Human Rights Court Finds Holocaust Denial Not Protected Under Freedom of Expression

By: Mujtaba Ali Tirmizey

Impunity Watch Staff Writer

BERLIN, Germany – On October 3, 2019, the European Court of Human Rights (“ECHR”) held that denying the Holocaust happened is not protected expression under Article 10.

Udo Pastörs being arrested by police following a far-right demonstration in May 2012. Photo Courtesy of the Reuters/Fabien Bimmer.

On January 28, 2010, the day after Holocaust Remembrance Day, Udo Pastörs, a far-right politician, a member of Parliament and chairperson of the National Democratic Party (“NDP”) of Germany at the time, delivered a speech in which he declared that commemorations of the Holocaust were “theater” and claimed that “the so-called Holocaust is being used for political and commercial purposes.” In August 2012, he was convicted by the district court for violating the memory of the dead and intentional defamation of the Jewish people. Subsequently, his appeals to the regional court, the Court of Appeals and the Federal Constitutional Court were also rejected. After exhausting all his remedies in Germany, Pastörs filed a complaint with the ECHR in 2014.

The Court firmly rejected Pastörs’ claim that his statements were protected under Article 10 of the Convention, which protects freedom of expression. The Court emphasized that Pastörs had planned his speech in advance and intentionally chose his words while denying the Holocaust, contradicting established historical facts, and exhibiting disdain to its victims. The Court further noted that while an interference with freedom of speech over statements made in a Parliament warranted close scrutiny, these specific statements deserved little protection, if any, given that they were at odds with the democratic values of the Convention. In addition, this case also had to be analyzed in the context of the special moral responsibility of States which had experienced Nazi horrors.

Ultimately, the Court held that Pastörs had deliberately stated lies in order to defame the Jewish people and the oppression they had endured. Therefore, the conviction by the domestic courts had been proportional to the goal pursued and was an essential decision in a democratic society.

Interestingly enough, Pastörs, who is a clockmaker by trade, had previously run into trouble with the German authorities as well. In 2010, he was convicted of treason for calling Turkish-German men “semen cannons” and for referring to Germany as a “Jew Republic.” He also referred to famous American economist, Alan Greenspan, as a “hooknose.”

The NDP was founded by the supporters of the former Hitler regime and has an extensive history of being rallying point for new generations of German Nazis. The party has consistently failed in local and national elections and has been unable to make a significant impact in the European Parliament. If their chairperson had not been disciplined for his remarks in the Parliament, the NDP could have gained some momentum. However, the ECHR and the domestic courts correctly determined that the freedom of expression defense was ill-founded in this scenario.

For further information, please see:

The Algemeiner – Denying Holocaust is not a Human Right, Eu Court Determines in Ruling Against German Neo-Nazi – 4 Oct. 2019

Courthouse News Service – Court Rules Holocaust Denial Not Protected by Rights Law – 3 Oct. 2019

European Court of Human Rights – Holocaust Denial is not Protected by the European Convention on Human Rights – 2 Oct. 2019

European Court of Human Rights – Pastörs v. Germany – Oct. 2019

Belfast Court Finds Abortion Ban Violates Human Rights Obligations

By: Hannah Gabbard

Journal of Global Rights and Organizations, Associate Articles Editor

BELFAST, United Kingdom — On October 3, 2019, the High Court in Belfast ruled that the abortion law in Northern Ireland, which banned abortion in all cases except when a mother’s life is at risk, violated Article 8 of the European Convention on Human Rights (“ECHR”). Under the abortion law in Northern Ireland, rape, incest, or a diagnosis of fatal foetal abnormality (“FFA”) are not grounds for a lawful abortion. 

Sarah Ewart, left, leaves the Belfast High Court. Photo Courtesy of CNN.

In 2013, Sarah Ewart, the applicant, travelled to England to terminate her pregnancy after an ultrasound scan at 20 weeks revealed that Ewart’s baby would either die before or shortly after delivery. Ewart was denied an abortion under the law even though her pregnancy was a case of FFA. Due to the law, Ewart was not allowed to bring the remains of her daughter back into Northern Ireland to allow for an autopsy. Ewart claimed that legislation preventing an abortion in cases of FFA violated domestic, human rights and international law and was incompatible with Article 8 of ECHR which guarantees the right to respect for private life. Additionally, she challenged the Departments of Justice and Heath for failing to implement measures to comply with Article 8 of ECHR.

Ewart brought the case after a United Kingdom Supreme Court judgement in June 2018 found that Northern Ireland’s abortion law was inconsistent with the United Kingdom’s obligations under Article 8 of ECHR. The UK Supreme Court could not attach a declaration of incompatibility to the law because the original applicant, the Northern Ireland Human Rights Commission, was not a “victim” of any unlawful act. In Ewart’s case, Justice Siobhan Keegan followed the ruling from the UK Supreme Court that the law was incompatible with human rights. In following the ruling, Justice Keegan’s judgement concerned whether Ewart had standing and if so, whether declaratory relief would be appropriate. 

Justice Keegan found that Ewart had standing because she had to travel to seek an abortion due to the current law and she is at risk to be affected by the law in the future because of her continued risk to have a baby with FFA. Further submissions to the court are required before Justice Keegan will decide on an appropriate relief. 

Abortion rights are highly contested in Northern Ireland due to the religious influences of the Protestant and Catholic communities. Pressure to ease the abortion restrictions had mounted in Northern Ireland after Ireland voted to end the constitutional ban on abortion in May 2018. 

The implications of this ruling are uncertain in Northern Ireland due to the simultaneous legislation proposed in the British Parliament. In 2017, Northern Ireland’s regional government became decentralized when a power-sharing agreement between Protestant and Catholic political parties failed. In July 2019, United Kingdom legislators voted for the Northern Ireland to decriminalize abortion and extend same-sex marriage if the regional government is not restored by October 21. 

This ruling in Northern Ireland contributes to the larger conversation on abortion rights internationally. In the United States, President Trump introduced international version of the “gag rule”  in 2018 where international health clinics that either provide or refer women to abortion services are no longer permitted to receive US development funding. The restriction of abortion services push women to seek abortion in dangerous settings or, in the case of Sarah Ewart, travel overseas to access an abortion.

While acknowledging the pending legislative action in her judgement, Justice Keegan stated that the prospect of upholding the abortion ban would not “serve any benefit” or “be right to ask another woman to relieve the trauma these events undoubtedly cause.” 

For further information, please see:

BBC – Northern Ireland abortion law found to breach human rights – 3 Oct. 2019

CNN – Northern Ireland abortion law breaches human rights, high court rules – 3 Oct. 2019

Judicial Communications Office – Court Delivers Abortion Legislation Judgement – 3 Oct. 2019

Reuters – Court rules Northern Ireland abortion ban violates UK human rights commitments – 3 Oct. 2019

CNN – Women in Northern Ireland to get access to abortion services in Republic – 15 Nov. 2018

 

South Sudanese Practice of Juvenile Death Sentences Condemned by Human Rights Actors

By: Jordan Broadbent

Impunity Watch Staff Writer

JUBA, South Sudan — On February 14, 2019, the African Commission on Human and Peoples’ Rights issued a plea for the President of South Sudan to stop using the death penalty against juveniles.

Since South Sudan gained independence from Sudan in 2011, President H.E. Salva Kiir Mayardit has ruled South Sudan with an iron fist. His rule has raised several concerns of the human right to life. After gaining independence, the South Sudanese government began to increasingly use the death penalty and citizens who were children at the time they committed a crime were not exempted from the death penalty.

While not prohibited under international law, it is illegal to issue the death penalty to someone under the accepted age of adulthood – 18 years old – at the time that person committed the crime. Issuing the death penalty to children is rare, and only a handful of countries still continue this practice. In this region, South Sudan and Somalia are the only countries that still issue the death penalty to children. 

Since independence 140 death sentences have been issued, including citizens who were children at the time of the crime. One, a 17-year-old boy was just 15 at the time of an accident which ended up killing another person. The boy was not afforded a lawyer at the time of his trial and he was sentenced to death by hanging, he is currently waiting for his appeal on death row.

According to the South Sudan Criminal Code, the designated method of execution is death by hanging. Prior to execution, both the President and the Supreme Court must approve of the sentence. This requirement implicates the President for the increase of death penalty sentences to those under 18 years old.  This violates the government’s obligations under Article 37(a) of the Convention on the Rights of the Child, to which South Sudan is a party. The Convention outlaws both the death penalty and life imprisonment for those who committed crimes while under the age of 18.  The President has denied there has ever been an execution of someone under 18 sentenced in South Sudan.

Amnesty International along with the African Commission on Human and Peoples’ Rights have issued statements condemning South Sudan.

For further information, please see:

African Commission on Human and Peoples’ Rights – Appeal to the President of South Sudan to end the Death Penalty against children- 14 Feb. 2019

CNN- Child on Death Row in South Sudan as State executions escalate – 7 Dec. 2018

Amnesty International – South Sudan execution spree targets even children and nursing women –  7 Dec. 2018

International Bar Association – The Death Penalty under International law – May 2009

Stoian v. Romania: Disabled Boy’s Right to Education Denied by European Court of Human Rights

By: Mujtaba Ali Tirmizey

Impunity Watch Staff Writer

BUCHAREST, Romania — On June 25, 2019, the European Court of Human Rights (“ECHR”), in a highly controversial decision, held that Romania did not deny the right to education and did not discriminate against a disabled boy and his single mother.

Stefan Stoian, now 18 years old. Photo Courtesy of Validity.

Stefan Stoian, a young boy with quadriplegia born in 2001, and his single mother, Luminita Stoian, complained that two state schools failed to accommodate Stefan and were mostly inaccessible for wheelchair users. They allege that learning was not customized with respect to teaching or testing the curricula, and the variety of therapies that Stefan required were not available. Luminita had to provide her son with personal assistance during school time, including carrying him around, helping him go to the toilet, and helping him with his physiotherapy exercises.

Luminita turned to a number of authorities in Romania to request the support that Stefan needed. The Government argued that both schools had adequate facilities and authorities had taken steps to enhance and modify them over time. They argued that he benefited from some educational support, physiotherapy, and occupational therapy, and he was also provided a personal assistant for short periods. Minimal change resulted from years of litigation and complaints, so Luminita turned to ECHR in 2013.

The complaint alleged a violation of the right to respect for private and family life, prevention of discrimination, and right to education violations, claiming that the authorities failed to take required measures to conform with their obligations under both national law and the European Convention. The Court noted that the authorities determined that Stefan should attend mainstream schools, which aligned with international standards. The Government admitted that there were delays in making sure that the school buildings in question met adequate standards.

The applicants also relied on United Nations Convention on the Rights of Persons with Disabilities (CRPD), which Romania ratified in 2011. It acknowledges the right to education in comprehensive settings for children with disabilities and requires governments to provide support (reasonable accommodation and personal assistance) to attain full participation and inclusion for children with disabilities in mainstream schools. The Court held that the authorities had not turned a blind eye to Stefan’s needs, but had apportioned resources to his schools to accommodate his special needs. There were certain issues along the way, but some of those problems had been generated by Luminita herself. As a result, the Court found that the authorities had complied with their obligations, and therefore, did not violate the Articles of the Convention.

The Court’s holding that fundamental rights of persons of disabilities are predominantly a matter of resources that prohibits them from protection under the Convention is discouraging. Furthermore, how the Court reached their judgment is troublesome: the case was downgraded to a three-judge Committee level, facts were distorted, Government’s views were given more weight and meaningful scrutiny was not applied. This case exposes the degree to which children with disabilities are marginalized and denied justice, and they are running out of options regarding what litigation strategies may produce an encouraging result at the Court.

For further information, please see:

Strasbourg Observers – Stoian v. Romania: The Court’s Drift on Disability Rights Intensifies – 5 Sept. 2019

European Court of Human Rights – Romania Took Sufficient Steps to Make Reasonable Accommodation for Disabled Child to Attend School – 25 June 2019

Validity – Romania: Justice denied for Stefan Stoian after a decade of legal action – 28 June 2019

What is Happening Along the Border of Turkey and Syria?

By: Madison Kenyon 

Impunity Watch Staff Writer 

DAMASCUS, Syria — On Sunday, October 20, Syrian Kurdish forces began their withdrawal from Ras al-Ayn, a town along the Syrian border. This withdrawal is part of a cease-fire negotiated by the United States’ Vice President, Mike Pence, and Secretary of State, Michael Pompeo with Turkey’s President, Recep Tayyip Erdogan. This cease-fire began Thursday, October 17, and will end on Tuesday, October 22. By Tuesday evening, the Kurdish forces must not only have all soldiers removed from Ras al-Ayn, but also, they must withdraw from a zone about 75 miles wide and 20 miles deep between Ras al-Ayn and the town of Tel Abyad.

The aftermath of a shelling by Turkish forces on a target in Das al-Ayn. Photo courtesy of NPR.

Despite the Kurdish forces’ withdrawal from this zone, Turkey states that this is not enough. Rather, Erdogan wants the Kurdish forces to withdraw more than 260 miles from the Syrian border.  He has vowed that if the forces fail to do so, he will “continue to crush the terrorists’ heads.” Erdogan’s persistency to remove the Kurds from the Syrian border comes from his belief that the presence of any Kurds along the Turkey border is an “existential threat” to Turkey.

This tension between Turkey and the Kurds stems from years of conflict. The Kurds, a largely Muslim ethnic group, are one of the largest groups of people without a state of their own (despite being promised one after World War I). Due to this, for years, a Kurdish militant group has launched attacks throughout Turkey in an attempt to achieve autonomy. Therefore, Turkey sees the Kurdish forces located in northern Syria as linked to this militant group. Thus, Turkey argues that it wants to create a “safe zone” between the Turkey-Syrian border. It also argues that it wants to resettle at least a million refugees living in Turkey who were displaced by the Syrian war into this zone.

Previously, the U.S. has backed the Kurds in their defense against Turkey. However, recently, President Donald Trump signed an executive order withdrawing U.S. troops from northern Syria. The Kurds have now had to turn to Bashar al-Assad, Syria’s leader, and Vladimir Putin, Russia’s President, for help in this conflict.

Since President Trump’s decision to withdraw troops from Syria, over 200,000 people have been displaced. Many of these people blame President Trump for this displacement. One 70-year-old Kurdish man, forced to flee from his home in Ras al-Ayn, stated, “This was a clear betrayal by the Americans. The Turks never would have done what they did had the Americans stayed.”

This criticism is what led the U.S. to negotiate this cease-fire. However, despite the Kurds’ current withdrawal, both sides claim that the other side still repeatedly violates the cease-fire. For example, Turkey’s Defense Ministry stated that the Kurds killed one of its soldiers today during an attack.

It is hard to believe that this cease-fire will make any real difference in this conflict. Rather, the world is awaiting to see what happens at the Turkey-Syrian border Tuesday evening once the cease-fire ends.

For further information, please see: 

Time – Kurds Begin to Evacuate Besieged Syrian Border Town – 20 Oct. 2019

Washington Post – The Latest: Kurdish Fighters Pull Out of Syrian Border Town – 20 Oct. 2019

Bloomberg – Syrian and Kurdi News: Trump Approach to Turkey Syria Incursion – 20 Oct. 2019

Los Angeles Times – ‘How Long Can We Live Like This?’: Kurds in Growing Refugee Camp Plead for Help, End to Losses, Suffering – 20 Oct. 2019

CBS News – Turkey’s Involvement in Syria’s Civil War: The Complicated History of How We Got Here – 15 Oct. 2019