December 2020

Monthly News Updates: Domestic Prosecution of International Crimes - December 2020

By: Alexandrah Bakker, Junior Research Associate, PILPG-NL 

The following post highlights developments from around the world relating to the prosecution of international crimes before domestic jurisdictions.  This month, states have not only continued to arrest and try defendants but have also taken steps to repair the harms caused by international crimes.

EUROPE

Bosnia and Herzegovina | Bosnian prosecutors charge former Bosnian Serb fighters with crimes against humanity

The Bosnian state prosecution charged two former Bosnian Serb fighters, Borislav Pjano and Spomenko Novovic, with crimes against humanity for their participation in an attack on Bosniak civilians in Foča in 1992. [December 30, 2020]

The Netherlands | Dutch Ministry of Defence asks prosecutors to investigate possible war crimes by Dutch armed forces in Afghanistan

The Dutch Ministry of Defence asked prosecutors to investigate whether Dutch armed forces committed war crimes in Afghanistan in 2007, following an interview with a veteran who reported that he was ordered to fire at civilians. [December 23, 2020]

The Netherlands | Relatives of Srebrenica victims can file claims for compensation from the Dutch government starting March 2021

Relatives of Srebrenica victims will be able to file claims for compensation from the Dutch state from March 2021 until March 2023.  The claims will be handled by an independent commission-based in Sarajevo, the capital of Bosnia and Herzegovina.  This is the product of a decision of the Dutch Supreme Court, which held that the Dutch state is partially responsible for the deaths of several hundreds of victims in Srebrenica in 1995. [December 22, 2020]

Germany | German prosecutors charge a Syrian doctor with murder and torture as crimes against humanity

German prosecutors charged Alaa M., a Syrian doctor living in Germany, with murder and torture as crimes against humanity.  The charges relate to crimes committed during the time Alaa M. was working at a military prison in Homs, Syria in 2011 and 2012. [December 21, 2020]

Croatia | Croatian Supreme Court increases sentences of former Serb paramilitaries who killed Croatian civilians in 1991 

The Croatian Supreme Court increased the sentences of Dusan Zarkovic, Bogdan Jednak, and Dusan Martic, former Serb paramilitaries, from 10 to 15 years’ imprisonment.  The Supreme Court thereby upheld the decision of the Zagreb County Court, which convicted the men in absentia of war crimes for the killing of three Croatian civilians in 1991. [December 17, 2020] 

The Netherlands | The Netherlands will begin implementing a voluntary compensation scheme in Iraq 

The Dutch Ministry of Defence announced that it will begin the implementation of a voluntary compensation scheme in Hawija, Iraq, following the 2015 bombing of an alleged ISIS bomb factory which resulted in the deaths of a number of civilians.  The scheme aims to repair the city’s electricity network, improve employment opportunities and infrastructure, and clear rubble. [December 15, 2020] 

Azerbaijan | Prosecutors announce the arrest of four members of Azerbaijan’s armed forces suspected of war crimes

The Prosecutor General’s Office of Azerbaijan announced that four members of Azerbaijan’s armed forces were arrested on suspicion of war crimes.  Prosecutors accused the suspects of defiling bodies, inhumanely treating enemy combatants, and defacing gravestones during the conflict with Armenia over the Nagorno-Karabakh region. [December 14, 2020] 

Switzerland | Trial opens in the case against Alieu Kosiah, a former Liberian rebel commander

The first phase of the trial against former Liberian rebel commander Alieu Kosiah took place in Bellinzona, Switzerland, between December 3, 2020, and December 11, 2020.  The charges against Kosiah include the recruitment and use of child soldiers, forced transportation, looting, cruel treatment of civilians, attempted murder, murder, desecration of a corpse, and rape. [December 11, 2020] 

Bosnia and Herzegovina | The Court of Bosnia and Herzegovina convicts two men of crimes against humanity for the rape of a woman during the war in Foča

The Court of Bosnia and Herzegovina convicted two men of crimes against humanity for raping a woman during the war in Foča in 1992.  The Court sentenced each defendant to eight years’ imprisonment and ordered them to pay the victim nearly €19,000 in compensation. [December 3, 2020] 

Hungary | Metropolitan Court of Budapest sentences Syrian national for crimes against humanity

The Metropolitan Court of Budapest sentenced a Syrian national to life imprisonment for crimes against humanity and terrorism, in a trial brought on the basis of universal jurisdiction. [December 3, 2020] 

AFRICA

Ethiopia | Ethiopian Federal Court pardons former state officials previously convicted of genocide

The Ethiopian Federal Court pardoned Addis Tedla and Berhanu Bayeh, who had been senior officials of Ethiopia’s Derg military leadership.  The pair, who had been convicted of genocide and sentenced to death in absentia, have been sheltering in the Italian embassy in Addis Ababa for 29 years. [December 25, 2020]

Central African Republic | Constitutional Court invalidates presidential candidacy over international crimes allegations

The Central African Republic’s Constitutional Court invalidated the candidacy of former president François Bozizé.  The Court based its decision on the requirement that candidates be “of good character.”  The Court considered that this requirement was not satisfied because Bozizé is subject to an international arrest warrant and United Nations sanctions. [December 3, 2020]

AUSTRALIA

Australia | Australian government appoints special investigator in war crimes inquiry

The Australian government announced that Justice Mark Weinberg will serve as a special investigator in the inquiry into war crimes committed by Australian armed forces in Afghanistan, following the conclusion of the administrative inquiry into the same crimes in November.  Weinberg will examine the evidence unearthed in this inquiry and, where appropriate, refer cases to the Commonwealth Director of Public Prosecutions. [December 16, 2020]

THE AMERICAS

The United States of America | Gambian “Jungler” appears in a preliminary hearing before a US District Court in Colorado over torture allegations 

Michael Sang Correa, a Gambian national believed to have been part of the Jammeh-led government militia faces allegations of torture and conspiracy to commit torture for acts that took place in 2006 in a District Court in Colorado. So far, the Covid-19 pandemic has created significant delays in this trial. [December 4, 2020]

December 2020

Monthly News Updates: Human Rights Mechanisms - December 2020

By: Shaya Javadinia, Junior Research Associate, PILPG-NL 

The following post summarizes and highlights some of the updates on the work of regional and international human rights mechanisms around the world in the month of December.  

EUROPE 

European Court of Human Rights | New Judgements and Decision Published

In December, the ECtHR published several judgments and decisions.  Gestur Jónsson and Ragnar Halldór Hall v. Iceland concerned two lawyers who were fined, in their absence, by the Icelandic district court for contempt of court.  The ECtHR declared the application inadmissible due to its incompatibility with the subject-matter jurisdiction of the Court.  [December 22, 2020]

In M.L. v. Norway, Norwegian authorities removed a mother’s parental authority and authorized the adoption of her daughter.  The ECtHR found a violation of the applicant’s right to respect for private and family life as enshrined in article 8 of the European Convention on Human Rights (ECHR).  [December 22, 2020]

In Usmanov v. Russia, the applicant’s Russian citizenship was revoked and he was expelled to Tajikistan.  The Court found a violation of the applicant’s right to respect for private and family life as the Russian authorities failed to sufficiently balance the interests at stake. [December 22, 2020]

Selahattin Demirtaş v. Turkey (number 2) concerned the arrest and pre-trial detention of Mr. Selahattin Demirtaş, who was a co-chair of a left-wing pro-Kurdish political party known as the People’s Democratic Party (HDP).  The Court found violations of several Convention rights, such as the right to freedom of expression (article 10 ECHR) and the right to liberty and security (article 5 ECHR).  Following the delivery of this judgment on December 22, 2020, the Court’s website was subject to a large-scale cyberattack. [December 22, 2020]

In M.M. v. Switzerland, the Court noted that the interference by the Swiss authorities with the applicant’s right to respect for private and family life was justified, and thus found no violation of article 8 of the ECHR. [December 8, 2020]

European Court of Human Rights | Interim Measures in the Nagorno-Karabakh Conflict

On December 3, Azerbaijan requested that the Court suspend the interim measure proceedings concerning the alleged captives of the conflict, and to lift the interim measures ordered on September 29 in respect of Azerbaijan.  On December 15, a Chamber of seven judges examined this request and decided to continue with the interim measure proceedings under Rule 39 of the Rules of Court, thus refusing to lift the interim measures indicated on September 29.  The Court based this decision on the circumstances that do not provide a basis for suspending or discontinuing the examination of interim measure requests pertaining to the alleged captives. [December 16, 2020]

European Court of Human Rights | Lithuania’s Request for an Advisory Opinion from the Court

The Supreme Administrative Court of Lithuania sought an advisory opinion from the ECtHR on an impeachment law that is currently being examined by domestic proceedings concerning a former member of the Lithuanian parliament.  The Central Electoral Commission refused to register her as a candidate for the elections in 2020, as she had previously been impeached. The Supreme Administrative Court asked the ECtHR for guidance on the applicable criteria in assessing the compatibility of national impeachment legislation with the right to free elections (as per article 3 of Protocol number 1 of the ECHR). [December 11, 2020] 

European Court of Human Rights | The Court declares application regarding the handling of the COVID 19 health crisis inadmissible 

In Le Mailloux v. France, the applicant complained about measures taken by the French Government aimed at preventing the spread of COVID-19 amongst the French population.  The Court declared the case inadmissible, as the applicant was unable to show that he was personally affected by the measures.  The Court reiterated that it only accepts applications in which the applicant is able to reasonably and convincingly prove that they were personally affected by the alleged violation. [December 3, 2020] 

AFRICA 

African Commission on Human and People’s Rights | Abduction of over 300 Students at Kankara in Katsina State, Nigeria 

On December 11, over 100 gunmen attacked an all-boys Government Science Secondary School and abducted over 300 students in Kankara, Nigeria.  The Boko Haram terrorist group has claimed responsibility for this event.  The Commission expressed its solidarity with those affected by the attack and urged the Nigerian government to continue its effort in ensuring the release of the abducted students and to carry out investigations into the attack. [December 16, 2020] 

African Commission on Human and People’s Rights | Forced Evictions of Burundian Refugees by the Tanzanian Authorities

The Commission expressed concern about the human rights violations committed by the Tanzanian authorities against Burundian refugees.  Various reports of the Special Rapporteur have indicated, among others, intimidation and enforced disappearances of this group.  The Commission reminded Tanzania of its obligations under the African Union Refugees Convention and called on the authorities to put an end to the expulsion and refoulement of Burundian refugees. [December 16, 2020] 

African Commission on Human and People’s Rights | Letter of Urgent Appeal to the Federal Republic of Nigeria

The Commission, together with several Special Rapporteurs working on the human rights situation in Africa, have jointly submitted a letter of urgent appeal to the president of Nigeria.  In this letter, they address the reprisals by the Nigerian authorities and non-state actors against the organizers and supporters of the #EndSARS protests. [December 1, 2020] 

African Court on Human and People’s Rights | Democratic Republic of the Congo ratifies the Protocol on the establishment of the African Court on Human and People’s Rights

On December 8,  the Democratic Republic of the Congo (DRC) deposited its instrument of ratification of the Protocol to the African Charter on Human and People’s Rights on the establishment of the African Court on Human and People’s Rights.  The president of the Court, Hon Justice Sylvain Oré, used this opportunity to encourage other Member States of the African Union to follow the example of the DRC and ratify this protocol.  The Court views the ratification of the Protocol as a “step to safeguard human rights”. [December 11, 2020] 

THE AMERICAS 

Inter-American Commission on Human Rights | Referral of Cases to the Inter-American Court of Human Rights

In December 2020, the Inter-American Commission on Human Rights (the Commission) referred two cases to the Inter-American Court of Human Rights (IACtHR).  The Colombian case concerns the violence, intimidation, harassment, and threats against members of the José Alvear Restrepo Collective Lawyers Corporation (CAJAR). [December 28 and 17, 2020]

The Brazilian case deals with the impunity of those responsible for the death of Gabriel Sales Pimenta, who was a defender of the rights of rural workers, and the state responsibility arising thereof. [December 28 and 17, 2020] 

Inter-American Commission on Human Rights | Publications

In December 2020, the Commission published several practical guidelines and reports.  For instance, the report on the Compendium on Labor and Trade Union Rights, the report on “Due Process in Procedures to Determine Refugee and Stateless Person Status and Grant Complementary Protection”, and the Practical Guide on Access to the Right to Education for Children and Adolescents during the COVID-19 Pandemic. [December 30, 18, and 16, 2020]

Inter-American Commission on Human Rights | The Commission conducts a working visit to Mexico

Upon invitation by Mexico, the Commission will conduct a virtual working visit to Mexico to gather information on human mobility in the country.  The working visit also aims to collect information on migrants and people in need of international protection.  Mexican authorities, civil society organizations, and international human rights organizations will assist the Commission in its mandate. [December 11, 2020]

Inter-American Commission on Human Rights | The Commission grants precautionary measures in favor of women on death row in the United States of America

On December 11,  the Commission granted precautionary measures in favor of Christa Pike, who has been held in solitary confinement on death row for 23 years in Tennessee, in the United States.  Based on the information it had received on the condition of Ms. Pike’s confinement, the Commission concluded that there was a serious and urgent risk of irreparable harm to her rights to life and personal integrity. [December 17, 2020]  

On December 1, the Commission granted precautionary measures in favor of Lisa Montgomery who has been held on death row in Texas, in the United States.  Ms. Montgomery suffers from a mental illness, so it was argued that she should not be executed on these grounds.  The applicants also claimed that Ms. Montgomery’s right to due process in avoiding the death penalty had been breached, as she had not been adequately represented.  Moreover, the conditions of her confinement were allegedly incompatible with international human rights standards.  Considering the seriousness and urgency of the situation, as well as the risk of irreparable harm to Ms. Montgomery’s right to life, the Commission requested that the United States adopt necessary measures to improve the conditions of her confinement and to refrain from carrying out the death penalty until the Commission has reached a decision on the merits of the petition. [December 2, 2020]

Inter-American Court of Human Rights | New Judgements Delivered 

In December 2020, the IACtHR delivered several judgments.  In Olivares Muñoz et al. v. Venezuela, the Court held that Venezuela is internationally responsible for the deaths and injuries of inmates in jail, as a result of an operation conducted by members of the National Guard. [December 17, 2020] 

In Mota Abarullo et al. v. Venezuela, the Court also held that Venezuela is responsible for the violation of the right to life, the right to humane treatment, and the right of the child as a result of a fire in which five young people were killed in state custody. [December 11, 2020]

In Martínez Esquivia v. Colombia, the Court found that Colombia is responsible for the arbitrary dismissal of the applicant from her position as Deputy Prosecutor. [December 14, 2020]

UN MECHANISMS 

Human Rights Council (The Working Group on discrimination against women and girls) | Argentina applauded on the decision to legalize abortion

On December 30,  the Argentinian Senate adopted a bill in which it legalized abortions up to the 14th week of pregnancy.  The UN human rights experts welcomed this decision as a major step towards fulfilling international human rights obligations on eliminating discrimination against women and granting them the autonomy to make decisions about their health. [December 31, 2020]

The Human Rights Committee | The Netherlands violated a child’s right to acquire a nationality

In its first case on the right of a child to acquire a nationality, the Human Rights Committee found the Netherlands to be in violation of a child’s right by registering the child’s nationality as ‘unknown’, thus denying him sufficient protection.  Denny, the child in question, was born in 2010 to a 21-year-old Chinese national who was trafficked to the Netherlands from China and forced into prostitution at the age of 15.  Due to complications with the mother’s own citizenship, she was unable to provide proof of Denny’s nationality.  Moreover, Denny could not be registered as a ‘stateless child’ in the Netherlands, as his mom was unable to prove that Denny was without a nationality.  As a result, he was unable to receive the international legal protection that is provided to stateless children.  The Committee noted that states have a duty to ensure that stateless children are not left without protection within their jurisdiction and requested that the Netherlands review its decision regarding Denny’s registration as a stateless child, as well as its general procedure on statelessness determination. [December 29, 2020]

The Committee on the Rights of Persons with Disabilities | Inclusion of people with disabilities in the COVID 19 “building back better” process

The Committee has called on states to increase their cooperation with people suffering with disabilities and their representative organizations in their response to the COVID-19 pandemic. The UN experts highlighted the fragile state of support systems currently in place for the protection of people with disabilities and reiterated the need to include all members of society in COVID-19 response plans. [December 3, 2020]

The Grand Ethiopian Renaissance Dam – A Quest to Reconcile Economic Development with the Right to Water

By: Kristoffer Burck, Junior Research Associate, PILPG-NL

The Grand Ethiopian Renaissance Dam (GERD) is a dam project in Northern Ethiopia along the Blue Nile, and is set to become the largest hydropower plant in the African continent.  With its current construction date set at 2023, the dam promises to bring industrialization and development to Ethiopians.  But despite the opportunity the dam may represent for Ethiopians, it has been met with objections from others.  In fact, Sudanese and Egyptian politicians, whose populations are highly dependent on the freshwater supply of the Nile, warn that the dam constitutes a threat to their national security.  Since July 2020, when  Ethiopia began  to partially fill up the reservoirs of the dam, the relationships between the states have soured.  The disagreements concern the applicability of colonial treaties, the  balancing of the right to economic development with the right to water, and ways to facilitate effective regional cooperation. 

Colonial Baggage

According to some Egyptian politicians, the legal situation of the Nile is quite straightforward: the “Nile Waters Agreement” of 1929 guarantees a large share of the Nile´s water to the Egyptian population, and gives the government a right to veto construction projects of riparian states.  But, the problem with this agreement is that it was not concluded with the upstream states, but with Great Britain, who had colonized most of the riparian upstream states, including Sudan.  In 1959, a newly independent Sudan renegotiated the agreement with Egypt, with the result that the water resources were re-allocated between these two states.  The former Eastern African colonies located upstream the Nile (Kenya, Tanzania, and Uganda), argue that they are not bound to these colonial treaties under the tabula rasa theory. The controversial theory is codified in article 16 of the Vienna Convention on the Succession of States in Respect of Treaties and holds that newly independent states are not automatically bound by colonial treaties.  For Ethiopians the argument is even clearer: they were not a party to any of the applicable agreements and are therefore not bound by them. 

The Right to Economic Development

The difficulties in interpreting colonial treaties is not the only field of contention.  The GERD project potentially has a considerable impact on human rights of the populations of Ethiopia, Egypt and Sudan.  More specifically in Ethiopia, the project could positively impact the right to economic development, recognized as a human right in Article 22(1) of the African Charter on Human and Peoples´ Rights. While the Ethiopian economy has steadily grown over the past years, its successful development is still held back by endemic power cuts.  A hydroelectric dam could provide a reliable source of energy, not only for Ethiopia but also for bordering countries, struggling with the same situation.  A majority of the Ethiopian (diaspora) population has shown high hopes for the project, and a large portion of the GERD was funded through popular bonds.  As a result, the dam could provide a pathway for Ethiopia to attain their right to development, to industrialize large parts of their economy, and create jobs that could possibly lift millions out of poverty. 

The Right to Water

However, concerns about the dam project by Egypt and Sudan are based on arguments of human rights too.  The “Human Right to Water” has been recognized in several international human rights agreements and receives particular attention in Goal 6 of the Sustainable Development Goals.  In theory, filling the GERD reservoir would require a full annual flow of the Blue Nile.  The Egyptian agricultural sector and the population rely heavily on the steady flow of the Nile.  Consequently, a sudden substantial drop in Nile water supply would be disastrous.  Egypt therefore argues that the GERD project would interfere with their right to water is to be seen as an issue of national security. In addition to the right to water, strong fluctuations of water flow could furthermore be damaging to Sudanese and Egyptian hydroelectric dams. This could impair their respective electricity stability and thereby threaten Sudanese and Egyptian rights to economic development. 

Conclusion 

Regional negotiations, such as the Cooperative Framework Agreement (CFA) of the Nile Basin Initiative, have failed to reach a solution.  Specifically, the definition of “water security” in Article 14 of the CFA caused contention.  Arguing based on their “historical rights”, stemming from the colonial treaties, Sudan and Egypt refused to sign the agreement.  After mediation attempts by intermediaries, such as the United States and the African Union (AU), and the rejection of an Ethiopian proposal for a preliminary agreement, Ethiopia started to fill the GERD´s reservoirs without an agreement in July 2020. While the situation might appear to be in a deadlock, an agreement could be beneficial to all states involved.  A recent study, published in October 2020 by Nature Communications, shows that the Dam could benefit Sudan and Ethiopia, without negatively impacting Egypt. However, especially in the case of a prolonged drought, coordination between all states is crucial.  The speed of filling the reservoirs would have to be adjusted to periodical rainfall and water flows would need to be communicated openly.  The study suggests that a minimum annual release of water from the GERD could actually increase water safety for Sudanese and Egyptian populations, also in cases of drought. A harmonized schedule for filling and releasing water could therefore ultimately balance the rights to water and the rights to economic development.   Since the release of the study, trilateral talks continued and yielded some positive results in regard to coordinating the filling process.  Nevertheless, Sudanese officials boycotted the latest round of negotiations in November 2020, demanding a stronger involvement of mediators.  

A cooperative agreement could offer a path to reconcile Ethiopia’s desire to economic development with Egypt’s and Sudan’s rights to water safety.  Yet, such a commitment requires trust and mutual assurances.  In light of the volatile situation in the region, all parties involved would be best served by agreeing on procedural issues and continuing negotiations on the technical specifications of filling and releasing water from the dam in good faith.

France’s Global Security Law: Article 24 and the Right to Information

By: Alexandrah Bakker, Junior Research Associate, PILPG-NL

On October 20, 2020, MPs from France’s ruling party proposed the so-called “Global Security Law” (Loi Sécurité globale): a law purporting to be “inventive and innovative” in its approach towards national security, while respecting the actors who contribute to it.  Although the entire bill has elicited criticism, its Article 24, in particular, has gained notoriety.  

Article 24 criminalizes the dissemination of images showing the face or other identifying characteristics of a member of the national police or of the gendarmerie participating in a police operation.  The provision applies when the dissemination aims to undermine the officer’s physical or mental integrity.  Individuals convicted under this provision may face imprisonment of up to one year and a fine of up to €45,000.

Proponents of Article 24 claim that police officers have increasingly faced personal attacks on social media, and that this provision is solely intended to protect them from those who have malicious intent.  Meanwhile, critics have denounced the law as an instrument of impunity.  Many have pointed to recent high-profile incidents of police violence that would not have been brought to the public’s attention were it not for the widespread distribution of videos of the incidents on social media.  A few notable cases include the Benalla Affair, the death of Cédric Chouviat, the Theo rape case, and, more recently, the beating of Michel Zecler, which was condemned by French President Emmanuel Macron.  In other words, they consider that Article 24, by limiting the right to distribute information, can have further implications for the accountability of public authorities in France.

Domestic and international institutions, such as the Defender of Rights (Défenseure des droits), the League for Human Rights (Ligue des droits de l’homme), Reporters Without Borders, Amnesty International, and United Nations experts, have decried the law’s potential implications for the right to privacy, freedom of peaceful assembly, and freedom of expression.  In particular, these institutions have criticized Article 24 as a threat to the right to information.  In response to this criticism and large-scale protests, legislators modified the law to add that it is without prejudice to the right to information.

The Right to Information in International Human Rights Law

The right to information is a corollary of the right to freedom of expression, which is enshrined in both domestic and international human rights law.  France’s international obligations with regards to this right can be found in two places: the International Covenant on Civil and Political Rights (ICCPR) and the European Convention of Human Rights (ECHR).

Article 19 of the ICCPR and Article 10 of the ECHR provide for a right to freedom of expression which includes the freedom to seek, receive, and impart information.  However, this right is not absolute.  Both provisions allow the state to limit the right to information if such a limitation is pursued for a legitimate aim, is provided for by law, and is necessary and proportionate.

Article 24 and the Right to Information

Both the ICCPR and the ECHR recognize the protection of national security and the rights or reputation of others as grounds to limit the right to information.  However, the restrictions imposed citing these grounds must be legal, necessary, and proportionate.  It is in this respect that human rights experts have expressed concern over Article 24. 

Although Article 24 finds basis in legislation, experts consider that the legality requirement is not satisfied due to a lack of precision.  A law that limits the right to information must be sufficiently clear that the public can regulate its behavior accordingly, and that those charged with its execution can distinguish between forms of expression that are and are not permitted.  It is hard to say, for instance, how the intent underlying the dissemination of images will be ascertained.

The necessity and proportionality elements require that the law must be applied only for the purpose for which it was adopted, must be directly related to the need used to justify it, and must be the least intrusive means of achieving its goal.  Reporters Without Borders observed that, even if the law is applied appropriately by judges, Article 24 may still be treated by law enforcement as a justification to arrest individuals live streaming from protests or other events with significant police presence.  Furthermore, law enforcement officers’ right to privacy is already recognized within Article 8 of the ECHR and Article 9 of the French Civil Code.  It could be argued that steps could be taken to reinforce the civil remedies available under these provisions, rather than adding elevated criminal sanctions.

Conclusion

On November 24, 2020, the National Assembly voted to adopt the Global Security Law with 388 votes in favor and 104 against.  The government has since announced that the article will be completely rewritten to address the criticism, a move which has itself been criticized as an inappropriate intervention by the executive in the legislative process.  However, experts claim that it is the underlying idea, and not the phrasing, of Article 24 that is incompatible with international human rights standards.  They have therefore called for the article to be withdrawn entirely.  The law is expected to reach the Senate in January 2021.

“Your Users, Your Liability” - How the ECtHR Established Liability for Hate Speech on Online News Platforms

By: Paul Weber, Junior Research Associate, PILPG-NL

Online platforms have become one of the most important ways in which we communicate today.  The European Court of Human Rights (the Court, ECtHR) recognized that the internet “provides an unprecedented platform for the exercise of freedom of expression”.  Yet, hatred and incitement to violence are common on these fora.  In many cases, authors of such comments hide behind the anonymity provided to them by the internet.  Therefore, victims often find themselves unable to hold the authors directly accountable for their comments.  The ECtHR has addressed this issue by finding that online news platforms are liable for improperly managing hate speech in their user’s comments.  This blog post will outline how the Court established the liability of online platforms for the comments of their users.

 The ECtHR’s case law on the liability of online platforms for unlawful user comments began with Delfi AS v Estonia.  This case concerned the news platform Delfi.  Delfi was held liable for failing to remove personally insulting and threatening user comments under one of its news articles.  The article concerned the business practices of a local company.  Delfi AS removed the comments only after receiving the information that the affected company had filed a lawsuit against it.  In the domestic legal proceedings, the Estonian courts held that the comments violated the affected company’s personality rights and were thus not protected by freedom of speech.  The domestic proceedings imposed legal liability on Delfi AS, as it had failed to provide a system for quick removal of hateful comments.  Subsequently, Delfi AS complained before the ECtHR that it was a violation of  freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). 

 The “Delfi Criteria”

In its decision, the ECtHR developed four criteria to evaluate a platform’s liability concerning comments (paras. 142-143).  These were: the context of the comments, what steps the company took to prevent or remove the unlawful comments, the alternative of holding the actual authors of the comments accountable instead, and, lastly, the consequences of the domestic ruling for the company.  It is necessary to have a closer look at the Court’s application of those criteria to the Delfi AS case to understand what it meant by each of them.

 First, in examining the context of the comments, the ECtHR found that the platform was not a “passive, purely technical service provider” (para. 146).  The actual authors could neither edit nor delete their comments once published.  Thus, Delfi AS had ultimate control over the comments and economically profited from them. 

Second, the Court found that Delfi AS employed upload filters to delete comments containing certain hateful words, and, on several occasions, administrators had deleted hateful comments on their initiative.  However, in the present case, these measures had failed to remove comments containing hate speech without delay and without having been notified.  There, the ECtHR found that the Delfi AS’ response to the comments was insufficient. 

Third, the Court evaluated whether holding the actual authors liable for their comments might be an alternative approach.  The Delfi news platform allowed its users to comment anonymously.  In the eyes of the ECtHR, this anonymity stood in the way of redress for the victims and, hence, could not be an alternative approach in this case. 

Fourth, the Court did not believe that the consequences of the domestic proceedings for Delfi AS were overly harsh.  The company only had to pay a small fine and was not substantially hindered in its operation, according to the ECtHR.  For these reasons, the Court held that the Estonian ruling did not violate freedom of expression. 

With these four criteria, the ECtHR laid the groundwork for its jurisprudence on online news platforms.   Their liability arises, because news platforms “provide for economic purposes a platform for user-generated comments on previously published content” (para. 116).  In the eyes of the ECtHR, this new case law does not extend to social media platforms and blogs.  Such platforms do not provide content of their own and the individuals providing actual content do so as a hobby.  In the eyes of the ECtHR these platforms therefore do not have the same responsibilities as news platforms.

 The Legacy of Delfi AS

Less than a year after the Delfi AS decision, the ECtHR affirmed and refined its criteria for online platform liability in MTE and Index.hu v. Hungary.  Here, the Court additionally evaluated the effect that the comments in question had on the persons that they addressed. With these refined criteria, the Court has evaluated several more cases.  However, this new case law is far from uncontroversial. 

First criticism came with the Delfi AS judgment itself, as Judges Sajó and Tsotsoria wrote a joint dissenting opinion.  The two judges particularly questioned the focus on professional news platforms, remarking that “Freedom of expression cannot be a matter of a hobby” (Diss. Op. para. 9).  Other commentators, like Lorna Woods, criticized the implicit rejection of a notice-and-take-down system as sufficient, as the Court had found that platforms would have to act on their initiative.  However, as Neville Cox observed, Delfi and the case law that followed also provided “a bulwark against the enhanced possibilities for the exercise of freedom of expression de facto provided by the internet”.

Conclusion

The Delfi criteria, for the first time, allowed victims of hate speech online to hold the economic profiters, namely the platform providers, responsible for the wrongs they endured.  In doing so, the Court put greater limits on the freedom of speech online.  However, thereby, it also addressed the issue that victims are often left without redress due to the anonymity provided to authors of hate speech by the internet.  Several Council of Europe member states place greater responsibility on service providers online.  A notable example is Germany and its network enforcement act, which increases the duties of social media platforms.  Thus, the Delfi case law of the ECtHR may be the first of further interesting developments in the jurisprudence on hate speech online.