CCJ Ruling on Validity of Same-Sex Rape

By: Megan Gamache

Journal of Global Rights and Organizations, Associate Articles Editor

BRIDGETOWN, Barbados – The Caribbean Court of Justice (CCJ) ruled that men can be liable for raping other men. In its February 2022 decision, the Court reversed lower courts’ decisions that Barbados’ Sexual Offenses Act (Act) definition of rape did not apply to sexual intercourse between men.

The Caribbean Court of Justice. Photo Courtesy of Breaking Belize News

The respondent, Alleyne, was charged in Barbados on rape counts by the Commissioner of Police. The CCJ found that the Act now extends to same-sex intercourse. The Act was originally written in 1992 and amended in 2014 to include more general and gender-neutral language. One of the pertinent changes is that Act does away with the terms “man” and “woman” in defining rape in favor of the terms “any person” and “another person.” The CCJ found that these new terms can be used to refer to same-sex sexual offenses.

The sole dissent argued that common law held that only a man could commit rape and only against a woman, and if Parliament wanted to change this common law understanding it must do so explicitly. However, the majority disagreed, and found that Parliament’s embracing of gender-neutral language, Barbados’ commitment to gender equality before the law, and Barbados’ constitutional rights against discrimination all led to a broader definition of rape.

The CCJ acknowledges that buggery, anal sex, is still technically illegal in Barbados. However, the Court declined to broach the legality of buggery with the facts of this case since Alleyne was charged only with rape and not buggery.

The Inter-American Commission on Human Rights agrees that this is the right decision and a step forward for all victims of rape, including LGBTQ+ people. But this is not the end. The continued legality of buggery, and similar statutes that criminalize consensual same-sex relations, make the legal system discriminatory and unsafe for LGBTQ+ people.

 

For further information, please see:

Breaking Belize News – Caribbean Court of Justice Rules that men can be charged for rape of other men – 2 Feb. 2022

Caribbean Court of Justice Appellate Division – Commissioner of Police v. Stephen Alleyne – 1 Feb. 2022

Organization of American States – IACHR takes note of the decision of the Caribbean Court of Justice concerning rape – 23 Feb. 2022

Citizenship Not Promised: Denial of Citizenship in South America’s Most Welcoming Country

By: Alessa Rodriguez

Impunity Watch News Staff Writer

ARGENTINA – The country with the quickest naturalization process, with only 2 major requirements: being over the age of 18 and residency in Argentina for 2 years, is not as simple as it sounds.

Spanish and Argentinian passports. Photo courtesy of Geraldine Mercado on Pinterest.

Raghda Habbal, a Spanish citizen, moved with her daughters to Argentina in 1991 where she then remarried and had a son, applying for her citizenship in 1992. She did not meet the two years requirement by 3 months, supplementing it with a provision where she acquired property. It was determined that Habbal did not live in the domicile she claimed she did. The judge denied granting Habbal citizenship. Director of Population and Migration declared Habbal’s filings null and void, her presence in Argentina illegal, and ordered her expulsion back to Spain. The expulsion would include her three children, as they were only residents of Argentina.

A federal judge canceled her citizenship application because they believed fraud was involved. Cancelation is allowed if they can prove that the person obtaining citizenship did not meet the conditions. Habbal appealed multiple times, however, a Federal Court of Appeals denyed the appeal as they did not consider it a federal case. She would continue to travel into and out of Argentina from 1994-1996 where Argentina recognized her as a Syrian, Spanish, and Argentine citizen. ˙

The Inter-American Court of Human Rights (IACHR) reviewed the case and determined that administrative sanctions should only be exercised to the extent strictly necessary to protect fundamental rights from what may harm and endanger them. However, since Argentina revoked the Resolution in 2020 against Habbal, it is not up to the IACHR to decide. When a state ceases human rights violations and repairs the victims, the court cannot declare international responsibility regarding the violations. As Habbal could not allege a specific violation of rights, the court considers revocation of the Resolution an adequate reparation and thus Argentina isn’t internationally responsible.

According to the IACHR, the Argentinian courts were within their right to deny Habbal’s citizenship due to the issue of validity of the property she claimed. Therefore, Argentina has not violated the right to judicial protection.  

 

For further information, please see:

IACHR – Cases at the Merits Stage – Judgements – Habbal et al. v. Argentina – 31 Aug. 2022.

Lawyers Argentina – Immigrate to Argentina – 3 Sept. 2022

Where Can I Live – How to Get Argentina Citizenship – 10 Nov. 2020

Court Investigates Ecuadorian State’s Responsibility in Massacres of Uncontacted Indigenous Peoples

By: Alexa Connaughton

Impunity Watch News Staff Writer

SAN JOSE, Costa Rica – Before the Inter American Court of Human Rights is Tagaeri & Taromenane Indigenous People v. the Ecuadorian State, a case on the responsibility of the Ecuadorian state in three massacres, 2003, 2006, and 2013 of uncontacted indigenous peoples. This case is the first time the Court has tried a case involving uncontacted indigenous peoples.

Alicia Cahuiya, a coordinator on women and families at the National Indigenous Confederation, watches the trial from the audience. Photo Courtesy of Mongabay News.

Uncontacted indigenous peoples live in voluntary isolation, without contact with most of the population. The plaintiffs allege the state failed to protect the uncontacted indigenous peoples and encouraged industry in their allotted land. They argue that these actions put pressure on the rainforest and increased conflict between the local communities leading to these three massacres.

The Tagaeri and Taromenane people live in the northern Amazon of Ecuador. This area is rich in oil and as a result has attracted illegal logging and mining for many years. As companies began to move in, it restricted the indigenous peoples’ ability to move freely. In 1999, the government sectioned off territory for these people, about 3,149 square miles, called the “intangible zone”. Since then, some oil blocks surrounding the zone have begun to encroach, with three posing an immediate risk. The existence of these oil blocks causes strain on the local communities and has been a cause in the three attacks. These indigenous people have a strict dependence on their ecological environment and follow a pattern of seasonal mobility. Thus, any change to their natural habitat poses a great harm to their survival.

In the 2003 attack the Waorani, a neighboring group, entered the intangible zone and attacked the Tagaeri and Taromenane. This attack is alleged to be revenge for a previous attack; however, it was not investigated because the victims did not have national identity cards. Even less is known about the 2006 attack due to the same lack of investigation. After the 2006 attack the regional commission requested Ecuador take precautionary measures to protect the Tagaeri and Taromenane people, but they failed to do so, resulting in the 2013 attack. In this attack another group of Waorani entered the Tagaeri and Taromenane area, killing 25 people and kidnapping two girls who have been living with their captors ever since.

In the present case, the plaintiffs say Ecuador has maintained the disastrous policy of putting oil interests ahead of the rights of local communities and has refused to see the connections and properly investigate the massacres. In bringing this case plaintiffs demand, recognition of the failure of the Ecuadorian state to protect the Tagaeri and Taromenane people and demand the rights of these communities be protected going forward.

In a press release, the Inter-American Commission on Human Rights determined that the Ecuadorian state failed to protect and uphold the rights of uncontacted indigenous peoples. However, a decision by the court on this case likely won’t be reached for a few more months but it is important to note that the court’s decision in this case will become jurisprudence for other cases in the future.

 

For further information, please see:

IACHR – Resolución de La Corte – Caso Pueblos Indígenas Tagaeri y Taromenane vs. Ecuador – 18 Aug. 2022

IACHR – Resolución del Presidente – Caso Pueblos Indígenas Tagaeri y Taromenane vs. Ecuador – 19 July 2022

Inter-American Commission on Human Rights, OAS – IACHR refers case on Ecuador to the Inter-American Court – 5 Oct. 2020

Mongabay News – First-ever regional court case involving rights of uncontacted peoples awaits verdict – 13 Oct. 2022

 

LGBTQ Student Group Granted Official Recognition at Jewish University Through Court Order

By: Wendy Neeley

Impunity Watch News Staff Writer

NEW YORK, United States – On September 14, 2022, the Supreme Court of the United States in a 5-4 decision denied the stay of a permanent injunction on behalf of Yeshiva University. This decision came just five days after Justice Sotomayor granted an order that the injunction be stayed. Justice Sotomayor was one of the justices in the majority that reversed the decision without prejudice.

Students attend a 2022 orientation at Yeshiva University. Photo Courtesy of https://blogs.yu.edu/news/.          

Yeshiva University filed an emergency application to the Court to seek relief from the injunction from the New York trial court. The injunction is “requiring the University to treat an LGBTQ student group similarly to other student groups in its student club recognition process.” Yeshiva, in its emergency application to the supreme court, contended that complying with the order “would violate its sincere religious beliefs about how to form its undergraduate students in Torah values.” The University is arguing that the injunction is a violation of its First Amendment and Free exercise rights. The YU Pride Alliance first brought a claim of “sexual orientation and gender discrimination” to the New York trial court in April 2022. In the reply to the emergency application, YU Pride claimed that the University has, over the course of years, “refused to allow the Pride Alliance (and its predecessors) to operate as an official club solely because of the sexual orientation of the club’s members and its LGBTQ inclusive mission.”

The trial court relied on New York City Human Rights Law to decide on the injunction and found that “Yeshiva is not a religious entity and has no right to control how its religious beliefs and values are applied on its campuses.” Due to the denied emergency stay the University is required to comply with the injunction although they have other legal avenues available to them to have the decision reversed. For now, according to the Yeshiva University news website,
Yeshiva University and the YU Pride Alliance “have independently agreed that a stay should be entered to allow Yeshiva University to appeal a ruling against it without the threat of sanctions.”

 

For further information, please see:

Supreme Court of the United States – Yeshiva v. YU Pride, No. 22A184 (2022)

Supreme Court of the United States – Emergency Application for Stay – Yeshiva v. YU Pride, No. 22A_ (2022)

Supreme Court of the United States – Response to Application – Yeshiva v. YU Pride, No. 22A184 (2022)

Supreme Court of the United States – Order of Temporary Stay – Yeshiva v. YU Pride, No. 22A184 (2022)

YUNews – Both Sides in Yeshiva University Lawsuit Agree to a Stay – 22 Sept. 2022

NBCNEWS – Supreme Court rejects Orthodox Jewish university’s emergency request to deny official recognition to LGBTQ student group – 14 Sept. 2022

Armenia Knowingly Conscripts Sick Man Leading to His Death

By: Rachel H Sanders

Journal of Global Rights and Organizations, Senior Articles Editor

STRASBOURG, France – Armenia was found guilty of right-to-life violations under Article 2 of the European Convention on Human Rights for the 2009 death of an Armenian national conscript. This decision was the result of a protracted legal fight after the complainant brought a case for his son, 22-year-old Ashot Malkhasyan who was found to have been put unjustifiably in danger through compulsory military service leading to his death.

European Court of Human Rights building in Strasbourg, France. Photo Courtesy of Aravot

The unjustifiable danger was predicated by Malkhasyan’s diagnoses of: (i) cardial incompetence; (ii) reflux oesophagitis; (iii) laceration of the mucous membrane of the cardia; (iv) Mallory-Weiss syndrome; (v) superficial gastritis and established bleeding; (vi) hiatal hernia; and (vii) Gilbert’s syndrome. Despite numerous submissions of Malkhasyan’s medical records, each highlighting the severity of these diseases, the Arabkir military commissar, A.U., initially refused to allow Malkhasyan a thorough medical examination.  In fact, the A.U. stated that Malkhasyan would be found fit for conscription even with an exam.

This A.U.’s assertion was proven true when the Erebuni Medical Centre delivered its final diagnosis of gastrointestinal motility disorders induced by psychological stress; a diagnosis which did not acknowledge any of the previous diagnoses nor the results of medical tests carried out that week by the center. Additionally, the A.U. ordered the removal of several documents from Malkhasyan’s medical records. The day after this diagnosis, Malkhasyan was sent to military service with no recourse. As a result, after approximately ten days, on July 5th, 2009, Malkhasyan died from his diseases which were later reconfirmed at autopsy.

Malkhasyan’s father brought a claim post-mortem to the European Court of Human Rights (hereafter “the Court”) after the charges he had filed against the Head of the Conscript Assembly Point Medical Commission and two members of the Central Medical Commission were dismissed as being time-barred effectively ending all criminal proceedings into the matter. An initial investigation ordered by the Minister of Defense found that, had the A.U.  and the Central Medical Commission properly examined Malkhasyan’s medical records, he would not have been found fit for conscription. Despite this, as of July 2014, the investigator had discontinued all proceedings forcing the applicant to submit multiple complaints as well as appeals to the Armenian courts. It took until June 2015 for the Court of Cassation to issue an order quashing the decision to terminate the case, which resumed in in November 2015.  However, by July 2017, the investigator fully ended all proceedings without indictments despite finding that the A.U. had overstepped his public authority.

The complainant submitted the case to the Court claiming violations of Articles 2 (right to life) and 13 (right to an effective remedy). The Court held that military authorities and medical professionals involved in Malkhasyan’s conscription disregarded his medical history which led to the decision that he was fit for military service.  Additionally, the Court found that the lengthy and ineffective eight-year investigation did not satisfy the procedural obligation imposed by Article 2. The Court concluded that Armenia violated both the substantive and procedural limbs of Article 2 of the Convention and required the country to pay the applicant 35,000 euros (EUR) in non-pecuniary damages and EUR 2,500 in costs and expenses.

 

For further information, please see:

Aravot – European Court’s judgement on the death of a conscript in Armenian army: military authorities put his life in danger – 11 Oct. 2022

ECHR – Military authorities put conscript’s life in danger by finding him fit to perform military service despite serious health issues – 11 Nov. 2022