In association with the International Commission of Jurists

International Human Rights Law

15 Jul

Ah, hypocrisy -- thy name is the United States. First up, US anger at Israel for not supporting a lawsuit concerning allegations that the Bank of China laundered money for Hamas and Islamic Jihad: Israeli Ambassador to the US Michael Oren was called back to Israel to take part in an emergency meeting convened this weekend by Prime Minister Benjamin Netanyahu so that Oren could pass on  messages...

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15 Jul

[Patricia Tarre Moser is an Attorney at the Inter-American Court of Human Rights. The views expressed here are her own.] The international law doctrine of sovereign immunity has proved to be a powerful obstacle to effective enforcement of international human rights.  Domestic and international courts have begun to carve out some exceptions to sovereign immunity in individual cases, but as the ICJ made clear in the Ferrini case, sovereign immunity continues to protect states from civil proceedings -- even in cases where jus cogens violations take place. But what if a state, as a counter-measure, withheld sovereign immunity from another state that engages in a jus cogens violation?  In a recent article I propose that, in certain circumstances, for example a civil case brought in a State A for torture violations in State B, State A's courts should be permitted to withhold sovereign immunity from State B as a form of countermeasure against State B. The objective of the countermeasure must be to persuade the wrong-doing State to cease the violation and/or make reparations. The non-recognition of state immunity as a countermeasure could contribute towards this goal. Even if the hypothetical national court’s orders cannot be enforced against the wrong-doing State due to immunity from enforcement measures, the judgment itself serves as reparation to the victims. Using torture as an example, my proposal works as follows: after the torture victim files a claim against the State B before a Court of State A, the latter has to undertake a prima facie analysis of whether the alleged victim was subjected to torture and whether the torture was attributable to State B. If so, State A’s Court has to determine whether the non-recognition of State B’s immunity would be proportionate to the injury and to the gravity of the violation that caused the injury.  Additionally, while assessing the proportionality of the measure, the Court would need to take into account the rights of all parties involved: the victim, the State A and State B.
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11 Jul

[Scott Robinson is a recent J.D. graduate from the University of Western Ontario, Faculty of Law] In at least seventy-six states it remains illegal to engage in same-sex conduct; in at least five of these, it still attracts the death penalty. It is no secret that, at the hands of both state actors and private individuals, LGBTQ persons around the world continue to face widespread and often systematic discrimination on account of their sexual orientation and gender identity. Further, nowhere within international human rights law is sexual orientation or gender identity explicitly codified as prohibited grounds for discrimination. While “great weight” should be ascribed to the views of human rights treaty bodies that have read-in protection over the years, such views remain but non-binding recommendations directed at states, tied to existing treaties silent on LGBTQ rights. Indeed, it is clear that international law is utterly failing to address “one of the great neglected human rights challenges of our time”. A robust, comprehensive LGBTQ treaty is needed—perhaps a “Convention on the Elimination of All Forms of Discrimination against LGBTQ Persons”. Treaty-precedents like the CERD and CEDAW (especially when viewed in light of more recent human rights treaties), demonstrate that an LGBTQ non-discrimination treaty is possible in form. Documents like the Yogyakarta Principles, certainly demonstrate that a pointed LGBTQ treaty is possible in substance. The real question, however, is how to achieve a treaty anytime in the near future, given the fierce resistance to LGBTQ rights witnessed to date, particularly within the UN system. There exists no General Assembly Resolution or Declaration on LBGTQ persons, nor is one likely any time soon (any purported attempts at such having essentially been abandoned in the past). Perhaps more formidably, actors such as the Holy See and Islamic and African blocs of states have balked at the very notion of LGBTQ rights at every possible opportunity at the UN—events at the Human Rights Council as recently as a few weeks ago stand as a testament to this continued opposition. At this point in time, it seems as though the only viable option for achieving an LGBTQ treaty is by engaging in what has become known as the “Ottawa Process” for treaty negotiation and adoption.
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10 Jul

[Reuven (Ruvi) Ziegler is a lecturer in law at the University of Reading School of Law.] The European Court of Human Rights has consistently held that the undertaking in Article 3 of Protocol I of the European Convention on Human Rights (ECHR)  to hold ‘free elections’ which ‘will ensure the free expression of the opinion of the people in the choice of the legislature’ entails an individual right to vote (see e.g. in Hirst (no .2). [57]). While the Strasbourg court pronounced that ‘the presumption in a democratic state must be in favour of inclusion’ and that ‘any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates’ (Hirst (no .2), [59]), the court has hitherto failed to develop a principled approach regarding the circumstances in which such ‘departure’ may be justified. Instead, it has emphasised that ‘[a]s regards, in particular, the choice of electoral system, the Court reiterates that the Contracting States enjoy a wide margin of appreciation in this sphere’ (Sitaropoulos, [65-66]), as ‘[t]here are numerous ways of organising and running electoral systems’ (Id; also Shindler, [102]). The margin of appreciation doctrine has received both scorn and praise. This post does not concern its general application; rather, it is contended that the court’s voting rights jurisprudence has conflated questions relating to choice of electoral systems (‘First-Past-The-Post’, Alternative Vote, Proportional Representation, Single Transferrable Vote, and the like) with questions relating to voting eligibility. Even if states should enjoy a margin of appreciation which takes into account the ‘historical development, cultural diversity and political thought within Europe’ (Hirst (no .2), [61]) when their choice of system of government is appraised, according states a ‘wide [but] not all-embracing’ (Hirst (no .2), [82]) margin of appreciation in determining voting eligibility detrimentally affects fundamental democratic rights of individual Europeans, as Strasbourg’s jurisprudence concerning voting rights of non-resident citizens (expatriates) exhibits. All democratic states set eligibility criteria for elections of their institutions of government. Alongside the ubiquitous exclusion of non-citizen residents (at least from) national elections of their state of residence, some states - including members of the Council of Europe - impose residency requirements which disqualify expatriates during (part or all) of their period of absence. Consequently, otherwise eligible citizens of one member state of the Council of Europe residing in another member state can be excluded from elections of their state of citizenship and from elections of their state of residence.
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10 Jul

I am a huge fan of Human Rights Watch's Ken Roth, but his description of the specific-direction requirement in yesterday's New York Times is not simply misleading, it's flat-out wrong. Here are the relevant paragraphs of his op-ed (emphasis mine): Aiding-and-abetting liability has long been understood to require proof beyond a reasonable doubt that the accused knew that his conduct had...

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02 Jul

Someone needs to explain this to me. The ICTY's official Twitter account just tweeted the following: Witness in Mladić trial, Dražen Erdemović, is testifying with facial and voice distortion. — ICTY (@ICTYnews) July 2, 2013 A witness normally testifies "with facial and voice distortion" in order to prevent the defendant from knowing his or her identity. So here we have the ICTY tweeting...

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01 Jul

Every week, for as long as the show survives, I'll be blogging about Crossing Lines, the new NBC drama that features a team of detectives who work for the ICC. Today, my expert analysis of the second episode: It's about art thieves. Really. It's about art thieves. I'm not kidding. (And don't get me started about how the team threatens to let a wounded...

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29 Jun

ABC reports: The McDonald's restaurant chain refused to open a branch in a West Bank Jewish settlement, the company said Thursday, adding a prominent name to an international movement to boycott Israel's settlements. Irina Shalmor, spokeswoman for McDonald's Israel, said the owners of a planned mall in the Ariel settlement asked McDonald's to open a branch there about six months ago. Shalmor...

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24 Jun

After weeks of anticipation, I finally had a chance to watch the premiere of Crossing Lines, the new NBC drama about a police unit that works for the International Criminal Court. As a police procedural, the show is not bad. William Fichtner is fantastic as always. Production values are extremely high. Bringing together detectives and investigators from a number of...

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22 Jun

I considered adding a question mark to the title of this post, but there's really no need. I argued a couple of days ago that the real scandal concerning Judge Harhoff's letter was the Judge's willingness to reveal confidential discussions between the ICTY's judges. We now have to acknowledge another aspect of the scandal: quite understandably, defence attorneys are making...

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