THE HAUGE, the NETHERLANDS– Ali Muhammad Ali Abd-Al-Rahman was transferred to the International Criminal Court’s custody on June 9th, 2020, after voluntarily surrendering himself in the Central African Republic. Ali Muhammad is the alleged leader of the Janjaweed, a militia civilian group in Africa.
The first arrest warrant against him lists fifty criminal counts of alleged attacks against civilians in the towns of Kodoom, Bindisi, Mukjar and Arawala between August 2003 and March 2004. The alleged crimes include twenty-two counts of crimes against humanity, murder, forcible transfer of population, imprisonment, rape, torture, persecution and inhumane acts of inflicting serious bodily injury. The list continues with a total of fifty-three counts for his individual criminal responsibility for crimes against humanity allegedly committed in Sudan.
The ICC will not hear a case without the accused individual in custody and present at the hearings. At the time of arrest, there were 27 international warrants for Ali Muhammad that spanned from April 2007 to June 2020. After Ali Muhammad was placed in custody, the initial hearing was scheduled to take place on December 7th, 2020. However, the confirmation of charges has been delayed until February 22nd, 2021. The court reviewed each party’s stance, taking into account the fairness and efficiency of the court’s proceedings, the rights of the suspects and victims, and the overall safety and security of the proceedings moving forward. The prosecutor requested an extended timeline to collect more evidence against Ali Muhammad. After much consideration, the court determined that there should be a later date for the confirmation of charges and later deadlines for the disclosure of evidence by the prosecutor.
The purpose of the confirmation of charges hearing is for the court to evaluate the evidence of the crimes to establish if there are substantial grounds to believe that the accused individual committed the alleged crimes. If the court believes that the evidence is sufficient, the case will then be transferred to the Trial Chamber, where the proceedings will move to the trial phase. Due to COVID-19, the ICC is using a web streaming service to broadcast all hearings with a thirty-minute delay for any private information that may need to be redacted.
Journal of Global Rights and Organizations, Lead News Editors
ARUSHA, Tanzania – Amnesty International released a report in October 2020 called: The State of African Regional Human Rights Bodies and Mechanisms 2019-2020 (Report), regarding African Human Rights entities. The Report contains troubling information about the declining effectiveness of human rights organizations in Africa.
The African Court on Human and Peoples’ Rights (AfCHPR) was one of the organizations specifically written about by Amnesty International. This is the second year that Amnesty International has written the report, and the concern for the AfCHPR has only continued to grow.
The main issue facing AfCHPR is that some African governments aren’t respecting it or it’s decisions. In fact, as a result of its decisions, four African countries have withdrawn a large part of the AfCHPR’s jurisdiction. Under Article 34(6) of the African Court Protocol, countries that have committed to the article are bound by the AfCHPR agreed to allow individuals and non-governmental organizations (NGOs) to file cases in the AfCHPR after they have exhausted all possible legal means within their country. Article 34(6) essentially allows parties that are not African governments to file their cases in the AfCHPR if they cannot get adequate assistance through their own country’s legal process.
Rwanda became the first country to withdraw its commitment to Article 34(6) back in 2016. The AfCHPR was set to hear a claim by Victoire Ingabire, a Rwandan opposition politician who was imprisoned for genocide denial by the Rwandan government. The Rwandan government claimed their withdrawal was to “prevent exploitation of the individual complaint procedure by criminals, particularly individuals who took part in the 1994 genocide and have subsequently fled the country.”
In the last two years, three other countries have followed suit and withdrawn their commitment to Article 34(6) of the African Court Protocol. The AfCHPR home country of Tanzania announced its intention to withdraw its commitment to Article 34(6) back in November 2019. Most of the cases that the AfCHPR has decided have been against Tanzania and most of its pending cases are also against the home country. Tanzania claimed that its withdrawal was due to the AfCHPR accepting cases from claimants that haven’t exhausted their legal remedies, however, no particular case was pointed to and there seems to be no evidence of it.
In 2020, Benin and Côte d’Ivoire both announced their intentions to withdraw their commitments to Article 34(6). These announcements came after the AfCHPR had ordered that both states take measures to prevent “the exclusion of opposition candidates from upcoming elections, although Benin authorities indicated Benin had communicated its withdrawal on March 16, 2020.”
With those four countries backing away from the AfCHPR jurisdiction leaving only eleven African nations bound by Article 34(6), the Court seems to be losing effectiveness at an exponential rate. These issues along with reduced decisions and the impact of Covid-19 on its meeting time have led to a drop in importance for the AfCHPR. Governments are not respecting the Court’s decisions and the Court appears to be getting quieter.
Journal of Global Rights and Organizations, Notes and Comments Editor
On January 7, 2020, the UN Human Rights Committee took a step towards protecting future climate refugees in its ruling of Ioane Teitiota v. New Zealand.
Ioane Teitiota, a national of Kiribati, sought refugee status in New Zealand. Teitiota claimed refugee status based on the changes to Kiribati’s environment caused by sea-level rise associated with climate change. A refugee and protection officer declined to grant Teitiota refugee status. Teitiota appealed, but the Immigration and Protection Tribunal (IPT) dismissed Teitiota’s case in June 2013. Over the next two years, Teitiota applied to the High Court, Court of Appeal, and Supreme Court for leave to appeal the IPT’s decision. However, all three refused to grant leave to appeal. In September 2015, Teitiota and his family were deported from New Zealand to Kiribati.
In February 2016, Teitiota brought a case against the New Zealand government at the UN Human Rights Committee (HRC). Teitiota claimed that by forcibly returning him to Kiribati, New Zealand violated his right to life under Article 6 of the International Covenant on Civil and Political Rights. Specifically, Teitiota argued that the rise in sea level and other climate change effects had caused Kiribati to be uninhabitable. Further, Teitiota claimed that there were violent land disputes caused by the increasingly scarce habitable land. Finally, Teititiota argued that environmental degradation made subsistence farming difficult, and saltwater contaminated Kiribati’s freshwater supply.
The HRC noted that while the right to life under Article 6 of the Covenant must be interpreted broadly, there is a high threshold for proving a real risk of a violation exists. With the high threshold in mind, the HCR ultimately rejected Teitiota’s claim.
Notably, the HRC expressly recognized the sudden-onset and slow-onset events caused by climate change that created a real risk that Kiribati may become submerged. However, the HRC found that this risk was not imminent as required for a violation under Article 6. Further, the HRC highlighted the Kiribati Government’s current efforts to curb climate change and noted that there was still time for intervening acts by the international community to combat climate change.
Additionally, the HRC rejected Teitiota’s claim regarding violent land disputes caused by increasing unhabitable land. The HRC stated that Article 6’s “risk to life” must be personal and that a situation of general violence was not enough. Since Teitiota was never personally threatened or involved in an instance of land violence, the land violence failed to be a violation under Article 6. Finally, the HRC determined that while farming and freshwater access became increasingly difficult, it was not impossible, and therefore, Teitioa’s deportation did not violate Article 6.
Although Teitiota’s claim was unsuccessful, many regard the HRC determination as ground-breaking. The ruling set forth new standards that could facilitate the success of future climate refugee claims. Namely, the standard that states must consider human rights violations caused by the climate crisis when considering asylum seekers’ deportation. With this landmark first step towards recognizing climate refugees and the number of climate-related refugees likely rising, it will be interesting to see how states handle these claims in the future.
Journal of Global Rights and Organizations, Associate Articles Editor
STRASBOURG, France – On November 11th, 2020, the European Court of Human Rights issued a non-final Chamber judgment in the case of Sabuncu and Others v. Turkey (application no. 23199/17). The case concerned ten Turkish nationals who were either journalists for the daily newspaper Cumhuriyet, or managers of the newspaper’s principal shareholder, the Cumhuriyet Foundation.
Following Turkey’s attempted coup d’état on July 15th, 2016, the individuals had been detained in November 2016 by a magistrate judge who alleged there was strong suspicion that they had been involved in dissemination of propaganda on behalf of terrorist organizations. The detainees were indicted in April 2017 and each applied to the Turkish Constitutional Court in December 2016 and to the European Court of Human Rights on March 12th, 2017, alleging in both complaints, violations of their right to liberty and security of person, freedom of expression, and freedom of the press. They had been sentenced to lengthy prison terms by the Turkish Court.
The Court released the following holdings regarding the European Convention on Human Rights:
First, via unanimous decision, there were violations of Article 5 § 1, the right to liberty and security, and of Article 10, freedom of expression. The Court found that the applicants’ detention was arbitrary and based upon ‘mere suspicion,’ lacking enough evidence to rise to the required level of ‘reasonable suspicion.’ In fact, the detention was in violation of evidentiary requirements of the Turkish Code of Criminal Procedure, which required a showing of ‘strong suspicion.’ Further, the published articles and editorials did not incite violence nor show support of or contribution to terrorist organizations; they represented public debate of already known facts and fell within the exercise of freedoms outlined by the Convention.
Also unanimously, there was no violation of Article 5 § 4, the right to speedy review of the lawfulness of detention. Despite the fact that applicants faced continued rejection of their applications to the Turkish Court, and that the indictment and sentencing process took many months, the Court did not find the time unreasonable in light of the circumstances.
By majority decision, there was no violation of Article 18, limitation on use of restrictions on rights. The Court did not find any indication that Turkish authorities had pursued any ulterior purpose in the pre-trial detention of the ten individuals. However, the applicants contend that their detention was targeted retaliation and punishment for their unfavorable reporting of government actions. Judge Kuris dissented to this holding, stating that Turkey’s pre-trial detention of the journalists amounted to “political persecution of the media” and revealed a pattern of behavior that demonstrated a clear intent to silence the media in the wake of the attempted coup.
Following the coup of 2016, the Turkish government, led by President Recep Tayyip Erdogan, began to target and arrest service personnel, judges, school teachers, university leaders, and journalists. The government declared a state of emergency, which allowed the president to promulgate new laws without the consent of parliament and to curb personal rights and freedoms with lawful justification. Journalists found themselves sentenced to lengthy prison terms and Amnesty International received credible reports of beatings, torture, and rape of government detainees. Some journalists applied to the European Court of Human Rights for relief, and several third-party free expression organizations intervened and submitted briefs on their behalf, urging the Court to take a strong stance against the unlawful detention of journalists.
In the aftermath of the 2016 coup, the Committee to Protect Journalists estimated that as many as 140 journalists were imprisoned in Turkey; other reports estimate that number to be 150. The Court’s decision in Sabuncu is promising for detained journalists. However, some support organizations, such as Media Defence, wonder whether the Court will be willing to engage beyond the instant case and act in the face of the larger crisis in Turkey. Clearly, the Court believes that without the necessary evidence, detention of journalists is unlawful and in violation of their rights to liberty and freedom of expression. Further decisions may illuminate the Court’s willingness to play an active role in the protection of journalists in Turkey.
STRASBOURG, FRANCE – On October 20, 2020, the European Court of Human Rights (ECHR) unanimously held in B. v. Switzerland that a federal provision from Switzerland violated Article 14 (prohibition of discrimination) and Article 8 (right to respect for privacy and family life) when the Swiss Governmental provision allocated pensions differently to widows and widowers.
The applicant, B., is a Swiss national who is the father of two children. The applicant lost his wife in an accident when the children were two and four years old. The Swiss Federal Law on Old-Age and Survivors’ Insurance allowed widows and widowers to collect a pension if they were unable to work while caring for their children. However, the federal statute stated that widowers should be able to return to work when their children reached majority age and no longer needed assistance. In 2010, after the applicant’s youngest daughter turned the age of majority, the Compensation Office notified him that his pension was terminated. He lodged an appeal, which stated that the federal law violated gender equality as protected in the Swiss Constitution. The Cantonal Court dismissed his appeal and acknowledged that the federal statute purposely treated men and women differently when allocating monetary resources for the death of a spouse.
In November of 2012, the applicant filed suit with the ECHR. The suit alleged that the Swiss provision violated Articles 14 and 8, as the statute discriminated against widowed fathers, as compared to widowed mothers, with the sole responsibility of raising their children.
The Court found that the applicant’s complaint fell within the scope of protection for Articles 14 and 8. The purpose of Article 8 is to protect the privacy of matters within families. According to the Court, the applicant’s pension was to enable the surviving parent to control family matters as they pleased. Moreover, the applicant lost his pension at the age of 57 and it would be difficult to envision an older man being forced to rejoin the workforce so many years later. Correspondingly, the Court also affirmed the alleged gender discrimination because the applicant did experience unequal treatment in that his payments were terminated, whereas a widow would not have lost her pension. The Court rejected the Swiss Government’s justification for the difference in treatment on grounds of sex, as the Government argued that there were different roles and statuses between men and women when the legislation was enacted in 1948. In response, the Court reiterated that the Charter is a “living instrument,” which should be interpreted in light of present-day conditions and progressive changes in society.
The Court ordered that the Swiss Government pay the applicant 5,000 euros in respect for non-pecuniary damage and 6,380 euros in respect of costs and damages.