STRASBOURG, France – On January 16, 2023, the European Court of Human Rights (ECHR) ruled that Lithuania violated multiple articles of the European Convention on Human Rights by permitting the Central Intelligence Agency (CIA) to detain and mistreat prisoner, Mustafa Ahmed Adam al-Hawsawi, at a CIA facility between 2005 and 2006.
Inmates like al-Hawsawi were held in detention sites in Vilnius, Lithuania | Photo courtesy of Reuters.
Al-Hawsawi, a citizen of Saudi Arabia, was first captured in Pakistan in 2003 during the American “War on Terror,” following the September 11, 2001, Attacks. After being transferred to the custody of the United States, he was moved to a CIA facility in Lithuania, known as “Detention Site Violet.”
While at Detention Site Violet, al-Hawsawi alleges he was subjected to physical and mental torture by the CIA. These allegations include sexual penetration by a foreign object, exposure to noise and light, continuous use of leg shackles, and solitary confinement. Al-Hawsawi claims he now suffers from many medical conditions, such as rectal hemorrhoids, hearing loss, and chronic migraines which he maintains were caused by the CIA’s enhanced interrogation techniques. Al-Hawsawi also alleges that he was denied access to communication with family members, counsel, and doctors during his detention.
Al-Hawsawi asserts Lithuania enabled the alleged inhumane treatment by permitting his detention there and allowing him to be transferred to other CIA detention sites where he was subjected to similar mistreatment. The ECHR agreed with many of his complaints and found that Lithuania had violated the prohibition against inhuman and degrading treatment, as well as al-Hawsawi’s rights to a fair trial, liberty and security. The court awarded al-Hawsawi €100,000 in compensation, and Lithuania agreed to comply.
Essential to the court’s judgment was evidence from a 2014 declassified U.S. Senate Report, which gave details on the CIA’s secret detainee program. The court also relied on prior cases including Al Nashiri v. Poland and Abu Zubaydah v. Lithuania for relevant testimony from expert witnesses.
After his time at Detention Site Violet and another facility in Afghanistan, al-Hawsawi was transferred to Guantánamo Bay, where he is currently on trial with the U.S. Military Commission for his alleged role in al-Qaeda and the 9/11 attacks.
Journal of Global Rights and Organizations, Associate Articles Editor
THE HAGUE, The Netherlands – On January 15, 2024, Trial Chamber X of the International Criminal Court (ICC) postponed delivery of its verdict for The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (hereinafter “Al Hassan”) pursuant to article 74 of the Rome Statute.
Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud at the International Criminal Court in The Hague (Netherlands) on May 23, 2023. | Photo Courtesy of the ICC.
Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud is accused of perpetrating war crimes and crimes against humanity in Timbuktu, Mali. He is facing charges of persecution based on religious and gender grounds, rape, torture, sexual slavery, and forced marriages that occurred between April 2012 and January 2013. The delivery of the judgment by the ICC was originally set for January 18, 2024, and a new date will be announced in due course.
Notably, the Al Hassancase marks the ICC’s first prosecution of the crime against humanity of persecution on grounds of gender pursuant to the Rome Statute. The prosecution contends that Al Hassan and his group specifically targeted women and girls for breaking a strict dress code, restrictions on freedom of movement, and rules on segregation of the sexes. According to prosecutors, Al Hassan led a police force created by the al Qaeda-linked Ansar Dine group that tormented Timbuktu, particularly targeting women who faced rape, forced marriages and sexual slavery.
The United Nations’ Women, Peace, and Security (WPS) agenda recognizes sexual violence as a weapon of war and acknowledges that it can amount to international crimes, calling for enhanced criminal accountability.
During a hearing on May 9, 2022, the defense argued that faced with dire circumstances, Al Hasan became involved with armed groups as a survival strategy. The defense maintained that Al Hasan was wrongly selected for prosecution and portrayed him as trying to maintain order in a chaotic situation in Timbuktu following the rebel takeover. The defense also argued that Al Hasan’s role in the conflict was too minor to warrant charges at the ICC for crimes against humanity.
Closing statements occurred before the ICC between May 23 and 25, 2023. Trial Chamber X of the ICC will deliver its decision on conviction or acquittal pursuant to article 74 of the Rome Statute. The Chamber bases its decision only on the applicable law and on evidence submitted before it at the trial.
POLAND – On December 14, 2023, the European Court of Human Rights (ECHR) held that Poland’s legislative amendments that forced a woman to travel abroad to have an abortion breached Article 8 of the European Convention on Human Rights, which protects the right to respect for private and family life.
A protest in Krakow, Poland following abortion restrictions | Photo Courtesy of the New York Times.
Poland’s abortion laws are among the most restrictive in Europe. Prior to 2020, abortion was legal in Poland in only three situations: fetal abnormalities, pregnancies caused by rape or incest, and threats to the women’s life or health. In 2020, the Polish Constitutional Tribunal’s ruling restricted abortion access even further. While the latter two reasons remain legal, the Tribunal banned abortions due to fetal abnormalities, which make up approximately 98% of the abortions performed annually in Poland, reasoning that terminating a pregnancy violates the unborn child’s Constitutional guarantee to life. As a result, the 2020 ruling is effectively a total abortion ban.
The plaintiff in the recent case, M.L. v. Poland, was scheduled for a legal abortion in early 2021 in a Warsaw hospital. After becoming pregnant in late 2020, she discovered that the fetus had Trisomy 21, also known as Down Syndrome. On the day before the procedure, however, the Constitutional Court’s judgment went into effect. M.L.’s doctors informed her that she could no longer have an abortion in the facility or in any other medical institution in Poland. As a result, M.L. traveled to the Netherlands, where she had an abortion in a private clinic.
M.L. alleged that she had been forced to make a choice between giving birth to a child with Trisomy 21 and traveling abroad to have an abortion, resulting in severe emotional suffering. The ECHR held in her favor, holding that Poland’s restriction on abortion in the instance of fetal abnormality, when sought for reasons of health and well-being, came within the Article 8 scope of the right to respect for her private life. Further, the Court noted that “private life,” as meant in Article 8 of the Convention, encompasses the right to personal autonomy and personal development and concerns subjects such as gender identification, sexual orientation, sexual life, physical and psychological integrity, including the decision whether to have a child or to become genetic parents.
THE HAGUE, The Netherlands – The International Court of Justice (hereinafter ICJ) ordered provisional measures to protect Guyana’s rights in highly contentious territory dispute with Venezuela.
Photo image of Venezuelan government revealing a map indicating the “Guayana’s Esequiba” as Venezuelan territory | Photo Courtesy of the New York Times, see Gaby Oraa/Getty Images.
Procedural History
In March 2018, the Co-operative Republic of Guyana’s government (hereinafter “Guyana”) filed proceedings against the Bolivarian Republic of Venezuela (hereinafter “Venezuela”). The legal issue is whether the Arbitral Agreement of 1899, which establishes the border line between Guyana and Venezuela, in a region called the “Guayana Esequiba,” is legally valid. Guyana claims it is valid and thus grants the Esequiba to Guyana, but Venezuela claims it is void and argues that the Esequiba is Venezuelan territory.
On October 23, 2023, Venezuela published a list of five questions it planned to use in a “Consultative Referendum,” to be held on December 3, 2023. The questions asked for support in rejecting the validity of the 1899 Award, the ICJ’s jurisdiction, and advocated for an accelerated plan to incorporate the Esequiba into Venezuela.
On October 30, 2023, in response to Venezuela’s questions and referendum plans, Guyana requested the ICJ issue provisional measures to prevent Venezuela from publishing its questions, ultimately asking the ICJ to protect its rights to the Esequiba region while the validity of the 1899 Award is pending.
On November 14 and 15, 2023, the ICJ heard oral arguments from both parties regarding the issue of provisional measures. Guyana asked the Court to order the following provisional measures, while Venezuela asked the court to reject the request.
“Venezuela shall not proceed with the Consultative Referendum planned for 3 December 2023 in its present form;
In particular, Venezuela shall not include the First, Third or Fifth questions in the Consultative Referendum;
Nor shall Venezuela include within the ‘Consultative Referendum’ planned, or any other public referendum, any question encroaching upon the legal issues to be determined by the Court in its Judgment on the Merits . . .
Venezuela shall not take any actions that are intended to prepare or allow the exercise of sovereignty or de facto control over any territory that was awarded to British Guiana in the 1899 Arbitral Award.
Venezuela shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.”
Required Elements of an ICJ Provisional Measure
The ICJ, after affirming its 2020 Judgement that it has the necessary jurisdiction to adjudicate the claims of Guyana, turned to Article 41 of the ICJ Statute, which focuses on the preservation of rights claimed by parties in a case. To issue provisional measures the Court must find (1) the rights claimed by a party is plausible, (2) there is a link between the right claimed and the provisional measure requested, and (3) without the provisional measure “there is a real and imminent risk that” (4) “irreparable prejudice will be caused to the rights claimed before the Court gives its final decision.”
Here, the Court found that Guyana’s right to “preservation and protection of its right to the territory” is plausible. The Court notes that a right’s existence need not be proven, it only need be asserted plausible. Therefore, the Court need not determine which country has a right to the territory, but only that Guyana could have a plausible right to the Esequiba. The Court held that the existence of the 1899 Award and the dispute itself are sufficient to give Guyana a plausible right to the Esequiba.
Moreover, the Court found there is a link between the plausible right and the provisional measure sought. Guyana “seeks to ensure” that Venezuela does not prepare to, or exercise control of, the territory awarded to Guyana in the 1899 Award, which the ICJ considers a measure “aimed at protecting Guyana’s right which the Court has found plausible.”
Lastly, the Court turned to “Venezuela’s expressed readiness to take action with regard to the territory in dispute in these proceedings at any moment following the referendum scheduled for 3 December 2023” as sufficient evidence to find that Guyana is at serious risk of irreparable prejudice, and that the risk of this is urgent in a real and imminent sense.
ICJ’s December 1 Order
Due to the reasons above, the Court found it necessary to issue a provisional measure to protect Guyana’s right to the Esequiba. However, the Court found the measures provided need not match exactly what Guyana requested. Its resulting provisional measure consisted simply of ordering Venezuela to refrain from taking any action “which would modify the situation that currently prevails in the territory in dispute” and that both Parties “shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.” The ICJ has yet to determine the validity of the 1899 Award.
THE HAGUE, Netherlands – On December 29, 2023, South Africa initiated proceedings in the International Court of Justice against the state of Israel for its actions in the Gaza Strip, accusing Israel of violating the 1948 Genocide Convention due to its treatment of Palestinians throughout the conflict with Hamas. Israel has confirmed it will appear at the proceedings to fight the allegations.
Judges at the International Court of Justice at The Hague | Photo Courtesy of Al Jazeera, Remko De Waalepa/EFE/EPA
South Africa pointed to the ongoing humanitarian crisis and magnitude of death and destruction in Gaza, stating such action meets the threshold of the 1948 Convention under international law. South Africa has also requested the Court order an injunction on any further Israeli attacks in the region.
Israel’s actions in the Gaza Strip have been a part of a three-month long campaign against Hamas, the perpetrators of the October 7, 2023, terrorist attack in Israel which led to the deaths of approximately 1,200 Israelis. Israel responded by launching a series of airstrikes into Gaza, targeting suspected Hamas strongholds, prior to launching a full-scale ground invasion of the Gaza Strip on October 27, 2023. Since the start of the invasion, the Palestinian Ministry of Health in Gaza has reported the death toll to exceed 22,000.
South Africa claims Israel’s actions violate obligations set under the 1948 Genocide Convention. The Convention defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”
Israel has pushed diplomatic cables requesting countries to denounce the claims and pointed to its effort to increase humanitarian support in the region to refute the idea of genocide. The United States has already stated its support for Israel, calling South Africa’s submission “meritless, counterproductive, and completely without any basis in fact whatsoever.” However, pro-Palestine countries such as Turkey and Jordan have both expressed their support for South Africa’s challenge.
Israel has boycotted the ICJ and its rulings for decades, and its participation in this instance as a signee to the 1948 Genocide Convention speaks volumes of the importance of this issue to Israel. The case is set to be heard by the ICJ on January 11, 2024.
