Court Determines Mexico Responsible for Failures in Investigation into Death of Human Rights Defender

By: Sallie Moppert

Journal of Global Rights and Organizations, Associate Articles Editor

SAN JOSE, Costa Rica — In a judgment handed down by the Inter-American Court of Human Rights, IACHR, Mexico was deemed to be internationally responsible for the failures of the investigation into the death of human rights activist Digna Ochoa y Plácido in October of 2001. The court determined that the “serious shortcomings” of the investigation into Ochoa’s death constituted a violation of the obligation to guarantee to the right of life for Ochoa in addition to a violation of the right to the truth on behalf of Ochoa’s family.

A woman leaves a tribute at a memorial set up for Digna Ochoa
after her assassination in 2001. Photo courtesy of Reforma.

Ochoa was a human rights lawyer and activist in Mexico. Prior to her death, she endured many threats and attacks against her in response to her human rights defense work. With the continued threats to her safety, Ochoa, with support and accompanied by the Center for Justice and International Law (CEJIL) and la Red de Organismos Civiles de Derechos Humanos, came before the IACHR in 1999 to obtain preventative measures and later provisional measures to combat the continued threats and attacks. The protective measures were granted and in place for two years before IACHR terminated the provisional measures in 2001. Ochoa was assassinated two months after the protective measures were lifted.

The IACHR ruled that the investigation into Ochoa’s death was biased and corrupted from its inception. Although her body was found to have multiple gunshot wounds, Mexican officials determined that Ochoa’s death was a suicide, so the investigation was halted and the case deemed to be closed. In addition, the IACHR found that there was little equal protection under the law for Ochoa and females in general, as gender stereotypes were relied upon and intimate and personal aspects of Ochoa’s life were used against her to question her credibility. “[A]s a result of the deficient investigation and the discourse of state agents aimed at insulting her public image, the defender’s right to honor and dignity was also prejudiced,” the court found. The court also found that Mexican officials had failures in its handling of the crime scene, its documentation and the forensic autopsy, along with not investigating the facts within a reasonable time frame.

Along with its judgment, the IACHR ordered Mexico to take several measures of reparation, with the main order being to continue the necessary investigations to determine the circumstances surrounding Ochoa’s death. Other reparations included: making a public act of acknowledgment of international responsibility, creating an award for the defense of human rights that is to be named after Ochoa, and creating and then implementing a specific and specialized protocol for the investigation into attacks of human rights activists at a federal level, among others.

For further information, please see:

Center for Justice and International Law – Cejil 30 Years: Digna Ochoa

Inter-American Court of Human Rights – Judgment of the Inter-American Court in the Case of Digna Ochoa and relatives v. Mexico: The State is responsible for the serious failures in the investigation of the death of human rights defender Digna Ochoa – Jan. 19, 2022

Reforma – Llevan a Corte IDH caso de Digna Ochoa – Feb. 18, 2020

Kuwaiti’s Constitutional Court Overturns Anti-Transgender Law in a Historic Decision

By: Matthew Mayers

Journal of Global Rights and Organizations, Associate Articles Editor

KUWAIT— A judgment issued by Kuwaiti’s Constitutional Court on Wednesday February 16, 2022, held that Article 198 of the penal code was unconstitutional. The court reasoned that the law, which criminalized “imitation of the opposite sex”, lacked an objective analysis for identifying the offense. Accordingly, the law violated Article 30 of the Kuwaiti Constitution, which guarantees personal freedom.

Formerly imprisoned Kuwaiti transgender woman, Maha al-Mutairi. Photo courtesy of happymag.tv.

The enactment of Article 198 of the Criminal Code in December 10, 2007, criminalized LGTBQ identities and expression. The law provided that “any person committing an indecent act in a public place or imitating the appearance of a member of the opposite sex, shall be subject to imprisonment for a period not exceeding one year or a fine not exceeding one thousand dinars” (i.e., $3,500). Legal and human rights advocates have argued that the law was vague and arbitrarily enforced. Consequently, on December 29, 2021, the law was challenged in the Constitutional Court.

Since the law’s enactment, it has been used to perpetuate disproportionate arrests and abusive treatment by the Kuwaiti police against the transgender community. In 2012, Human Rights Watch issued a 63-page report documenting the significant discretion Kuwaiti police had over what constituted “imitating the opposite sex”. Transgender women were arrested regardless of if they were wearing gender affirming clothing and were arrested for having a “soft voice” or “smooth skin.” The report also detailed the harms (i.e., rape, sexual assault, and physical assault) that police inflicted among transgender women upon arrest.

The damaging effects of the law has sparked online movements advocating for the release of Kuwait’s LGBTQ persons. Maha al-Mutairi, for example was arrested under Article 198, was fined and sentenced to two years in prison. She used Snapchat, GoFundMe and petition platforms to raise awareness of the abuse she endured from Kuwaiti police officers during her 2019 detention. Her efforts promoted her release and dropped charges on appeal in 2021.

Kuwaiti’s Constitutional Court’s decision is considered a tremendous breakthrough by some. Human rights advocate, Tareq Alkhudari, suggested that since 2020, Kuwait is facing a significant LGBTQ movement with people changing their attitudes and becoming more educated about LGBTQ rights. Lynn Maalouf, Deputy Director of Amnesty International’s Middle East and North Africa Division, however, says that the rights of LGBTQ persons in Kuwait require additional protections. Maalouf says that Kuwait must repeal Article 198, prohibit enforcement of the law, drop all charges and convictions of persons unjustly arrested from the law, and investigate the allegations of police misconduct pursuant to the law.

For further information please see:

Amnesty International – Kuwait: Overturning law that criminalized ‘imitation of the opposite sex’ a breakthrough for transgender rights – 16 Feb. 2022

Human Rights Watch – Kuwait: End Police Abuses Against Transgender Women – 15 Jan. 2012

Reuters – Kuwait court overturns law criminalising imitation of opposite sex – 16 Feb. 2022

The New York Times – Kuwait Overturns Law Used to Prosecute Transgender People – 16 Feb. 2022

 

Ashurst Russia Sanctions Tracker

Ashurst LLP, an international law firm, has been keeping an updated tracker of the sanctions being placed on Russia in response to the Russian invasion of Ukraine. The tracker keeps record of the sanctions being placed by the United Kingdom, the European Union, Japan, and Australia. The tracker can be accessed here.

France Violated Rights of French Children Detained in Syrian Detention Camps by Failing to Repatriate Them, UN Committee Finds

By: Holly Popple

Journal of Global Rights and Organizations, Senior Associate Editor

GENEVA, Switzerland — France violated French children’s rights by failing to repatriate them from Syrian detention camps in which they were detained for years in dangerous conditions, according to new findings issued by the UN Child Rights Committee.

Detainees at a detention camp in northern Syria in 2019. Photo courtesy of The New York Times.

The Child Rights Committee, which monitors States parties’ adherence to the Convention on the Rights of the Child, issued its findings after considering three separate cases filed by a group of French nationals whose relatives were currently detained in Rawj, Ayn Isa, and Hawl camps in northeastern Syria, which is under the control of Kurdish forces.

The three cases involved 49 children who were detained in these camps due to their parent’s alleged ties with Da’esh, an ISIL terrorist group. Of those 49 children for whom the cases were brought, 38 remain detained in these camps without a timeline for release. Most of these children are under twelve and many are as young as five years old.

In these findings, the Committee condemned France’s failure to repatriate these children based on the lack of due consideration given to the best interests of the child victims when reviewing requests for repatriation, in part due to the inhumane and life-threatening conditions endured by detainees. Committee member Ann Skelton commented on the state of the camps, saying, “The children are living in inhuman sanitary conditions, lacking basic necessities including water, food and healthcare, and facing an imminent risk of death.” She recounted the fact that since 2021, 62 children have reportedly died in the camps and called on France to take immediate action to protect the children. This immediate action refers to repatriation when viable but includes additional measures in the meantime meant to mitigate the health and safety risks of detainees while they still reside in Syria.

Health concerns from unsanitary conditions are far from the only issue that implicates human rights violations occurring in these camps. Children are deprived of their right to education, liberty, security, life, and freedom from violence. Physical violence, psychological trauma, harassment, violent extremism, and trafficking are rampant in these camps and pose a daily threat to those who live there.

Many countries have been hesitant to repatriate these children due to both legal and practical concerns, citing national security concerns and logistical difficulty in ascertaining the identity and nationality of the children as top reasons for the failure of repatriation of the children thus far. However, the interests in protecting these children from the harm they endure from continuing to be detained in these camps cannot be justified by the fact of their parent’s alleged ties to ISIL. France and other countries that have the power to repatriate these children must take action to prevent more human rights violations and return them to their country of origin.

For further information, please see:

HIR – French Children in Syria: The Repatriation Question – 13 May 2021

OHCHR – Convention on the Rights of the Child – 2 Sept. 1990

OHCHR – France Violated Rights of French Children Detained in Syria by Failing to Repatriate Them, UN Committee Finds – 24 Feb. 2022

OHCHR – The World Must Bring Children Home from Syrian Detention Camps – 22 Sept. 2021

OSJI – European States’ Obligations to Repatriate the Children Detained in Camps in Northeast Syria – Jul. 2021

UN News – France Violated Rights of French Children Detained in Syrian Camps – 24 Feb. 2022