May 2021

Monthly News Updates: Human Rights Mechanisms - May 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 May.

EUROPE

European Court of Human Rights | Adjudication of two cases concerning the governmental intelligence and surveillance of communications 

The ECtHR has adjudicated two cases concerning governmental intelligence programs and surveillance of communications.  The first case concerns several organizations and individuals who believe their private communications were intercepted by U.K. government officials after the Snowden revelations.  The ECtHR held that two of the three practices under consideration violated Articles 8 and 10 of the European Convention on Human Rights.  The second case challenged the legality of Swedish legislation allowing for the interception of communications when the Foreign Intelligence Court grants a signals-intelligence permit.  The ECtHR found a violation of Article 8 of the ECHR. [May 25, 2021]

European Court of Human Rights | The ECtHR finds a violation of two journalists’ right to liberty after publishing the emails of the Turkish Energy Minister

The ECtHR issued its judgment on a case concerning the arbitrary detention of two journalists who published several confidential emails authored by the Turkish Energy Minister.  The journalists obtained the emails from WikiLeaks, which inadvertently gained access to the Minister's emails and made them available online to the public.  The ECtHR found that Turkey  violated the applicants’ rights to liberty and security, their right to a fair trial, and their freedom of expression. [May 18, 2021]

European Court of Human Rights | Armenia files a complaint against Turkey for its intervention in the Nagorno-Karabakh war

Armenia has filed an inter-state complaint to the ECtHR against Turkey regarding the 2020 Nagorno-Karabakh war.  The case concerns Turkey’s involvement in the conflict by allegedly  providing support to Azerbaijan's armed forces.  This follows the ECtHR’s interim measures taken in October, which called on third states to not intervene in the conflict.  The ECtHR has notified Turkey of the application and will now consider the admissibility of the complaint. [May 18, 2021]

European Court of Human Rights | The Grand Chamber will examine two inter-state complaints between Azerbaijan and Armenia

The Grand Chamber of the ECtHR will examine two cases concerning inter-state complaints between Azerbaijan and Armenia submitted to the Court in the fall of 2020.  The cases concern violations of the European Convention on Human Rights during the hostilities between the two states.  The Grand Chamber of the ECtHR will now consider the case. [May 12, 2021]

European Court of Human Rights | The ECHR notifies Poland of five cases concerning its reform of the judicial system

The ECtHR gave notice to Poland of five applications concerning lack of independence in its newly reformed judicial system.  The Court will consider these applications with highest urgency (Category I under the prioritization scheme).  All applications concern violations of the right to a fair trial under Article 6(1) of the European Convention of Human Rights, among other alleged violations. [May 10, 2021]

AFRICA

African Commission on Human and People’s Rights | The ACHPR condemns the military coup in Mali

The ACHPR has issued a statement condemning the military coup in Mali.  On May 24, members of the armed forces arrested the Malian interim president, prime minister, and minister of defense.  This is the second coup in Mali in nine months.  The ACHPR has warned against unconstitutional changes in government rulership and their impact on peace and security in the region. [May 26, 2021]

THE AMERICAS

Inter-American Commission of Human Rights | The IACHR convenes three ex officio hearings regarding the human rights situation in Colombia, El Salvador, and Brazil

The IACHR will hold three public hearings on its own initiative regarding the human rights situation in Colombia, El Salvador, and Brazil.  In the case of Brazil, the hearing will regard the human rights situation in the context of the COVID-19 pandemic. [May 21, 2021]

Inter-American Commission of Human Rights | The IACHR requests Colombia’s permission to conduct a working visit following the excessive use of force during the protests

The IACHR has requested Colombia’s authorization to conduct a state visit following the reports of the security forces’ excessive use of force and human rights violations during the civilian protests that started on April 28.  The request follows the IACHR’s receipt of thousands of requests from civil society groups and associations to conduct the working visit.  The armed forces allegedly conducted arbitrary detentions, enforced disappearances, sexual violence, and torture towards the protesters. [May 14, 2021]

The UN and OAS human rights experts have also condemned the violence and called on the Colombian government for an exhaustive investigation. [May 14, 2021]

Inter-American Commission of Human Rights | The IACHR condemns the illegal removal of five judges and the attorney general in El Salvador

The IACHR has called on El Salvador to respect constitutional processes and the American Convention following the removal of  the attorney general and five judges from the Constitutional Chamber of the Supreme Court of Justice.  The IACHR reminded El Salvador of its commitments to due processes and the rule of law.  Moreover, the IACHR started a Rapid and Integrated Response Coordination Unit to monitor the human rights situation in the state. [May 3, 2021]

UN MECHANISMS

Human Rights Council (several UN experts) | UN experts welcome the ceasefire in Gaza and request an ICC investigation 

Several UN experts welcomed the ceasefire between Israel and Palestinian armed groups in Gaza.  The experts have also called for the ICC to investigate whether the parties’ acts during the recent escalation might amount to international crimes under the Rome Statute. [May 21, 2021] 

Moreover, the Human Rights Council announced the holding of a special session on the human rights situation in the Occupied Palestinian Territories. [May 20, 2021]

During the session, the Council adopted a resolution that establishes an international commission of inquiry to investigate violations of international humanitarian law and international human rights law since April 13 in the Occupied Palestinian Territory. [May 27, 2021]

Lastly, the High Commissioner for Human Rights published a statement regarding the escalating violence.  The High Commissioner called for both parties to stop the violence and respect international humanitarian and human rights law, particularly the principles of proportionality, distinction, and precaution. [May 15, 2021]

Human Rights Council (Special Rapporteur on the situation of human rights in Myanmar et al.) | UN experts recognize the US, UK, and Canada’s sanctions against Myanmar

Several UN human rights experts have recognized the U.S., U.K., and Canada’s imposition of sanctions against Myanmar to stop the military junta’s human rights violations.  The experts have particularly welcomed the U.S. decision to sanction the State Administrative Council, which prohibits transactions in U.S. dollars even from non-American banks.  Such sanctions may significantly affect the finances of Myanmar’s military junta. [May 20, 2021]

UN Committee on Enforced Disappearances | The Committee issues its findings on Switzerland, Colombia, and Mongolia 

The UN Committee on Enforced Disappearances has published its findings on Switzerland, Colombia, and Mongolia regarding their compliance with the International Convention for the Protection of all Persons against Enforced Disappearance.  Regarding Switzerland, the Committee looked into the illegal adoption of Sri Lankan children during the 80s and 90s.  As for Colombia, the Committee highlighted the state’s efforts in creating a mechanism to search for disappeared individuals.  Nevertheless, it also reminded Colombia of the unconcluded investigations regarding more than 94,000 victims still missing.  Lastly, regarding Mongolia, the Committee highlighted the narrow definition of enforced disappearances in the state. [May 11, 2021]

May 2021

Monthly News Updates: Domestic Prosecution of International Crimes - May 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 steps towards long-awaited convictions.

EUROPE

Ukraine | Ukraine Parliament adopts international crimes law

The Parliament of Ukraine has adopted a law incorporating provisions of international criminal law and international humanitarian law into the state’s domestic criminal legislation.  Ukraine is not a state party to the Rome Statute of the International Criminal Court and previously did not have legislation aligning its domestic law with international law. [May 20, 2021]

Finland | Gibril Massaquoi trial returns to Finland

Following several months of hearings in Liberia and Sierra Leone, the judges and parties in the Gibril Massaquoi trial have returned to Finland for the conclusion of the trial.  Massaquoi is on trial for war crimes and crimes against humanity during the First Liberian Civil War. [May 20, 2021]

Switzerland | Swiss Federal Court announces date of Alieu Kosiah verdict

The Swiss Federal Criminal Court has announced that the verdict in the landmark Alieu Kosiah trial will be rendered on June 18, 2021, at 13:30 CET.  Kosiah is the first Liberian to stand trial for crimes committed during the Liberian civil wars. [May 18, 2021] 

France | Paris Court of Appeal orders release of Rwanda genocide suspect

The investigating chamber of the Paris Court of Appeal ordered the release of Marcel Hitayezu, a Rwandan priest due to stand trial over his role in the 1994 genocide, under judicial supervision.  The indictment against Hitayezu accuses him of genocide and complicity in crimes against humanity for depriving Tutsis of food and water after they sought refuge in his church. [May 8, 2021] 

The Netherlands | Appeals Court of The Hague approves extradition of Rwandan genocide suspect

The Appeals Court of The Hague has approved the extradition of a Rwandan man facing charges of genocide and crimes against humanity over his role in the 1994 genocide. [May 6, 2021] 

Germany | Belarusians file criminal complaint in Germany against Alexander Lukashenko

A group of Belarusians has filed a criminal complaint in Germany accusing President Lukashenko and other Belarusian officials of crimes against humanity.  The complaint alleges that the individuals were victims of “violence, systematic torture, and other abuses” since the presidential election in August 2020. [May 5, 2021] 

Sweden | Swedish Supreme Court rules that dead persons are protected under international humanitarian law

The Swedish Supreme Court has ruled that dead persons are protected against humiliating treatment under both international humanitarian law and Swedish law.  The judgment comes in the first universal jurisdiction case to reach Sweden’s Supreme Court. [May 5, 2021]

France | Prosecutors ask judges to drop case accusing members of French armed forces of complicity in crimes against humanity in Rwanda

Prosecutors have asked judges to drop a case brought in 2005 against members of the French armed forces deployed in Rwanda in 1994.  The charges accuse the officers of complicity in crimes against humanity for deliberately abandoning Tutsi refugees to be massacred. [May 3, 2021]

THE AMERICAS

Colombia | Colombian Special Jurisdiction for Peace accredits LGBTI victims

The Colombian Special Jurisdiction for Peace (JEP) accredited five LGBTI individuals as victims of the state’s armed conflict, thereby recognizing gender-based persecution as a crime against humanity falling under the JEP’s jurisdiction.  The accreditation also clarifies the definition of gender-based persecution as including persecution on the basis of sexual orientation and gender identity. [May 4, 2021]

ASIA

Armenia | Armenia convicts Syrian mercenaries for role in Nagorno-Karabakh

A court in the Syunik region of Armenia convicted two Syrians of violations of international humanitarian law and sentenced them to life imprisonment for fighting alongside Azerbaijan’s armed forces in the conflict over the Nagorno-Karabakh region. [May 4, 2021]

May 2021

Monthly News Updates: Southern Cameroons – May 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 | Clashes between separatists and official troops 

On May 20, 2021, Cameroon celebrated its Unity Day, commemorating the decision to constitute Cameroon as a unitary state instead of the previously existing federal system.  However, clashes between separatists and official troops tarnished the usual celebratory activities in the state’s English-speaking towns and villages.  The violence left at least 16 people dead and 60 houses burned. [May 20, 2021] 

OTHER REGIONAL VIOLENCE

Nigeria/Cameroon | Newly formed alliance ignites ethnic tensions

In April 2021, the leaders of the Indigenous People of Biafra (IPOB), a Nigerian secessionist group that advocates for the creation of the independent state of Biafra, and the Ambazonia Governing Council, one of two major Anglophone separatist groups, announced a formal military and strategic alliance.  The alliance threatens to ignite violence and instability in the two states and across West and Central Africa. [May 20, 2021] 

HUMAN RIGHTS 

Sexual and Gender-Based Violence | Escalation of cases in Anglophone regions 

United Nations (UN) data shows more than 500 cases of gender-based violence, including forced marriage, denial of economic resources, and emotional abuse between January and March 2021.  In 2020 alone, the UN documented 4,300 sexual and gender-based violence incidents across the two regions between February and December. Almost half of these cases involved sexual or physical assault, and in more than 30 percent of cases, the victims were children.  In 2019, 289 out of the 1,065 documented cases involved sexual assault or rape.

According to Reach Out Cameroon, a non-governmental organization, sexual violence in Cameroon is growing in large proportions.  The conflict has aggravated sexual violence in the affected communities, particularly for those most vulnerable, such as girls and women. [April 29, 2021]

Sexual and Gender-Based Violence | Hunger strike to draw global attention to sexual violence

On May 14, 2021, around one thousand women embarked on a hunger strike to draw global attention to the rise of sexual and gender-based violence in the Anglophone crisis.  The objective was to pressure US President Joe Biden, French President Emmanuel Macron, and UK Prime Minister Boris Johnson to step in and help restore peace in Cameroon. [May 19, 2021]

LGBTQ+ Rights | Escalation of arrests of LGTBQ+ people for “Practicing Homosexuality"

On February 8, 2021, two Cameroonian transgender women were arrested in Douala for wearing typically female clothing.  The prosecutors charged them with attempted homosexual conduct, public indecency, and non-possession of their national identity cards.  On May 11, a court sentenced the two women to five years imprisonment and a USD 350 fine under a law prohibiting homosexuality.  According to the lawyer representing both women, the prosecution is trying to send the political message that LGTBQ+ people are not wanted in Cameroon.

Recently, the security forces in Cameroon have increasingly targeted people for arbitrary arrest based on their actual or perceived sexual orientation or gender identity. [May 12, 2021] 

Bringing Human Rights off the Pitch: The absence of Accountability for abuses surrounding the 2022 FIFA World Cup in Qatar

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

In March 2021, during the qualifying matches for the 2022 Football World Cup organized by the Fédération Internationale de Football Association (FIFA), players of the national football teams of the Netherlands, Germany, Norway, and Denmark walked onto the fields in shirts with messages such as “human rights on and off the pitch”, and “football supports change”.  The on-field protests were aimed at the alleged human rights violations committed against migrants working on the construction of stadiums and facilities for the next World Cup in Qatar.

Both Qatar and FIFA have recently come under heavy criticism for not taking action against those allegations.  Although Qatar has adopted measures aimed at addressing the issue, it has failed to implement them, and migrant workers continue to report dire conditions.  

This article examines Qatar’s obligations under international human rights law and assesses whether victims can seek remedies before human rights institutions, or, alternatively, whether it would be possible to hold FIFA accountable.

The alleged violations

According to Amnesty International, since the beginning of the construction of facilities for the 2022 World Cup, workers from Bangladesh, India, and Nepal have been subjected to forced labor, received low and delayed salaries, and have lived in appalling conditions.  Workers were hired under the kafala system, in which their working visas were tied to their employers, and they would have to request permission to change jobs or leave Qatar.  Furthermore, migrants do not have the right to join trade unions or to go on strike.  Moreover, there are estimates that indicate that, in that period, more than six thousand migrant workers have died as a result of the precarious work conditions.

While Qatar has adopted significant reforms to its labor laws, including the abolishment of the kafala system, and the adoption of a basic minimum wage, a recent report by Human Rights Watch indicates that the violations have continued in practice. 

Human rights related to labor are protected by the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic Social and Cultural Rights (ICESCR).  Article 8 of the ICCPR prohibits forced labor, and Article 22 provides the rights of association and of forming trade unions.  As for the ICESCR, according to Article 7, states should ensure fair wages, decent living standards, safe and healthy working conditions, and reasonable limitations of working hours.  Article 8 provides the rights to form trade unions and strike. 

Seeking remedies

Although Qatar became a party to the Covenants in 2018, it has not signed or ratified the Optional Protocol to either of them..  As a result, it has not consented to the jurisdiction of the United Nations Human Rights Committee or the United Nations Committee on Economic, Social and Cultural Rights, which are the monitoring mechanisms of these Conventions.  Consequently, the international human rights framework does not provide migrant workers with effective means for seeking remedies against Qatar for the human rights abuses they have been subjected to.

Migrant workers will also be unable to seek remediation from FIFA through international mechanisms.  The international human rights framework only creates obligations for states.  Although FIFA has included a commitment to respect “internationally recognized human rights'' in its Statute, as a non-state actor, it cannot be held responsible under international law.  Moreover, the international human rights framework applicable to businesses merely consists of guidelines and codes of conduct, such as the United Nations Guiding Principles on Business and Human Rights, which are not legally binding instruments. 

Alternatively, a possible avenue for seeking remediation from FIFA may be through the state in which it is domiciled: Switzerland.  In accordance with the nationality principle of jurisdiction, domestic courts have jurisdiction over cases where the perpetrator of a violation is a national of the state.  In fact, a claim was brought to a Swiss commercial court in Zurich in 2014 by a Bangladeshi worker.  According to the claimant, by awarding the World Cup to Qatar without compelling it to secure migrant worker’s rights, FIFA had knowingly put those people in danger, breaching Swiss law.  The claimant requested the court to order FIFA to press Qatari authorities to ensure the fundamental rights of migrant workers, to declare the unlawfulness of FIFA’s negligent conduct towards human rights, and to award a compensation of 4,000 US dollars to the victim.  The court held that the claims were too vague and failed to indicate exactly which of FIFA’s acts constituted human rights violations.  Consequently, the case was dismissed on admissibility grounds. 

As the court did not issue a decision on the merits of the case, other cases related to the abuses in the preparations for the World Cup can still be filed against FIFA.  However, the court noted in the decision that FIFA did not have the capacity to ensure the observance of human rights, as this is the responsibility of Qatar.  In effect, the Swiss court indicated that it would be very difficult for victims to claim remedies effectively from FIFA for the abuse they suffered while working in Qatar.

Concluding remarks

Under current circumstances, it is difficult to see how migrant workers could effectively request remedies for the human rights abuses suffered in the preparations for the 2022 World Cup in Qatar.  As long as Qatar does not consent to the jurisdiction of a human rights body, it cannot be held responsible for those abuses through an international mechanism.  And, as long as there is no international framework that imposes binding obligations on corporations, there is little reason to believe that FIFA could be held responsible for human rights violations.  Until then, it is likely that human rights will remain only “on the pitch”.

Gbagbo and Blé Goudé Acquittal: The ICC’s Standard of Review in “No Case to Answer” Applications

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

On March 31, 2021, the Appeals Chamber of the International Criminal Court (ICC) upheld the acquittal of Laurent Gbagbo and Charles Blé Goudé, finalizing their release from custody.  Mr. Gbagbo and Mr. Blé Goudé had previously been acquitted by Trial Chamber I of the ICC for crimes against humanity allegedly committed in Côte d'Ivoire in 2010 and 2011.  The Prosecutor had appealed the Trial Chamber’s decision on two grounds: (i) a failure to meet statutory requirements concerning the delivery of verdict and reasons and (ii) the standard of proof used when assessing evidence in “no case to answer” applications.  This blog post will take a close look at the second ground of appeal and examine the Appeals Chamber’s ruling on the appropriate standard of review when the ICC is deciding “no case to answer” applications.  It will begin with a brief look at the ICC’s prior treatment before examining both the majority opinion and the dissenting opinion of Judge Luz del Carmen Ibáñez Carranza in the Gbagbo and Blé Goudé appeal.

Prior Standards of Review

A “no case to answer” application allows an accused to request acquittal after the Prosecution has presented its case on the basis of insufficient evidence.  In the past, the ICC has been criticized for an inconsistent approach throughout its case law.  Part of the reason for this is that the Rome Statute of the International Criminal Court (Rome Statute) does not provide for an explicit standard of review in “no case to answer” applications.  As a result, the judges of the ICC are left to their own discretion when considering applications.  In the Ruto case, the Trial Chamber established that the standard of review only requires a determination of whether the court “could” convict an accused.  The Trial Chamber emphasized “could” and affirmed that the standard to be applied was not the same as that for conviction.  Conversely, some scholars have argued that by citing jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the ICC also endorsed a standard of proof beyond a reasonable doubt.  Later, in the Gbagbo and Blé Goudé case, the Trial Chamber established that the standard of review would require the Prosecution to meet the requirements for conviction, as set out in Article 66 of the Rome Statute, requiring proof of guilt beyond reasonable doubt.   As a result of this seeming inconsistency, the ruling by the Appeals Chamber is a welcome clarification.

The Majority Opinion

In their lengthy decision on the appeal of the “no case to answer” decision, the Appeals Chamber affirmed the standard of review established by the Trial Chamber in the Gbagbo and Blé Goudé case.  The Appeals Chamber noted that the applicable test found in ICTY and national jurisprudence requires acquittal “where the evidence thus far presented is insufficient in law to sustain a conviction on one or more of the charges.”  The Appeals Chamber went on to note that the proper application of this test makes it “wholly appropriate and correct to articulate the standard of proof at the level of proof beyond reasonable doubt and nothing less.”  As a result, the Appeals Chamber cemented the higher standard of beyond reasonable doubt, which is necessary for conviction.  As noted by the Appeals Chamber, this standard is consistent with the tests of several national jurisdictions.  If the evidence presented by the Prosecution at the end of its case would not be sufficient to convict the accused, then a Trial Chamber may grant a “no case to answer” application and acquit the accused.  The decision of the Appeals Chamber was well reasoned and based on an extensive review of prior practices of other courts.  It opined not only on the applicable test to be applied but also on the standard for assessing the credibility and reliability of evidence, providing practical guidance to future judges. 

The Dissenting Opinion

The dissenting opinion of Judge Luz del Carmen Ibáñez Carranza provides novel ideas on this topic.  Most importantly, Judge Ibáñez Carranza rejects the appropriateness of “no case to answer” applications in their entirety.  In her opinion, the use of a “no case to answer” procedure is not established in the Rome Statute, “has no applicable rules of procedure or evidence [and] has completely disrupted the balance of the Rome Statute System” in the Gbagbo and Blé Goudé case.   Judge Ibáñez Carranza casts the Rome Statute System as a sui generis legal system and asserts the existence of “no case to answer” applications contravenes principles of fairness and due process.  A delicate balance of interests was carefully crafted by the States Parties and this case has allowed judges to disrupt that balance by developing a mechanism not envisioned by the Rome Statute System.  Her dissenting opinion demonstrates the ongoing debate and uncertainty within the ICC itself on the treatment of “no case to answer” applications.  It may also serve as a nudge to States Parties to clarify the appropriateness of “no case to answer” applications before the ICC. 

Conclusion

Ultimately, the decision of the Appeals Chamber, while not unanimous, will provide future Trial Chambers with guidance as they entertain “no case to answer” applications from accused persons who believe the Prosecutor has not presented sufficient evidence.  The decision of the Appeals Chamber in the Gbagbo and Blé Goudé case has affirmed the high standard the Prosecution must meet to successfully present a “no case to answer” application by the defense.  This is the most recent in a string of ICC decisions on this subject and provides a welcome degree of predictability in an uncertain area of international criminal law.