By: Garrison Funk

Impunity Watch News Staff Writer

STRASBOURG, France – On November 6, 2023, the Grand Chamber of the European Court of Human Rights (ECHR) accepted the referral of Semenya v. Switzerland, a case challenging the decision of the Swiss Federal Tribunal’s refusal to overturn regulations issued by World Athletics restricting eligibility for women’s athletic competitions.

The case, filed by two-time Olympic gold medalist Caster Semenya, challenges the 2018 regulations instituted by World Athletics which limit hormone levels in female athletes for certain athletic events.

Born with differences of sexual development (DSD), Semenya has naturally elevated levels of testosterone. Under the World Athletics regulations, Semenya and all other female athletes with DSD would be required to submit to hormone-suppressing treatment for six months in order to compete in female track events between 400m and the mile.

This is not World Athletics’ first attempt to institute hormonal restrictions on women’s athletics. World Athletics (formerly the International Association of Athletics Federations) first introduced “hyperandrogenism” regulations in 2011, which instituted a ban on any female athlete who’s androgen levels fell within the male range.

These regulations were challenged by Dutee Chand in 2014 after World Athletics deemed her ineligible to compete. The Court of Arbitration for Sport (CAS) partially upheld Chand’s appeal and subsequently suspended the World Athletics regulations.

Following this decision, World Athletics withdrew the regulations. In 2018, it instituted the “Athlete with Differences of Sexual Development” regulations at issue which require any female athlete with DSD to reduce her blood testosterone to below five nmol/L for six months prior to competition and maintain these levels in order to compete.

In compliance with her arbitration clause, Semenya originally filed her case with CAS on June 18, 2018. The CAS found the World Athletics regulations to be discriminatory but held that such discrimination was a necessary, reasonable, and proportionate means of upholding the integrity of female athletics. Semenya’s subsequent appeal to the Swiss Federal Tribunal (SFT) was dismissed.

Following dismissal by the SFT, Semenya filed the present case against Switzerland in the ECHR, alleging violations of Article 14 in conjunction with Article 8 for failing to provide sufficient institutional and procedural protections against discrimination and Article 13 for breaching her right to an effective remedy.

The ECHR ruled in Semenya’s favor on July 11, 2023, and the Swiss government subsequently requested the matter be referred to the Grand Chamber for reconsideration. The grant of referral was approved on November 6, 2023.

For further information, please see:

BBC News – Caster Semenya: Double Olympic Champion ‘not ashamed of being different’ – 7 Nov. 2023

CAS – Mokgadi Caster Semenya v. International Association of Athletics Federations – 30 Apr. 2019

CNN – Caster Semenya says she went through ‘hell’ due to testosterone limits imposed on female athletes – 6 Nov. 2023

ECHR – Referral to the Grand Chamber – 6 Nov. 2023

Strasbourg Observers – Caster Semenya v. Switzerland: Eligibility of Intersex Female Athlete in Female Athletic Events – 27 Sept. 2023

World Athletics – IAAF introduces new eligibility regulations for female classification – 26 Apr. 2018

World Athletics – IAAF to introduce eligibility rules for females with hyperandrogenism – 12 Apr. 2011

By: Patrick Farrell,

Senior Associate Member, Journal of Global Rights and Organizations

STRASBOURG, France – The European Court of Human Rights issued a release on September 12, 2023, announcing its Chamber judgement in the case of Romanov and Others v. Russia (application no. 58358/14). The case concerns Russia’s failure to protect the case applicants (complainants), all members of the LGBTQ+ community from homophobic attacks at a public demonstration.  In addition, the case evaluated Russia’s failure to conduct an appropriate investigation into the incidents. 

The Court held that Russian authorities failed to take effective measures to prevent and respond to the hate-motivated attacks, which caused physical injury to the complainants.  Also, the Court held that Russian authorities failed to take the proper course of action to address the applicants’ complaints in Russian courts and to Russian authorities.  Importantly, the Court noted that this appeared to be common, albeit unfortunate, practice for addressing hate crimes against members of the LGBTQ+ community in Russia. 

The applicants were a group of eleven Russian nationals, all members of the LGBTQ+ community.  Between May 2012 and June 2013, seven of the applicants were attacked by counterdemonstrators while taking part in a specifically authorized LGBTQ+ demonstration in St. Petersburg. The police did not intervene. As a result, many of the applicants suffered serious injuries, including chemical burns, damage to their eyes, and physical assaults with weapons, as well as harassment and verbal abuse.  Russian authorities largely dismissed complaints about the incidents without the attackers being identified. Further, Russian authorities, without conducting a determinative investigation, denied that homophobia motivated the violence.   

Ultimately, the Court determined unanimously that Russian authorities violated the European Convention on Human Rights on numerous different accounts. Such violations include: a violation of Article 3 (prohibition of inhuman or degrading treatment, read in the light of Article 14 (prohibition of discrimination); a violation of Article 3 (effective investigation) read in the light of Article 14; a violation of Article 11 (freedom of assembly and association) taken alone and read in the light of Article 14; a violation of Article 5 §1 (right to liberty and security); and a violation of Article 11.

For further information, please see:

ECHR – Judgement Concerning Russian Federation – 23 Sep. 2023

European Convention on Human Rights – 1950

ECHR – Judgement Romanov and Others v. Russia – 23 Sep. 2023

 

By: Lauren Hile

Journal of Global Rights and Organizations Associate Articles Editor

 THE HAGUE, Netherlands – On September 18, 2023, the International Court of Justice (ICJ) began hearing oral arguments for Ukraine v. Russian Federation. Ukraine brought this case against the Russian Federation in February 2022 to establish two provision measures: (1) not to be subject to false claims of genocide by Russia, and (2) not to be subjected to other state’s military operations on its territory. In presenting its claim, Ukraine relied on the Genocide Convention (the Convention) to argue that Russia has been relying on false claims of genocide by the Ukrainian government as a way to legitimize its invasion. Russia responded by arguing that the court lacks subject-matter jurisdiction over this claim because the ICJ may only hear claims of genocide. Claims that genocide is not happening is outside the scope of the court’s jurisdiction.

The oral arguments began last week with Russia. In arguing that the ICJ lacks subject-matter jurisdiction for this claim, Russia asserted that because Ukraine insists that no genocide has occurred, and because Russia claims to have never accused Ukraine of these acts, the case should be rejected. Further, Russia argued that by bringing this claim under the Convention, Ukraine is attempting to expand the Convention to cover the legality of military operations between two states.

In its argument, Russia also stated that it invaded Ukraine in 2022 because had a right to self-defense after conflict escalated in the Donbass region of Ukraine, where the ethnicity is mostly Russia. However, when giving reasons why conflict escalated in this region, Russia cited threats of genocide coming from the “anti-Russian, neo-Nazi Kiev Régime”.

Ukraine responded to Russia’s arguments on September 19, 2023. After stating that Russia has been falsely accusing Ukraine of genocide since 2014 to lay the groundwork for its 2022 invasion, Ukraine offered four reasons why the ICJ has jurisdiction over its claim. First, the Convention has broad jurisdiction, and includes disputes that relate to how countries fulfill their treaty obligations. Second, the court’s jurisdiction is extended to disputes that are related to the Convention. Ukraine explained that Russia’s allegations that Ukraine committed genocide in violation with the convention are obviously connected with the Convention. Third, jurisdiction is extended to “particular disputes relating to the responsibility of a State for genocide.” Here, particular disputes would include whether Ukraine is really responsible for genocide, or whether Russia is violating its duties by falsely alleging genocide as an excuse to invade Ukraine. Lastly, per the Convention, “any of the parties” to a dispute under the Convention may submit the dispute to the Court to be heard. Ukraine argued “if, as Russia acknowledges, a State that levels allegations of genocide against another can ask the Court to resolve that dispute, there is no reason why a State such as Ukraine – that disputes allegations of genocide against it and illegal actions based on pretextual allegations – cannot do the same”.

Over the past year and a half, thirty-two countries have intervened in this case on behalf of Ukraine. As Germany stated in its oral observation, this unprecedented intervention “shows that the parties to the Genocide Convention have a very strong interest in its proper interpretation in the case.” Many of these countries presented oral arguments last week, echoing Ukraine’s reasoning for why the ICJ has jurisdiction over this subject-matter.

The second round of oral arguments were on September 25, with Russian opening. 

For further information, please see:

ICJ – Germany Oral Consideration Round 1 – 20 Sept. 2023

ICJ – Lithuania Oral Consideration Round 1 – 20 Sept. 2023

ICJ — Request for the Indication of Provisional Measures Submitted by Ukraine — 25 Feb. 2022.

ICJ – Russian Federation Oral Argument Round 1 – 18 Sept. 2023

ICJ – Russian Federation Response to Ukraine Provisional Measures and Motional for Dismissal – 7 March 2022.

ICJ – Ukraine Oral Argument Round 1 – Sept. 19, 2023

 By: Jamela Wharton

Journal of Global Rights and Organization, Associate Articles Editor

STRASBOURG, France – The European Court of Human Rights (ECtHR) located in Strasbourg France, has decided to host Grand Chamber hearings for three climate change lawsuits. The cases are Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (Verein), Carême v. France (Carême), and Duarte Agostinho and Others v. Portugal and 32 Other States (Duarte). There were other climate change cases that did not reach this stage. Two were deemed inadmissible, and there are six others that have been adjourned.

The Verein case was fast tracked which caused both hearings for the Carême and Verein cases to be held on March 29, 2023. Verein’s hearing was schedule in the morning, making it the first climate change case to be heard by the Grand Chamber of the EctHR. The Grand Chamber hearings are the last step before a judgment is rendered. The hearing for Duarte Agostinho and Others v. Portugal and 32 Other States does not have a hearing date yet, but it is expected to occur after the court’s 2023 summer recess.

The plaintiffs in all the climate change cases have asserted that their article two right to life of the European Convention on Human Rights has been violated. Verein argues that the Switzerland government failed to adequately mitigate the effects of climate change. The plaintiffs of this case are older members of the community who are concerned of the effects climate change may have on their living conditions and health. In Carême, the former mayor of a municipality in France contends that France has not taken the necessary steps to prevent the climate change crisis, and this failure amounts to a violation of the Convention. Duarte was brought against 33 member states for their role in greenhouse emissions. The applicants are made up of Portuguese nationals between the ages of 10 to 23. They claim the emissions cause a threat to their living conditions and health and is a violation of their right to life.

The decision is expected to determine whether a member state’s governmental inaction to mitigate climate change is a violation of human rights law. This decision would set a binding precedent to all member states.

 

For further information, please see:

ECtHR- Factsheet on Climate Change Cases Pending Before the Grand Chamber of the Court- Mar. 2023.

Greenpeace- First Climate Case Heard of the European Court of Human Rights – 29 Mar. 2023