April 2021

Monthly News Updates: Southern Cameroons – April 2021

By: Fabiana Nunez del Prado Nieto, Junior Research Associate, PILPG-NL

THIS POST COLLECTS UPDATES FROM THE PAST MONTH CONCERNING RELEVANT DEVELOPMENTS IN SOUTHERN CAMEROONS. THE INFORMATION IS DRAWN FROM LOCAL AND INTERNATIONAL ONLINE SOURCES.

VIOLENCE IN ANGLOPHONE REGIONS

Separatist Violence | Freed Civilians Claim to have been Tortured by Separatists 

The Cameroonian military freed nine civilians allegedly held hostage by anglophone separatists for almost two months.  The hostages claim that the rebels tortured them by chopping off their ears and fingers.  Some separatists took to social media to disavow the actions of the kidnappers, claiming that the kidnappers were criminals, not their fighters.  Nka Valere, commander of the military troops fighting separatists in the Northwest, denied any wrongdoing by his forces.  [April 19, 2021]

Violence Against Humanitarian Aid | Non-State Armed Group Attacks United Nations Convoy

On March 26, 2021, a non-state armed group attacked a UN convoy composed of seven staff members.  The UN staff was conducting a monitoring mission in the Munyenge village when shortly after entering the Ikata village, a group of armed men opened fire against them.  There was no loss of life nor injuries, but two vehicles were seriously damaged.  Although this attack is the first of this kind since the beginning of the anglophone crisis, several humanitarian workers have been threatened, abducted, injured, and killed to date in the two regions.

In Cameroon, the Humanitarian Coordinator, Mr. Matthias Z. Naab, strongly condemned the attack and called on all parties to the crisis to abide by their obligations under international human rights law.  He also called on parties to refrain from any attacks against humanitarian organizations, educational and health care facilities, and their personnel and assets. [April 4, 2021]

OTHER REGIONAL VIOLENCE

Nigeria/Cameroon | Escalation of Violence by Boko Haram in Northern Cameroon

According to Human Rights Watch (HRW), since December 2021, Boko Haram has been increasing its attacks against civilians in the Far North region of Cameroon.  The Boko Haram insurgency began in Nigeria in 2009 and spread across several states of the Lake Chad basin, including Cameroon. 

The Cameroonian military has deployed thousands of soldiers to the Far North region to prevent and repel Boko Haram attacks.  Still, residents and humanitarian workers proclaim the presence of soldiers is not enough to protect civilians effectively.  The violence has provoked a major humanitarian crisis, forcing over 322,000 people from their homes since 2014, including 12,500 since last December. [April 4, 2021]

COVID-19 RESPONSE

Use of Covid-19 Funds | Paul Biya Orders Improvement of  Oversight Over Misappropriation of Covid-19 Funds

President Paul Biya’s recent orders to improve oversight and investigate misappropriation of Covid-19 funding appear to be related to Cameroon’s ongoing negotiations for a multiyear loan program with the International Monetary Fund (IMF).  The IMF has already approved two emergency Covid-19 loans to the state for a total of 382 million dollars.

On March 29, 2021, the Secretary-general of the Presidency, Ferdinand Ngoh Ngoh, sent a letter instructing the state auditing agency Contrôle supérieur de l'État du Cameroun (CONSUPE), to accelerate its audit of Covid-19 expenditures.  According to Human Rights Watch, the audit performed by CONSUPE does not satisfy the government’s pledge to the IMF to conduct an independent audit of funds.   After approving two emergency loans of 256 and 156 million US dollars in May and October of 2020, respectively, the International Monetary Fund is currently asking for accountability on the funds. [April 8, 2021]

Vaccines | Health Workers Claim to Distrust  Efficacy of Chinese Vaccines

On April 11, 2021, 200,000 doses of the Sinopharm vaccine arrived in Cameroon's capital, Yaoundé.  While some health care workers doubt the efficacy of the vaccine, Cameroon Health Minister Manaouda Malachi was the first one to get the shot.  He said he understood people’s reluctance to take the vaccine due to reports of fake vaccines circulating in China.  However, he reassured that the vaccines come directly from the manufacturers in China. [April 14, 2021]

HUMAN RIGHTS 

LGBTQ+ Rights | Rise in Arrests of LGTBQ+ People for “Practicing Homosexuality”

Since February 2021, according to Human Rights Watch, the security forces have arrested, beaten, or threatened at least 24 people, alleging consensual same-sex conduct or gender non-conformity.  Sexual relations between people of the same sex are criminalized in Cameroon and punished with up to five years in prison.

On March 25, the human rights organization shared its findings with the Justice Minister, the State Secretary at the Defense Ministry.  The delegate general for national security requested answers about the situation.  Cameroonian officials have yet to respond. [April 14, 2021]

POLITICAL OPPOSITION IN CAMEROON

Opposition | Armed Police Disperses Meeting of Opposition Leaders

Seven opposition leaders stated that the police forcefully removed them from a meeting held on March 30th, 2021.  According to the leaders, the purpose of the meeting was to discuss election reforms to end the long-serving presidency of Paul Biya.  The government said it ordered the disruption of the meeting because the opposition leaders did not obtain the required authorization, as stipulated by Cameroonian law.  Three of the candidates who lost the presidential poll on October 7, 2018, were present in the meeting. [April 3, 2021]

Balancing national security and the right to a fair trial: the UK Supreme Court’s decision on the Shamima Begum case

By: Henry Smith, Junior Research Associate, PILPG-NL

On February 26, 2021, the Supreme Court (SC) of the United Kingdom (UK) upheld the Home Office’s decision to deny Shamima Begum the right to return home and personally contest the revocation of her British citizenship.  This decision overturned a previous ruling by the Court of Appeal (CA).  The SC’s decision has sparked criticism for supposedly setting a precedent for the Home Office to disregard the human right to a fair trial and procedural safeguards.  This post will look at how the SC balanced the right to a fair trial and national security interests, how its approach differed from the CA’s approach, and the problems that it may cause.

Facts of the case

Shamima Begum left the UK in February 2015, at 15 years of age, to join the Islamic State (IS) in Syria.  Four years later, Begum was captured by Syrian Kurd forces and taken to a detention camp, where she was later found by journalists.

The UK Home Office, the state department responsible for immigration and security, immediately stripped Begum of her British citizenship based on Section 40 of the British Nationality Act of 1981, which provides that any person may have their citizenship revoked in the interest of the “public good.”  The argument was that Begum was a member of IS and, therefore, posed a threat to national security.

Begum requested leave to enter the UK so that she could appeal in person the decision that canceled her citizenship, but the Home Office rejected the request. She took the claim to the CA which ruled in her favor, determining that she should be allowed to enter.  In turn, the Home Secretary appealed to the SC, which overturned the ruling and held that the decision to allow her re-entry was at the discretion of the Home Secretary. 

Balancing national security and the right to a fair trial

The main point in which the SC diverged from the CA was the balancing between Begum’s right to a fair trial and national security concerns.

The CA first rejected the assessment made by the Home Office of the national security risks posed by Begum’s re-entry.  It argued that Begum posed a less serious risk than other individuals who had previously been denied the right to return on the grounds of national security because she had never actively engaged in hostilities.  According to the CA, the potential risk posed by her return could be managed by arresting her upon arrival and keeping her in custody until the end of the trial.  The CA then asserted that Begum’s right to a fair trial outweighed the national security concerns.  As a result, the only solution would be to grant her leave to enter the UK so that she could effectively appeal the canceling of her citizenship.

The Supreme Court concluded differently.  With regards to the national security risks posed by Begum’s return, the SC affirmed that the CA should not have made its own assessment.  Instead, it should have accepted the assessment made by the Home Secretary, who had been entrusted with that responsibility by the democratically elected Parliament.  As for the conflict between the right to a fair trial and national security, the SC argued that the latter should not prevail over the former.  According to the SC, if a public interest makes it impossible for a case to be heard fairly, then courts cannot hear it.  The SC acknowledged that it would be impossible for Begum to fairly appeal the cancelation of her citizenship while detained in Syria.  It determined that her appeal should be suspended until she “is in a position to play an effective part in it without the safety of the public being compromised.”

Assessment of the Supreme Court’s decision

Two main criticisms arise from the SC’s conclusion.  Firstly, it renders Begum’s right to appeal the cancelation of her citizenship virtually meaningless.  The hearing of her appeal would depend on her leaving the detention camp in Syria.  However, her best chance of leaving is through a successful appeal.  If Begum’s British citizenship were reinstated, the UK could  the be under the obligation to repatriate her as a means to secure her right to life and her freedom from torture or inhumane treatment, as established in the European Convention on Human Rights.  The existence of such an obligation is the subject of similar cases brought by French women against France before the European Court of Human Rights.  In effect, the SC’s decision leaves Begum in a contradictory situation where she can only appeal if she leaves the detention facility, which in turn will most likely only happen after a successful appeal.

Secondly, it sets a precedent for the UK Home Office to act with a high degree of discretion in assessing national security matters.  While it can be argued that the Home Office has the democratic legitimacy to make these assessments, the courts should be able to evaluate whether fundamental safeguards have been observed.  By refusing to do so, and leaving the decision entirely up to the Home Office, the SC might be removing from the courts the capacity of ensuring the observance of legal safeguards.  This is particularly concerning considering that there are estimates of 50 British women and children being held in Syrian detention camps under conditions which may amount to torture or other inhumane treatment, as described by a United Nation’s Special Rapporteur.

Concluding remarks

While the SC’s decision to suspend Begum’s appeal was intended to secure her right to a fair trial without trumping the Home Office’s national security concerns, the SC effectively rendered it extremely unlikely that she could exercise her right to appeal the cancelation of her citizenship.  Additionally, it conferred on the Home Office a considerable amount of discretion in determining those security issues.  It remains to be seen how this precedent will impact the cases of others who are still detained in similar circumstances.

The Requirement to Exhaust Domestic Remedies and the Future of Climate Change Litigation before the ECtHR

By: Daria Stanculescu, Junior Research Associate, PILPG-NL

On September 3, 2020, six Portuguese children and young adults aged eight to 21 brought an application before the European Court of Human Rights (ECtHR) against 33 Council of Europe member states, including all states of the European Union, the United Kingdom, Switzerland, Russia, Norway, Turkey, and Ukraine.  The application, logged as Duarte Agostinho and Others v. Portugal and Others, raises complex issues related to admissibility and shared responsibility among states for climate change.  This blog post will focus on the requirement to exhaust domestic remedies and the problem it poses for this case.  It will also provide an alternative to bringing future climate-related claims before the ECtHR that does not require the exhaustion of domestic remedies.

Facts of the Case

The applicants allege that the states are contributing to climate change by failing to take effective measures to reduce their greenhouse gas emissions.  These claims are not new.  Claimants brought similar arguments in the Urgenda case, in which the Dutch Supreme Court ordered the Netherlands to reduce its emissions by 25% by the end of 2020.  The Duarte Agostinho case is, nonetheless, significant as it is the first case concerning climate change appearing before the ECtHR.  The applicants allege violations of Articles 2 (the right to life), 8 (the right to private and family life), and 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR).  Upon asking the applicants to comment on their claims, the ECtHR also raised the application of Article 3 ECHR (prohibition of torture or inhuman or degrading treatment or punishment) of its own accord.  While this is not unheard of, it is notable that the Court raised the issue of the individuals’ rights under Article 3, as this provision has not been raised in relevant domestic cases, such as the Urgenda case.  The case is currently pending an admissibility examination by the Court.  One of the admissibility requirements the applicants must meet is the exhaustion of domestic remedies.

Exhaustion of domestic remedies

The requirement to exhaust domestic remedies compels individuals to first use available procedures under national law before bringing a complaint to the ECtHR.  Since the applicants are lodging their case against 33 states, making use of domestic remedies in each of these states would have taken several years.  As a result, the applicants, in this case, have not exhausted domestic remedies and are attempting to rely on an exception to this rule.  

The non-exhaustion of domestic remedies can be problematic, as the ECtHR is subsidiary to national systems that safeguard human rights.  The ECtHR does not replace national courts but works alongside them.  The purpose of the requirement is that the national system can remedy the alleged violation of the Convention rights first before the ECtHR is allowed to adjudicate on the state’s behavior. 

Although the requirement to exhaust domestic remedies can be decisive, the ECtHR has highlighted the need to apply it with a degree of flexibility and without excessive formalism.  The Court has established exceptions to the exhaustion of domestic remedies rule.  In the Duarte Agostinho case, the applicants argue the rule should not apply due to the absence of an adequate domestic remedy.  The applicants rely on two main arguments that, in their opinion, justify such a statement: that it would not be feasible to pursue domestic proceedings against each of the states, considering the urgency of climate change, and that pursuing domestic remedies in each of the states would impose an unreasonable burden on them.  The decision of the Court regarding these arguments will determine if the case will be heard on the merits.

The Future of Climate Change Litigation before the ECtHR

If the Court dismisses the Duarte Agostinho case for not exhausting domestic remedies, the decision may raise doubts about the suitability of the ECtHR in dealing with future climate change-related claims by individuals.  However, the ECtHR also supports other types of claims.  A possible alternative to individual proceedings, like Duarte Agostinho, would be a request made by a state for an advisory opinion.  Under Protocol 16, which entered into force in 2018 for the states that ratified it, the ECtHR can issue advisory opinions on questions concerning the application and interpretation of the ECHR.  Such opinions can only be requested by the highest courts and tribunals of a state.  Although advisory opinions are not binding, they may provide clarity on how the ECHR applies in climate change cases.  This approach would allow the ECtHR to address the material issue without encountering problems stemming from the requirement to exhaust domestic remedies.

Conclusion

The ECtHR’s decision in Duarte Agostinho raises expectations, as it is yet to be seen how the Court rules on the admissibility requirements, particularly regarding the exhaustion of domestic remedies.  Regardless of the outcome of the proceedings, Duarte Agostinho embodies an influential case for climate change litigation before the ECtHR.  However, individual claims are not the only path for the ECtHR to rule on climate change.  Protocol 16 provides a non-binding alternative, through which the Court can rule on climate change issues, without requiring the exhaustion of domestic remedies.

Swiss Ban on Face Coverings: Lessons from the French Experience

By: Adam DiSimine, Junior Research Associate, PILPG-NL

Through a narrow but binding vote by referendum last month, Swiss citizens passed a call for a measure banning the wearing of full-face coverings in public places.  The ban has been described by some as an attack on Muslim women.  In fact, Amnesty International called the ban discriminatory, alleging that it violates women’s rights to freedom of expression and religion.  The government will now have two years to prepare a law to implement the measure.  As lawyers and policymakers work to draft a piece of legislation in the coming months, they may look to prior cases before the European Court of Human Rights (ECtHR) and the United Nations Human Rights Committee (UNHRC).  This post will look at two such cases brought against France for a similar ban on face coverings and identify the considerations weighed by these bodies when determining such a ban’s legal status.  It is important to note, legal compliance is only one of several factors relevant for contextualizing this issue.  Placing the ban in a broader setting is essential to understand its causes and effects. 

The French Ban

In April 2011, France became the first European state to legislatively ban full-face coverings in Europe.  Following the enactment of the law, three cases were brought that challenged its validity - one before the ECtHR and two before the UNHRC.  In S.A.S. v. France, the ECtHR ruled that the ban on face coverings was compliant with the European Convention on Human Rights (ECHR).  Conversely, in Yaker v. France and Hebbadi v. France, the UNHRC found that the ban constituted a violation of the prohibition of discrimination based on gender and religion under the International Covenant on Civil and Political Rights (ICCPR).  As Switzerland is a party to the ECHR, it may be possible for applicants to bring a similar case against Switzerland before the ECtHR.  Switzerland has not ratified the optional protocol to the ICCPR and so a case cannot be brought before the UNHRC in this instance, but its rulings help inform Swiss obligations under the ICCPR nonetheless.

S.A.S. v France

In S.A.S. v. France, the ECtHR found that, while the French ban impaired the rights of women, who wish to wear a face-covering for religion, to private life, and to manifest religion, it did not violate the ECHR.  In fact, the ban was a necessary and proportionate measure in pursuit of preserving the conditions of “living together” under the exception of “protection of the rights and freedoms of others”.  While acknowledging that the ban had a broad scope (as it applied to all public places), the ECtHR noted that the ban did not forbid wearing other types of religious clothing and that sanctions connected with violating the ban were “among the lightest that could be envisaged”.  As a result, the ECtHR focused much of its decision considering whether the limitation was a necessary and proportionate restriction.  Factors that were relevant when making its determination included both - the nexus of the ban with religion and the nature of the penalties to be imposed for non-compliance.  The ECtHR is likely to engage in a similar analysis if called on to evaluate the Swiss ban.

Yaker v. France

In Yaker v. France (and similarly in Hebbadi v. France), the UNHRC determined the ban discriminated against Muslim women based on gender and religion.  The UNHRC came to this finding due to the ban’s negative effects on Muslim women based on a distinction that was neither necessary nor proportionate to a legitimate interest.  In reaching its decision, the UNHRC noted two relevant factors.  First, there were several exceptions to the ban, so the ban was effectively focused on Muslim face coverings (and in practice, it had primarily been enforced against Muslim women).  Here, the UNHRC focused on the actual effects of the ban and its real-world implications.  Second, criminal penalties were applied for violations of the ban.  The use of criminal sanctions, sometimes on multiple occasions, was found to be a disproportionate punishment for violations of the law.   When assessing whether a limitation is proportionate under the ICCPR, the UNHRC evaluated the discriminatory effects by virtue of the exceptions to the law.   In addition, just as in S.A.S. v. France, the UNHRC has shown that the nature of the penalties imposed in the event of non-compliance with the ban will be a factor when assessing proportionality.   

Conclusion

It remains to be seen what form the new Swiss legislation implementing the ban on full-face coverings will take following the referendum.  As particulars are negotiated and drafted in the near future, a close examination of the factors considered by the ECtHR and UNHRC provide guidance on the form such a ban will need to take in order to have a chance at being compliant with the ECHR and ICCPR. 

March 2021

Monthly News Update: Yemen – March 2021

By: Adam DiSimine, Junior Research Associate, PILPG-NL

This news update summarizes recent developments in the ongoing conflict in Yemen.  The information is drawn from different online news platforms.  The month began with a series of attacks and culminated with a ceasefire offer from Saudi officials to the Houthis.  

MIDDLE EAST

Saudi Arabia | Houthis launch new attacks on Saudi Arabia

Houthis launched several drone and missile strikes against Saudi infrastructure, including the petrol distribution terminal of state-owned petrol company Saudi Aramco in Jizan.  The attacks came just days after Saudi officials proposed a ceasefire agreement to end the conflict in Yemen. [March 26, 2021]

Saudi Arabia | Saudi officials offer ceasefire plan to Houthis

Saudi Foreign Minister Prince Faisal bin Farhan Al Saud announced a ceasefire agreement was proposed to the Houthis.  The proposal included a nationwide ceasefire, the reopening of Sana’a airport, and the free movement of fuel and food through the Hudaydah port.  The internationally recognized government of Yemen welcomed the announcement while the Houthis were skeptical but pledged to continue discussions towards a peace agreement. [March 22, 2021]  

Yemen | A fire at a migrant detention facility in Yemen capital kills 45 people

A fire at a migrant detention facility in Yemen’s capital of Sana’a killed at least 45 people and injured more than 200 people.  The Interior Ministry for the Houthis acknowledged responsibility, saying several members of the security forces were detained and would stand trial in connection with the incident.  [March 20, 2021]

Saudi Arabia | Houthis claim responsibility for a drone strike at a Saudi oil facility

The Houthis claimed responsibility for an air attack launched against an oil refinery owned by the state-owned petrol producer Saudi Aramco.  The attack caused a fire but did not result in injuries or casualties. [March 19, 2021]

Yemen | Yemeni minister targeted in an assassination attempt

Abdul Nasser Al-Wali, Yemen’s Minister of Civil Service and Insurance, escaped uninjured after an assassination attempt was made on his convoy.  Prime Minister Maeen Abdulmalik subsequently announced an investigation into the attack. [March 18, 2021]

Yemen | UN Special Envoy for Yemen describes ‘dramatic’ deterioration in Yemen conflict

The United Nations (UN) Special Envoy for Yemen warned the UN Security Council of increasing violence and a ‘dramatic’ deterioration in the ongoing conflict in Yemen.  He also highlighted calls for a nationwide ceasefire and the opening of both the Sana’a airport and Hudaydah ports as important humanitarian objectives. [March 16, 2020]

Saudi Arabia | Houthis attack Saudi Arabia oil infrastructure

Houthis launched an air attack against Saudi Arabia’s oil industry, including a Saudi Aramco facility located in Ras Tanura.  There were no casualties or damage to property reported. [March 8, 2021]

Yemen | Saudi-led coalition launches airstrikes against Yemen capital

The Saudi-led coalition launched an air campaign targeting the Yemeni capital Sana’a and other provinces as part of a retaliation effort for a collection of attacks carried out by Houthis against military targets and oil infrastructure in Saudi Arabia. [March 7, 2021]

Yemen | Houthis claim they have seized control of Marib

The Houthi Deputy Foreign Minister announced the Houthis had taken control of the majority of the districts in the northern city of Marib, the last major stronghold of the internationally recognized government in northern Yemen.  [March 3, 2021]

AFRICA

Djibouti | Human smugglers force migrants into water en route to Yemen, killing 20 people

Human smugglers killed 20 migrants who were attempting to cross the Gulf of Aiden from Djibouti to Yemen when the smugglers forced dozens of people into the water partway through the journey.  This was the third incident of this type in the last six months. [March 4, 2021]

EUROPE

Germany | Appeal filed to Germany’s highest court in a case concerning US drone strike in Yemen

The European Center for Constitutional and Human Rights filed an appeal to Germany’s highest court on behalf of two Yemini men who assert an American drone strike killed their relatives.  The Münster administrative court had previously ruled the German government had a certain responsibility to ensure compliance with international law when drone strikes were carried out from United States Ramstein Air Base in Germany.  The appeal comes after a German federal administrative court weakened that ruling, saying diplomatic outreach by German officials was sufficient to fulfill their obligations.  [March 23, 2021]

United Kingdom | United Kingdom cuts aid to Yemen citing financial pressure from Covid-19

The government of the United Kingdom (UK) announced it would provide ‘at least’ £87 million in aid to Yemen this year, compared to £164 million it provided last year.  UK officials attributed the decrease in aid to the ‘difficult financial context’ created by the Covid-19 pandemic. [March 2, 2021]

THE AMERICAS

United States | Biden administration to resume aid to Houthi-controlled areas of Yemen

United States (US) President Biden’s administration announced the US would resume providing aid and humanitarian assistance to areas under the control of Houthis.  Former US President Trump had previously halted some U.S. aid to such areas. [March 11, 2021]