June 2021

Monthly News Updates: Human Rights Mechanisms - June 2021

By: Irene Aparicio García, 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 June.

EUROPE 

European Court of Human Rights | The ECtHR finds a violation of the right to freedom of expression of a Basque separatist politician 

The ECtHR has issued its judgment in the Erkizia Almandoz v. Spain case.  The case concerns a Basque separatist politician convicted in Spain for a “terrorism glorification offense”.  The Spanish National High Court convicted the applicant after he had made several statements during a ceremony to commemorate the murder of a member of the terrorist organization ETA.  The applicant allegedly supported the actions of the ETA member during his speech.  The ECtHR has found a violation of the applicant’s right to freedom of expression. [June 22, 2021].

European Court of Human Rights | The ECtHR finds no violation of the right to life in the domestic violence case of Kurt v. Austria

The ECtHR’s Grand Chamber has issued its judgment in the Kurt v. Austria case.  The case concerns a father who murdered his son after the mother consistently complained to Austrian authorities about the father’s domestic violence.  The applicant, the mother of the child, claimed that Austrian authorities had grounds to detain the father based on the multiple protection orders against him, which would have prevented the death of the child.  The Chamber found no violation of the right to life.  It is the Chamber’s first clarification of the interpretation of the right to life in cases of domestic violence. [June 17, 2021]

AFRICA 

African Commission on Human and People’s Rights | The ACHPR launches the Commission of Inquiry on the Tigray Region in Ethiopia 

The ACHPR has announced the establishment of a Commission of Inquiry in the conflict in the Tigray Region in Ethiopia.  The Commission is based in the Gambia and tasked with conducting investigations into the human rights violations that took place in Ethiopia’s Tigray Region.  The Commission began its work on June 17. [June 15, 2021]

African Court on Human and People’s Rights | The AfCHPR appoints a new president and a new vice-president during its 61st session

During its 61st session, the AfCHPR appointed Justice Imani Daud Aboud as its new president.  Aboud is originally from Tanzania and will hold the position for two years.  The AfCHPR also appointed Justice Blaise Tchikaya, from the Republic of Congo, as its new vice president. [May 31, 2021] 

African Commission on Human and People’s Rights | The ACHPR condemns the kidnapping of 200 children from an Islamic school in Nigeria

The ACHPR has condemned the kidnapping of 200 children from an Islamic school in Tagina, Nigeria, on May 30.  According to reports, the perpetrators entered the town, opened fire on the school, and kidnapped the children.  The ACHPR has called upon Nigeria to conduct a transparent investigation and reminded Nigeria of its duties under the African Charter, which includes the right to education.[May 31, 2021]

THE AMERICAS 

Inter-American Commission on Human Rights | The IACHR requests provisional measures to protect several members of the political opposition in Nicaragua 

The Inter-American Commission on Human Rights (IACHR) has requested that the Inter-American Court of Human Rights (IACtHR) grants provisional measures to protect several members of the political opposition in Nicaragua.  These individuals are currently in detention, and the Nicaraguan authorities may be threatening their rights to life and personal integrity.  The IACHR had already granted precautionary measures regarding this situation twice.  However, the IACHR fears that this is no longer sufficient as Nicaragua has not provided information on the implementation of these initial measures, suggesting an increased risk for the opposition politicians concerned.  Therefore, the IACHR has decided to request the implementation of the more binding provisional measures by the IACtHR. [June 23, 2021]

Inter-American Commission on Human Rights | The IACHR adopts provisional measures to protect a journalist in Nicaragua 

The IACHR adopted precautionary measures to protect Kalua Salazar and her family.  Salazar is the director of the independent media La Costeñísima.  Nicaraguan authorities are surveilling her and her family because of her journalistic work.  The IACHR has requested Nicaragua to take the necessary steps to protect Salazar and her family’s life. [June 14, 2021] 

Inter-American Commission of Human Rights | Colombia’s working visit to the IACHR took place from June 8 to June 10 

The IACHR’s working visit to Colombia took place from June 8 to June 10.  The IACHR requested the visit in the context of the human rights violations during the social protests that have been ongoing since April 28 of this year. The IACHR has recognized Colombia’s willingness and cooperation, and it met with different sectors of society to gather testimonies from different groups. [June 8-10, 2021] 

UN MECHANISMS

Human Rights Council (Several UN experts) | Several UN experts call on the Holy See to act against the cases of children’s sexual abuses

Several UN experts have called on the Holy See to take measures against cases of child sexual abuse occurring in Catholic institutions.  The experts have highlighted the obstructive role of Catholic institutions in investigations and called for an end to impunity and the provision of reparations for victims. [June 21, 2021]

Human Rights Council (Several UN human rights experts) | UN experts call on the G7 leaders to provide access to COVID-19 vaccines in the Global South

Several UN human rights experts have called on the G7 leaders to ensure access to COVID-19 vaccines in the Global South.  The experts also stressed that the lack of vaccines in the Global South will irredeemably prolong the pandemic and its social and economic impact on the world. [June 9, 2021] 

UN and OAS human rights experts | UN and OAS experts call on Mexico to investigate human rights abuses during the electoral process 

UN and OAS experts have advised Mexican authorities to investigate the human rights violations in the lead-up to the national elections on June 6.  The experts also called on the Mexican authorities to maintain peace during the post-election process.  More than 250 individuals have been killed during the electoral process, including politicians, candidates, journalists, and their relatives. [June 8, 2021] 

Human Rights Council (Several UN experts) | Several UN experts call on Canada and the Holy See to conduct an investigation on the finding of a mass grave with indigenous children in Canada 

Several UN experts have called on Canada and the Holy See to conduct an investigation into the discovery of a mass grave with 200 indigenous children in Canada.  The mass grave was found at the site of a former indigenous residential school, which was jointly run by the Canadian authorities and the Catholic Church.  The indigenous students that attended such institutions were often forcibly separated from their families and physically and sexually abused by school staff.  The UN experts have called for further investigations of Canada’s other residential schools. [June 4, 2021]

UN Independent Expert on the situation of human rights in Mali | UN experts calls on Malian military authorities to release the president and prime minister being held under house arrest 

The UN Independent Expert on the situation of human rights in Mali has condemned the detention of the president and prime minister by military forces.  Contrary to what was reported, the military forces did not set free the president and prime minister on May 27, and they are still held under house arrest.  The UN expert has called on all Malian authorities to respect human rights and restore the rule of law. [June 2, 2021] 

June 2021

Monthly News Updates: Southern Cameroons - June 2021

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

This post collects updates from the past month concerning recent developments in Southern Cameroons.  The information is drawn from local and international online sources.

VIOLENCE IN ANGLOPHONE REGIONS

Separatist Violence | Protests against separatist violence

On May 31, following the killing of a renowned local businessman, the residents of Mbefi, a locality in Bamenda in the North-West region of Cameroon, took to the streets.  They voiced their discontent over the continued atrocities allegedly perpetrated by Ambazonian separatist fighters on innocent civilians. [June 1, 2021] 

Separatist Violence | Separatist attack on army outpost

On May 25, according to military sources, a group of separatist fighters attacked an army outpost in the Lassin village of Noni, located in the North-West anglophone region.  The attackers killed five Cameroonian soldiers during the assault. Separatist fighters of the “Marine Force of Ambazonia” claimed authorship of the attack and warned about future attacks. [May 26, 2021] 

HUMAN RIGHTS 

Detentions | Human rights lawyer detained on terrorism charges 

On May 31, the Yaoundé gendarmes (police force in charge of maintaining public order), arrested Cameroonian human rights lawyer, Amungwa Tanyi Nicodemus, accusing him of terrorism for possessing photographs that evidenced abuses in the Anglophone regions of Cameroon.  Amungwa was assisting a client at the Groupement Territorial de la Gendarmerie in Yaoundé, when he was arrested.

 Upon his arrest, the gendarmes immediately transferred him to the Service Central des Recherches Judiciaires (SCRJ) at the State Defense Secretariat, a detention facility known for the resort to incommunicado detention (denying the detainee access to communication with family members or a lawyer) and torture.  On June 3, the Yaoundé military court prosecutor rejected Amungwa’s lawyers’ request for bail and returned the case to the SCRJ. [June 7, 2021] 

Although Amungwa was released on June 9, the proceedings against him for alleged terrorism are still ongoing. [June 10, 2021] 

US Sanctions | United States imposes visa restrictions on Cameroon 

On June 7, the United States imposed visa restrictions on individuals believed to undermine efforts to end the ongoing crisis in the Anglophone regions.  US Secretary of State Antony Blinken announced the sanctions, shared the United States' concern for the continued insecurity in the areas, and called for both sides to negotiate for peace. [June 8, 2021]  

Call for Action | Women petition UN Security Council to end Cameroon's crisis

A group of female Cameroonian activists and opposition members appealed to the United Nations Security Council (UNSC) on May 31 during a meeting held to discuss possible solutions to escalating Boko Haram violence.  They asked the UNSC to force Cameroon to respect human rights, release political prisoners, and negotiate a ceasefire with armed groups. 

The group said that Cameroon has become conflict-ridden and on the brink of a catastrophe.  They called for international pressure as they believed it would help put an end to the conflict. Cameroonian politician and co-signatory of the letter Edith Kah Walla mentioned that the UNSC needs to recommend an inclusive, bottom-up dialogue with all parties to the conflict. [June 5, 2021] 

INCIDENTS ABROAD

US | US-based Anglophone Cameroonians charged for shipping weapons into Nigeria 

A US federal court charged three US-based Anglophone Cameroonians with shipping, attempting to ship, and conspiracy to ship weapons and military goods from the United States to Nigeria.  The federal prosecutor believes the suspects are supporters of the Anglophone separatist movement in Cameroon.  However, there is still no confirmation.  They face implication in supplying high-grade firearms and ammunition to separatists fighting against the Cameroonian armed forces. [June 18, 2021]

June 2021

Monthly News Updates: Domestic Prosecution of International Crimes - June 2021

By: Alexandrah Bakker, Research Associate, PILPG-NL 

The following post highlights developments from around the world in the domestic prosecution of international crimes.  This month saw developments at all stages of criminal proceedings, including the filing of criminal complaints, the strengthening of national legislation, and long-awaited convictions.

EUROPE

Bosnia and Herzegovina | Constitutional Court rejects appeal against crimes against humanity conviction

Bosnia’s Constitutional Court has rejected Zoran Babic’s appeal against his conviction of crimes against humanity.  Babic is serving a 35-year sentence for murders he committed during the war in the former Yugoslavia.  The Constitutional Court held that the lower courts had not violated Babic’s right to a fair trial after Babic complained that a hearing had taken place in his absence while he was unable to attend for medical reasons. [June 25, 2021]

Switzerland | Federal Criminal Court convicted Alieu Kosiah of war crimes

The Swiss Federal Criminal Court convicted Alieu Kosiah of war crimes for his role as the commander of the United Liberation Movement of Liberia for Democracy (ULIMO) rebel group during the Liberian civil wars of the 1990s.  The Court sentenced Kosiah to 20 years’ imprisonment, the maximum sentence.  This is the first time Switzerland’s civilian jurisdictions heard a war crimes case. [June 18, 2021] 

Germany | Higher Regional Court of Dusseldorf convicts woman of crimes against humanity

The Higher Regional Court of Dusseldorf convicted a German woman, who was a member of ISIS, of crimes against humanity and sentenced her to six-and-a-half years’ imprisonment.  Notably, the Court convicted the woman of persecution on the grounds of gender and religion for crimes committed against enslaved Yazidi women. [June 18, 2021] 

France | Investigating judges indict tech executives for complicity in torture and enforced disappearance

Investigating judges of the Paris Judicial Court’s special war crimes unit have indicted four individuals of complicity in torture and enforced disappearance.  The indicted persons are all executives of the companies Amesys and Nexa Technologies.  They have been under investigation since 2011 when human rights NGOs filed complaints against the companies for selling surveillance technology to the Libyan and Egyptian regimes. [June 17, 2021]

The Netherlands | District Court of The Hague conducts hearings in Syria war crimes case

The District Court of The Hague conducted hearings on the merits in the case of Ahmad Abu-K., a Syrian accused of committing a war crime in 2012 after the discovery of a YouTube video depicting his involvement in the execution of a Syrian officer.  The hearings lasted three days, and the Court will deliver a verdict in early July. [June 15-17, 2021] 

France | Human rights NGO files torture complaint against United Arab Emirates official

The Gulf Centre for Human Rights (GCHR), an NGO based in Lebanon, filed a criminal complaint in France against Major General Ahmed al-Raisi, an official from the United Arab Emirates who is running to be president of Interpol.  The complaint accused al-Raisi of being responsible for the torture of an activist imprisoned in Abu Dhabi. [June 12, 2021] 

Bosnia and Herzegovina | Court of Bosnia and Herzegovina sentenced defendants for crimes against civilians

The Court of Bosnia and Herzegovina sentenced several defendants to serve between five and ten years in prison over the inhumane treatment and unlawful detention of Serb and Croat civilians in 1994. [June 10, 2021]

AFRICA

Liberia | Civil society introduces bill for the establishment of a war crimes tribunal

A group of 15 Liberian civil society organizations introduced a bill in Parliament to establish a tribunal with jurisdiction over crimes committed between 1979 and 2003.  This crucially covers the period between 1989 and 2003, during which two civil wars took place.  To date, there have been few prosecutions for international crimes committed during this time, and most cases have taken place in third states on the basis of universal jurisdiction. [June 24, 2021]

South Africa | Supreme Court of Appeal ruled that a delay in the prosecution of Apartheid-era crimes does not violate the defendant’s right to a fair trial

The Supreme Court of Appeal of South Africa has ruled that a 47-year delay in the prosecution of a former police officer accused of the murder of an anti-Apartheid activist does not violate the defendant’s right to a fair trial.  The delay was the result of political interference, with an initial inquest ruling that the victim had committed suicide in police custody. [June 21, 2021]

The Gambia | Truth, Reconciliation and Reparations Commission public hearings come to an end

The Gambia’s Truth, Reconciliation and Reparations Commission (TRRC) has concluded its public hearings.  It held its first hearings in 2019 and experienced some delays because of the Covid-19 pandemic.  While the TRRC’s mandate is to establish a historical record of human rights abuses in the Gambia between 1994 and 2017, the Commission has the ability to recommend the prosecution of offenders.  In his concluding remarks, Lead Counsel Essa Faal summarized the abuses described by witnesses and labeled them as crimes against humanity.  Faal called for justice to be done, be it in the Gambia or elsewhere. [May 28, 2021]

Subsidiarity and the Margin of Appreciation in Protocol 15 of the ECHR: Substantial or Symbolic Change?

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

On April 21, 2021, Italy ratified Protocol No. 15 (the Protocol) to the European Convention on Human Rights (ECHR, the Convention).  This ratification triggered the entry into force of the Protocol for all member states of the ECHR from August 1, 2021.  The Protocol brings several substantial amendments to the Convention’s provisions with regards to the functioning of the European Court of Human Rights (ECtHR, the Court).  These changes include shortening the time limit for bringing applications to the Court from six to four months, changing the upper age limit for judges, and removing the right of parties to object to the relinquishment of jurisdiction to the Grand Chamber.  Arguably, the Protocol’s most significant amendment is the addition of a reference to subsidiarity and the doctrine of the margin of appreciation in the Convention’s Preamble.  This blog post examines the effects that these references in the Convention’s Preamble will have on the ECHR system after the amendments enter into force on August 1.

Background to Protocol 15

During the Brighton Conference, one of the High-Level Conferences on the Future of the Court aimed at developing strategies for the long-term future of the Convention system, the member states adopted Protocol 15.  It opened for signature on June 24, 2013.  Since the Protocol brought about significant changes to the Convention system, the consent of all 47 member states to the ECHR was made a condition for its entry into force.  

One of the main changes agreed upon at the Brighton Conference was the incorporation of subsidiarity and the margin of appreciation in the Preamble.  The principle of subsidiarity means that the national authorities of the member states of the Convention have the primary task  of ensuring that the rights in the Convention are respected.  The Court should only intervene where domestic authorities fail to protect such rights.  The margin of appreciation is a doctrine developed by the ECtHR in its case law.  It describes the degree of discretion the Court affords states when taking measures at the national level that would otherwise limit or interfere with rights afforded by the ECHR.  In cases where the Court gives states a wide margin of appreciation, it will not engage in a complete review of the substance, but will generally accept the choices made by domestic authorities.

The Effects of the Changes

It can be debated whether the changes introduced by Protocol 15 will have a significant effect on the functioning of the Court.  On the one hand, the insertion of subsidiarity and the margin of appreciation emphasizes the principle that national authorities are primarily responsible for protecting human rights.  They are also responsible for providing remedies for violations or rights.  This may mean that the Court will defer to the national authorities more often, especially when it believes an in-depth assessment of the issue has already been carried out at the national level.  However, it is more likely that the addition will instead contribute to better judicial dialogue between national courts and the ECtHR.  This means that the ECtHR will take into consideration how a case has been handled at national level when issuing judgments.  Judicial dialogue may encourage national authorities to take a more active role in resolving human rights issues at the national level, before they reach the ECtHR.  This, in turn, may contribute to lowering the caseload of the Court, which has been under pressure in recent years due to the number of pending applications before the ECtHR.

On the other hand, it may be argued that the additions will not bring a remarkable change to the Convention system.  Since the Court already makes use of subsidiarity and the margin of appreciation in its case law, the addition of these mechanisms to the Preamble of the Convention may be regarded as merely symbolic.  After all, the ECtHR remains the final interpreter of the Convention. 

Conclusion

Whether the inclusion of subsidiarity and the margin of appreciation in the Preamble of the ECHR will have a notable effect on the functioning of the Court is currently unclear.  These changes may drive the Court to defer to national authorities or lead to closer dialogue between the ECtHR and national courts.  However, these amendments can also be seen as merely symbolic.  It remains to be seen whether the Protocol  will bring any significant changes to the Convention system.  Much of this depends on how the Court applies the newly added principles and whether it will give them more weight now that they are included in the Preamble of the Convention. 

The Criminal Case against Lukashenko before German Courts and the Issue of Immunity

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

A group of ten Belarusians has requested that the German Federal Prosecutor’s Office investigate and prosecute the President of Belarus, Alexander Lukashenko, and other security officials for alleged human rights violations during a police crackdown on protests following presidential elections in 2020.  The victims claim they were subjected to persecution, arbitrary arrests, and torture at the hands of the state police, which amount to crimes against humanity as defined in the Rome Statute of the International Criminal Court and in German law.  On May 26, the German press reported that the Prosecutor would set up a preliminary observation process.

This blog will look at the victims’ claims, the reasons behind filing the case in Germany, and how Lukashenko’s immunity as president of Belarus might affect the German courts’ competence to hear the case against him.

Background of the case

In August 2020, Alexander Lukashenko claimed a landslide victory in the Belarusian presidential elections amid widespread allegations of electoral fraud.   Those allegations were exacerbated by the previous arrest of two of Lukashenko’s opponents who were barred from running ahead of the polls. 

The election results sparked mass protests and people demanding that Lukashenko step down.  Belarusian police responded with violence and repression, arresting around 3,000 people on the first night following the election.  Authorities also temporarily detained Ms. Svetlana Tikhanovskaya, a leading opposition candidate, who refused to accept the result claimed by Lukashenko, and then exiled her to Lithuania.

On December 4, the United Nations High Commissioner for Human Rights (OHCHR) delivered a report at the Intersessional meeting of the Human Rights Council detailing that 27,000 people had been arrested in peaceful public demonstrations, for charges such as violating the public order.  The High Commissioner of Human Rights raised concern for the up to 2,000 complaints of torture and other cruel, inhumane, or degrading treatment that had been lodged with the OHCHR by victims and activists.  Some of the methods described by the claimants include food and sleep deprivation, arbitrary beating, refusal of medical treatment, confinement in small cells, and forcing victims to kneel with their hands tied behind their backs.

The victims’ claims

In their request to the German Prosecutor, the claimants argued that the conduct of Mr. Lukashenko, other state officials, and police officers amounted to crimes against humanity, as defined in Article 7 of the Rome Statute and Section 7 of the German Code of Crimes Against International Law (CCAIL). 

Although the alleged crimes were not committed in German territory, and neither the perpetrators nor the victims are German, the attorneys argued for universal jurisdiction to bring the cases to German courts.  Under universal jurisdiction, the criminal courts of any state may prosecute serious international crimes, such as crimes against humanity, war crimes, genocide, and torture, as established in the Rome Statute and the Convention Against Torture (CAT) and incorporated into the CCAIL. To back their claim, the lawyers referenced the recent decision by the Higher Regional Court of Koblenz, sentencing Syrian officer Eyad Al Gharib to four and a half years in prison for torture and unlawful imprisonment of individuals in Syria, which amounted to crimes against humanity.

Lukashenko’s immunity

The sentence against the Syrian official might be an important precedent for grounding the German courts’ jurisdiction for the prosecution of Belarus security officers.  However, in the case of Lukashenko, it is uncertain how the German prosecutor and the German courts will deal with his immunity as head of state. 

It is a norm of customary international law that states’ high-ranking officials, namely the head of state, the head of government, and the foreign affairs minister, because of their importance in the functioning of the state, have personal immunity before domestic criminal courts of other states.  That means that they cannot be criminally prosecuted in other states for any official or personal acts.  The International Court of Justice (ICJ) confirmed this interpretation of the norm in the Arrest Warrant case (Congo v. Belgium).

There are some commentators, however, that argue that there is an exception to personal immunity in the case of grave international crimes.  According to them, the laws prohibiting grave international crimes are peremptory norms, norms that cannot be derogated from, while the rule of personal immunity is not.  Therefore, they argue that the prohibition against international crimes should prevail over immunity.  However, this argument is not backed by international custom, as concluded in a report by the United Nations’ International Law Commission (ILC).

It might also be possible to argue that Lukashenko is not the legitimate head of state due to the allegations of electoral fraud, and that, therefore, he does not enjoy immunity.  However, this also has little grounding in international law. 

It is possible, therefore, that German courts would dismiss a criminal case against Lukashenko due to his position as president of Belarus.  Nonetheless, as held by the ICJ in the Arrest Warrant case, and noted by the ILC, personal immunity is temporary and ceases when the official leaves office.  Thus, when Lukashenko leaves the presidency, he might be subject to criminal prosecution before foreign courts.

Concluding remarks

In accordance with the precedent set out in the case of Syrian officer Eyad Al Gharib, it is likely that the German courts will assert universal jurisdiction over the alleged crimes committed by security officials in Belarus.  However, with regards to Lukashenko, it is possible that the Federal Prosecutor will only take the case forward after he leaves the presidency, and no longer enjoys personal immunity.