Finland Sanctioned by the European Court of Human Rights Following the Murder of Expelled Asylum Seeker

By: Susan Mintz

Journal of Global Rights and Organizations, Associate Articles Editor 

HELSINKI, Finland — The European Court of Human Rights (“ECHR”) has sanctioned Finland in relation to the murder of an Iraqi asylum seeker. His claim for asylum was denied after Finnish authorities determined he was not likely to be in danger of persecution in Iraq. Following his expulsion to Iraq in December of 2017, within weeks of his return he was shot and killed. An application against the Republic of Finland was submitted by his daughter to the ECHR for violating Articles 2 and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Iraqi asylum seeker’s daughter, who fled with him and her brother to Finland, requested the court not use her name as was referred to in the judgment as N.A.

N.A.’s father was a Sunni Muslim man from Baghdad. Under Saddam Hussein’s regime he served as an army major. After the U.S. invasion he worked with an American logistics company before becoming a civil servant in the Office of the Inspector General, where he was the only one with a Sunni background. In his last year at the Office, as the lead officer his work included conducting internal investigations, dealing with human rights crimes, and corruption.

In early 2015, a coworker physically assaulted and threatened to kill N.A.’s father following a disagreement. Shortly after the incident, his attacker was transferred to the intelligence service and promoted. In February, an attempt on his life was made when he was shot at leaving work. When the police failed to follow up on his report of the shooting, N.A.’s father resigned his job due to the lack of protection offered by the Iraqi authorities. He and his wife went into hiding after narrowly surviving a car bomb. After the applicant, N.A., escaped an attempted kidnapping, N.A. fled with her father and brother to Finland and applied for asylum.

The Finnish Immigration Service found N.A.’s father credible and accepted the facts established by his account of his history and the events leading up to his flight from Iraq. Nevertheless, his asylum claim was denied because the Service determined that attack by his coworker was a personal matter and the attempts on his life were part of the general violence in Baghdad and not specifically directed at him or related to his Sunni background. His appeals to the Administrative Court and Supreme Administrative Court were denied without permitting oral argument. Under an enforceable order of removal, N.A.’s father returned to Iraq under Finland’s voluntary returns program on November 29, 2017. Following his return, N.A. learned that her aunt’s home, where the family had been in hiding, had been attacked. She learned of her father’s murder a few weeks later.

The ECHR ruled that Finland violated N.A.’s father’s right to life under Article 2 and the prohibition on torture, inhuman or degrading treatment or punishment under Article 3 because the authorities knew or should have known that conditions in Iraq and his personal circumstances presented a real risk of persecution or death of N.A.’s father in Iraq. In reaching this finding, the ECHR rejected claims by Finnish authorities that N.A.’s father had waived all claims under the Convention for the Protection of Human Rights and Fundamental Freedoms when he accepted voluntary return, and that he failed to demonstrate a sufficient likelihood of future persecution.

While the ECHR declined to rule on whether rights under Article 2 and 3 could ever be waived, under the circumstances of this case there was no waiver of rights. To waive a right, the waiver must be under free will, unequivocal and attended by minimum safeguards. Although N.A.’s father used the voluntary return program, the court found that he did not have a genuinely free choice in the matter given that the alternative was detention and forced deportation to Iraq, which would alert the Iraqi authorities of his presence.

The ECHR also found that the Finnish Immigration Service failed to properly assess the asylum claim of N.A.’s father. By finding he credibly established the facts of his account, the Finnish Immigration Service necessarily accepted as true his background, work history, the attempts on his life and the circumstances of his flight from Iraq. However, in evaluating N.A.’s father’s claim, the authorities failed to consider the accumulation of the factors that, taken together, showed an increased risk of persecution. In particular, the ECHR noted that his account supported an inference that the return of N.A.’s father would be of interest to Iraqi authorities, as well as non-State actors, showing that he was at risk of being a target of persecution.

Violence against Sunni Muslim men by Shia militias was well documented at the time the asylum decision was made, as were killings of Iraqis who had worked with Americans. While no single factor established a risk of harm or death, taken together all the circumstances accepted by the Finnish authorities clearly established the risk to N.A’s father.

In the wake of the ruling a suspension of deportations was announced by Minister of the Interior Maria Ohisalo, and the Helsinki Police Department. Although the Finnish Immigration Service previously claimed that voluntary return to Iraq had “succeeded to a fair extent,” the agency is now reviewing 500 orders of expulsion to Iraq. 

For further information, please see:

European Court of Human Rights – Application no. 25244/18 N.A. against Finland – 23 May 2018

European Court of Human Rights – Case of N.A. v. Finland Judgment – 14 Nov. 2019

Finnish Minister of the Interior – Press Release – 14 Nov. 2019

Foreigner.FI – Police suspend deportations to Iraq after Human Rights Court sanction – 18 Nov. 2019

Russian Federation Violated Rights of Asylum-Seekers Trapped in Moscow Airport

By: Benjamin Kaufman

Journal of Global Rights and Organizations, Associate Articles Editor

MOSCOW, Russian Federation – On November 21, 2019, the Grand Chamber of the European Court of Human Rights (“ECHR”) affirmed a decision by the Chamber from 2017 declaring that the Russian Federation’s confinement of four individuals who sought asylum was a violation of their rights under Article 5 § 1 of the European Convention on Human Rights and Article 3 of the European Convention’s prohibition of torture and inhuman or degrading treatment.

The four applicants in this case were an Iraqi national, an individual holding a passport issued by the Palestinian Authority, a Somalian national, and a Syrian national. The four travelled independently and under different circumstances to Sheremetyevo airport in Moscow seeking asylum to the Russian Federation. Upon arrival, each of the four were stopped from leaving the “transit zone” within the airport while their asylum applications were submitted and processed. The transit zone of the airport was a constantly lit area in which they were required to sleep on mattresses placed within the constantly lit boarding area of the airport, without access to running water for a shower, and with only food rations provided by the United Nations High Commissioner for Refugees (“UNHCR”).

The individuals were unable to appeal or expedite the processing of their evaluation for asylum and were prevented from exiting the airport. In sum, three of individuals spent between five and eight months between 2015 and 2016 in the airport, while the fourth was in the zone for one year and eleven months between April 9, 2015 and March 9, 2017. By the time of the EHCR’s decision, the Iraqi and Syrian applicants were resettled by the UNHCR in Denmark and Sweden respectively while the other applicants took flights to Egypt and Mogadishu.

Three of the individuals filed their applications to the ECHR on December 12, 2015 while the fourth was lodged on January 14, 2016. The applications argued that their confinement had violated their Article 5 right to liberty and security under the European Convention on Human Rights and additionally that the conditions of the confinement were so abhorrent as to constitute inhuman and degrading treatment per Article 3 of the European Convention.

The Grand Chamber affirmed the earlier decision, finding that Article 5 applied to and was violated in the case of each of the four applicants. Further, the court found Russia’s confinement of the applicants to indeed be a violation of Article 3. The ECHR took particular care to dismiss the government’s contention that none of the applicants were on Russian territory while kept in the transit zone and that Russian laws therefore did not apply to them. The court was quick to assert that in fact the applicants were within Russian territory during the periods of their confinement and that their confinement was thus subject to the Russian statutory procedures for seeking asylum.

With respect to these claims, the EHCR noted that its decision in this case would be relevant to other states challenged by the influx of refugees and migrants. However, the Grand Chamber of the EHCR specifically stated that the burdens on states due to asylum-seekers, migrants, and refugees could not be used to justify degrading and inhumane treatment of the same in violation of the human rights enshrined within the European Convention.

For further information, please see:

European Court of Human Rights – Asylum-seekers’ confinement to an airport transit zone for a long time in poor conditions violated their human rights – 21 Nov. 2019

European Court of Human Rights – Asylum seekers’ detention in Moscow airport transit zone was unlawful, inhuman and degrading – 21 Mar. 2017

ICC Authorizes Investigation into Crimes Committed Against Rohingya People

By: Nadia Abed

Journal of Global Rights and Organizations, Associate Articles Editor

NAYPYIDAW, Myanmar — On November 14, 2019, pre-trial judges of the International Criminal Court (ICC) authorized an investigation into the alleged crimes committed against the Rohingya people of Myanmar that have taken place within the ICC’s jurisdiction. Through violence and coercion the Myanmar military and security forces have forced over one million Rohingya to be displaced from Myanmar to Bangladesh.

Rohingya refugee children in Bangladesh. Photo Courtesy of UNICEF.

Since 2017 the Myanmar military has attempted an ethnic cleansing of the Rohingya people. The military has continued to destroy over 300 villages where the Rohingya have settled, mostly by bulldozing or by fire. The military has also sexually violated and raped girls and women in villages or at checkpoints while in route to seek refuge in Bangladesh.

Refugees who arrive in Bangladesh report a continuance of abuse by Myanmar security forces. The reports include “killings, arson, enforced disappearances, extortion, severe restrictions on movement, and lack of food and heath care.” Additionally, refugees who return to Myanmar face arrest and even torture by authorities. 

On July 4, 2019, the ICC Prosecutor, Fatou Bensouda, requested that there be an investigation into the alleged crimes committed against the Rohingya people. The request sought to look into crimes against deportation, other inhumane acts, and persecution of the Rohingya people.

Additionally, the ICC received requests that the court investigate by thousands of alleged victims. The victims “believe that only justice and accountability can ensure that the perceived circle of violence and abuse comes to an end.”

The ICC’s decision to investigate also follows a November 11, 2019 submission by Gambia to the International Court of Justice (ICJ) alleging Myanmar has violated its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide. Gambia instituted proceedings against Myanmar before the ICJ after a Myanmar military-led crackdown. Gambia explains that this crackdown was intended to destroy the Rohingya Muslims as a group by the use of “mass murder, rape and other forms of sexual violence.”

The judges have reason to believe that there exists “widespread and/or systematic acts of violence [that] may have been committed that could qualify as the crimes against humanity of deportation across the Myanmar-Bangladesh border.” While Myanmar is not under the jurisdiction of the ICC, it may exercise jurisdiction when crimes and criminal conduct take place on territory of a State Party. Bangladesh is a State Party to the treaty; therefore the investigation extends to crimes committed on Bangladeshi territory.

The ICC also authorized the commencement of the investigation relating to any crime, which includes future crimes so long as it is within the ICC’s jurisdiction, committed in part of Bangladesh or another State Parties territory, and linked to the situation in the present decision.

The Office of the Prosecutor will start preparing and collecting evidence necessary to establish whether there are specific individuals who bear criminal responsibility. Once such evidence is deemed sufficient, the Prosecutor would then request an issuance of either summons to appear or arrest warrens for said individuals. The ICC and Prosecutors are confidence that the investigation is in the interests of justice for the Rohingya people.

For further information, please see:

UN News – ICC gives greenlight for probe into violent crimes against Rohingya – 15 Nov. 2019

International Criminal Court – ICC judges authorise opening of an investigation into the situation in Bangladesh/Myanmar – 14 Nov. 2019

International Court of Justice – The Republic of The Gambia institutes proceedings against the Republic of the Union of Myanmar and asks the Court to indicate provisional measures – 11 Nov. 2019

Human Rights Watch – Myanmar Events of 2018

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.