ‘only’ has been amplified. That is, there is a pervasive and implicit sense that inhuman and degrading treatment is in some way not as bad as torture. In 2018, as was observed in 1978, the Court’s failure to arrive at a finding of torture overshadowed the finding of inhuman and degrading treatment. Read the rest of this entry…

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WTO Dispute on the US Human Rights Sanctions is Looming on the Horizon

Published on January 31, 2019        Author: 
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At the turn of the year, Venezuela initiated a WTO dispute with the United States. In a nutshell, Venezuela questions WTO-consistency of a number of coercive trade-restrictive measures (economic sanctions) imposed by the United States. Some of those restrictions were allegedly imposed on the human rights grounds.

US sanctions against Venezuela

The United States has been consistently imposing trade-restrictive measures against Venezuela, yet none of them has ever been challenged at the WTO. Most likely, the last wave of such restrictions is a spark that lit the fuse. In recent years, the Trump Administration introduced additional restrictions on Venezuela’s financial sector, leaving the country’s finances in shambles, as well as sanctions directed against the country’s gold sector. According to the media reports published in January 2019, the United States considers even tougher sanctions, particularly the ones that can impede Venezuela’s oil industry.

Human rights sanctions against Venezuela

The United States is notorious for its practice of economic coercion, which has been debated at length within the international community. Economic measures imposed to promote human rights entered the US foreign policy agenda under President Carter. In the following decades, the US has made ample use of them. 

In December 2014, the US Congress enacted the Venezuela Defense of Human Rights and Civil Society Act of 2014. The enactment of the act was triggered by a number of events, particularly by the deteriorated living standards and the violent crackdown on the anti-government protesters. The act authorizes the President to impose various targeted sanctions, – sanctions against current or former government officials responsible for acts of violence or serious human rights abuses against protesters. The ambit of such sanctions includes blocking of assets of the designated individuals as well as travel restrictions. In pursuit of its authority, President Obama declared the national emergency in respect of the situation in Venezuela and issued an Executive Order 13692 of March 8, 2015, which implements the aforesaid human rights sanctions.

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Liability of an Assisting Army for Detainee Abuse by Local Forces: The Danish High Court Judgment in Green Desert

Published on January 24, 2019        Author:  and
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This comment sets out to discuss the judgment of the Danish High Court (Eastern Division) in what is known as the Iraq or Green Desert Case (B344808J – HBJ). The judgment, delivered in June 2018 and available in Danish only, has received limited attention outside Denmark. It is significant in that it establishes liability for Danish forces for ill-treatment of Iraqi detainees by Iraqi security forces, in circumstances in which Danish forces were found not to have taken part in the arrests and subsequent abuse of detainees, nor to have exercised command over Iraqi forces. Danish forces had only ‘coordinating authority’ which did not permit the issuing of orders to Iraqi forces. Liability was nonetheless established on the basis that, at the time of the decision to take part in this joint military operation (‘Operation Green Desert’) in November 2004, the Ministry of Defence (MoD), the Defence Command or the Danish Battalion should have known that there was ‘a real risk that persons detained during the operation would be subject to inhuman treatment in Iraqi custody during the further investigation’ (810-11). The MoD has appealed the decision, but at the time of writing the Supreme Court was yet to schedule a hearing date.

The claimants had submitted that, in light of Article 3 ECHR, the MoD was obliged to conduct a new independent investigation, but the Court rejected the applicant’s request, arguing that such an investigation was not likely to bring about relevant new information.

Taking into account the nature of the abuses and the fact that these were not perpetrated by Danish forces, the Court found that the compensation should be set at 30,000 DKK (appr. 4,000 EUR) each for 18 of the 23 claimants (5 claimants were not awarded compensation).

Having set out key aspects of the judgment, we examine if the judgment is likely to have ramifications for how Denmark will approach joint military operations in Iraq and elsewhere in the future. We also highlight some parallels with civil proceedings in the UK arising from the Iraq War. Read the rest of this entry…

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