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Progress in Recognition of Climate Refugees

By: Michelle Leal

Journal of Global Rights and Organizations, Notes and Comments Editor

NEW ZEALAND – On January 7, 2020, the UN Human Rights Committee took a step towards protecting future climate refugees in its ruling of Ioane Teitiota v. New Zealand

Island Nation of Kiribati Affected by Climate Change. Photo Courtesy of Oxford Human Rights Hub.

Ioane Teitiota, a national of Kiribati, sought refugee status in New Zealand. Teitiota claimed refugee status based on the changes to Kiribati’s environment caused by sea-level rise associated with climate change. A refugee and protection officer declined to grant Teitiota refugee status. Teitiota appealed, but the Immigration and Protection Tribunal (IPT) dismissed Teitiota’s case in June 2013. Over the next two years, Teitiota applied to the High Court, Court of Appeal, and Supreme Court for leave to appeal the IPT’s decision. However, all three refused to grant leave to appeal. In September 2015, Teitiota and his family were deported from New Zealand to Kiribati. 

In February 2016, Teitiota brought a case against the New Zealand government at the UN Human Rights Committee (HRC). Teitiota claimed that by forcibly returning him to Kiribati, New Zealand violated his right to life under Article 6 of the International Covenant on Civil and Political Rights. Specifically, Teitiota argued that the rise in sea level and other climate change effects had caused Kiribati to be uninhabitable. Further, Teitiota claimed that there were violent land disputes caused by the increasingly scarce habitable land. Finally, Teititiota argued that environmental degradation made subsistence farming difficult, and saltwater contaminated Kiribati’s freshwater supply. 

The HRC noted that while the right to life under Article 6 of the Covenant must be interpreted broadly, there is a high threshold for proving a real risk of a violation exists. With the high threshold in mind, the HCR ultimately rejected Teitiota’s claim. 

Notably, the HRC expressly recognized the sudden-onset and slow-onset events caused by climate change that created a real risk that Kiribati may become submerged. However, the HRC found that this risk was not imminent as required for a violation under Article 6. Further, the HRC highlighted the Kiribati Government’s current efforts to curb climate change and noted that there was still time for intervening acts by the international community to combat climate change. 

Additionally, the HRC rejected Teitiota’s claim regarding violent land disputes caused by increasing unhabitable land. The HRC stated that Article 6’s “risk to life” must be personal and that a situation of general violence was not enough. Since Teitiota was never personally threatened or involved in an instance of land violence, the land violence failed to be a violation under Article 6. Finally, the HRC determined that while farming and freshwater access became increasingly difficult, it was not impossible, and therefore, Teitioa’s deportation did not violate Article 6. 

Although Teitiota’s claim was unsuccessful, many regard the HRC determination as ground-breaking. The ruling set forth new standards that could facilitate the success of future climate refugee claims. Namely, the standard that states must consider human rights violations caused by the climate crisis when considering asylum seekers’ deportation. With this landmark first step towards recognizing climate refugees and the number of climate-related refugees likely rising, it will be interesting to see how states handle these claims in the future. 

For further information, please see:

Amnesty International – UN Landmark Case for People Displaced by Climate Change – 20 Jan. 2020

New Security Beat – Climate Migration and Cities: Preparing for the Next Mass Movement of People – 19 Oct. 2020

Oxford Human Rights Hub – Teitiota v New Zealand: A Step Forward in the Protection of Climate Refugees under International Human Rights Law? – 28 Jan. 2020

UN Human Rights Committee, Refworld – Ioane Teitiota v. New Zealand – 7 Jan. 2020

Christopher Jones v. Tanzania Reparations Ruled On

By: William Krueger

Impunity Watch Staff Writer

ARUSHA, Tanzania – On October 1st, 2002 Christopher Jones and Erasto Samson were alleged to have stolen valuables from Habibu Saidi and assaulted him with a machete strike to the face. Jones was a second-hand clothes street trader in Dar es Salaam, Tanzania.

Image of the African Court on Human and People’s Rights. Photo Courtesy of the African Court.

After a trial in the Morogoro District Court, Jones and Samson were found guilty of the charges on February 13th, 2004, and were both sentenced to thirty years in prison and twelve cane strokes, a form of corporal punishment. Jones had filed appeals for his conviction to the High Court of Tanzania on February 26th, 2004 but was dismissed. Jones then filed with the Court of Appeal of Tanzania on September 21st, 2005. The Court of Appeal of Tanzania responded on March 27th, 2009 by amending his sentence to remove the twelve cane strokes but otherwise denying action on his thirty-year term of imprisonment.

Jones had alleged to the African Court on Human and Peoples’ Rights in an application received by the Court on May 11th, 2015 that he was wrongly convicted of the offense against Habibu Saidi as the victim incorrectly identified some of the stolen items. Jones argued that the applied sentence was incorrect because the statute used in his conviction was amended in 2004 to allow a sentence of thirty years. Finally, Jones alleged that the United Republic of Tanzania failed to provide him with counsel or any form of legal assistance as promised under the 1977 Constitution of the United Republic of Tanzania. For the injustices Jones alleges to have suffered he asks for his guilty verdict to be reversed, to be immediately released from prison, and to issue Tanzania to pay an order of reparations.

Tanzania’s response to the Court states that Jones has not invoked the jurisdiction of the court and should be dismissed. Tanzania goes further and says that even if jurisdiction was invoked then Jones’ complaint should be dismissed for being inadmissible under Rules of the Court and that the Court itself has no jurisdiction to compel Tanzania to release Jones from prison via order. Tanzania asks for the Court to find that its treatment of Jones did not violate the African Charter on Human and Peoples’ Rights and the 1977 Constitution of the United Republic of Tanzania. Tanzania also requests that the court find Jones’ sentence to not be excessive or discriminatory.

In the final judgment of the case by the Court, it found that Jones was not wrongly convicted as there was testimony by multiple witnesses beyond Habibu Saidi and he was apprehended on the scene of the robbery by authorities. On the allegation that Jones was not provided legal assistance by Tanzania, the Court found that Jones was never offered legal aide and thus Tanzania had violated Article 1 and 7 (1) (c) of the Charter. The Court ruled that Jones’ thirty-year sentence for armed robbery was correct as Tanzania had allowed a minimum sentence of thirty years for armed robbery since 1994. The Court ruled that Jones would be able to seek reparations for the failure of Tanzania to provide him with legal assistance.

On September 25th, 2020 the Court released its ruling on the reparations for Jones. Jones was not ordered to be set free as his conviction was found to be just by the Court. The only reparation to be granted to Jones was 300,000 Tanzanian Shillings for not being granted legal aid by Tanzanian authorities.  

For further information, please see:

African Court on Human and Peoples’ Rights – Judgment (Reparations) – 25 Sept. 2020

African Court on Human and Peoples’ Rights – Judgment Summary – 25 Sept. 2020

African Court on Human and Peoples’ Rights – Judgment – 28 Sept. 2017

ICC to Accept Amici Curiae for Jurisdictional Issue in Palestine

By: Andrew Kramer

Impunity Watch Staff Writer

Demonstrators outside the International Criminal Court in The Hague calling for the Court to prosecute the Israeli military. Photo Courtesy of the Guardian.

THE HAGUE, the Netherlands – On February 20, 2020, Pre-Trial Chamber I of the International Criminal Court (“ICC”) issued a decision granting the requests of 43 parties to submit amici curiae briefs regarding the Situation in the State of Palestine. The parties, representing nations, esteemed professors, human rights organizations, and legal associations, have until March 16, 2020 to file their observations.  

Amici curiae, literally “friends of the court,” are individuals or groups who are not parties to the case, but which have a strong interest in the matter.  Courts may authorize an individual or group to become an amicus curiae, and submit information or advice regarding issues in the case.

In the decision, the Court limited the scope of submissions only to the issue of the Court’s jurisdiction in Palestine, specifically the territories of the West Bank, East Jerusalem, and Gaza. At the root of the issue is whether Palestine is a sovereign state capable of granting the ICC jurisdiction over its territory. 

Although Palestine acceded to the Rome Statute, the ICC’s founding document, Palestine’s recognition as a sovereign has been fiercely contested.  While 138 of the 193 United Nations member states recognize the sovereign, the State of Palestine is not currently recognized by any North American country, Australia, and most of Western Europe.

Each of the seven countries which have requested leave to file an amicus brief indicated an intention to argue that the ICC does not have jurisdiction in Palestine.  Even countries which have previously recognized the State of Palestine, such as Brazil, doubt the Court’s jurisdiction there.  These countries reason that the ICC should only be involved in cases where jurisdiction is undisputed, and indicate an unwillingness to “politicize the Rome Statute.”  This stance has drawn criticism from many pro-Palestine individuals and organizations, which argue opponents to ICC jurisdiction are attempting to shield Israel from the possibility of international criminal prosecution for offenses allegedly committed on Palestinian territory.

This issue of jurisdiction regarding the Situation in Palestine could prove to be a pivotal decision for the development of the ICC.  A ruling in favor of jurisdiction would be an ambitious step for the Court in prosecuting human rights offenses, but may cause the Court to fall out of favor with the Western nations which largely comprise it.  Alternatively, while a ruling against ICC jurisdiction would be consistent with views of the nations who do not recognize Palestine, it could set the precedent that the ICC will only respond to the complaints of territories which are unequivocally sovereign.  This could leave individuals who have suffered human rights offenses in unrecognized territories without recourse.

For further information, please see:

International Criminal Court – Court Records: Situation in the State of Palestine – 20 Feb. 2020

International Criminal Court – Decision on Applications for Leave to File Observations – 20 Feb. 2020

International Criminal Court – Palestine: Preliminary Examination – 28 Jan. 2020

United Nations – Status of Palestine in the United Nations – 26 Nov. 2012

Update: Bosco Ntaganda Sentenced to 30 Years Imprisonment

By: Madison Kenyon 

Impunity Watch Staff Writer 

KINSHASA, Congo — On November 7, 2019, the Trial Chamber VI of the International Criminal Court (ICC) unanimously sentenced Bosco Ntaganda, nicknamed the “Terminator of the Congo,” to 30 years imprisonment. The time Ntaganda spent in the ICC’s custody, which is between March 22, 2013 to November 7, 2019, will however be deducted from this sentence. This sentence arose from the court’s previous decision in July 2019, which found Ntaganda guilty of 18 counts of war crimes and crimes against humanity.

Bosco Ntaganda awaiting his verdict in the ICC’s courtroom. Photo courtesy of NPR.

Ntaganda’s conviction and sentencing are hallmark occasions for the ICC for a couple of reasons. First, Ntaganda is the first person the court has convicted of sexual slavery and crimes of sexual violence against his own troops. Second, this is the longest imprisonment sentencing the court has ordered since its creation. Many international human rights organizations find this decision and sentencing to be quite promising for future cases brought against international criminals. Specifically, Ida Sawyer, the deputy Africa director of Humans Rights Watch, stated that Ntaganda’s sentence “sends a powerful message that those who commit serious crimes against the people, no matter their positions, can be held to account.”

Despite the court not finding any real mitigating factors for Ntaganda’s case, the Trial Chamber believed that the conditions present did not warrant life imprisonment. As specified by the Rome Statute, life imprisonment may only be provided “when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.” Thus, the Trial Chamber determined that the maximum sentence of 30 years allotted by the Rome Statute would suffice. The court also held that it would not be appropriate to impose a fine or forfeiture of proceeds in addition to the imprisonment.

Although the defense has 30 days to appeal this sentence, Ntaganda and his lawyers have already moved to appeal this. Also, the court still must determine how much compensation the victims should be awarded. Therefore, this is not the last time the ICC will hear Ntaganda’s name in its chambers.

For further information, please see: 

ICC – Bosco Ntaganda Sentenced to 30 Years’ Imprisonment – 7 Nov. 2019 

NPR – ‘Terminator’ of Congo, Bosco Ntaganda, Gets Historic 30-year Sentence for War Crimes – 7 Nov. 2019 

BBC News – Bosco Ntaganda Sentenced to 30 Years for Crimes in DR Congo – 7 Nov. 2019

Impunity Watch – Bosco Ntaganda Convicted: A Long-Awaited Victory by the ICC – 19 Sept. 2019 

ICC – Rome Statute of the International Criminal Court – 1 July 2002 

After a U.S. Agent Killed a 15-Year-Old at the Border, the Supreme Court Will Decide If He Can Be Sued in Federal Court

By: Dianne Jahangani

Journal of Global Rights and Organizations, Associate Articles Editor

WASHINGTON D.C. – On November 12, the U.S. Supreme Court will decide whether a government officer can be brought before a federal court for violating a foreigner’s constitutional rights when the act took place on foreign soil.

On July 7, 2010, a young 15-year-old national of Mexico, Sergio Adrián Hernández Güereca, was playing on the Mexican side of the border, unarmed and unthreatening when an U.S. Border Patrol agent, Jesus Mesa, shot Sergio twice, ultimately killing him.

As a result, Sergio’s parents, on behalf of Sergio, brought this lawsuit against Mesa. However, Mesa claimed immunity as a government officer at work, stating that Congress had not created laws which assign liability to agents as well as stating that those killed on foreign soil cannot sue American officers. Yet, the case is not that simple, as the young boy was shot across the border and Mesa discharged his weapon while on American soil. This creates an interesting legal issue and calls into question the scope of the U.S. Constitution.

To date, the Department of Justice has concluded that there was insufficient evidence to prosecute under a federal homicide charge and that prosecutors lacked jurisdiction because Hernández was neither within the borders of the U.S. nor present on U.S. soil.

Despite the DOJ’s initial decision, the plaintiffs asserted that Agent Mesa used deadly force without justification against Sergio Hernández, thus violating the Fourth and Fifth Amendments. On behalf of the Hernández parents, the Institute for Justice filed an amicus brief urging the U.S. Supreme Court to allow the parents of Sergio to sue the federal officer in federal court stating the following:

“The Fourth Amendment protects citizens against the arbitrary use of deadly force at the border, at least in the context of a close range, cross border shooting in a confined area patrolled by federal agents.”

After waiting several years, on November 12, the plaintiffs will finally have the ability to present their case to the U.S. Supreme Court. Although this is certainly a legal victory for the Hernández family, they are still fighting an uphill battle, since lower courts have previously ruled against the family:

“The Hernandez family argues that Mesa violated their son’s Fourth Amendment right to be free from unconstitutional governmental searches and seizures, his death being the ultimate seizure. But the Fifth Circuit interpreted the prior precedent to preclude the Mexican parents from suing, citing special factors like national security, law enforcement, and diplomatic relations as concerns.”

Even if the Supreme Court disagrees with the lower court’s findings and rules in favor of the Hernández family, the family must still make the argument that the agent violated their son’s constitutional rights. This ultimate ruling will have far reaching consequences as it will effectively extend the scope of the Constitution to outside the U.S. borders.

The decision rendered in this landmark case will ultimately determine the scope of the U.S. Constitution and power delegated to U.S. agents at the borders and national security.

For further information, please see:

Quartz – A US border patrol agent killed a child in Mexico. Can the parents sue him? – 26 Oct. 2019

Institute for Justice – U.S. Supreme Court Will Decide: May Parents of a Mexican Teen Killed by a Federal Officer Sue in Federal Court to Vindicate Their Son’s Rights – 25 Oct. 2019

ABC News – Supreme Court hears case of teen shot dead in Mexico by border agent in US – 21 Feb. 2019

U.S. Supreme Court – Hernandez v. Mesa – March. 20 2018

 NPR – Mom of Cross-Border Shooting Victim ‘Still Waiting for Victory’ – 27 June. 2017

The New York Times – An Agent Shot a Boy Across the U.S. Border. Can His Parents Sue? – 17 Oct. 2016

Read the Petitioners’ Brief Here.