ECHR Rules Spain Did Not Breach the Convention in Returning Migrants to Morocco

By: Nadia Abed

Journal of Global Rights and Organizations, Associate Articles Editor

STRASBOURG, France — On February 13, 2020, the European Court of Human Rights (“ECHR”) ruled that Spain did not breach the European Convention on Human Rights (“the Convention”) in returning migrants to Morocco for attempting to cross the fences onto European Union territory in the case of N.D. and N.T. v. Spain.

Police office scales fence climbed by migrants at Melilla border. Photo Courtesy of AFP.

On August 13, 2014, hundreds of migrants attempted to storm their way onto European Union territory by scaling fences to reach the city of Melilla, a Spanish enclave surrounded by Moroccan territory. Moroccan police were able to prevent about 500 migrants from scaling the outer fence, but around a hundred migrants succeeded, with 75 migrants reaching the top of the fence and a few landing on the other side on Spanish soil. Those who reached the soil were met by members of the Guardia Civil, the Spanish law enforcement, while others remained at the top of the fence.

Two individuals, N.D., a national of Mali, and N.T., a national of Côte d’Ivoire (“the applicants”), were of the few that remained at the top of the fence. After a few hours, the two climbed down and were apprehended by the Guardia Civil who “reportedly handcuffed them, took them back to Morocco and handed them over to the Moroccan authorities.”

The applicants lodged applications with the ECHR on February 12, 2015 alleging that there had been a violation of Protocol No. 4 Article 4 which prohibits collective expulsion of aliens and Article 13 which secures the right to an effective remedy. Through both Articles, the applicants claim that they were forced back to Morocco with “no chance to explain their circumstances, no chance to request asylum, and no chance to appeal their expulsion.”

On October 2, 2017, in its Chamber judgment, the Court held that there was a violation of Article 4 of Protocol No. 4 and a violation of Article 13 in conjunction with Article 4 of Protocol No. 4. On December 14, 2017, the Spanish Government requested the case be referred to the Grand Chamber under Article 43 of the Convention. On January 29, 2018 the Grand Chamber accepted and a hearing was held on September 26, 2018.

The Court reasoned that the applicants had attempted to enter Spanish territory in an unauthorized manner by taking advantage of a large crowd. In accordance with the Convention, States are required to “make available genuine and effective access to means of legal entry [and] should allow all persons who faced persecution to submit an application for protection.” As a result of not using the proper channels, States can refuse entry to their territories to aliens and asylum-seekers who fail, without convincing reason, to follow such requirements.

Regarding the applicants Article 4 of Protocol No. 4 claim, the Court noted that Spanish law had several possible means available to those seeking admission to their territory, such as applications for visas or international protection, therefore the State had provided genuine and effective access to its territory. Applicants’ did not allege they tried to enter Spanish territory by any legal means. The court concluded that the applicants had “placed themselves in jeopardy by participating in the storming of the border fences [and their expulsion was a] consequence of their own conduct.”

Regarding the applicants’ Article 13 claim taken in conjunction with Article 4 of Protocol No. 4, the Court explains that “the lack of an [individualized] procedure for [the applicants’] procedure for their removal had been the consequence of the applicants’ own conduct in placing themselves in an unlawful situation by crossing the Melilla border protection structures… at an [unauthorized] location.” Further, the Court concluded that there had not been a violation of Article 4 of Protocol No. 4 or Article 13 in conjunction with Article 4 of Protocol No. 4.

European Court of Human Rights – Forthcoming Grand Chamber judgment in a case concerning the immediate return of two migrants who tried to enter Spain by climbing the fences of the Melilla enclave – 6 Feb. 2020

European Court of Human Rights – Spain did not breach the Convention in returning migrants to Morocco who had attempted to cross the fences of the Melilla enclave – 12 Feb. 2020

European Court of Human Rights – Case of N.D. and N.T. v. Spain – 12 Feb. 2020

The Local Spain – Spain cleared by European Court of Human Rights over Removal of migrants at border fence – 13 Feb. 2020

European Court of Human Rights Hears Syrian National’s Case for Family Reunification

By: Melissa Berouty

Journal of Global Rights and Organizations, Associate Articles Editor

STRASBOURG, France — On March 18, 2020, the Grand Chamber of the European Court of Human Rights (“ECHR”) will hear the case of M.A. v. Denmark, regarding the denial of family reunification. According to the Council of Europe Commissioner of Human Rights (“the Commissioner”), “[f]amily reunification procedures allow foreign nationals residing in Council of Europe member states to request permission to bring members of their family to join them, and to re-establish family life on the territory of their member state of residence.” The Commissioner has stated that family separation of individuals with international protection has been the root of “depression, anxiety, and feelings of guilt for leaving family members behind in dangerous situations.” These subsequent effects lead to difficulty in integration, including breaking through potential language barriers. Commonly, the integration process does not fully commence until the family reunification process is complete.

In January 2015, M.A., the applicant and a Syrian national, entered into Denmark seeking asylum. M.A. was granted temporary protection for a one-year period, under Section 7, subsection 3 of the Aliens Act, which offers protection for “individuals who face capital punishment, torture or inhumane or degrading treatment or punishment due to severe instability and indiscriminate violence against civilians in their home country.” Since then, M.A.’s residence permit has been extended in one-year increments.

In November 2015, M.A. requested to be reunited with his wife of twenty-five years, who was residing in Syria. Typically, under Danish law, an individual with temporary protection under section 7, subsection 3 of the Aliens Act must have a residence permit for more than three years for family reunification. Given this, in September 2016, M.A.’s request was denied by the Immigration Appeals Board, given the standard set by Danish law and a lack of “special reasons” to justify family reunification before the three-year threshold.

Following the denial of his application in early 2017, M.A. filed a complaint arguing that Denmark’s refusal of a family reunion was a direct violation of his rights under the European Convention on Human Rights (“the Convention”). M.A. argues that Danish law is discriminatory given that if he had been offered a “higher degree of protection,” he would be eligible for a family reunion within one year rather than three. In May 2017, the High Court of Eastern Denmark ruled against M.A.

On appeal, the Supreme Court upheld the High Court of Eastern Denmark’s decision. Here, the Supreme Court found no violation of the Convention stating, “the difference in treatment in the right to a family reunion had been justified by the fact that some groups of individuals had required greater protection.” On January 30, 2018, M.A.’s case was brought before the ECHR.

Here, M.A. again claims a violation of his rights under the Convention, specifically prohibition of discrimination under Article 14 in conjunction with the right to a family life under Article 8. On September 7, 2018, the Danish government was given notice, pursuant to Rule 54 of the local Court Rules, that “an application against the State is pending before the Court.” On November 19, 2019, jurisdiction was relinquished to the Grand Chamber of the ECHR.

According to the Commissioner, Denmark’s family reunification laws and policies have been in discussion for nearly fifteen years. In January 2016, the Commissioner’s predecessor contacted the Danish Minister expressing concerns over the waiting periods set forth in section 7, subsection 3 of the Aliens Act, particularly in its compatibility with Article 8 of the Convention. On January 31, 2019, the Commissioner expressed her recommendation to the Danish Government that “[w]aiting periods of over one year are inappropriate for refugees and for their family members.” Further, the Commissioner noted that Syrian individuals are being disproportionately affected, following the 1951 Refugee Convention. On March 18, 2020, the Grand Chamber hearing of M.A. v. Denmark will commence to decide on this issue.

For further information, please see:

ECHR – M.A. v. Denmark (relinquishment) – November 2019

ECHR – Relinquishment in favour of the Grand Chamber M.A. v. Denmark – 11 Nov. 2019

Council of Europe – Third party Intervention by the Council of Europe Commissioner of Human Rights – 31 Jan. 2019

ICC to Accept Amici Curiae for Jurisdictional Issue in Palestine

By: Andrew Kramer

Impunity Watch Staff Writer

Demonstrators outside the International Criminal Court in The Hague calling for the Court to prosecute the Israeli military. Photo Courtesy of the Guardian.

THE HAGUE, the Netherlands – On February 20, 2020, Pre-Trial Chamber I of the International Criminal Court (“ICC”) issued a decision granting the requests of 43 parties to submit amici curiae briefs regarding the Situation in the State of Palestine. The parties, representing nations, esteemed professors, human rights organizations, and legal associations, have until March 16, 2020 to file their observations.  

Amici curiae, literally “friends of the court,” are individuals or groups who are not parties to the case, but which have a strong interest in the matter.  Courts may authorize an individual or group to become an amicus curiae, and submit information or advice regarding issues in the case.

In the decision, the Court limited the scope of submissions only to the issue of the Court’s jurisdiction in Palestine, specifically the territories of the West Bank, East Jerusalem, and Gaza. At the root of the issue is whether Palestine is a sovereign state capable of granting the ICC jurisdiction over its territory. 

Although Palestine acceded to the Rome Statute, the ICC’s founding document, Palestine’s recognition as a sovereign has been fiercely contested.  While 138 of the 193 United Nations member states recognize the sovereign, the State of Palestine is not currently recognized by any North American country, Australia, and most of Western Europe.

Each of the seven countries which have requested leave to file an amicus brief indicated an intention to argue that the ICC does not have jurisdiction in Palestine.  Even countries which have previously recognized the State of Palestine, such as Brazil, doubt the Court’s jurisdiction there.  These countries reason that the ICC should only be involved in cases where jurisdiction is undisputed, and indicate an unwillingness to “politicize the Rome Statute.”  This stance has drawn criticism from many pro-Palestine individuals and organizations, which argue opponents to ICC jurisdiction are attempting to shield Israel from the possibility of international criminal prosecution for offenses allegedly committed on Palestinian territory.

This issue of jurisdiction regarding the Situation in Palestine could prove to be a pivotal decision for the development of the ICC.  A ruling in favor of jurisdiction would be an ambitious step for the Court in prosecuting human rights offenses, but may cause the Court to fall out of favor with the Western nations which largely comprise it.  Alternatively, while a ruling against ICC jurisdiction would be consistent with views of the nations who do not recognize Palestine, it could set the precedent that the ICC will only respond to the complaints of territories which are unequivocally sovereign.  This could leave individuals who have suffered human rights offenses in unrecognized territories without recourse.

For further information, please see:

International Criminal Court – Court Records: Situation in the State of Palestine – 20 Feb. 2020

International Criminal Court – Decision on Applications for Leave to File Observations – 20 Feb. 2020

International Criminal Court – Palestine: Preliminary Examination – 28 Jan. 2020

United Nations – Status of Palestine in the United Nations – 26 Nov. 2012

Barred Access to African Court For Tanzanian Citizens and NGOs

By: Eronmwon Joyce Irogue

Impunity Watch Staff Writer

ARUSHA, Tanzania – In early December 2019, the Tanzanian government announced its withdrawal for the right of individuals to directly institute an action at the African Court on Human and Peoples’ Rights. Ironically, this Court is a regional human rights court is permanently located in Arusha, Tanzania.

Tanzanian President John Magufuli. Photo Courtesy of DW.

This new development may not be shocking due to the lingering incidence of human rights abuses prevalent under the tenure of President John Magufuli. However, this current occurrence deprives Tanzanian citizens of their right to seek justice before the court on issues of human rights. The timing of the withdrawal of the right to file cases at the Court amplified the fears of both human rights organizations and Tanzanian citizens concerning the dilapidating state of human rights in Tanzania.

The African Court is a regional court established by the African Union to address legal issues such as the protection of the rights for citizens in signatory states. Signatory states are bound by the African Charter on Human and Peoples’ Rights. Since the Court is located in Tanzania, NGOs and individuals have sought recourse in the Court for human rights violations. In cases brought against the Tanzanian government, the Court has often ruled against the government, causing the decision for the withdrawal. The Tanzanian government has sought to prevent the condemnation of the human rights violations of President Magufuli’s regime such as violations of freedom.

In preventing individuals from bringing cases before the Court, the president has breached the Optional Declaration which was signed to give the protected citizens the right which the Tanzanian government now violates.  The request to withdraw undermines the Court’s authority and legitimacy as the enforcer of international law on the African continent. This decision may signal to other states which have signed the Optional Declaration to withdraw and disregard human rights violations without the possibility of regional redress for their citizens. This action puts the region one more step behind amongst its counterparts in other parts of the world.

For further information, please see:

Fair Planet – Tanzania Bars Citizens From Seeking Justice at the African Court – 8 Jan. 2020

Anadolu Agency – US bans Tanzanian politician over human rights abuse – 2 Jan. 2020

DW – Africa’s rights court suffer setback as Tanzania blocks cases – 12 June 2019

Human Rights Watch – Tanzania – 2018

ICC to Allow Victim Participation in Ntaganda Appeal

By: Andrew Kramer

Impunity Watch Staff Writer

THE HAGUE, Netherlands – On February 13, 2020, the Appeals Chamber of the International Criminal Court (“ICC”) issued a decision authorizing the 2,129 victims who participated at the trial of Bosco Ntaganda to present their views and concerns regarding his appeal.  The victims, through their legal representatives, have 30 days to file their observations in respect to their personal interests in the issues on appeal.

Former Congolese military leader Bosco Ntaganda sitting before the International Criminal Court. Photo Courtesy of The Guardian.

Article 68(3) of the Rome Statute allows for victim participation at all stages of proceedings in the ICC, however it defers to the Court to determine what stages are appropriate for each case.  According to the Statute, victim participation must not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

Victim participation is a crucial aspect of the ICC judicial process, however it carries great risk.  Participation gives victims a voice in proceedings, and allows the Court to gather a better understanding of the truth.  In the context of sentencing decisions, participation provides the Court with a firsthand account of the magnitude of a convict’s actions.  Because of this, victims may be subject to intimidation and violence. While the ICC does employ protective measures for witnesses and victims in the courtroom,  the witness protection program is limited. The Court often operates far from the home countries of witnesses and victims, and protection after proceedings largely relies on agreements between the ICC and national security programs.

After victim observations have been filed, Ntaganda and the Prosecutor will have an opportunity to respond to them, and the appellate process will move forward.  The Appellate Chamber of the ICC consists of a panel of five judges.  Among their responsibilities, the appeals judges may confirm, reverse, or amend a decision of guilt or innocence, ensure the sentence is proportionate to the crimes, and revise a final judgement of conviction or sentence if new evidence is later found.

Ntaganda is appealing the entirety of his conviction decision, as well as his sentence. On July 8, 2019, Trial Chamber VI convicted the former Congolese general of 18 counts of war crimes and crimes against humanity, committed in Ituri, Democratic Republic of the Congo, from 2002-2003.  He is only the fourth person to be convicted of international crimes by the ICC, and the first to be convicted of sexual slavery. On November 7, 2019, he was sentenced to a total of 30 years of imprisonment.

The Prosecution has also filed an appeal, asserting the Trial Chamber made errors of law which led to the acquittal of Ntaganda of criminal responsibility for attacks of a church in Sayo and a hospital in Mongbwalu.

For further information, please see:

International Criminal Court – Case Information Sheet: Situation in the Democratic Republic of the Congo – 7 Nov. 2019

International Criminal Court – Prosecution Notice of Appeal – 9 Sept. 2019

International Justice Monitor – Ntaganda to Appeal ICC Conviction – 11 July 2019

BBC – DR Congo’s Bosco Ntaganda Convicted of War Crimes by ICC – 8 July 2019 

Coalition for the International Criminal Court – Is Enough Being Done to Protect ICC Witnesses? – 18 May 2015