ICC Office of the Prosecution Issues Application for Arrest Warrant for Myanmar’s Acting President, Min Aung Hlaing

By: Lauren Clement 

Senior Articles Editor


MYANMAR—On November 27, 2024, the ICC Prosecutor Karim Khan submitted an application to the ICC’s judicial division to issue an arrest warrant for Min Aung Hlaing, the acting President of Myanmar, for crimes against humanity of deportation and persecution of the Rohingya. This application came after extensive investigations by the Office of the Prosecutor from 2019—2024. ICC judges must now decide whether the application meets the standard for issuing an arrest warrant.

 
Min Aung Hlaing, acting President of Myanmar. Photo courtesy of Ye Aung Thu/Agence France-Presse, Getty Images.
  

Although the Rohingya, a Muslim ethnic minority, have lived in Myanmar for centuries, they have never been recognized as an official ethnic group and have been denied citizenship since 1982, making them the world’s largest stateless population and vulnerable to exploitation and sexual and gender-based violence and abuse. The Rohingya have experienced decades of discrimination and violence leading to frequent waves of human rights violations. However, 2017 marked the largest mass displacement of the minority group as the military burned entire villages, killed thousands of families, and partook in other human rights violations.  As a result, more than 2.6 million Rohingya were internally displaced and almost one million sought refuge in Bangladesh. In 2021, the Myanmar military seized power in a coup led by Min Aung Hlaing, sentencing then-president Aung San Suu Kyi to 17 years in prison. This shift in power set off another wave of violence and triggered a new refugee crisis. 

Before Myanmar’s current self-appointed prime minister led the 2021 coup, Min Aung Hlaing was a career army officer and commander in chief since 2011, with a reputation for attacks on ethnic groups. Since 2021, his regime has cracked down violently against political opposition, imprisoned pro-democracy protesters, and threatened punishment for civilians who refused to join the military. Under his command, over 27,000 people have been arrested and 21,000 are still detained, and more than 260 people were reportedly tortured to death. 

The ICC’s legal process for sentencing a perpetrator of genocide, crimes against humanity, war crimes, and/or crimes of aggression takes part in 6 steps. First, the Office of the Prosecutor determines whether there is sufficient evidence of crimes that fall within the ICC’s jurisdiction. Second, the Prosecution submits an application to judges to issue an arrest warrant, which is what the Prosecutor asked of the ICC judiciary on November 27 of this year. Third, the pretrial stage marks the initial appearance of the suspect before the judges, as well as a confirmation of charges where the judges decide if there is enough evidence to go to trial after hearing each sides’ arguments. Fourth, in the trial stage, the prosecution tries to prove the guilt of the accused beyond a reasonable doubt, the judges issue a verdict and, if found guilty, a sentence for up to 30 years, or, up to life in special circumstances. Fifth, both sides may appeal the verdict and sentence. Finally, if the verdict is not overturned, the accused serves his or her sentence in a member state that has agreed to enforce ICC sentences. 

The ICC’s Prosecutor’s application for an arrest warrant for Min Aung Hlaing was met with support from several different countries, as well as the Rohingyas and the country’s National Unity Government (which was established by elected lawmakers after the 2021 coup), who urged the ICC judges to swiftly issue the warrant and called on ICC member states to enforce the warrant to “uphold justice and international law.” If the ICC judiciary decides to issue the warrant, however, there are other procedural roadblocks in the way to Min Aung Hlaing’s arrest,  as Myanmar is not an ICC member state, and the acting President rarely travels to states that are members who can serve an arrest warrant. 

 

For further information, please see:

ICC – How the Court Works – last visited 1 Dec. 2024

ICC – Statement of ICC Prosecutor Karim A.A. Khan KC: Application for an arrest warrant in the situation in Bangladesh/Myanmar – 27 Nov. 2024

The New York Times – Who is Senior Gen. Min Aung Hlaing of Myanmar? – 27 Nov. 2024

The New York Times – Myanmar General’s Purge of Rohingya Lifts His Popular Support – 26 Nov. 2017 

Reuters – Why Myanmar’s travel-shy leader could be difficult to arrest – 28 Nov. 2024

UNHCR – Rohingya Refugee Crisis Explained – 22 Aug. 2024



The European Court of Human Rights’ Judgment Concerning Human Trafficking in Slovakia

By: Emma Bissell

Impunity Watch News Staff Writer

 

Slovakia – The ECHR held that the State of Slovakia violated a woman’s Article 4 rights which protect from slavery and forced labor and required the State to pay 41,000 Euros in damages.

 
The European Court of Human Rights Headquarters, which recently heard B.B. v. Slovakia. Photo Courtesy of the European Court of Human Rights.
  

Applicant B.B., a Slovak national, was initially raised in State care before moving in with a family, for whom she worked as a maid. She eventually was kicked out of the home and found herself homeless. In 2010, it was arranged by an unnamed party, “Y”, for B.B. to go to the United Kingdom with him, work as a prostitute, manage his household all while earning no money. With no other alternative to homelessness, B.B. went willingly. 

Two years later she was taken in by the Salvation Army and returned to Slovakia in 2012 under a program for the support and protection of victims of human trafficking. She was then registered with a state supported charity for human trafficking victims, Charita, until the government ultimately informed the charity that “Y” was charged with pimping instead of human trafficking; the group then had no choice but to release her from their care. 

This misstep did not cease Charita’s efforts to support the applicant as they continued to send information concerning the ordeal in the UK to the Banska Bystrica police. The force noted the human trafficking concerns, but, due to jurisdictional issues, the case was sent to the Humenne police force who treated the conduct as pimping despite investigators from the UK concluding that B.B. had been trafficked. 

In November of 2015, Y was found guilty of pimping and sentenced to one-year in prison, a far shorter sentence than that of a human trafficking conviction. The judgment was appealed to and affirmed by the regional court. In 2017, both the Minister of Justice and B.B. herself launched 3 total complaints each of which were unsuccessful in the Supreme Court. 

The complaints specified that the Slovakian authorities’ failure to treat the offense as one of human trafficking had violated B.B.’s rights under Article 4 of the European Convention on Human Rights. This article, meant to prohibit slavery and forced labor, includes an obligation to carry out an effective investigation into a credible suspicion of human trafficking; the state did not conduct such an investigation. 

Eventually, this case was brought to the European Court of Human Rights in September 2021. The court had two issues to resolve: 

  1. Whether the State was obligated, under Article 4 of the Convention, to carry out an effective investigation into the credible claim of human trafficking. 
  2. Whether the State complied with such an obligation, if it existed. 

The evidence of this case supported the presence of such credible suspicion of human trafficking especially when considering B.B.’s vulnerability and lack of a reasonable alternative. The court held that Article 4 does create an obligation to critically investigate national and transnational trafficking regardless of whether it was a part of an organized scheme or whether it was an independent instance. The court found that the State did not uphold its obligation and thus violated B.B.’s article 4 rights. 

The initial categorization of this conduct as pimping, rather than human trafficking, permitted “Y” to escape liability for violating a fundamental human right. This violation persisted when the State failed to investigate despite sufficient evidence and numerous appeals. The lenient sentencing on this matter undermines deterrence, safety, and effectiveness of both Slovakia’s counter-trafficking efforts and the Convention of Human Rights as a whole. 

Ultimately Slovakia has to pay B.B. 26,000 euros in respect of non-pecuniary damages as well as 15,000 euros with respect to litigation costs and expenses.  

 

For further information, please see: 

ECHR – Judgement in the Case of B.B. v. Slovakia – 24 Oct. 2024

ECHR – Judgment Concerning Slovakia – 24 Oct. 2024

ECHR – Trafficking in Human Beings, Fact Document – 24 Oct. 2024

Equality and Human Rights Commission – Article 4: Freedom from slavery and forced labor – 4 May 2016






ECHR Rules Cyprus Violated the Rights of Syrian Refugees to Claim Asylum

By: Anjali Basdeo 

Impunity Watch News Staff Writer 

STRASBOURG, FRANCE- On October 8, 2024, in the case of M.A and Z.R v. Cyprus, the ECHR ruled that the Cypriot government violated the rights of Syrian refugees seeking asylum in Cyprus.  

 
Photo of refugees on a Cypriot Marine Police boat after being rescued from their own sunken boat off the southeastern coast of Cyprus. Photo courtesy of Petros Karadjias.
 

M.A. and Z.R. are Syrian nationals who fled their home, Idlib, Syria, in January of 2016 for their own safety and to escape civil war. They ended up in Lebanon where they stayed in camps run by the United Nations High Commissioner for Refugees (UNHCR). While at these camps, they allege that there was no access to healthcare or employment opportunities, and they were not entitled to their basic rights. Fearing that they might be sent back to Syria, seeing as Lebanon was sending Syrians back home after the Beirut explosion of 2020, they decided to seek asylum in Cyprus.   

To obtain asylum in Cyprus, M.A. and Z.R. paid smugglers $2,500 each. They had set sail in early September of 2020 on a boat with 30 other refugees. When arriving at the territorial waters of Cyprus, their boat was intercepted by the Cypriot coastguard. They were told that they could not continue their journey, even after M.A. and Z.R. explained their situation. On September 8, after 2 days of being stranded at sea under the control of the Cypriot Marine Police, they were forced onto another boat and sent back to Lebanon where the Lebanese police questioned and detained them before letting them go. As of today, M.A. and Z.R. still live in Lebanon under the UNHCR.  

M.A. and Z.R. brought this suit against the Cypriot court, claiming that their refusal of asylum procedure and forcible departure back to Lebanon violated Article 3, Article 4 of Protocol No.4, and Article 13 of the European Convention on Human Rights.  

The Cypriot government, on the other hand, argued that they returned M.A. and Z.R. back to Lebanon on the basis of a bilateral agreement between Cyprus and Lebanon, which provided for readmission of individuals who entered Cyprus unlawfully. The Cypriot Government contended Lebanon is a safe third country because they (1) have a good relationship with Lebanon and (2) because of the UNHCR and the presence of other UN bodies there to help refugees.  

ECHR RULING 

The ECHR ruled in favor of M.A. and Z.R., stating that the Cypriot government violated Article 3, Article 4 of Protocol No.4, and Article 13 of the Convention by refusing them asylum and forcibly sending them back to Lebanon without reviewing their claims and circumstances. 

Violation Under Article 3 

Article 3 of the Convention conveys that no person shall be subjected to degrading or inhumane treatments. The court stated that it cannot overlook the fact that M.A. and Z.R. were stranded at sea for two days under Cypriot authority just to be forcibly sent back to Lebanon without even having their asylum claims investigated.  

The Court also stated that Cypriot officials should have known of the various shortcomings of the Lebanese asylum system and weighed the consequences of sending M.A. and Z.R. back. There is no evidence that the Cypriot officials assessed the ineffective asylum process or the living conditions of the asylum seekers there before sending them back. Cyprus officials knew or should have known of these conditions, yet they forced M.A. and Z.R. back to persecution without looking into their situation.  

The Cypriot government also argued that they thought Lebanon was a safe third country because of their bilateral agreement with each other and the presence of UN bodies. In response, the Court reiterated that countries should not rely on others for their own refugee obligations. 

Hence, under Article 3, the court ruled that Cyprus failed their refugee obligations and to follow the proper procedures for assessing asylum claims before sending M.A. and Z.R. back to Lebanon.  

Violation Under Article 4 of Protocol No.4 

Article 4 under Protocol No.4 prohibits the collective expulsion of aliens. Exceptions to this article only happen where this collective expulsion is done reasonably after proper examinations of the aliens in the group as individuals. Here, the Cypriot government did not investigate any claims of any of the refugees on the boat and still expelled them back to Lebanon.  

The Court says that the purpose of this article is to prevent States from removing foreign nationals without first examining their circumstances. Here, the Court rules that Cyprus forcibly returning M.A. and Z.R. to Lebanon without investigating their circumstances and asylum claims falls under the definition of collective expulsion and they are thus in violation of Article 4 of Protocol No.4 under the Convention.   

Violation Under Article 13 

Article 13 expresses the right to an effective remedy. In the case present, the Cypriot authorities deprived M.A. and Z.R. of an effective remedy by not examining their claims and forcibly deporting them back to Lebanon. This article was read in conjunction with Article 3 and Article 4 of Protocol No. 4.  

The ECHR has ruled on behalf of Syrian refugees and hold Cyprus liable for not following proper refugee procedure in examining the asylum claims of M.A. and Z.R. and forcibly sending them back to conditions that they were trying to escape.   

There are many stories of Syrian refugees similar to M.A. and Z.R., where they have been refused of asylum procedures by Cypriot authorities and were forced back to Lebanon to face persecution and risk being sent back to Syria. This ruling can change the landscape of refugee rights and bring awareness to the inhumane treatments that the Cypriot government imposes on Syrian refugees seeking asylum.  

 

For further information, please see:  

ECHR- Case of M.A. and Z.R. v. Cyprus – 8 Oct. 2024 

ECHR – European Convention on Human Rights – 1 Aug. 2021 

Human Rights Watch – Lebanon/Cyprus: Refugees Pulled Back, Expelled, Then Forced Back to Syria – 4 Sept. 2024 

 

Inter American Commission on Human Rights Files Case Against Nicaragua for the Murder of Journalist and Calls for the Nation to Cease its Pursuit of Human Rights Activists

By: Emma Bissell

Impunity Watch News Staff Writer

 

Nicaragua – The Inter American Commission of Human Rights concluded the State of Nicaragua liable for the murder of journalist Ángel Gahona López while he was covering a protest and urgently calls for their continued human rights violations to cease.

 
Members of the community honor Ángel Gahona López after he was killed while covering a protest. Photo Courtesy of Noticiero El Meridiano.
  

On July 4th, 2024, The Inter-American Commission on Human Rights (The Commission) filed a case with the Inter American Court of Human Rights (IACHR) against Nicaragua concerning the execution of journalist Ángel Gahona López on April 21, 2018. The Commission concluded that the State of Nicaragua is responsible for violating Lopez’s rights to life and freedom of expression and concluded that the State failed to provide evidence to support the use of force against Lopez given the amplified and intense circumstances.

While covering protests against State violence in April 2018, Lopez was fatally shot. Although he did receive medical assistance from nearby civilians, witnesses reported that state officials present at the scene failed to provide any aid, further indicating that this was motivated by the state itself rather than being a random and unfortunate occurrence. Lopez died just a few hours later. The Merits Report indicated that a state agent was responsible for the murder and also indicated that the murder was linked to Lopez’s work as a journalist reporting on anti-government protests.

The Commission ultimately concluded that the State of Nicaragua violated the American Convention on Human Rights’ articles 4.1, 8.1, 13, and 25. These articles pertain to individuals having the right to an impartial hearing, freedom of thought and expression, to have their life respected, and the right to judicial protection.

Two young men were initially convicted of his murder but were released in 2019 under Law 966, which is also known as the amnesty law. This law was passed by the National Assembly of Nicaragua and intended to provide “broad amnesty” to all people who played a role in events throughout the country from April 18th, 2018, until the law entered force. This essentially applied to political crimes, and otherwise related crimes, which is why the two men were released. The Commission previously denounced this law on the grounds that it would exonerate those who committed grave human rights violations.

After finding the State of Nicaragua at fault, the Commission suggested that the State, in response to an array of human rights violations over the last 10 years, undertake reparations such as providing financial compensation to victims of human rights violations, conducting thorough investigations into matters such as Lopez’s death, and implementing protocols to prevent repetition of these ghastly acts.

The death of Ángel Gahona López was not an isolated incident. The State of Nicaragua has committed a lengthy series of human rights violations over the last several years. In fact, the Commission recently published a statement condemning the State for depriving its citizens of basic human rights and imprisoning many of them in appalling conditions. The Commission is not only calling upon the Nicaraguan government to cease its relentless persecution of human rights defenders but has also called upon the international community to provide support to those suffering at the hands of the government.

Unfortunately, as evidenced by the death of Ángel Gahona López, the plight of journalists in Nicaragua and other Central American countries, as well as internationally, is dire. In 2018 alone, there were 95 journalists killed on the job. Lopez’s death not only added to the number of journalists killed worldwide but is just one more example of the many heinous acts committed by the Nicaraguan government over the last decade.

 

For further information, please see:

IACHR – OAS – American Convention on Human Rights – 22 Nov. 1969

IACHR – OAS – Expresses Concern Over the Passing of Amnesty – 12 June 2019

IACHR – OAS – Files Case with IA Court Over Journalists Death and Ongoing Impunity in Nicaragua – 1 Oct. 2019

IACHR – OAS – Condems Grave Human Rights Violations Against People Deprived of Their Freedom in Nicaragua – 9 Oct. 2024

IFJ – In the Shadow of Violence; Journalists and Media Staff Killed in 2018 – 2019

 

 

 

 

Russia Violates Freedom of Expression in Recent ECHR Case

By: Neha Chhablani

Impunity Watch News Staff Writer

 

STRASBOURG, France – On October 15th, the European Court of Human Rights (ECHR) held that Russia violated the right to Freedom of Expression in the case of Gadzhiyev and Gostev v. Russia. The case concerned two applicants who were dismissed from their jobs after criticizing workplace practices without permission. The ECHR’s ruling challenged Russia’s strict prohibition on public statements issued by State employees.   

While the ECHR ruled on Mr. Gadzhiyev and Mr. Gostev’s cases together, their individual claims were slightly different. Mr. Gadzhiyev served as a police colonel for the Dagestan Ministry of the Interior since 1978. In 2013, after his previous attempts to raise awareness about corruption within regional police forces failed, Mr. Gadzhiyev arranged a meeting with the Federal Minister of Internal Affairs. In anticipation of this meeting, he gave four interviews with media outlets in which he claimed the presence of corruption. On March 1st, 2013, the Minister of the Interior of Dagestan opened an investigation and found that Mr. Gadzhiyev failed to get permission from the Public Relations Department for interviews. Ultimately, he was dismissed from his post because he failed to seek this approval and spoke out negatively against a government agency, which was a violation of domestic law. All national courts ruled against or dismissed Mr. Gadzhiyev’s case on the grounds that he criticized a government agency without concrete facts to support his claims.

 
Photograph of Moscow Metro. Photo Courtesy of David Burdeny.
  

Mr. Gostev was an employee of the Moscow Metro since 1992 and, in 2014, became chairman of the Metro Workers’ trade union. After a series of technical accidents, the trade union organized protests to draw attention to the safety conditions of the metro service. After further issues, Mr. Gostev gave two interviews with media outlets, during which he commented on the safety deficiencies of the metro system. The Moscow Metro Authority issued a reprimand to Mr. Gostev, as all employees were required to publish material through the metro press service and not engage with the press directly. After his second interview was published, the Authority fired Mr. Gostev. National courts rejected Mr. Gostev’s application, stating that he had been informed of the proper procedures for communicating with the press but chose to ignore them. They found that his dismissal was not an infringement of freedom of expression, only a restriction on his exercise of this right.

            Due to their similarity, the ECHR considered Mr. Gostev and Mr. Gadzhiyev’s case at the same time. The court determined that the purpose of their statements was to safeguard the public and they had no malintent. Although the domestic courts ruled a lack of evidence, numerous police officers corroborated Mr. Gadzhiyev’s claims, demonstrating their validity. Furthermore, while domestic courts claimed Mr. Gostev’s statements could have harmed Moscow Metro, they failed to show any evidence of harm.

            Ultimately, the ECHR ruled that the severity of punishment was disproportionate to the crime, given the relevance and legitimacy of Mr. Gostev and Mr. Gadzhiyev’s statements. They ruled that strict enforcement of Russian law prohibiting or discouraging any negative statements made to the public could deter employees, union representatives, and whistleblowers from voicing legitimate concerns.

            While the court held that Russia was to pay 9,950 and 10,500 euros to Mr. Gadzhiyev and Mr. Gostev, respectively, the ruling implied a broader disagreement with Russian law and its application regarding the prohibition of public statements against the State. Ultimately, the ECHR suggests Russia should evaluate the presence of democratic procedures within the State when claiming that interference with freedom of expression is unnecessary in a democratic society.

 

For further information, please see:

European Court of Human Rights – CASE OF GADZHIYEV AND GOSTEV v.

RUSSIA – (15 Oct. 2024)

European Court of Human Rights – European Convention on Human Rights – (20 Oct. 2024)

European Court of Human Rights – Gadzhiyev and Gostev v. Russia Press Release – (15 Oct. 2024)

 

ECHR Holds Turkey Violated Seven Individuals’ Right to Freedom of Expression

By: Sarah Peck

Impunity Watch News Staff Writer

 

STRASBOURG, France – On October 8, 2024, the European Court of Human Rights (ECHR) ruled in four separate cases that Turkey had violated Article 10 of the European Convention for Human Rights, the right to freedom of expression.  According to the ECHR, the Turkish government wrongfully imposed on seven individuals suspended sentences of imprisonment and lengthy probations for comments each had made criticizing the governing bodies of Turkey, including the President and Prime Minister at the time.

 
Photo of a crowd with a Turkish flag on a street. Photo courtesy of Emir Bozkurt.
 

The Convictions

Bayram Yorulmaz, Abuzer Serdar Özlü, Binali Erdoğan, Mihriban Şorli, Tugay Kurnaz, Saide İnaç, and Jinda Açıkgöz were all convicted by Turkish courts of offenses under the Turkish Criminal Code as a result of either verbal or written criticisms of the Turkish Government or its officials. The convictions included:

Bayram Yorulmaz: A public official at the Adana courthouse in Turkey charged with the offense of insulting a public official.

Abuzer Serdar Özlü: A Turkish national convicted of public denigration of the Turkish Nation, the Republic of Turkey, the Grand National Assembly of Turkey, and the judicial bodies of the state for nine publications he had made on his Twitter account in March and April 2016.

Binali Erdoğan: A Turkish national convicted of insulting the President of the Republic via a Facebook post.

Mihriban Şorli: A Turkish national convicted of insulting the President of the Republic via comments she made verbally during an altercation with police officers.

Tugay Kurnaz: A Turkish national convicted of insulting the President of the Republic and overtly insulting a public official via Facebook and Twitter.

Saide İnaç: A German national convicted of insulting the President of the Republic by sharing an article via Facebook post, which stated that the President of the Republic had provoked attacks on the Kurds and caused their massacre.

Jinda Açıkgöz: A Turkish national convicted of insulting the President of the Republic via Facebook posts.

 

The Criticisms

The individuals’ criticisms varied in severity. Some examples include:

Mr. Yorulmaz: “They sneeringly give each other as gifts the paintings of the people they condemned to death… What is this? Effrontery? Insolence? Perversion?”

Mr. Özlü: “You suspended the Constitution and cancelled out the police and the judiciary because of the bribes this man distributed to your Ministers!”

Mr. Erdoğan: “You and your damned presidency, that’s enough!”

Ms. Şorli: “You [your] dishonourable Tayyip (şerefsiz) can’t do anything to me, Tayyip’s soldiers killed my brother in the mountains, I’m going to retaliate.”

 

The Sentences

For each of the convictions, the Turkish Government handed down the following sentences:

Individual

Imprisonment

Probation

Bayram Yorulmaz

Eleven months and twelve days, suspended

Five years

Abuzer Serdar Özlü

Five months, suspended

Five years

Binali Erdoğan

Held for one month in pre-trial detention and sentenced to ten months, suspended

Five years

Mihriban Şorli

Ten months, suspended

Five years

Tugay Kurnaz

One year, two months and seventeen days, suspended

Five years

Saide İnaç

One year, five months and fifteen days, suspended

Five years

Jinda Açıkgöz

One year, two months and seventeen days, suspended

Five years

 

The ECHR’s Ruling

In each of the cases, the Turkish Government argued that the suspension of the prison sentence meant that the individuals had not suffered any obligations or restrictions, and therefore did not have victim status. However, the ECHR determined that despite the suspension of the imprisonment, the criminal convictions amounted to an interference with their exercise of the right to freedom of expression  as the sentences may have had  a deterrent effect. The ECHR further noted that the Turkish national authorities failed to weigh the interests at stake in accordance with the criteria in Turkey’s case law and the interferences were not shown to have been necessary in a democratic society.

Citing Durukan and Birol v. Türkiye, the ECHR explained that Article 231 of Turkey’s Code of Criminal Procedure, which provides for the suspension of pronouncement of judgments entailing convictions, did not offer the required protection against arbitrary infringement by the public authorities of the rights guaranteed by the European Convention for Human Rights.

The ECHR found that the Government of Turkey had violated the right to freedom of expression in each case and ordered Turkey to pay following penalties:

Individual

Non-Pecuniary Damages

Costs & Expenses

Bayram Yorulmaz

2,216 euros (EUR)

EUR 1,500

Abuzer Serdar Özlü

EUR 2,600

EUR 1,000

Binali Erdoğan

EUR 5,000

N/A

Mihriban Şorli

EUR 2,600

N/A

Tugay Kurnaz

EUR 2,600

N/A

Saide İnaç

EUR 2,600

N/A

Jinda Açıkgöz

EUR 2,600

EUR 1,000

 

For further information, please see:

ECHR – Case of Açikgöz v. Türkiye – 8 Oct. 2024

ECHR – Case of Durukan and Birol v. Türkiye – 3 Oct. 2023

ECHR – Case of Erdoğan and Others v. Türkiye – 8 Oct. 2024

ECHR – Case of Özlü v. Türkiye – 8 Oct. 2024

ECHR – Case of Yorulmaz v. Türkiye – 8 Oct. 2024

 

 

 

African Court on Human and Peoples’ Rights Still Pending Decision on Detainee’s Right to Life

By: Jocelyn Anctil 

Impunity Watch News Staff Writer 

 

ARUSHA, Tanzania – On October 3, 2024, the African Court on Human and Peoples’ Rights reached a decision on provisional matters in Moadh Kheriji Ghannouchi and Others v. Republic of Tunisia. This case involves several political activists whom the applicants allege have been wrongfully imprisoned without probable cause detained. These activists are members of the Ennahda Party, a major political group in Tunisia aiming for Islamic democracy. Applicants on behalf of the activists allege that during detention these activists were deprived of their right to dignity and protection against cruel punishment. The Court ordered the Republic of Tunisia to better protect the current detainees. By this order, the Republic of Tunisia must eliminate barriers to communication between current detainees and lawyers or medical personnel. They must also adequately inform the detainees of the basis for their detention, and report on any measures taken to fulfil these orders within 15 days of the decision. However, the court dismissed the request for release of the four detainees.

 
Loved ones and supporters of Ridha Bouzayene gather at his funeral service. Photo courtesy of Al-Sabil.
  

The applicants also allege that the Republic of Tunisia infringed upon a detainee’s right to life although no conclusion on this issue has been reached. Article 4 of the African Charter on Human and Peoples’ Rights and Article 6 of the International Covenant on Civil and Political Rights ensure and protect one’s right to life. Ridha Bouzayene, a well-known member of the Ennahda Party, died during a protest against the Government in the Republic of Tunisia on January 14, 2022. He went missing at the demonstration and five days later it was discovered he had died from injuries inflicted by police. 

Mr. Bouzayene’s death also implicates the right of peaceful assembly, protected by Article 11 of the African Charter on Human and Peoples’ Rights and Article 21 of the International Covenant on Civil and Political Rights. Mr. Bouzayene went missing during what the applicants allege to be a peaceful protest and sustained fatal injuries while exercising his rights. 

Applicants also allege the Republic of Tunisia discriminated against Mr. Bouzayene based on his political opinion which further violates his rights protected by the African Charter on Human and Peoples’ Rights. The Constitution of Tunisia purports to establish a Constitutional Court, yet the Court has not been operational. As a result, the applicants further allege that the Republic of Tunisia has not upheld the independence of lawyers and the judiciary, leading to the ineffective investigation of Mr. Bouzayene’s death. As of this decision, the Tunisian judicial system has not found anyone responsible for Mr. Bouzayene’s death and the applicants maintain he was arbitrarily deprived of life. The applicants request the Court to order the Republic of Tunisia to open an investigation into Mr. Bouzayene’s death. 

The provisional decisions in this case, requiring the Republic of Tunisia to better inform and protect current detainees, may indicate a favorable decision to Mr. Bouzayene’s family in the future regardless of their denial of release. 

 

For Further Information Please See:  

ACHPR – Moadh Kheriji Ghannouchi and Others v. Republic of Tunisia – 3 Oct. 2024 

UK asked to impose sanctions on Tunisia officials – Middle East Monitor – 22 Mar. 2023 

Ennahda: Before and After the Coup in Tunisia – Crown Center for Middle East Studies | Brandeis University – 8 July 2022 

 

ECHR Rules Spain Violated Right to Privacy and Freedom of Religion

By: Neha Chhablani

Impunity Watch News Staff Writer

 

STRASBOURG, France – On September 17, 2024, in the case of Pindo Mulla v. Spain, the European Court of Human Rights (ECHR) ruled that Spain had violated the right to privacy and religious freedom of Ms. Rosa Edelmira Pindo Mulla, a Jehovah’s witness, by administering blood transfusions against her will. The ruling marks another victory for individual autonomy and religious freedom in healthcare, reaffirming the ECHR’s commitment to self-determination.

 
Photograph of the Pindo Mulla v. Spain judgement delivery. Photo Courtesy of the European Court of Human Rights.
  

Ms. Rosa Edelmira Pindo Mulla, an Ecuadorian national living in Spain, firmly opposes blood transfusions due to her religious beliefs. Following a series of medical evaluations between May and July 2017, she was advised to undergo surgery to remove a myoma. In preparation for the procedure, she issued two legal documents—an advance directive and a lasting power of attorney—refusing blood transfusions under any circumstance.

On June 6, 2018, Ms. Pindo Mulla was admitted to the hospital due to severe internal bleeding. She reiterated her refusal of a blood transfusion and was transferred to a specialized hospital in Madrid that could provide alternative treatments. However, multiple miscommunications during this transfer—including incomplete sharing of her advance directive, unclear information about treatment preferences, and a failure to consult with her or her family—resulted in a duty judge authorizing blood transfusions without knowledge of her legal documents or religious beliefs. The doctors administered three life-saving blood transfusions while Ms. Pindo Mulla was unaware and unable to give informed consent. 

Ms. Pindo Mulla pursued her case through each level of the Spanish judiciary before appealing to the ECHR. Both the local judge and the provincial court concluded that the absence of her advance directive and insufficient evidence of her refusal justified the transfusion. When the case reached Spain’s Constitutional Court, she argued that medical professionals violated her rights to legal protection, physical integrity, and freedom of religion, under Articles 24, 15, and 16 respectively of the Spanish Constitution. Ultimately, her appeal was deemed inadmissible as it did not meet the “special constitutional significance” threshold under Rule 54 § 3 of the Rules of Court.

On March 13, 2020, Ms. Pindo Mulla brought her case to the ECHR, claiming that Spain violated Article 8 (right to respect for private life) and 9 (freedom of thought, conscience, and religion) under the European Convention on Human Rights (ECHR). Spain relinquished jurisdiction to the ECHR on July 4, 2023, and the Grand Chamber hearing took place on January 10, 2024.

The court scrutinized the medical professionals’ decision-making process and evaluated whether they had shown sufficient respect for Ms. Pindo Mulla’s autonomy. Based on its investigation, the court determined that the doctors’ shortcomings in providing incomplete information and failing to confirm consent prevented her from exercising self-determination and autonomy. The court ruled that Spain had violated Article 8 in light of Article 9 and ordered the government to pay Ms. Pindo Mulla 12,000 Euros in non-pecuniary damage and 14,000 Euros for her legal costs and treatment expenses.

In this case, the ECHR had to carefully weigh the right to life under Article 2 of the ECHR and the right to religious freedom. While medical professionals justified their actions as necessary to preserve life, the court held that when a patient refuses treatment freely, autonomously, explicitly, and without ambiguity—as Ms. Pindo Mulla had done—the right to autonomy supersedes the right to life. By ruling in her favor, the ECHR reaffirmed the primacy of self-determination in healthcare and strengthened the legal protections of religious minorities in medical jurisprudence.

 

For further information, please see:

ECHR – Case of Pindo Mulla v. Spain – 17 Sept. 2024

ECHR – Grand Chamber Judgment Pindo Mulla v. Spain – 17 Sept. 2024

ECHR – European Convention on Human Rights – 29 Sept. 2024

Human Rights Without Frontiers – EUROPEAN COURT: Ruling about forced blood transfusion of a Jehovah’s Witness – 17 Sept. 2024

Tribunal Constitucional de España – The Spanish Constitution – 29 Sept. 2024

ICJ Genocide Convention Ruling is a Pyrrhic Victory for Ukraine

Zoé Tkaczyk

Impunity Watch News Guest Writer

 

THE HAGUE, Netherlands – On 2 February 2024, the International Court of Justice (ICJ) issued a landmark decision for Ukraine’s case against Russia regarding genocide allegations. The ICJ rendered its decision on the preliminary objections concerning Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG). 32 States intervened.

 
Dead bodies are placed in a mass grave on the outskirts of Mariupol, Ukraine. People cannot bury their dead because of the heavy shelling by Russian forces. Courtesy of Evgeniy Maloletka and the Associated Press.
  

Ukraine employed an exceptional legal maneuver. Because there is no international court with jurisdiction over UN Charter violations or the crime of aggression, Ukraine used the dispute resolution provision in the CPPCG to bring Russia to court. To justify its invasion, Russia claimed Ukraine was committing genocide against the Russian ethnic minority in eastern Ukraine. Ukraine used Russia’s disinformation against it. Ukraine argued that this established a dispute under the CPPCG and called for Court resolution. While the Court ordered Russia to suspend its military operations in the region to begin its provisional measures and investigations, Russia unsurprisingly ignored the order. 

While these provisional measures seemed a big win for Ukraine in the early stages of the war, the mixed decision in February of this year has left many claiming the Court failed to deliver. The ICJ unanimously dismissed Russia’s procedural objections in its judgment, ruling that the Court can decide on the merits if Ukraine violated the CPPCG in the Donetsk and Luhansk Regions. Many human rights advocacy organizations highlighted how important the admissibility of reverse compliance claims is as Russia continues to spread anti-Ukrainian propaganda and hate speech. The unanimous dismissal of Russia’s procedural objections in the genocide case was a victory for Ukraine’s legal battles. Still, many regret that the ICJ did not determine Russia’s false allegations of genocide to justify the full-scale invasion of Ukraine to fall within the scope of the CPPCG. By sustaining Russia’s objection regarding subject-matter jurisdiction by a 12 to 4 vote, the Court raised significant concerns about applying the CPPCG in broad contexts.

Ukraine’s pyrrhic victory means that its conduct, not Russia’s has been the subject of the hearing. However, the Court has still been able to review Russia’s key justification for its military campaign. Anton Korynevych, Ukraine’s legal team leader told reporters, “It is important that the court will decide on the issue that Ukraine is not responsible for some mythical genocide, which the Russian Federation falsely alleged that Ukraine has committed.” 

Additionally, Russia’s violations of the Court’s provisional measures order might also give Ukraine some more room to maneuver. However, they must contend with a Court likely unwilling to rule on an issue in the borders of its jurisdictional boundaries, especially when its ruling will likely be ignored. A redundant declaration of illegality, while satisfying, may do little more than keep waning support mobilized. The nations condemning Russia’s acts would likely condemn regardless of the Court’s rulings, and Moscow has had no reservations ignoring the holdings.

This may pose additional challenges to the international community when addressing serious human rights violations. The Court is in the middle of a highly charged political, legal, and military confrontation with no police or military to back its decisions. The only formal mechanism for Court decision enforcement is referral to the Security Council. But when the state subject to the decision retains a permanent seat on the Council, the chance of an enforcement resolution is slim. The Court must be careful to preserve its legitimacy in light of its predicament. While there were no obviously negative consequences of the mixed decision, it has pushed Ukraine to focus even more intensely on evidence collection of human rights violations and crimes committed by Russian forces to increase the chances of future legal victories. 

 

This article is one of a seven-part series exploring the Russo-Ukrainian War. Zoé Tkaczyk is a J.D./MAIR candidate (May 2025) at the Syracuse University College of Law and Maxwell School of Citizenship and Public Affairs. This article series was inspired by sessions from the Carnegie-Maxwell Policy Planning Lab Fellowship: Postwar: Europe, Ukraine and the Future of European Order. Special thanks to Cora True-Frost and Alexa Connaughton for their guidance, feedback, and edits.

 

ICJ – 182 – Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) – 18 Oct. 2022

Just Security –  Taking Stock of ICJ Decisions in the ‘Ukraine v. Russia’ Cases—And implications for South Africa’s case against Israel – 5 Feb. 2024

ICJ – Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) – 2 Feb. 2024

Relief Web – Mixed decisions by the International Court of Justice on Russia’s responsibility in crimes committed in Ukraine – 6 Feb. 2024

Associated Press – The UN’s top court says it has jurisdiction in part of Ukraine’s genocide case against Russia – 2 Feb. 2024



ICJ Ruling Based on Alleged CERD Violations by Russia Disappoints Many Ukrainians

Zoé Tkaczyk

Impunity Watch News Guest Writer

 

THE HAGUE, Netherlands – On January 31, 2024, the International Court of Justice (ICJ) delivered a landmark judgment in the Ukraine v. Russia case concerning the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). 

 
Protester at a rally calling for Crimea to remain a part of Ukraine. Courtesy of Spencer Platt and Getty Images.
  

While the Court dismissed most of the allegations presented by Ukraine, it did investigate claims concerning the suppression of Ukrainian language and culture in Crimea. The Court’s ruling that Russia violated certain obligations under the CERD–regarding the educational rights of the Ukrainian-speaking community in Crimea–while limited, was still significant in demonstrating the importance of protecting minority rights and cultural identity.

The Court began by recalling that the current proceedings were instituted by Ukraine after events in Eastern Ukraine and Crimea in early 2014. With the parties currently engaged in an armed conflict, the Court had limited the scope of its opinion under this treaty significantly, clarifying that it was not ruling on issues beyond the CERD claims. Evidence submitted by Ukraine spans as far back as 2014, after the annexation of Crimea by the Russian Federation. Specifically, Ukraine alleges that Russia is engaged in a campaign of racial Discrimination against Crimean Tatars and ethnic Ukrainians in Crimea by depriving them of their political, civil, economic, social, and cultural rights.

Ukraine instituted the case in 2017 to address events that occurred in 2014 in Eastern Ukraine and the Crimean peninsula. Claims under CERD included allegations of systematic discrimination against Crimean Tatars and ethnic Ukrainian communities in Crimea. Ukraine also asked for reparations for all victims of the erasure and discrimination. The Court ruled on eight specific CERD claims, but ultimately only found Russia in violation of one. The Cout found that Russia violated Articles 2(1)(a) and 5(e)(v) of the CERD because of the educational system it instituted in Crimea after 2014. The Court rejected all of Ukraine’s other claims under CERD. 

These included claims of alleged physical violence directed toward these groups because of their political and ideological positions, racially motivated behavior by law enforcement toward members of these groups, and restrictions on media, cultural gatherings, heritage, and education. The one claim the Court found Russia in violation of related to protecting educational opportunities in Ukrainian. Specifically, the court found violations of Articles 2 and 5. It further explained that while declining to offer education in a minority language was not racial discrimination under CERD, the structural changes Russia implemented in schools to change the language of instruction made it unreasonably difficult for children to receive education in their primary language. The Court also found evidence of harassment against individuals choosing to pursue their education in Ukrainian. Thus, it found Russia in violation of these articles. 

Since the reorientation of the Crimean education system to Russian, Ukrainian language instruction has fallen by 90%. Despite this, the Court did not find that Russia’s violation of the CERD articles was the sole cause of the decline, and left many hopeful human rights advocates disappointed by the outcome of the case. The ruling came during a myriad of other ICJ rulings based on Russia’s actions in Ukraine and raised questions about the retroactivity of these holdings and evidentiary questions when acts overlap under various human rights treaties. The Court did not provide legal guidance for many of the questions that these cases are raising. 

 

Note: This case was decided in tandem with a ruling on the International Convention for the Suppression of the Financing of Terrorism (ICSFT).  This article is one of a seven-part series exploring the Russo-Ukrainian War. Zoé Tkaczyk is a J.D./MAIR candidate (May 2025) at the Syracuse University College of Law and Maxwell School of Citizenship and Public Affairs. This article series was inspired by sessions from the Carnegie-Maxwell Policy Planning Lab Fellowship: Postwar: Europe, Ukraine and the Future of European Order. Special thanks to Cora True-Frost and Alexa Connaughton for their guidance, feedback, and edits.

Just Security –  Taking Stock of ICJ Decisions in the ‘Ukraine v. Russia’ Cases—And implications for South Africa’s case against Israel – 5 Feb. 2024

ICJ – 182 – Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) – 18 Oct. 2022

Relief Web – Mixed decisions by the International Court of Justice on Russia’s responsibility in crimes committed in Ukraine – 6 Feb. 2024

ICJ – Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation) – 31 Jan. 2024



ICJ Ruling Only Finds in Favour of One Ukrainian Claim Against Russia’s Alleged ICSFT Violation

Zoé Tkaczyk

Impunity Watch News Guest Writer

 

THE HAGUE, Netherlands – On January 31, 2024, the ICJ delivered a landmark judgment in the Ukraine v. Russia case concerning the Application of the International Convention for the Suppression of the Financing of Terrorism (ICSFT). The Court investigated Russia’s alleged violation of five articles and found the nation only violated one. While the Court dismissed most of Ukraine’s allegations, it did investigate and find that Russia failed to fulfill its obligations under the ICSFT by not adequately investigating terrorism financing. 

 
Ukrainian servicemen who were wounded in battle waiting to leave a field hospital near Bakhmut in Eastern Ukraine. Courtesy of Evgeniy Maloletka and the Associated Press.
  

The first case was filed in 2017 by Ukraine under the ICSFT. It claimed Russia’s support for Russian separatist groups in eastern Ukraine, including in-kind contributions of weapons and training, violated the ICSFT. As part of that claim, Ukraine also argued that Russia violated the ICSFT by failing to investigate, prosecute, and extradite perpetrators guilty of financing terrorism found in Russian territory. The Court rejected all of Ukraine’s other claims under the convention largely because of insufficient evidence. This sliver of a win seemed to do little as Ukraine lost on nearly every other claim of significance. 

The situation today is much different than when Ukraine first raised these complaints. This time around, Russia based its objection on the “clean hands” doctrine, which it raised in its Rejoinder on March 10th, 2023. Raising this objection at this late stage meant the Court viewed it as a defense on the merits. Several of the pieces of evidence submitted by Ukraine were already considered in the 2019 Judgement concerning the annexation of Ukraine

Aside from the acts Ukraine referred to by the Donetsk People’s Republic (DPR) and the Luhansk People’s Republic (LPR) after 2019, Ukraine also referred to the acts of armed groups and individuals before 2019. Because the Court previously issued a judgment, the Court had tricky subject-matter jurisdiction questions to untangle, especially as the timeline of events became increasingly muddled. Ultimately, the Court determined there was jurisdiction under Article 24, paragraph 1, and entertained claims. This did limit the evidence and acts the Court could consider and narrowed the scope of the investigation significantly.

The Court did find that Russia violated its obligations under Article 9 of the treaty, related to the mandatory investigations of financing terrorism. An allegation alone is enough to invoke the investigation obligations since the treaty requires a low evidentiary threshold to investigate alleged terrorism financing. Because the Article had a low threshold, it was the only apparent “win” for Ukraine. Many regarded the proceedings as inadequately protecting the human rights regime. Many speculated that these lackluster decisions indicate that the Court is unwilling to intervene in politically charged situations, especially one rife with military confrontation. Some might wonder whether these lackluster decisions signal that the ICJ is having second thoughts about wading into highly politically charged situations. But the Court must work to preserve its legitimacy, especially concerning cases involving one of the Permanent Security Council members since referral to the Security Council is the only way to enforce an ICJ decision.

No one is contesting that Russia is in violation of international law in waging its war, but the variety of cases brought against Russia by Ukraine demonstrates the limits of international law. While nations can condemn Russia for the acts that they were found guilty of under the ICSFT, if the holding remains unenforceable, it is unlikely that anything will change on the ground. Because of this, it is unsurprising that the Court ruled how it did.

 

Note: this case was decided in tandem with a ruling on the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).

This article is one of a seven-part series exploring the Russo-Ukrainian War. Zoé Tkaczyk is a J.D./MAIR candidate (May 2025) at the Syracuse University College of Law and Maxwell School of Citizenship and Public Affairs. This article series was inspired by sessions from the Carnegie-Maxwell Policy Planning Lab Fellowship: Postwar: Europe, Ukraine and the Future of European Order. Special thanks to Cora True-Frost and Alexa Connaughton for their guidance, feedback, and edits.

 

Just Security –  Taking Stock of ICJ Decisions in the ‘Ukraine v. Russia’ Cases—And implications for South Africa’s case against Israel – 5 Feb. 2024

ICJ – Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation) Summary of the Judgement – 31 Jan. 2024

Relief Web – Mixed decisions by the International Court of Justice on Russia’s responsibility in crimes committed in Ukraine – 6 Feb. 2024

ICJ – 182 – Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) – 18 Oct. 2022

ICJ – Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation) – 31 Jan. 2024

Library of Congress – International: International Court of Justice Issues Decision in Terrorism Financing and Racial Discrimination Case Involving Russia and Ukraine – 31 Jan. 2024



Russian Departure from the European Council and EUCHR Leaves Behind Questions About How to Handle Cases

Zoé Tkaczyk

Impunity Watch News Guest Writer

 

STRASBOURG, France – After Russia’s departure from the European Court of Human Rights (EUCHR), questions about how to handle cases pending before the Court and the alleged dilution of standards that initially allowed Russia to join the Court remain. 

 
Kremlin forces in Russian-occupied Donetsk drive tanks during a rehearsal for the Victory Day parade, marking the anniversary of the Soviet victory over Nazi Germany in WWII. Courtesy of Alexander Ermochenko and Reuters.
  

In 2002, the Court issued its first judgment against Russia to assist a Russian national conscripted to work on the Chernobyl nuclear plant disaster after brutal radiation exposure. But by 2012, 22,358 complaints had been filed against Russia. With a backlog of more than 120,000 cases, the Court was already facing a docket crisis, only exacerbated by Russia’s expulsion. In 2022, 2,129 judgments and decisions and 17,450 applications were pending against Russia.

The war in Ukraine only raised the count, and ECHR began publishing interim verdicts. Many view these procedural changes as undermining the Court’s ability to handle cases in its jurisdiction. That said, the interim ruling was the first international court to prove Russia’s occupation in Donbas since 2014 and considered the evidence from the occupied territories, including the downing of flight MH17 and actions by the Donetsk People’s Republic (DPR), Lugansk People’s Republic (LPR) and members of the Russian military.

But now, after the Russian exit, many question how the Court can handle the previously pending cases without jurisdiction, and these uncertainties are only exacerbated by Russia’s departure from the Council of Europe as well. Critics claim Russia was a thorn in both by weakening democratic standards in exchange for only mild internal reform in Russia. 

These tensions have pervaded since Russia considered membership in 1994. And since 2014 and the annexation of Crimea, the relationship has been a sour one, with Russia refusing to pay dues. When Ukraine filed complaints against Russia’s acts, Russia did not listen to the ensuing Court orders. In 2022, after the full-scale invasion, the Kremlin did not listen to the Court order to stop hostilities. This situation deeply challenges the assumption that it is better to include rogue actors in international legal associations. Since Russia backed out, it is unclear if inclusion led to more harm or good, but it is clear that the Council and associated court were not successful in spreading liberal democracy to Russia as it had hoped.

Russia’s departure has not stopped the Council of Europe from acting on behalf of its victims in Ukraine and previously in Georgia. A key issue in these deliberations is identifying and defining conflict borders, which looks largely at where each state has control of its territory. Relying on past Georgian precedent, the ECHR did not have the jurisdiction to define borders because the “fog of war” prevented recognition of control during active hostilities. But earlier this year, the ECHR was able to rule that Russia controlled the DPR and LPR territories as of 2014 and assigned responsibility for the MH17 flight among other acts. Despite this ruling and revelation of the DPR and LPR alignment with Russia, the Kremlin continues to deny involvement. The ECHR ruling was certainly a political win for Ukraine, confirming the invasion began in 2014, not February 2022. It debunked Russian claims about independent separatist movements justifying the invasion. Russia’s objection to the ECHR’s subject matter jurisdiction over complaints concerning armed conflict was also rejected.

For now, the ECHR is considering issues of extraterritorial jurisdiction. The ECHR is considering any exceptional circumstances including jurisdiction ratione loci and jurisdiction ratione personae. The ECHR will consider occupation and annexation of another’s territory, whether unlawful or lawful and state agent’s authority over individuals in the territory. This is a win for Ukraine in that it legally declares when the war began, extending it to eight years earlier. The question that now remains is how to address violations that occurred after September 16, 2022, when Russia left the ECHR. It will remain responsible for acts carried out before that date, but no one is expecting compliance in the near future. If it seeks to return one day, a different question will emerge, but until then, the ECHR seems to be limited temporally by which violations it can examine. 

 

This article is one of a seven-part series exploring the Russo-Ukrainian War. Zoé Tkaczyk is a J.D./MAIR candidate (May 2025) at the Syracuse University College of Law and Maxwell School of Citizenship and Public Affairs. This article series was inspired by sessions from the Carnegie-Maxwell Policy Planning Lab Fellowship: Postwar: Europe, Ukraine and the Future of European Order. Special thanks to Cora True-Frost and Alexa Connaughton for their guidance, feedback, and edits.



Court House News – One year after Russian expulsion from top European human rights body, Ukraine war rages on – 15 Sep. 2023

European Committee on Legal Co-operation – Supporting Ukraine in the execution of judgments of the European Court of Human Rights   

Atlantic Council – ECHR ruling confirms Russian invasion of Ukraine began in 2014 – 14 Feb. 2023

Gibson Dunn – Russia in the European Court of Human Rights – Recent Decisions May Impact Rights of Investors – 30 May 2023 

Just Security – Prosecuting the Crime of Aggression in Ukraine and Beyond: Seizing Opportunities, Confronting Challenges and Avoiding False Dilemmas – 2 April 2024



Ukraine Revamps Constitutional Court System Amid Corruption Charges to Prosecute Russian Aggressors

Zoé Tkaczyk

Impunity Watch News Guest Writer

 

KYIV, Ukraine – The Constitutional Court, Ukraine’s highest legal power, was in crisis before Russia’s invasion in 2022. Now the country, in the middle of armed conflict, must remake its legal institutions if it wants to prosecute Russian aggressors captured in its territory. 

 
The inside of Ukraine’s Constitutional Court House. Photo courtesy of Ukrainian Constitutional Court House website.
  

From judges with conflicts of interest to alleged presidential interference, to backtracking corruption efforts, Ukraine must find a way to rectify its courts quickly. After a series of failed judicial reform bills, President Zelensky reconvened the Commission on Legal Reform. During the initial days of the Russian invasion, the Constitutional Court delayed major rulings, but now the Court seeks to prosecute individual Russians and perhaps even Russia as a whole for the crime of aggression. 

While negotiations on an ad hoc tribunal for the crime of aggression have garnered the majority of the media attention, Ukrainian prosecutors have forged ahead and begun domestic investigations while the international community determines the crime of aggression question. The Ukrainian criminal code prohibits the crime of aggression under Article 437. This includes “‘the planning, preparation, initiation and conduct’ of aggressive war, as well as ‘participation in conspiracy aimed at commission’ of such actions.” The Ukrainian code does not require the prosecuted individual to be in a position of leadership, unlike the Rome statute so even ordinary fighters and soldiers can be found guilty of aggressively waging war and the associated actus reus. 

The first conviction of the crime of aggression in the Ukrainian courts happened in May 2022, when 21-year-old Russian tank commander, Vadim Shishimarin was jailed for life after shooting an unarmed civilian, 62-year-old Oleksandr Shelipov, a few days after the invasion began. By July 2022, Ukraine’s prosecutor-general, Iryna Venediktova, and her office were investigating more than 21,000 war crimes and crimes of aggression allegedly committed by Russian forces. By March 2023, at least 26 war crimes suspects had been convicted by Ukrainian courts.

Before Russia’s invasion, national courts rarely saw aggression cases. Now, prosecutors are beginning to align Article 437 of the Ukrainian criminal codes to a more narrow scope, similar to the Rome statute. In the past, legislative attempts to bring Article 437 up the Rome standard failed. These prosecutions offer an interesting case study, as they show legal advocates conforming the code to international standards when the legislation and courts themselves have deprioritized doing so. Even with the Office of the Prosecutor General of Ukraine (OPG) sending guidance on standardized prisoner of war (POW) immunity, prosecutors seemed to be conforming to international humanitarian norms on combatant immunity fairly seamlessly.

Despite its corruption crisis, in February of this year, the Court issued a decision on an Article 437 case. It clarified who could be found guilty of the crime of aggression, further aligning Ukraine with international standards, rather than the criminal code’s broad definition. When the decision was released, 99 criminal aggression cases were registered, including cases against typical defendants, like military commanders, foreign intelligence service workers, and high-level state officials, but also including 30 “instigators of war” such as Russian singers and university rectors. While many–if not most–of these will take place in absentia, whether the Court can successfully rule on an atypical defendant’s crime of aggression poses an interesting challenge for the Court.

Additionally, Ukraine’s domestic prosecutors have an important opportunity to set a precedent for how the crime of aggression could be handled at national levels. This could set customary international law norms in an area that has seen little activity in the past century, which could be key to protecting the right to life. It is interesting to note that the list of potential defendants does not include notable suspects in aggression cases like President Putin himself and other members of the Troika. The Court seems committed, at least right now, to preserving the immunity of the Troika before its courts. It seems generally accepted that these personal immunities cannot be surpassed at a national level and will need some kind of extraordinary judicial response. 

 

This article is one of a seven-part series exploring the Russo-Ukrainian War. Zoé Tkaczyk is a J.D./MAIR candidate (May 2025) at the Syracuse University College of Law and Maxwell School of Citizenship and Public Affairs. This article series was inspired by sessions from the Carnegie-Maxwell Policy Planning Lab Fellowship: Postwar: Europe, Ukraine and the Future of European Order. Special thanks to Cora True-Frost and Alexa Connaughton for their guidance, feedback, and edits.

 

Cites:

BBC News – What is a war crime and could Putin be prosecuted over Ukraine? – 20 July 2023

Confronting Challenges and Avoiding False Dilemmas – 2 April 2024

Harvard Ukrainian Research Institute- Ukraine’s Constitutional Court Crisis, Explained

Just Security –  Prosecuting the Crime of Aggression in Ukraine and Beyond: Seizing Opportunities, 



ICC Seeks to Prosecute a Military Mastermind

Zoé Tkaczyk

Impunity Watch News Guest Writer

 

THE HAGUE, Netherlands – Since March of 2023, the ICC has sought to arrest Russian President Vladimir Putin and the Commissioner for Children’s Rights, Ms. Maria Lvova-Belova. However, as Russia is not an ICC signatory, it is unlikely that Putin or Lvova-Belova will be extradited for trial soon. 

 
President Vladimir Putin delivers a statement at the Kremlin in Moscow on July 5, 2024. Courtesy of Alexander Nemenov and Agence France-Presse.
  

Both are allegedly responsible for war crimes related to unlawful deportation and transportation of population, specifically children, from Russian-occupied areas of Ukraine as far back as 2022 in violation of Rome Statute Articles 8(2)(a)(vii) and 8(2)(b)(viii). Incidents identified by the prosecutor’s office include deporting children removed from orphanages and child care homes. Many of these children were allegedly given up for adoption in the Russian Federation, and Russian law was changed via presidential decree to expedite citizenship. These acts demonstrate an intention to remove these children from their home country permanently, which violates the Fourth Geneva Convention. Moscow has denied the allegations and called the warrants outrageous.

Pre-Trial Chamber II considered, based on the Prosecution’s applications in February 2023, that there were reasonable grounds to that each suspect may bear responsibility for the unlawful deportation of population and the unlawful transfer of population from occupied areas of Ukraine to the Russian Federation, particularly in prejudice of Ukrainian children. The Court had evidence of individual criminal responsibility for both under Article 25(3)(a) of the Rome Statute and against Putin for failure to properly control civilian and military subordinates under Article 28(b). The warrants were considered in secret to protect the witnesses and investigation.

Prosecuting a military mastermind is no easy task and could undermine the Court; however, as the crimes addressed are allegedly ongoing, there is some hope that despite the unlikelihood of extradition, public awareness of the warrants may prevent further crimes. The Chamber considered this to be in the interest of justice and allowed the Registry to publicize the warrants’ existence, the suspect’s names, the warrants’ crimes, and the modes of liability the Chamber established.

The UN Commission of Inquiry of Ukraine found that Russian authorities took over 16,200 children out of Ukraine into Russia. The same Commission found evidence of rapes, torture, and killings, and has been investigating as far back as 2013 before the illegal annexation of Crimea. While the ICC can bring a prosecution against political leaders for waging an aggressive war, the Court seems to be focusing on civilian and children’s rights for now. Additionally, while the warrants recognize these acts as war crimes, commentators are making the case that the conduct also constitutes genocide and crimes against humanity. The decision to pursue these as war crimes may be an indication of evidence related to intent. With both the alleged crimes and evidence collection ongoing, the charges may be amended.

The Court has no power of enforcement instead relying on the 124 nations that are signatories to the Rome Statute to arrest those indicted of war crimes or crimes against humanity if they visit their territories. And yet, the Court issued the warrants. The decision to pursue charges against Putin sends a strong signal to low-level perpetrators that none are immune from prosecution and may serve as a deterrent. Plus, while Putin is not the first sitting head of state to be indicted, he is the first leader of a P5 country to be indicted. The ICC arrest warrants have impacted Putin internationally. He did not attend the BRICS summit in August 2023 in South Africa. Besides hindering potential international travel for Putin, the warrants make meeting with Putin less appealing. The stakes for engaging with Putin are becoming increasingly high for foreign governments. Combined with sanctions, the ICC warrants make it harder to ignore Russian actions in Ukraine and the brutality of its war. Even as many celebrate the ICC’s announcement, the Ukrainian government and like-minded partners continue to press for international support for the establishment of the tribunal to hold Russia accountable for the full breadth of crimes committed, specifically the crime of aggression.



This article is one of a seven-part series exploring the Russo-Ukrainian War. Zoé Tkaczyk is a J.D./MAIR candidate (May 2025) at the Syracuse University College of Law and Maxwell School of Citizenship and Public Affairs. This article series was inspired by sessions from the Carnegie-Maxwell Policy Planning Lab Fellowship: Postwar: Europe, Ukraine and the Future of European Order. Special thanks to Cora True-Frost and Alexa Connaughton for their guidance, feedback, and edits.

 

United States Institute of Peace – How the ICC’s Warrant for Putin Could Impact the Ukraine War – 23 March 2023

ICC – Statement by Prosecutor Karim A. A. Khan KC on the issuance of arrest warrants against President Vladimir Putin and Ms Maria Lvova-Belova – 17 March 2023

ICC – Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova – 17 March 2023

International Crisis Group – A New Court to Prosecute Russia’s Illegal War? – 29 March 2023

BBC News – What is a war crime and could Putin be prosecuted over Ukraine? – 20 July 2023

Foreign Affairs – Would Prosecuting Russia Prolong the War in Ukraine? – 12 July 2023