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Home Posts tagged "Domestic Remedies"

A War Crimes Trial That Needs More Attention

Published on November 15, 2018        Author: 

Introduction

There is an ongoing landmark domestic trial for international crimes that is steadily progressing at this very moment in relative obscurity. The case is about one of the worst single-event crimes that has occurred since the Second World War and was matched in its methods and gravity only by the likes of the Nyarubuye, Gikondo, and Srebrenica Massacres of 1994 and 1995. In 3 days, 1000 people from several neighboring villages were rounded-up, imprisoned, tortured, raped and killed. More than 500 of them were children. The crime was committed during an internal armed conflict that lasted 12 years during the final decade of the Cold War. The crime was then denied, forgotten and eventually literally exhumated by Argentinian forensic experts in 1992. The crime took place between 11 and 13 December 1981 in a cluster of small villages in North-East El Salvador. The crime is remembered as the El Mozote Massacre.

It will be 37 years in December since this massacre took place. So far, nobody has been held criminally responsible for it, despite the fact that the details of the incident were well documented in the 1993 Report of the UN Truth Commission for El Salvador. This is largely because of the General Amnesty Law which was passed in 1993, shortly after the signing of the Chapultepec Peace Accord by which the Salvadoran civil war ended. However, in 2012, the Inter-American Court of Human Rights passed the Judgment in the Case of the Massacres of El Mozote and Nearby Places v. El Salvador in which it declared the Amnesty Law incompatible with the Inter-American Convention of Human Rights and with the peace accord itself.

It took some 4 years for the Salvadoran Constitutional Chamber of the Supreme Court to declare the Amnesty Law unconstitutional. Shortly after the law was derogated, the investigation into the El Mozote Massacre continued, and in March 2017 charges against 18 high-ranking military officers were brought before the criminal court of first instance in San Francisco Gotera, a small municipality in Morazán department. The charges were not brought by the Salvadoran Attorney General (Fiscalia), but by two NGOs – Fundacion Cristosal and Tutela Legal Maria Julia. The Attorney General initially claimed that the case was res judicata and that, therefore, it should be rejected. The trial judge, Guzman Urquilla, disagreed and let the proceedings continue. Read the rest of this entry…

 

(Non-)Recognition of De Facto Regimes in Case Law of the European Court of Human Rights: Implications for Cases Involving Crimea and Eastern Ukraine

Published on October 9, 2017        Author: 

In an increasing number of cases, the European Court of Human Rights (‘ECtHR’, ‘the Court’) has been dealing with the question of the application of the European Convention on Human Rights (‘ECHR’, ‘Convention’) on territories which are outside the control of the state to which they belong. Such lack of control is either because of the occupation by a foreign state or because of the control by a separatist movement, as a rule, established and/or existing with the aid of a foreign state. One of the issues that arises in this context is the (non-)recognition of the regime that exercises control over such territory (the de facto regime).

This blog post looks at the Court’s existing approaches to the (non-)recognition of de facto regimes. It then discusses the implication of this approach for cases involving Eastern Ukraine and Crimea that may come before the Court and require it to deal with the question of (non-)recognition.

Existing approaches

The issue of (non-)recognition becomes particularly relevant when the Court is called on to assess proceedings conducted by the courts of a de facto regime in the light of the Convention. The Court has dealt with the issue of (non-)recognition when deciding on the exhaustion of domestic remedies at the admissibility stage, and on claims relating to freedom from arbitrary detention and the right to a fair trial at the merits stage. Read the rest of this entry…