Senior Associate Member, Journal of Global Rights and Organizations
STRASBOURG, France – The European Court of Human Rights issued a release on September 12, 2023, announcing its Chamber judgement in the case of Romanov and Others v. Russia (application no. 58358/14). The case concerns Russia’s failure to protect the case applicants (complainants), all members of the LGBTQ+ community from homophobic attacks at a public demonstration. In addition, the case evaluated Russia’s failure to conduct an appropriate investigation into the incidents.
The European Court of Human Rights hears cases of alleged violations of civil and political rights | Photo Courtesy of ECHR
The Court held that Russian authorities failed to take effective measures to prevent and respond to the hate-motivated attacks, which caused physical injury to the complainants. Also, the Court held that Russian authorities failed to take the proper course of action to address the applicants’ complaints in Russian courts and to Russian authorities. Importantly, the Court noted that this appeared to be common, albeit unfortunate, practice for addressing hate crimes against members of the LGBTQ+ community in Russia.
The applicants were a group of eleven Russian nationals, all members of the LGBTQ+ community. Between May 2012 and June 2013, seven of the applicants were attacked by counterdemonstrators while taking part in a specifically authorized LGBTQ+ demonstration in St. Petersburg. The police did not intervene. As a result, many of the applicants suffered serious injuries, including chemical burns, damage to their eyes, and physical assaults with weapons, as well as harassment and verbal abuse. Russian authorities largely dismissed complaints about the incidents without the attackers being identified. Further, Russian authorities, without conducting a determinative investigation, denied that homophobia motivated the violence.
Ultimately, the Court determined unanimously that Russian authorities violated the European Convention on Human Rights on numerous different accounts. Such violations include: a violation of Article 3 (prohibition of inhuman or degrading treatment, read in the light of Article 14 (prohibition of discrimination); a violation of Article 3 (effective investigation) read in the light of Article 14; a violation of Article 11 (freedom of assembly and association) taken alone and read in the light of Article 14; a violation of Article 5 §1 (right to liberty and security); and a violation of Article 11.
Journal of Global Rights and Organizations Associate Articles Editor
THE HAGUE, Netherlands – On September 18, 2023, the International Court of Justice (ICJ) began hearing oral arguments for Ukraine v. Russian Federation. Ukraine brought this case against the Russian Federation in February 2022 to establish two provision measures: (1) not to be subject to false claims of genocide by Russia, and (2) not to be subjected to other state’s military operations on its territory. In presenting its claim, Ukraine relied on the Genocide Convention (the Convention) to argue that Russia has been relying on false claims of genocide by the Ukrainian government as a way to legitimize its invasion. Russia responded by arguing that the court lacks subject-matter jurisdiction over this claim because the ICJ may only hear claims of genocide. Claims that genocide is not happening is outside the scope of the court’s jurisdiction.
The International Court of Justice is in the process of hearing oral arguments for Ukraine v. Russian Federation, where 32 states have intervened on behalf of Ukraine | Photo Courtesy of Reuters.
The oral arguments began last week with Russia. In arguing that the ICJ lacks subject-matter jurisdiction for this claim, Russia asserted that because Ukraine insists that no genocide has occurred, and because Russia claims to have never accused Ukraine of these acts, the case should be rejected. Further, Russia argued that by bringing this claim under the Convention, Ukraine is attempting to expand the Convention to cover the legality of military operations between two states.
In its argument, Russia also stated that it invaded Ukraine in 2022 because had a right to self-defense after conflict escalated in the Donbass region of Ukraine, where the ethnicity is mostly Russia. However, when giving reasons why conflict escalated in this region, Russia cited threats of genocide coming from the “anti-Russian, neo-Nazi Kiev Régime”.
Ukraine responded to Russia’s arguments on September 19, 2023. After stating that Russia has been falsely accusing Ukraine of genocide since 2014 to lay the groundwork for its 2022 invasion, Ukraine offered four reasons why the ICJ has jurisdiction over its claim. First, the Convention has broad jurisdiction, and includes disputes that relate to how countries fulfill their treaty obligations. Second, the court’s jurisdiction is extended to disputes that are related to the Convention. Ukraine explained that Russia’s allegations that Ukraine committed genocide in violation with the convention are obviously connected with the Convention. Third, jurisdiction is extended to “particular disputes relating to the responsibility of a State for genocide.” Here, particular disputes would include whether Ukraine is really responsible for genocide, or whether Russia is violating its duties by falsely alleging genocide as an excuse to invade Ukraine. Lastly, per the Convention, “any of the parties” to a dispute under the Convention may submit the dispute to the Court to be heard. Ukraine argued “if, as Russia acknowledges, a State that levels allegations of genocide against another can ask the Court to resolve that dispute, there is no reason why a State such as Ukraine – that disputes allegations of genocide against it and illegal actions based on pretextual allegations – cannot do the same”.
Over the past year and a half, thirty-two countries have intervened in this case on behalf of Ukraine. As Germany stated in its oral observation, this unprecedented intervention “shows that the parties to the Genocide Convention have a very strong interest in its proper interpretation in the case.” Many of these countries presented oral arguments last week, echoing Ukraine’s reasoning for why the ICJ has jurisdiction over this subject-matter.
The second round of oral arguments were on September 25, with Russian opening.
Journal of Global Rights and Organizations Senior Articles Editor & Veterans Legal Clinic Student Attorney
In 2022, there were 171,736 United States military service members permanently stationed overseas. While these service members are representing the U.S. across the globe, they are making connections to people and places, that will last a lifetime. It is unsurprising then that most will travel abroad at some point after they finish their service, and some will make another country their temporary or permanent home. What many of the people serving our country do not know is that while they earn healthcare benefits through their service, once they are veterans should they experience a non-service related emergency while outside of the U.S., the U.S Department of Veterans Affairs (VA) will not cover the cost of their care.
VA denies basic healthcare and even emergency care to Veterans who travel or live abroad if their medical issue is deemed not service-connected | Photo Courtesy of Getty Images
Whether a veteran lives overseas or is just traveling outside of the US, the VA denies them reimbursement for emergency services determined not connected to their service. This includes veterans who are 100% disabled. Thus, veterans are not provided the emergency care to which they are entitled, and which would be completely covered by the VA if their medical emergency had occurred in the US. The reimbursement process causes Veterans to wait “long periods of time and endure great financial hardships” waiting to find out whether they will be reimbursed by the VA for the cost of their emergency care. Denial of reimbursement often forces veterans to choose between their physical health and their financial well-being.
American service members are sent all over the world as part of their service to our country. These overseas assignments are the catalyst for veterans who travel abroad and especially for those who become expatriates. There are many reasons veterans choose to live abroad. Most common is that many, such as Ken in Germany, meet their spouses while on assignment in another country. Ken and his wife raised their daughter in Germany where he worked 21 years for the Army and Air Force Exchange Service. Despite living in Germany, Ken remains a “strongly patriotic” American citizen. He is active in the local VFW and is the Commanding Officer of the 1982 American Legion. While he used to travel back to the U.S. often, traveling to access VA healthcare is not a viable option for him. Now widowed, Ken resides with his daughter and his grandchildren in Germany. Ken continues to help other veterans navigate the VA claims process, even while he struggles to get the VA services he needs.
Another reason veterans live outside the US is that they can live a better quality of life, funded by their VA retirement or disability payments, in countries where the cost of living is significantly less than it is in the U.S. Donny in the Dominican Republic, retired from the U.S. Air Force. Rather than seek work to supplement his military pension, he and his wife chose to move near her family in the Dominican Republic where the cost of living has allowed them to fully retire and have the “lifestyle they want right away”. Donny and his wife currently travel to the U.S. for their healthcare. Donny has not had an emergency in the Dominican Republic, but if he does, he plans to seek care at a private hospital, then undertake the long process of seeking reimbursement from the VA.
As you might imagine, given that they chose to serve in the US military, these veterans are staunchly patriotic. They remain US citizens, pay US taxes, vote in US elections, and stay abreast of issues affecting the US. As Ken, in Thailand says, “An American is an American, no matter in what country he/she resides”. Regardless of the reasons for deciding to live abroad, these veterans have earned their VA healthcare benefits, but are being denied them, simply because they do not live in the U.S.
Neither the Department of Defense nor the VA tracks the number or location of veterans who live abroad. Some estimate approximately 77,058 veterans live abroad. The estimate of disabled veterans living abroad is 28,000. These veterans are denied non-service related emergency and basic healthcare merely because they live abroad, leaving many feeling forgotten and abandoned by the very agencies that are tasked with honoring their service by providing the benefits they have earned. This was especially true during the Covid pandemic when the VA refused to provide vaccinations, tests, or care for Veterans who were not in the US. Jesse in Mexico, suffers from service-connected sleep apnea, but could not get a Covid vaccine. In his opinion, veterans living abroad were “completely left behind”. Despite begging the VA for help, Jesse and others like him were denied assistance. According to Jesse, it is because expatriate veterans “are obviously not very high on the secretary’s list of priorities.” It is hard to argue with his logic given that reimbursing veterans for the cost of emergency care is at the discretion of the VA secretary, but the VA still chooses to outright deny veterans coverage for non-military related emergency care outside the US.
Representative Dingell of Michigan declared, “no veteran should ever have to worry about whether they can afford costly medical expenses, especially when it comes to an emergency,” when, in 2021, legislation was passed requiring the VA to reimburse veterans for emergency health care claims. However, the VA has interpreted the legislation to exclude emergencies experience by veterans outside the U.S., despite the provision having no such limiting language. So, veterans traveling or living abroad are still being denied emergency services when their medical issue is deemed not service-related, requiring veterans to pay for these emergency services out of pocket. The government has been discussing the issue of healthcare benefits for veterans who travel or live abroad since at least 1962, but the problem persists.
Even though the well-being, and even the lives, of tens of thousands of veterans, are affected by the lack of basic healthcare and medical emergency coverage they have earned through their service the VA claims it cannot act, and neither Congress, nor the courts, seem willing to act on what they claim is a complicated issue. But veterans around the world do not see it that way. As Ken in Thailand says it is simply “shameful at best; cruel and deceitful at worst” that the VA makes a veteran’s location a condition of receiving healthcare benefits.
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.
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.
