African Court on Human and Peoples’ Rights Still Pending Decision on Detainee’s Right to Life

October 15, 2024

By: Jocelyn Anctil

Impunity Watch News Staff Writer

ARUSHA, Tanzania – On October 3, 2024, the African Court on Human and Peoples’ Rights reached a decision on provisional matters in Moadh Kheriji Ghannouchi and Others v. Republic of Tunisia. This case involves several political activists whom the applicants allege have been wrongfully imprisoned without probable cause detained. These activists are members of the Ennahda Party, a major political group in Tunisia aiming for Islamic democracy. Applicants on behalf of the activists allege that during detention these activists were deprived of their right to dignity and protection against cruel punishment. The Court ordered the Republic of Tunisia to better protect the current detainees. By this order, the Republic of Tunisia must eliminate barriers to communication between current detainees and lawyers or medical personnel. They must also adequately inform the detainees of the basis for their detention, and report on any measures taken to fulfil these orders within 15 days of the decision. However, the court dismissed the request for release of the four detainees.

*Loved ones and supporters of Ridha Bouzayene gather at his funeral service. Photo courtesy of Al-Sabil.*

The applicants also allege that the Republic of Tunisia infringed upon a detainee’s right to life although no conclusion on this issue has been reached. Article 4 of the African Charter on Human and Peoples’ Rights and Article 6 of the International Covenant on Civil and Political Rights ensure and protect one’s right to life. Ridha Bouzayene, a well-known member of the Ennahda Party, died during a protest against the Government in the Republic of Tunisia on January 14, 2022. He went missing at the demonstration and five days later it was discovered he had died from injuries inflicted by police.

Mr. Bouzayene’s death also implicates the right of peaceful assembly, protected by Article 11 of the African Charter on Human and Peoples’ Rights and Article 21 of the International Covenant on Civil and Political Rights. Mr. Bouzayene went missing during what the applicants allege to be a peaceful protest and sustained fatal injuries while exercising his rights.

Applicants also allege the Republic of Tunisia discriminated against Mr. Bouzayene based on his political opinion which further violates his rights protected by the African Charter on Human and Peoples’ Rights. The Constitution of Tunisia purports to establish a Constitutional Court, yet the Court has not been operational. As a result, the applicants further allege that the Republic of Tunisia has not upheld the independence of lawyers and the judiciary, leading to the ineffective investigation of Mr. Bouzayene’s death. As of this decision, the Tunisian judicial system has not found anyone responsible for Mr. Bouzayene’s death and the applicants maintain he was arbitrarily deprived of life. The applicants request the Court to order the Republic of Tunisia to open an investigation into Mr. Bouzayene’s death.

The provisional decisions in this case, requiring the Republic of Tunisia to better inform and protect current detainees, may indicate a favorable decision to Mr. Bouzayene’s family in the future regardless of their denial of release.

For Further Information Please See:

ACHPR – Moadh Kheriji Ghannouchi and Others v. Republic of Tunisia – 3 Oct. 2024

UK asked to impose sanctions on Tunisia officials – Middle East Monitor – 22 Mar. 2023

Ennahda: Before and After the Coup in Tunisia – Crown Center for Middle East Studies | Brandeis University – 8 July 2022

ECHR Rules Spain Violated Right to Privacy and Freedom of Religion

October 7, 2024

By: Neha Chhablani

Impunity Watch News Staff Writer

STRASBOURG, France – On September 17, 2024, in the case of Pindo Mulla v. Spain, the European Court of Human Rights (ECHR) ruled that Spain had violated the right to privacy and religious freedom of Ms. Rosa Edelmira Pindo Mulla, a Jehovah’s witness, by administering blood transfusions against her will. The ruling marks another victory for individual autonomy and religious freedom in healthcare, reaffirming the ECHR’s commitment to self-determination.

*Photograph of the Pindo Mulla v. Spain judgement delivery. Photo Courtesy of the European Court of Human Rights.*

Ms. Rosa Edelmira Pindo Mulla, an Ecuadorian national living in Spain, firmly opposes blood transfusions due to her religious beliefs. Following a series of medical evaluations between May and July 2017, she was advised to undergo surgery to remove a myoma. In preparation for the procedure, she issued two legal documents—an advance directive and a lasting power of attorney—refusing blood transfusions under any circumstance.

On June 6, 2018, Ms. Pindo Mulla was admitted to the hospital due to severe internal bleeding. She reiterated her refusal of a blood transfusion and was transferred to a specialized hospital in Madrid that could provide alternative treatments. However, multiple miscommunications during this transfer—including incomplete sharing of her advance directive, unclear information about treatment preferences, and a failure to consult with her or her family—resulted in a duty judge authorizing blood transfusions without knowledge of her legal documents or religious beliefs. The doctors administered three life-saving blood transfusions while Ms. Pindo Mulla was unaware and unable to give informed consent.

Ms. Pindo Mulla pursued her case through each level of the Spanish judiciary before appealing to the ECHR. Both the local judge and the provincial court concluded that the absence of her advance directive and insufficient evidence of her refusal justified the transfusion. When the case reached Spain’s Constitutional Court, she argued that medical professionals violated her rights to legal protection, physical integrity, and freedom of religion, under Articles 24, 15, and 16 respectively of the Spanish Constitution. Ultimately, her appeal was deemed inadmissible as it did not meet the “special constitutional significance” threshold under Rule 54 § 3 of the Rules of Court.

On March 13, 2020, Ms. Pindo Mulla brought her case to the ECHR, claiming that Spain violated Article 8 (right to respect for private life) and 9 (freedom of thought, conscience, and religion) under the European Convention on Human Rights (ECHR). Spain relinquished jurisdiction to the ECHR on July 4, 2023, and the Grand Chamber hearing took place on January 10, 2024.

The court scrutinized the medical professionals’ decision-making process and evaluated whether they had shown sufficient respect for Ms. Pindo Mulla’s autonomy. Based on its investigation, the court determined that the doctors’ shortcomings in providing incomplete information and failing to confirm consent prevented her from exercising self-determination and autonomy. The court ruled that Spain had violated Article 8 in light of Article 9 and ordered the government to pay Ms. Pindo Mulla 12,000 Euros in non-pecuniary damage and 14,000 Euros for her legal costs and treatment expenses.

In this case, the ECHR had to carefully weigh the right to life under Article 2 of the ECHR and the right to religious freedom. While medical professionals justified their actions as necessary to preserve life, the court held that when a patient refuses treatment freely, autonomously, explicitly, and without ambiguity—as Ms. Pindo Mulla had done—the right to autonomy supersedes the right to life. By ruling in her favor, the ECHR reaffirmed the primacy of self-determination in healthcare and strengthened the legal protections of religious minorities in medical jurisprudence.

For further information, please see:

ECHR – Case of Pindo Mulla v. Spain – 17 Sept. 2024

ECHR – Grand Chamber Judgment Pindo Mulla v. Spain – 17 Sept. 2024

ECHR – European Convention on Human Rights – 29 Sept. 2024

Human Rights Without Frontiers – EUROPEAN COURT: Ruling about forced blood transfusion of a Jehovah’s Witness – 17 Sept. 2024

Tribunal Constitucional de España – The Spanish Constitution – 29 Sept. 2024

ICJ Genocide Convention Ruling is a Pyrrhic Victory for Ukraine

August 23, 2024

Zoé Tkaczyk

Impunity Watch News Guest Writer

THE HAGUE, Netherlands – On 2 February 2024, the International Court of Justice (ICJ) issued a landmark decision for Ukraine’s case against Russia regarding genocide allegations. The ICJ rendered its decision on the preliminary objections concerning Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG). 32 States intervened.

Dead bodies are placed in a mass grave on the outskirts of Mariupol, Ukraine. People cannot bury their dead because of the heavy shelling by Russian forces. Courtesy of Evgeniy Maloletka and the Associated Press.

Ukraine employed an exceptional legal maneuver. Because there is no international court with jurisdiction over UN Charter violations or the crime of aggression, Ukraine used the dispute resolution provision in the CPPCG to bring Russia to court. To justify its invasion, Russia claimed Ukraine was committing genocide against the Russian ethnic minority in eastern Ukraine. Ukraine used Russia’s disinformation against it. Ukraine argued that this established a dispute under the CPPCG and called for Court resolution. While the Court ordered Russia to suspend its military operations in the region to begin its provisional measures and investigations, Russia unsurprisingly ignored the order.

While these provisional measures seemed a big win for Ukraine in the early stages of the war, the mixed decision in February of this year has left many claiming the Court failed to deliver. The ICJ unanimously dismissed Russia’s procedural objections in its judgment, ruling that the Court can decide on the merits if Ukraine violated the CPPCG in the Donetsk and Luhansk Regions. Many human rights advocacy organizations highlighted how important the admissibility of reverse compliance claims is as Russia continues to spread anti-Ukrainian propaganda and hate speech. The unanimous dismissal of Russia’s procedural objections in the genocide case was a victory for Ukraine’s legal battles. Still, many regret that the ICJ did not determine Russia’s false allegations of genocide to justify the full-scale invasion of Ukraine to fall within the scope of the CPPCG. By sustaining Russia’s objection regarding subject-matter jurisdiction by a 12 to 4 vote, the Court raised significant concerns about applying the CPPCG in broad contexts.

Ukraine’s pyrrhic victory means that its conduct, not Russia’s has been the subject of the hearing. However, the Court has still been able to review Russia’s key justification for its military campaign. Anton Korynevych, Ukraine’s legal team leader told reporters, “It is important that the court will decide on the issue that Ukraine is not responsible for some mythical genocide, which the Russian Federation falsely alleged that Ukraine has committed.”

Additionally, Russia’s violations of the Court’s provisional measures order might also give Ukraine some more room to maneuver. However, they must contend with a Court likely unwilling to rule on an issue in the borders of its jurisdictional boundaries, especially when its ruling will likely be ignored. A redundant declaration of illegality, while satisfying, may do little more than keep waning support mobilized. The nations condemning Russia’s acts would likely condemn regardless of the Court’s rulings, and Moscow has had no reservations ignoring the holdings.

This may pose additional challenges to the international community when addressing serious human rights violations. The Court is in the middle of a highly charged political, legal, and military confrontation with no police or military to back its decisions. The only formal mechanism for Court decision enforcement is referral to the Security Council. But when the state subject to the decision retains a permanent seat on the Council, the chance of an enforcement resolution is slim. The Court must be careful to preserve its legitimacy in light of its predicament. While there were no obviously negative consequences of the mixed decision, it has pushed Ukraine to focus even more intensely on evidence collection of human rights violations and crimes committed by Russian forces to increase the chances of future legal victories.

This article is one of a seven-part series exploring the Russo-Ukrainian War. Zoé Tkaczyk is a J.D./MAIR candidate (May 2025) at the Syracuse University College of Law and Maxwell School of Citizenship and Public Affairs. This article series was inspired by sessions from the Carnegie-Maxwell Policy Planning Lab Fellowship: Postwar: Europe, Ukraine and the Future of European Order. Special thanks to Cora True-Frost and Alexa Connaughton for their guidance, feedback, and edits.

ICJ – 182 – Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) – 18 Oct. 2022

Just Security – Taking Stock of ICJ Decisions in the ‘Ukraine v. Russia’ Cases—And implications for South Africa’s case against Israel – 5 Feb. 2024

ICJ – Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) – 2 Feb. 2024

Relief Web – Mixed decisions by the International Court of Justice on Russia’s responsibility in crimes committed in Ukraine – 6 Feb. 2024

Associated Press – The UN’s top court says it has jurisdiction in part of Ukraine’s genocide case against Russia – 2 Feb. 2024

ICJ Ruling Based on Alleged CERD Violations by Russia Disappoints Many Ukrainians

August 21, 2024

Zoé Tkaczyk

Impunity Watch News Guest Writer

THE HAGUE, Netherlands – On January 31, 2024, the International Court of Justice (ICJ) delivered a landmark judgment in the Ukraine v. Russia case concerning the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).

*Protester at a rally calling for Crimea to remain a part of Ukraine. Courtesy of Spencer Platt and Getty Images.*

While the Court dismissed most of the allegations presented by Ukraine, it did investigate claims concerning the suppression of Ukrainian language and culture in Crimea. The Court’s ruling that Russia violated certain obligations under the CERD–regarding the educational rights of the Ukrainian-speaking community in Crimea–while limited, was still significant in demonstrating the importance of protecting minority rights and cultural identity.

The Court began by recalling that the current proceedings were instituted by Ukraine after events in Eastern Ukraine and Crimea in early 2014. With the parties currently engaged in an armed conflict, the Court had limited the scope of its opinion under this treaty significantly, clarifying that it was not ruling on issues beyond the CERD claims. Evidence submitted by Ukraine spans as far back as 2014, after the annexation of Crimea by the Russian Federation. Specifically, Ukraine alleges that Russia is engaged in a campaign of racial Discrimination against Crimean Tatars and ethnic Ukrainians in Crimea by depriving them of their political, civil, economic, social, and cultural rights.

Ukraine instituted the case in 2017 to address events that occurred in 2014 in Eastern Ukraine and the Crimean peninsula. Claims under CERD included allegations of systematic discrimination against Crimean Tatars and ethnic Ukrainian communities in Crimea. Ukraine also asked for reparations for all victims of the erasure and discrimination. The Court ruled on eight specific CERD claims, but ultimately only found Russia in violation of one. The Cout found that Russia violated Articles 2(1)(a) and 5(e)(v) of the CERD because of the educational system it instituted in Crimea after 2014. The Court rejected all of Ukraine’s other claims under CERD.

These included claims of alleged physical violence directed toward these groups because of their political and ideological positions, racially motivated behavior by law enforcement toward members of these groups, and restrictions on media, cultural gatherings, heritage, and education. The one claim the Court found Russia in violation of related to protecting educational opportunities in Ukrainian. Specifically, the court found violations of Articles 2 and 5. It further explained that while declining to offer education in a minority language was not racial discrimination under CERD, the structural changes Russia implemented in schools to change the language of instruction made it unreasonably difficult for children to receive education in their primary language. The Court also found evidence of harassment against individuals choosing to pursue their education in Ukrainian. Thus, it found Russia in violation of these articles.

Since the reorientation of the Crimean education system to Russian, Ukrainian language instruction has fallen by 90%. Despite this, the Court did not find that Russia’s violation of the CERD articles was the sole cause of the decline, and left many hopeful human rights advocates disappointed by the outcome of the case. The ruling came during a myriad of other ICJ rulings based on Russia’s actions in Ukraine and raised questions about the retroactivity of these holdings and evidentiary questions when acts overlap under various human rights treaties. The Court did not provide legal guidance for many of the questions that these cases are raising.

Note: This case was decided in tandem with a ruling on the International Convention for the Suppression of the Financing of Terrorism (ICSFT). This article is one of a seven-part series exploring the Russo-Ukrainian War. Zoé Tkaczyk is a J.D./MAIR candidate (May 2025) at the Syracuse University College of Law and Maxwell School of Citizenship and Public Affairs. This article series was inspired by sessions from the Carnegie-Maxwell Policy Planning Lab Fellowship: Postwar: Europe, Ukraine and the Future of European Order. Special thanks to Cora True-Frost and Alexa Connaughton for their guidance, feedback, and edits.

Just Security – Taking Stock of ICJ Decisions in the ‘Ukraine v. Russia’ Cases—And implications for South Africa’s case against Israel – 5 Feb. 2024

ICJ – 182 – Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) – 18 Oct. 2022

Relief Web – Mixed decisions by the International Court of Justice on Russia’s responsibility in crimes committed in Ukraine – 6 Feb. 2024

ICJ – Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation) – 31 Jan. 2024

ICJ Ruling Only Finds in Favour of One Ukrainian Claim Against Russia’s Alleged ICSFT Violation

August 16, 2024

Zoé Tkaczyk

Impunity Watch News Guest Writer

THE HAGUE, Netherlands – On January 31, 2024, the ICJ delivered a landmark judgment in the Ukraine v. Russia case concerning the Application of the International Convention for the Suppression of the Financing of Terrorism (ICSFT). The Court investigated Russia’s alleged violation of five articles and found the nation only violated one. While the Court dismissed most of Ukraine’s allegations, it did investigate and find that Russia failed to fulfill its obligations under the ICSFT by not adequately investigating terrorism financing.

*Ukrainian servicemen who were wounded in battle waiting to leave a field hospital near Bakhmut in Eastern Ukraine. Courtesy of Evgeniy Maloletka and the Associated Press.*

The first case was filed in 2017 by Ukraine under the ICSFT. It claimed Russia’s support for Russian separatist groups in eastern Ukraine, including in-kind contributions of weapons and training, violated the ICSFT. As part of that claim, Ukraine also argued that Russia violated the ICSFT by failing to investigate, prosecute, and extradite perpetrators guilty of financing terrorism found in Russian territory. The Court rejected all of Ukraine’s other claims under the convention largely because of insufficient evidence. This sliver of a win seemed to do little as Ukraine lost on nearly every other claim of significance.

The situation today is much different than when Ukraine first raised these complaints. This time around, Russia based its objection on the “clean hands” doctrine, which it raised in its Rejoinder on March 10th, 2023. Raising this objection at this late stage meant the Court viewed it as a defense on the merits. Several of the pieces of evidence submitted by Ukraine were already considered in the 2019 Judgement concerning the annexation of Ukraine

Aside from the acts Ukraine referred to by the Donetsk People’s Republic (DPR) and the Luhansk People’s Republic (LPR) after 2019, Ukraine also referred to the acts of armed groups and individuals before 2019. Because the Court previously issued a judgment, the Court had tricky subject-matter jurisdiction questions to untangle, especially as the timeline of events became increasingly muddled. Ultimately, the Court determined there was jurisdiction under Article 24, paragraph 1, and entertained claims. This did limit the evidence and acts the Court could consider and narrowed the scope of the investigation significantly.

The Court did find that Russia violated its obligations under Article 9 of the treaty, related to the mandatory investigations of financing terrorism. An allegation alone is enough to invoke the investigation obligations since the treaty requires a low evidentiary threshold to investigate alleged terrorism financing. Because the Article had a low threshold, it was the only apparent “win” for Ukraine. Many regarded the proceedings as inadequately protecting the human rights regime. Many speculated that these lackluster decisions indicate that the Court is unwilling to intervene in politically charged situations, especially one rife with military confrontation. Some might wonder whether these lackluster decisions signal that the ICJ is having second thoughts about wading into highly politically charged situations. But the Court must work to preserve its legitimacy, especially concerning cases involving one of the Permanent Security Council members since referral to the Security Council is the only way to enforce an ICJ decision.

No one is contesting that Russia is in violation of international law in waging its war, but the variety of cases brought against Russia by Ukraine demonstrates the limits of international law. While nations can condemn Russia for the acts that they were found guilty of under the ICSFT, if the holding remains unenforceable, it is unlikely that anything will change on the ground. Because of this, it is unsurprising that the Court ruled how it did.

Note: this case was decided in tandem with a ruling on the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).

Just Security – Taking Stock of ICJ Decisions in the ‘Ukraine v. Russia’ Cases—And implications for South Africa’s case against Israel – 5 Feb. 2024

Relief Web – Mixed decisions by the International Court of Justice on Russia’s responsibility in crimes committed in Ukraine – 6 Feb. 2024

ICJ – 182 – Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) – 18 Oct. 2022

Library of Congress – International: International Court of Justice Issues Decision in Terrorism Financing and Racial Discrimination Case Involving Russia and Ukraine – 31 Jan. 2024