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Russia Sends No Representation to ECHR Grand Chamber Hearing Regarding Russian Occupation of Crimea

By: Rachel Wallisky

Impunity Watch News Staff Writer

STRASBOURG, France – On December 13, 2023, the European Court of Human Rights (ECHR) held a Grand Chamber Hearing in the case of Ukraine v. Russia (re Crimea). However, the Russian Government failed to notify the court of the names of their representatives prior to the hearing, nor did any representatives appear on its behalf. The ECHR elected to continue with the hearing, pursuant to Rules 64 and 65 of the Rules of the Court. The Ukrainian Government is represented by Marharyta Sokorenko, Ben Emmerson, Iyrna Mudra, Andrii Luksha, and Oleksii Yakubenko.

 
The ECHR Grand Chamber Hearing of December 13, 2023, in the case of Ukraine v. Russia (re Crimea) | Photo Courtesy of the ECHR.
 

The Complaints

The Hearing relates to three inter-state applications filed by Ukraine in the ECHR over the past decade. Two applications submitted to the Court by Ukraine in 2014 and 2015 were joined in 2018. The ECHR issued a decision establishing its jurisdiction over the application on December 16, 2020.

The Ukrainian Government argues in its application that Russia has exercised “effective control” over Crimea, the City of Sevastopol, and integral parts of Ukraine since February 27, 2014. By doing so, the Ukrainian Government argues that Russia has violated several Articles of the Convention including Article 2 and Article 3, the Right to Life and Prohibition of Inhuman Treatment and Torture, respectively.

Specifically, Ukraine argues that between February 27, 2014 and August 16, 2015, Russia exercised an administrative practice of “enforced disappearances” of “perceived opponents to Russia,” especially Ukrainian soldiers, ethnic Ukrainians, and Tartars, and that Russia failed to engage in any adequate investigation of those disappearances.

The Hearing

The Hearing began with a reading of a summary of the applications being considered and the complaints surrounding them. The President of the ECHR, Síofra O’Leary, noted that Russia ceased to be a party to the ECHR on September 16, 2022. However, because Russia was a member of the Counsel of Europe at the time of the complaints, it cannot escape its obligations under the Convention. President O’Leary noted that though the ECHR had maintained communication with Russia regarding the allegations made against it by Ukraine, Russia has not communicated with the Court since leaving the ECHR.

When addressing the Court, Mr. Emmerson remarked that it was “unprecedented” that a Hearing continued though only one party was present for arguments. Mr. Emmerson argued that Russia’s “enforced disappearance” practices during its occupation of Crimea fell under Article 2 because the failure of the Russian government to acknowledge that a person had been imprisoned or killed increased the likelihood that they would be subject to inhumane treatment, regardless  of if the person is later released or their killing acknowledged.

A ruling from the ECHR can be expected “at a later stage” but a recording of the Grand Chamber Hearing is available on the ECHR’s website.

For further information, please see:

ECHR – European Court of Human Rights Communicates to Russia New Inter-State Case Concerning Events in Crimea and Eastern Ukraine – 1 October 2015

ECHR – European Court of Human Rights Deals With Cases Concerning Crimea and Eastern Ukraine – 26 November 2014

ECHR – Grand Chamber Hearing on Inter-State Case Ukraine v. Russia (re Crimea) – 13 Dec. 2023

ECHR – Interim Measure Granted in Inter-State Case Brought by Ukraine Against Russia – 13 March 2014

ECHR – New Inter-State Application Brought by Ukraine Against Russia – 27 August 2018

ECHR – Rules of Court – 30 October 2023

ECHR – Webcast of Grand Chamber Hearing in Ukraine v. Russia (re Crimea) (nos. 20958/14 and 38334/18) – 13 Dec. 2023

Chile to Vote on Whether to Adopt New Constitution with Right to Life Provision

By: Carlos Dominguez Scheid

Impunity Watch Staff Writer

SANTIAGO, Chile – On November 7, 2023, the Chilean Constitutional Council presented President Gabriel Boric with a proposal of a new constitution that includes a right to life provision and outlaws the death penalty.

 
President Gabriel Boric is presented with the proposal of the New Constitution by Beatriz Hevia, President of the Constitutional Council | Photo courtesy of the Associated Press
 

The current Chilean Constitution, in effect since 1981 and approved by referendum in 1980 during Augusto Pinochet’s dictatorship, has been a point of contention due to its undemocratic origins despite undergoing significant reforms in 1989 and 2005. In response to major social unrest in October 2019, political parties agreed to initiate the process of drafting a new constitution, seeking to address the popular demands for improvements in the quality of life. In a 2020 referendum, with a 50.95% turnout, 78.28% of voters supported the creation of a new constitution and endorsed the establishment of a new, independent body, distinct from Congress, tasked with drafting it. The election for the 155 members of the Constitutional Convention was held in May 2021, and the results yielded a supermajority for the left and far left. In the September 2022 referendum, the people rejected their drafted Constitution, with 62% voting against it. The referendum had a historic 85.86% turnout.

Subsequently, a new political agreement led to a different process, involving a Commission of Constitutional Experts appointed by Congress to prepare a draft constitution. This was to be reviewed and voted on by the Constitutional Council, a 50-member body elected in May 2023. With a supermajority held by the right and center-right, the Council is poised to introduce changes to the proposed constitution.

Article 4.1 of American Convention of Human Rights (About the Right to Life), from 1969, states that:

“Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.”

In Chile, the current Constitution states that:

“The Constitution ensures to all persons the right to life and to the physical and mental integrity of the person. The law protects the life of the one about to be born. The death penalty may only be instituted for a crime established in a law approved by a qualified quorum.” (Article 19 N° 1)

The Commission of Constitutional Experts proposed the following change:

“The Constitution ensures to all people the right to life. The death penalty is prohibited.”

The Constitutional Council’s final proposal, which will be voted on in the December 17th Referendum, states:

“The Constitution ensures to all people the right to life. The law protects the life of the one who is to be born. The death penalty is prohibited.” (Article 16 N° 1)

This constitution is the first in Chile’s history to prohibit the death penalty. If approved, it would close the debate on this issue. Although the death penalty was abolished in the Penal Code in 2001, it remains in effect for military crimes during wartime. This has allowed for legislative proposals to reintroduce it in the Penal Code, arguing that Chile has not fully abolished it and therefore is not bound by Article 4.3 of the American Convention on Human Rights.

The issue about the protection of the right to life of the unborn was subject to a strong debate. In Chile, abortion is governed by the Penal Code and the Sanitary Code. A total ban on abortion was implemented in 1989, during the last year of the dictatorship, through an amendment to the Sanitary Code. It was only in 2017 that abortion was legalized again, but strictly under three distinct situations: if the woman’s life is at risk, if the fetus is diagnosed with a condition that renders it nonviable outside the uterus, or in cases where the pregnancy has occurred due to rape, with the gestation period capped at twelve weeks (fourteen weeks for those under 14 years of age). This legislative change, stemming from a constitutional mandate ​to protect ‘the life of​ the one about to be born,’ was hotly debated. Ultimately, the Constitutional Court upheld the legality of this limited decriminalization of abortion in a 6-4 decision.

The right and center-right dominated Council proposed a key change to the current constitution and to the draft of the Commission of Constitutional Experts, focusing on enhancing the protection of the unborn. In the debate, ​Article 4.1 of the American​ ​Convention on Human Rights​ was referenced. The distinction between ‘the law protects the life of the one about to be born’ and ‘the law protects the life of the one ​who is about to be born​’, while subtle, underscores crucial legal and ethical interpretations regarding the protection of the nasciturus. The use of ‘who’ suggests personhood, advocating for the recognition of the unborn as individuals with rights from conception. This implies a broader scope of protection, viewing the fetus as an individual entity, rather than an extension of the pregnant woman.

A referendum was announced for December 17, 2023, where Chileans will vote on whether to adopt the new constitution.

For further information, please see:

Reuters – Chile voters sour on right-wing constitution as abortion clause stirs debate – 6 Oct. 2023

Bloomberg – Chile’s Right Takes Aim at Abortion, Gender in Amendments to Constitution Draft – 18 Jul 2023

Le Monde – Chile’s draft constitution calls into question right to abortion – 24 Sept 2023

The Guardian – Chile’s right wing presents draft conservative constitution – 7 Nov 2023

AP News – Chile president calls for referendum on new constitution proposal drafted by conservative councilors – 7 Nov 2023

Inter-American Commission of Human Rights – The Death Penalty in the Inter‐American Human Rights System: From Restrictions To Abolition – 31 Dec 2011

Rodrigo Delaveau Swett – Constitution of Chile – 2021

 

Non-Compliance with AfCHPR Threatens Court’s Existence

By: Tiffany Johnson

Impunity Watch News Staff Writer

The African Court on Human and Peoples’ Rights (AfCHPR) is facing an existential crisis as countries continue to defy its decisions. This regional institution is dedicated to upholding human rights across the continent, and countries’ defiance undermines the AfCHPR’s existence. The Organization of African Unity (OAU), the forerunner of the African Union (AU), adopted a protocol in Burkina Faso in 1998, which led to the establishment of the AfCHPR. In 2004, the agreement went into effect after being ratified by more than fifteen nations. The Court’s initial judges were chosen in 2006, and its initial decision was rendered in 2009.  

 
         Group photo of court justices | Photo Courtesy of Ghana News Agency
 

The AfCHPR and any other pertinent human rights treaties that have been ratified by the state in question are both circumstances in which the court will consider involving alleged violations of human rights. It was founded with a noble mission – to provide a legal platform for individuals and communities to seek redress for human rights violations. One of its remedies is to provide just recompense or make amends. Its judgments are legally binding, and signatory nations are obligated to comply with its rulings. Yet, the Court’s effectiveness is under threat as several African countries openly disregard its decisions.  

The Court’s authority, and ability to protect fundamental human rights in Africa are at stake due to persistent non-compliance. According to a report released earlier this year on the Court’s activities in 2021, states’ “poor level of compliance” with its rulings was a significant issue. During the Court’s 16-year existence only a small number of judgments and orders were implemented out of more than the 200 that were issued. However, a majority have been disregarded by the respondent nations.  According to the report, “as of July 2021, only 7% of judgments of the Court had been fully complied with, 18% partially complied and 75% non-compliance. Some States have stated clearly before the Executive Council that they will not comply with the Court’s decisions.” 

By end of 2020, the governments of Benin, Côte d’Ivoire, and Tanzania had all revoked the right of individuals and non-governmental organizations to register cases directly with the Court. Rwanda revoked this privilege in 2016, bringing the total number of nations restricting access to this vital path to justice to four. All three governments revoked this right in response to what they perceived to be unfavorable decisions, a rise in intolerance towards human rights defenders, and a general deterioration of national human rights conditions. Tanzania withdrew the privilege, falsely claiming that the Court entertained matters that should have been handled by national courts. Benin disagreed with the Court’s decision to defer the seizure of an applicant’s property in a dispute with a bank, arguing that the decision undermined the country’s economic and political stability. 

Most recently, the AfCHPR concluded its 70th Ordinary Session on September 29, 2023. It issued fifteen rulings on September 5, 2023. Responses to these 15 rulings will be foretelling. Despite the Court’s directive, little progress has been made to rectify this injustice, calling into question Tanzania’s commitment to upholding the Court’s decisions.  

Cases such as these, regrettably, are not isolated instances. The reasons for non-compliance are multifaceted and include political considerations, limited resources, lack of awareness among government officials and the public regarding the Court’s authority, and concerns over external interference. The implications of non-compliance are far-reaching. They erode the trust in the AfCHPR and weaken its power to protect human rights. If countries can choose to disregard the Court’s rulings with impunity, the very purpose of the Court is undermined, and the dream of justice for human rights abuses in Africa remains elusive. 

To ensure the survival and effectiveness of the AfCHPR, a multi-pronged approach is necessary. Primarily, it is essential for member states to honor their obligations and comply with the Court’s decisions. The African Union can play a pivotal role by engaging in diplomatic efforts to encourage compliance and emphasizing the importance of a united commitment to human rights. 

Additionally, public awareness campaigns should be launched to educate citizens and government officials alike about the AfCHPR’s role and authority, underlining how it plays a critical role in promoting justice and accountability on the continent. 

Moreover, international pressure and cooperation can be instrumental in holding non-compliant countries accountable. The international community can work collectively to stress the importance of human rights and the necessity for all nations to adhere to international norms and agreements. 

The African Court on Human and Peoples’ Rights, a beacon of hope for justice and human rights in Africa, stands at a crossroads. The threat of non-compliance with its decisions jeopardizes the very existence of this crucial institution. It is a call to action for African nations, the African Union, and the global community to come together and safeguard the AfCHPR’s authority and its mission of promoting and protecting human rights across the continent. Failure to address this issue may result in the erosion of fundamental human rights in Africa and a setback for justice and accountability. 

For further information, please see:

Amnesty International – Why the African Court should Matter to you – 9 Jun 2023

Fair Planet – African Court on Human and People’s Rights Faces Uncertain Future – 26 Nov 2022

Netherlands Quarterly of Human Rights – Is the African Court on Human and Peoples’ Rights in an Existential Crisis? – 1 Mar 2022

The Conversation – Successes of African Human Rights Court undermined by resistance from states – 31 Aug 2021

University of the Witwatersrand – African Human Rights Court undermined by resistance African Human Rights Court undermined by resistance from states – 29 Aug 2021

Amnesty International – Africa: Regional human rights bodies struggle to uphold rights amid political headwinds – 21 Oct 2020

Brooklyn Journal of International Law – From Commitment to Compliance: From Commitment to Compliance: Enforceability of Remedial Orders of African Human Rights Bodies – 2015

 

 

 

 

IACHR Hears First Case on El Salvador’s Total Abortion Ban

Alexa Connaughton
Impunity Watch News Staff Writer

SAN JOSE, Costa Rica – The Inter-American Court of Human Rights has heard its first case regarding the total criminalization of abortion and is expected to deliver a formal written opinion before the end of the year. The case, Beatriz, et al. v. El Salvador, was recommended to the Court by the Inter-American Commission of Human Rights alleging violations of Beatriz’s rights to life and health, to be free from inhumane treatment, to privacy, and to equity before the law. The Court’s decision on this case is expected to set a precedent on abortion laws in Latin America if the woman’s life is in danger or if the fetus will not survive outside the womb.

 

Protesters placing candles at a memorial for Beatriz. Photo Courtesy of NBC News.

In 2013, eleven weeks into her pregnancy Beatriz was diagnosed with a high-risk pregnancy. Beatriz suffered from lupus and other ailments and was diagnosed shortly after her first pregnancy. An ultrasound revealed that the fetus was anencephalic, a lethal condition in which part of the brain and skull don’t develop inside the womb. Carrying this type of pregnancy to term can lead to many complications including obstetrical hemorrhaging. The medical committee at El Salvador’s national maternity hospital recommended an abortion, however, abortion is illegal in all circumstances in El Salvador. Beatriz’s legal team requested the termination of her pregnancy to save her life, but the Supreme court denied the writ, ruling she could not have an abortion. Beatriz later went into labor early and was required to have an emergency C-section, the fetus died only five hours later.

In El Salvador women have been convicted of homicide for having an abortion, with sentences ranging up to 40 years in prison. Doctors, nurses, and other medical professionals can be convicted if they are found to have supported a woman in getting an abortion and may receive up to 12 years in prison.

In 2021 the Inter American Court of Human Rights found El Salvador responsible for the death of Manuela, a woman who was sentenced to 30 years in prison, charged with aggravated homicide after suffering a miscarriage. As part of the Court’s decision on that case they ruled that criminal sanctions should not be imposed automatically when pregnancy ends as a result of an obstetric emergency. However, El Salvador has made no change to their criminal abortion laws following the 2021 ruling. The hope with the pending decision in Beatriz, et al. v. El Salvador, is that a decision condemning the blanket abortion ban as a whole or in circumstances of high risk will push legislation towards decriminalization.

For further information, please see:

Human Rights Watch – El Salvador: Court Hears Case on Total Abortion Ban – 23 Mar. 2023

IACHR – Caso Beatriz y Otros vs. El Salvador – 21 Feb. 2023

Inter-American Commission on Human Rights, OAS – IACHR Takes Case Involving El Salvador’s Absolute Ban on Abortion to the Inter-American Court of Human Rights – 11 Jan. 2022

Jurist – Inter-American Court of Human Rights hears El Salvador abortion access case – 23 Mar. 2023

NBC News – Activists urge human rights court to condemn El Salvador’s abortion ban – 7 Mar. 2023

Reuters – Human rights court begins review of high-stakes El Salvador abortion case – 22 Mar. 2023

The Guardian – ‘Historic moment’ as El Salvador abortion case fuels hopes for expanded access across Latin America – 24 Mar. 2023

ICC – Defense Responds to Prosecution’s Request for In Absentia Confirmation of Charges in Kony Case

By: Nikolaus Merz
Impunity Watch News Staff Writer

THE HAGUE, Netherlands – Following a procedural stay, the Office of Public Counsel for the Defense (“OPCD”) has submitted its response to the Prosecution’s request to hold an in absentia confirmation of charges hearing in the case against Joseph Kony.

Joseph Kony faces 12 counts of Crimes Against Humanity, and 21 counts of War Crimes. If convicted, Mr. Kony’s case would be among the longest in international criminal history. Photo courtesy of Reuters.

The Prosecution’s unprecedented request was filed in November of 2022, and would seek to expand the scope of the International Criminal Court’s (“ICC”) procedural authority.

The Prosecution justified it’s request due to the extraordinary circumstances of Mr. Kony’s case. First, despite concerted efforts of multiple nations, including the deployment of armed forces and money rewards, Mr. Kony’s whereabouts have yet to be discerned. Second, Mr. Kony has remained at large for almost two decades, making him the second longest suspect at large of any international criminal court or tribunal. Third, the Prosecution points out the myriad of policy and judicial interests that would be advanced, including rights of victims, the galvanization of justice, and applicability to similar future circumstances.

The OPCD has responded to the Prosecution’s request with a broadside attack, raising numerous defenses against each of the Prosecution’s arguments. In general however, the OPCD raised two broad theories against the Prosecution’s request.

First, the OPCD argued the Prosecution misinterpreted the procedural justification for its request. The foundational treaty of the ICC, the Rome Statute, allows for in absentia confirmation of charges in two circumstances under Article 61(2)(a) and 61(2)(b). Article 61(2)(a) involves a situation where a defendant waives their right to in-person confirmation and is not relevant here. However, Article 61(2)(b) allows for in absentia confirmation in situations where the defendant “Fled or cannot be found…” and is the supporting procedural clause the prosecution used for its request.

According to the OPCD, the Prosecution has misinterpreted 61(2)(b) to mean simply any situation where a defendant cannot be apprehended or found. However, the structure of the Rome Statute, the intention of its drafters, and academic treatises indicate that 61(2)(b) is only meant to apply after an initial appearance by the defendant before the Court. Or, in other words, 61(2)(b) is meant to apply when a defendant has escaped ICC custody in an intermediary period between initial appearance and confirmation of charges.

In addition, the OPCD also argued that no reasonable efforts had been made to notify Mr. Kony of the charges against him. This argument is also based on interpretation of 61(2)(b) which differs from the prosecution. While 61(2)(b) allows for in absentia confirmation in cases where a defendant has fled or cannot be found, it also requires that reasonable efforts have been made to inform the defendant of the charges against them. The OPCD has argued that the only way for Mr. Kony to be made reasonably aware of the charges against him is to re-issue his arrest warrant and to broadcast it for a designated period of time.

Secondly, the OPCD argued that the Prosecution failed to carry its burden in showing that the circumstances of the Kony case were extraordinary enough to warrant in absentia confirmation of charges. The OPCD argued that the Prosecution gave no evidence to show that in absentia confirmation would support the policy considerations it put forth. Further, the OPCD argued that an extensive period of time to apprehend a suspect does not, by itself, demonstrate cause for in absentia confirmation of charges. Lastly, the OPCD pointed out that judicial and victim considerations had already factored into the Kony case in previous motions and decisions.

It should be noted that the representatives of the victims contacted the surviving victims regarding the Prosecution’s request; they were in unanimous support.

At present, it is uncertain if the ICC will support the Prosecution’s request. While the OPCD made compelling arguments, it is more likely that the Court will be considering the precedential ramifications of its decision more than anything. As the Prosecution stated, there would be potential to use in absentia confirmation of charges in similar future circumstances. To address the elephant in the room, a ruling in the Prosecution’s favor could raise uncomfortable questions for the Court regarding the situation of Mr. Putin, whom the ICC issued an arrest warrant for on March 17th 2023.

For further information, please see:

ICC – OPCD Observations on the Prosecution’s Request to Hold a Hearing on the Confirmation of Charges against Joseph Kony in his Absence – 30 Mar. 2023

ICC – Public Redacted Version of the “Prosecution’s Request to Hold a Hearing on the Confirmation of Charges against Joseph Kony in his Absence” – 24 Nov. 2022

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

ICC – Victims’ Views and Concerns on the “Prosecution’s Request to Hold a Hearing on the Confirmation of Charges against Joseph Kony in his Absence” – 30 Mar. 2023

Reuters – ICC prosecutor seeks to revive case against fugitive Kony – 24 Nov. 2022