Peru Found Guilty of Torturing Transgender Woman in Custody

By: Elizabeth Wright

Impunity Watch Staff Writer

CASA GRANDE, Peru — On April 6, 2020, the Inter-American Court of Human Rights published a decision which found the country of Peru guilty of torture and rape of a transgender woman while she was in police custody.

Azul Rojas Marin. Photo Courtesy of BBC.

Azul Rojas Marin was arrested in February 2008, for what has now been determined to be an arbitrary and discriminatory purpose. While in police custody her legal team reports that, Azul was stripped naked, beaten, and brutally raped with a police baton by three officers.

Following the incident, Azul filed an initial criminal complaint against the officers involved, but it was dismissed by the state. After hearing about her case, several human rights organizations joined to help and brought her case to the Inter-American Court of Human Rights. The Court ultimately found for Azul. The Court ordered Peruvian government to pay Azul damages and provide her with psychological treatment. Furthermore, the Court ordered Peru to track data regarding violence of those in the LGBT+ community, and to create protocol for investigating such violence.

Evidence shows that LGBT+ individuals experience much higher rates of violence than others. This is the first time the Inter-American Court has made a ruling on torture of any person identifying as LGBT+. Thus, many feel the verdict legal validation for transgender and LGBT+ individuals.

For further information, please see:

NY Daily News – Top Human Rights Court Finds Peru Responsible for Raping, Torturing Transgender Woman – 8 Apr. 2020

PinkNews – Peru is ‘responsible’ for Rape and Torture of Trans Woman While in Custody, Top Human Rights Court Rules – 7 Apr. 2020

BBC NEWS – Azul Rojas Marin: Peru Found Responsible for Torture of LGBT Person – 7 April 2020

Reuters – Top Americas Court Finds Peru Responsible for Torture of Trans Woman – 6 Apr. 2020

ICC Prosecutor Files Response to Ntaganda Appeal

By: Andrew Kramer

Impunity Watch Staff Writer

THE HAGUE, The Netherlands – On April 14, 2020, the International Criminal Court (“ICC”) released the public redacted version of the Prosecutor’s response to Appellant’s brief in the case of The Prosecutor v. Bosco Ntaganda.  ICC Prosecutor Fatou Bensouda presented the appellee’s brief.

Congolese warlord Bosco Ntaganda stands in the ICC courtroom during closing statements of his trial. Photo Courtesy of Reuters.

The Prosecutor’s brief addresses each of Ntaganda’s twelve grounds of appeal in turn.  Whereas Ntaganda attempted to downplay his involvement in crimes of sexual violence and slavery in grounds one through four, the Prosecutor asserted that Ntaganda played an essential role in the commission of these crimes throughout the period of the charges.  Furthermore, the Prosecutor asserted that Ntaganda himself killed and raped, participated in recruitment drives, and used children under 15 years of age as his personal escorts.  The Prosecutor maintained that the Trial Chamber assessed these factors correctly when arriving at Ntaganda’s 30-year prison sentence.  

In addressing Ntaganda’s argument in grounds seven through twelve, that the Trial Chamber failed to properly assess alleged mitigating factors, the Prosecutor asserts that the Ntaganda simply disagrees with the Court’s fair evaluation and rejection of these circumstances.  The Prosecutor stated that the Court correctly considered Ntaganda’s alleged acts of protecting civilians from attacks, saving the lives of enemy soldiers, and contributing to the reconciliation with the Lendu community, among others, however they did not carry enough weight to impact his sentence.  This difference of opinion does not indicate a failure to consider the circumstances properly.

As for grounds five and six, that the Court erred in applying some aggravating circumstances, the Prosecutor argued that Ntaganda misapplied the relevant provisions of the Rome Statute.  While Ntaganda asserted that the Court considered an improper aggravating circumstance in ground 5, the Prosecutor stated that the elements of the uncharged crime allow for it to be considered as an aggravating circumstance.  In ground 6, which Ntaganda accused the court of “double-counting” some factors the Prosecutor argued that Ntaganda failed to understand the “two-step” process the Court uses for sentencing established by article 78(3).

While grounds one through four and seven through twelve are likely based on matters which were at the discretion of the trial court, and therefore likely to be upheld on appeal, the arguments in grounds five and six present reasonably more nuanced legal issues. Particularly interesting is the Court’s “two-step” process for sentencing, in which the individual sentences for each crime is calculated before the appropriate joint sentence is determined.  While sentences are calculated two times using this process, aggravating factors are not “double-counted,” for each sentence.

No scheduling order has been released for the Appeals Hearing of Ntaganda.  Ntaganda also stated to be appealing the judgement of conviction in his notice of appeal, however no brief has been filed yet.

For further information, please see:

International Criminal Court – Prosecution Response to “Sentencing Appeal Brief” – 14 Apr. 2020

International Criminal Court – Case Information Sheet: The Prosecutor v. Bosco Ntaganda – 7 Nov. 2019

ECHR Rules Russia Can Compensate Prisoners for Inadequate Detention Conditions

By: Genna Amick

Journal of Global Rights and Organizations, Associate Articles Editor

MOSCOW, Russia – On April 9, 2020, the European Court of Human Rights (“ECHR”) ruled on the admissibility of six applicants who applied for compensatory damages under Russia’s 2019 Compensation Act.

Entering into force in January 2020, the Compensation Act provides detainees who are held in pre-trial detention facilities with financial compensation if they suffered from inadequate detention conditions that violated national or international standards. Russia adopted the Compensation Act in response to rulings from two earlier cases from the ECHR, which required that Russia take action regarding the inhumane, degrading conditions of their pre-trial detention centers.

One of the main issues faced by pre-trial detention centers in Russia is overcrowding. This has been a problem for years, likely due to Russian courts approving prosecutorial requests for pre-trial custody in 90.7% of cases. The complaints of the six applicants in this case all involve alleged overcrowding.

The applicants, who filed on various dates in 2017 and 2018, relied on both Article 3 and Article 13 of the European Convention. Article 3 prohibits inhuman or degrading treatment. Applicants used Article 13, which ensures the right to an effective remedy, to complain that Russia lacked an effective domestic remedy for their inhumane pre-trial detention conditions. Although the applicants filed their complaints two to three years before the Compensation Act went into effect, the Court did not review their applications until after the Act was in effect. Therefore, all six applicants’ claims were deemed inadmissible as the Court held that the Compensation Act is an effective domestic remedy to their claims.

The ECHR found the Compensation Act to be an effective method of compensatory redress for applicants who had already been released from a pre-trial detention center but had suffered through improper detention conditions while there. The Court based this ruling on a number of factors, such as that the remedy has the requisite procedural guarantees, it is accessible to the people who may need it, and it offers applicants a reasonable likelihood of success. The Court also based their decision on an assumption that claims would be processed in a reasonable time period and that compensation would be paid promptly to applicants who qualified for redress.

The Court stated that released detainees may qualify for compensation under the Compensation Act if, during their detention, they did not receive the standard amount of space per detainee that is required under Article 3 of the European Convention, which is 3 square meters per detainee. All six applicants’ complaints alleged they received less than 3 square meters; therefore, they are all eligible to apply for redress under the Compensation Act. Since the applicants at issue filed a few years before the Act went into effect, they have 180 days from the publication of the ECHR’s ruling to avail themselves of the remedy provided by the Compensation Act.

Despite the ECHR finding the Compensation Act to be an effective remedy for released detainees, the ECHR reserved their judgment on whether the Act can be effective as a preventative remedy for applicants who are still being detained.

For further information, please see:

HUDOC – Shmelev and Others v. Russia – remedies for complaints about poor conditions of detention – 9 Apr. 2020

Human Rights Watch – Russia’s Pretrial Prisons Vulnerable as COVID-19 Spreads – 24 Mar. 2020

Indigenous Namibians Fight for Rights to Ancestral Land

By: Katherine Davis

Impunity Watch Staff Writer

WINDHOEK, Namibia – In 2015, eight members of the Hai//om brought a class action suit against Namibia’s government and other interested parties, seeking to gain rights in Etosha National Park, their former homeland. In November 2019, the Namibian High Court dismissed the case after Hai//om chief, David // Khamuxab withdrew his support. The Hai//om await an appeal date for the Supreme Court; however, Peter Watson, legal counsel for the Hai//om, announced that his team is prepared to take the case to the African Court on Human and Peoples’ Rights.

A Hai//om woman and children outside of their homes in the Oshikoto Region. Photo Courtesy of the Legal Assistance Centre and the Desert Research Foundation of Namibia.

The Hai//om occupied Etosha until 1954, when they were forced to leave their homes and move off of the property. This move forced them to become farm-laborers on the borders of Etosha, working for the white-owned commercial agricultural sector. Now, the Hai//om want to have a share in Etosha’s profits and the right to determine the use of the land as guaranteed to them in the African Charter on Human and Peoples’ Rights.

It is not the Hai//om’s intent to take this land away from the people of Namibia, tourists, and others. Their main goal is to promote and preserve the Hai//om culture, knowledge, and language. “If we win this case, we do not want to get rid of Etosha,” said Nicodemus Hawaseb, one of the eight applicants, in an interview with Reuters, “[w]e just want to be included in it. We want to showcase our culture to the world.”

Namibia’s government claims to be working diligently with the Hai//om in granting tourism rights, so that the indigenous communities can benefit financially from the park. However, the government refuses to label the park as ancestral land. In a phone interview with Reuters, the head of Namibia’s Wildlife and National Parks directorate, Colgar Sikopo, explained, “If we do this, then everyone else will want to claim a park of the park.”

For further information, please see:

Kim Harrisberg – Indigenous Namibians Fight for Ancestral Land in National Park – 13 Apr. 2020

Legal Assistance Centre – Constitutional Rights & Human Rights: Litigation – 2020

Xoms | Omis Project – History of the Hai||om – 2020

Werner Menges – Hai||om sue for Rights Over Etosha – 19 Oct. 2015

Ute Dieckmann, et. al. – Scraping the Pot: San in Namibia Two Decades After Independence – 2014

Is China Using COVID-19 as an Excuse to Silence Its Dissenters?

By: Madison Kenyon

Impunity Watch Staff Writer

BEIJING, China — On December 31, 2019, the government in Wuhan, China announced that health authorities were in the process of treating dozens of individuals who all had similar symptoms. A few days later, the Wuhan government confirmed that these individuals had all been infected with a new virus: COVID-19. Now about five months later, the spread of the virus seems to be slowing down in cities throughout China, and thus China has begun lifting its lockdown measures.

Despite the Chinese government lifting many of its lockdown measures, over 200 cities in China now require its citizens to download software that tracks citizens’ movements. Specifically, in order to freely move throughout different Chinese regions, a citizen must download either the WeChat or Alipay App which contains this software. After downloading this, the citizen is required to answer a list of personal information questions, including: name, Chinese ID number, phone number, residential address, their place of work, their travel history, and their purpose for being in the region. Next, the citizen is required to answer a list of health questions, ranging from “Do you have any symptoms? to “Have you been in contact with someone with COVID-19?” Based on the answers to these questions, each citizen is administered a different colored scanning code – either green, yellow, or red. Those who receive a green code can move around the city freely. However, those that receive a yellow code must self-quarantine for seven days, and those with a red code must self-quarantine for 14-days.

Although these cities have not technically made it a requirement for its citizens to download this software, they have implicitly done so since citizens may not travel throughout the city without a colored code. Specifically, a citizen is required to scan into every public place they enter. The government argues this is necessary to track the travel history of someone who becomes infected with COVID-19 and track who the infected person has been in contact with.

On the outside, this appears to be a creative way to track and maintain the spread of COVID-19. However, this tracking technology concerns many human rights activists. For starters, there is no end-date for the use of this technology. Many believe the Chinese government will continue to use the “health-scare” justification to track its citizens far after this global pandemic is over. Second, there has not been much transparency from the Chinese government as to how it reaches its decision in the color code it provides to each individual. Due to this, many believe that China will use this color-coded system to silence the government’s dissenters by giving them red codes and forcing them into isolation. This is especially troublesome since this pandemic broke out amid the Hong Kong protests. As Sophie Richardson, the China Director at Human Rights Watch, stated, “This is viewed as scary stuff from a human rights perspective…It is yet another way to gather information about people to potentially use it against them in ways which there’s no legal basis.”

It will surely be interesting to see if these predictions by human rights activists come true.

For further information, please see:

CNN – China is Fighting the Coronavirus with a Digital QR Code. Here’s How it Works – 16 Apr. 2020

ABC News – China Rolls Out Software Surveillance for the COVID-19 Pandemic, Alarming Human Rights Advocates – 14 Apr. 2020

N.Y. Times – A Timeline of the Coronavirus Pandemic – 14 Apr. 2020

Business Insider – As China Lifts Its Coronavirus Lockdown, Authorities are Using a Color-Coded Health System to Dictate Where Citizens Can Go. Here’s How It Works. – 7 Apr. 2020