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International Legal News - 9 October 2023

Updated: Oct 16, 2023

The following media round up on international and foreign policy issues from around the world for the period of 03 October to 09 October 2023.


Guernica 37 will provide weekly media updates from the International Criminal Court, European Court of Human Rights, United Nations, European Union and other sources. Should you wish to contribute or submit a media summary, opinion piece or blog, please send to Ned Vucijak at nenadv@guernica37.com for consideration.


Israel/Palestine - 9 October 2023


Israel/Palestine: Devastating Civilian Toll as Parties Flout Legal Obligations


Palestinian armed groups carried out a deadly assault on October 7, 2023, that killed several hundred Israeli civilians and led to Israeli counterstrikes that killed hundreds of Palestinians, Human Rights Watch said in releasing a questions and answers document about the international humanitarian law standards governing the current hostilities. As of October 8, the attacks by Palestinian armed groups killed more than 677 Israelis and foreign nationals, including civilians, according to Israeli sources cited by the United Nations. Subsequent Israeli airstrikes on Gaza left at least 413 Palestinians dead, the Palestinian Health Ministry in Gaza reported.


Hamas and other Palestinian armed groups breached the fences separating Gaza and Israel and attacked surrounding Israeli communities, infiltrated homes, apparently shot civilians en masse, and took scores of Israeli civilians as hostages into Gaza. They reportedly launched more than 3,000 indiscriminate rockets towards Israeli population centers.


“Deliberate killings of civilians, hostage-taking, and collective punishment are heinous crimes that have no justification,” said Omar Shakir, Israel and Palestine Director at Human Rights Watch. “The unlawful attacks and systematic repression that have mired the region for decades will continue, so long as human rights and accountability are disregarded.”


Israeli authorities have systematically repressed Palestinians for decades and since 2007 have imposed a crushing closure on Gaza’s population. On October 7, Israel’s Energy Minister announced that Israeli authorities would no longer provide electricity to Gaza’s 2.2 million residents.


The full article can be found here.


EU/ECtHR - 9 October 2023


Climate Change Hearings and the ECtHR Round II


On Wednesday the 26th of September, the Grand Chamber of the European Court of Human Rights held oral hearings in Duarte Agostinho and Others v. Portugal and 32 others, which is one of the three climate change cases currently pending before the Grand Chamber (seven other cases have been adjourned pending the Grand Chamber’s decision in these cases). Hearings in the other two cases before the Grand Chamber, Verein KlimaSenorinnen Schweitz and Others v Switzerland and Carême v. France, were held in March and are discussed here.


The Duarte case, discussed previously here and here, is arguably the most ambitious of the claims before the Court and arguably also the most challenging as far as the applicants’ claims go. As noted in the blog posts on the previous hearings, attempting to distill too much and trying to predict what the Grand Chamber’s final decision might be based purely on the hearing and the written submissions is challenging. That being said, if one clear point does emerge from the parties’ submissions and the questions of the judges, it is that the Grand Chamber’s task at hand is very challenging indeed (the hearing itself took five hours).


In short, the claimants, who are six young citizens and residents of Portugal, argue that their articles 2, 8, and 14 rights are impaired because of the effects of climate change in general, including forest fires, and that, as young people, they stand to experience the worst effects of these impacts. They argue, moreover, that the 33 states are under a positive obligation to enact effective domestic responses to climate change which satisfy what the applicants call the ‘overriding obligation’ of meeting the aspirational 1.5C target in the Paris Agreement.


On the merits, and in principle, this argument is entirely reasonable. Although the responding states argued that applying the Convention to the present claim would represent not an ‘evolution but a revolution’, the applicants have repeatedly stressed, with force and authority, that the Court’s environmental risk doctrine ought to apply in climate change cases. In short, it ought not matter if the risk to the applicants’ private and family life comes from industrial pollution or from climate change; the positive obligations on the state to put in place regulatory and administrative responses still applie. But before the Grand Chamber gets a chance to consider that, the matter of admissibility needs to be disposed of.


Precisely on the question of admissibility the hearing indicates just how challenging the applicants’ claim is compared, for example, to the claimants’ case in KlimaSeniorinnen. There are two primary reasons for this, and these were probed in detail in the written submissions of the parties as well as at the hearing.


The full article can be found here.


USA - 6 October 2023


Roe v. Wade, the landmark 1973 case that established a constitutional right to an abortion up until the fetus can survive outside of the womb, was the law of the land for nearly 50 years. But over a year ago, the Supreme Court overturned the almost half-century old precedent.


Dobbs v. Jackson Women’s Health Organization was a challenge to a Mississippi law banning abortion after 15 weeks of pregnancy that experts say stands in direct opposition to what the Supreme Court decided in Roe – that states may not ban abortion prior to fetal viability, which is generally understood by experts to mean between 22 and 24 weeks of pregnancy. But in a 6-3 decision in June 2022, the conservative supermajority on the high court sided with Mississippi, upholding its ban in a massive reversal of precedent.


Following the ruling, states have been left to decide their own stances on the controversial issue. While legislators have worked to introduce a number of new restrictions and bans over the last year, questions over the legality of these new laws has meant many are blocked from taking effect while they’re debated in state courts. The new landscape is volatile, and the evolving situation has meant that access to abortion in some states is restricted, in part, by complexity alone.


The new battlefront appears to be access to medication abortion.


In January 2023, the U.S. Food and Drug Administration finalized a rule change allowing pharmacies such as CVS and Walgreens to begin offering abortion pills in qualifying states. The move could increase access to the pills at both physical stores and online pharmacies, and has sparked legal questions, particularly in the most restrictive states. An analysis by the Guttmacher Institute, a research group that supports abortion rights, found that medication abortion – often a two-drug combination of mifepristone and misoprostol – accounted for more than half of all facility-based abortions in 2020.


The full article can be found here.


Syria/ICJ - 9 October 2023


Syria: World Court Begins Watershed Torture Case


Urgent Measures Sought to Stop Abuses


The International Court of Justice (ICJ) hearings on October 10 and 11, 2023 on state-sponsored torture in Syria since 2011 are critically important for advancing justice, Human Rights Watch said today.


On June 8, the Netherlands and Canada filed a case with the court alleging that Syria is violating the international Convention Against Torture. The case cited unlawful treatment of detainees, inhumane detention conditions, enforced disappearances, sexual and gender-based violence, violence against children, and the use of chemical weapons. The case is not a criminal proceeding against individuals but seeks a legal determination of state responsibility for torture.


“The case brought by the Netherlands and Canada provides an important opportunity to scrutinize Syria’s long-standing heinous torture of countless civilians,” said Balkees Jarrah, associate international justice director at Human Rights Watch. “The World Court should urgently put in place measures to prevent further abuses against Syrians who continue to suffer under nightmarish conditions and whose lives are in serious jeopardy.”


While the case may take several years to reach a final ruling, the Netherlands and Canada have asked the court to order provisional measures aimed at stopping ongoing violations and supporting steps necessary for future accountability proceedings. Arguments on the request for provisional measures are the subject of the hearings. Activists, torture survivors, and relatives of Syrians suspected of being detained or forcibly disappeared by the Syrian government plan to attend the hearings to support the case.


The Netherlands and Canada said “as a matter of urgency” provisional measures are needed “due to the substantial risk that torture and other [cruel, inhuman or degrading treatment or punishment] will continue unabated in Syria, including throughout the duration of proceedings before the Court.” The two countries assert that Syria has not demonstrated any intention of preventing ongoing or future violations. The provisional measures hearings were initially scheduled for July 19 to 20, but were postponed following a request from Syria.


Even with Syria’s record of serious crimes and without any indication that its abusive practices have ceased, several Arab countries have rushed to normalize relations with the government, including the United Arab Emirates and Jordan. In May, the Arab League readmitted Syria after suspending it in 2011 over its rights abuses. The ICJ case should push governments to reevaluate any moves to resume regular relations with Syria without addressing its torture and other abuses, Human Rights Watch said.


Read the full article here.


Global - 5 October 2023


‘Predator Files’ investigation reveals catastrophic failure to regulate surveillance trade


A new investigation into the global surveillance crisis by the European Investigative Collaborations (EIC) media network, with technical assistance from Amnesty International’s Security Lab, today begins to reveal the shocking truth about how far the industry’s tentacles have spread and how ineffective EU regulation has been in controlling it.


The ‘Predator Files’ focuses on the “Intellexa alliance” — a complex, morphing group of interconnected companies — and Predator, its highly invasive spyware. This spyware, and its rebranded variants, can access unchecked amounts of data on devices. It cannot, at present, be independently audited or limited in its functionality to only those functions that are necessary and proportionate to a specific use and target. Predator can infiltrate a device when the user simply clicks on a malicious link, but it can also be delivered through tactical attacks, which can silently infect nearby devices.  


Intellexa alliance’s products have been found in at least 25 countries across Europe, Asia, the Middle East and Africa and have been used to undermine human rights, press freedom, and social movements across the globe.


Intellexa says it is an “EU-based and regulated company” which is, in itself, a damning indictment of how EU member states and institutions have failed to prevent the ever-expanding reach of these surveillance products despite a series of investigations such as the ‘Pegasus Project’ in 2021.


“The ‘Predator Files’ investigation shows what we have long feared: that highly invasive surveillance products are being traded on a near industrial scale and are free to operate in the shadows without oversight or any genuine accountability. It proves, yet again, that European countries and institutions have failed to effectively regulate the sale and transfer of these products,” said Agnès Callamard, Amnesty International’s Secretary General.


The full article can be found here.


Iran - 6 October 2023


Nobel Peace Prize Winner Narges Mohammadi must be released immediately and unconditionally


Reacting to the news that unjustly imprisoned Iranian human rights defender Narges Mohammadi has been awarded the Nobel Peace Prize, Amnesty International’s Secretary General, Agnès Callamard, said:


“Narges Mohammadi receives this prize today from behind bars in Iran where she has been unjustly imprisoned since 2021 solely for her human rights activism. For years, she has worked tirelessly to bring attention to the dire human rights situation in Iran. Even from her prison cell, she condemned the authorities’ bloody crackdown on nationwide protests, called for the abolition of the death penalty and the prohibition of solitary confinement, and exposed sexual violence against women protesters in detention.


“In a cruel campaign exposing the inhumanity at the heart of the Iranian authorities’ tactics to repress critical voices, they have subjected her to years of human rights violations including torture, death threats, and denial of specialized medical care. They even prevented her from seeing her two children. Despite the enormous personal cost, the unrelenting attempts to silence her, and the prospect of a life behind bars, Narges Mohammadi defiantly continues to call for change not just for her, but for all women, men and children in Iran.


The full article can be found here.


Afghanistan - 8 October 2023


Looking for the dead and wounded as Afghanistan quakes kill 2,000


Villages are flattened and bodies trapped under collapsed houses as locals and rescue workers dig out victims.


Men are digging through rubble with their bare hands and shovels in western Afghanistan in desperate attempts to pull victims from the wreckage left by powerful earthquakes – some of the deadliest to hit the impoverished South Asian country.


Officials of the ruling Taliban on Sunday said at least 2,053 people were killed and nearly 10,000 injured while more than 1,300 houses were damaged or destroyed.


Saturday’s magnitude 6.3 earthquake hit a densely populated area near Herat, Afghanistan’s fourth largest city. It was followed by strong aftershocks.


The death toll eclipses that of an earthquake that hit eastern Afghanistan in June last year, striking a rugged, mountainous region, flattening stone and mud-brick homes and killing at least 1,000 people.


“Most people were shocked. … Some couldn’t even talk. But there were others who couldn’t stop crying and shouting,” Associated Press photographer Omid Haqjoo said.


At least a dozen teams are helping with the rescue effort, officials said, including from the military and nonprofit organisations such as the Red Crescent.


The full article can be found here.


Azerbaijan/France - 5 October 2023


Macron says Azerbaijan has 'problem with international law', but it's not the time for sanctions


French President Emmanuel Macron denounced Azerbaijan on Thursday for taking military action in Nagorno-Karabakh but said it is not the time to sanction Baku.


Speaking at a European summit in Granada, Macron insisted that the French government’s position was correct even if Baku considered it biased in Armenia’s favour, adding the time has not come for Europe to impose sanctions on Azerbaijan over its offensive to seize control of the rebel region of Nagorno-Karabakh.


European leaders should continue to discuss the crisis with Azerbaijan in order to “best protect” Armenia, rather than resorting quickly to economic measures, he added.


“France has no problem with Azerbaijan but Azerbaijan seems to have a problem with international law,” Macron said.


The full article can be found here.


Cyberspace - 4 October 2023


8 rules for “civilian hackers” during war, and 4 obligations for states to restrain them


As digital technology is changing how militaries conduct war, a worrying trend has emerged in which a growing number of civilians become involved in armed conflicts through digital means. Sitting at some distance from physical hostilities, including outside the countries at war, civilians – including hacktivists, to cyber security professionals, ‘white hat’, ‘black hat’ and ‘patriotic’ hackers – are conducting a range of cyber operations against their ‘enemy’. Some have described civilians as ‘first choice cyberwarriors’ because the ‘vast majority of expertise in cyber(defence) lies with the private (or civilian) sector’.


Examples of civilian hackers operating in to the context of armed conflicts are diverse and many (see here, here, here). In particular in the international armed conflict between Russia and Ukraine, some groups present themselves as a ‘worldwide IT community’ with the mission to, in their words, ‘help Ukraine win by crippling aggressor economies, blocking vital financial, infrastructural and government services, and tiring major taxpayers’. Others have reportedly ‘called for and carried out disruptive – albeit temporary – attacks on hospital websites in both Ukraine and allied countries’, among many other operations. With many groups active in this field, and some of them having thousands of hackers in their coordination channels and providing automated tools to their members, the civilian involvement in digital operations during armed conflict has reached unprecedented proportions.


This is not the first time that civilian hackers operate in to the context of an armed conflict, and likely not the last. In this post, we explain why this trend must be of concern to States and societies. Subsequently, we present 8 international humanitarian law-based rules that all hackers who carry out operations in the context of an armed conflict must comply with, and recall States’ responsibility to restrain them.


Civilians engaging in digital warfare – a worrying trend


The phenomenon of civilian hackers conducting cyber operations in the context of an armed conflicts is worrying for at least three reasons.


The full article can be found here.

Argentina - 5 October 2023


Argentina: Violent repression and criminalization in response to protests in Jujuy


The Jujuy provincial police committed arbitrary detentions, illegal use of force and other practices to repress protests over the constitutional reforms in the province, said Amnesty International today after concluding a research mission in the area.


“After approving a new Constitution without consulting the population and without the free, prior and informed consent of Indigenous Peoples, we have found that the Jujuy provincial police responded with indiscriminate use of force against those protesting for their rights,” said Ana Piquer, Americas director at Amnesty International. “Our investigation indicates that the provincial authorities have created a hostile environment that inhibits the people of Jujuy from exercising their right to peaceful protest.”


An Amnesty International delegation visited the city of San Salvador de Jujuy and the departments of Tumbaya, Cochinoca, Humahuaca and Susques in Jujuy province from 25 to 29 September. The organization interviewed at least 107 victims and witnesses, including members of more than 15 Indigenous communities, lawyers, human rights organisations, the Attorney General of the Public Prosecutor’s Office, Sergio Lello Sánchez, and representatives from the provincial Ministry of Security. Meetings have also been requested with the Human Rights Secretariat and the Secretariat for Indigenous Peoples in Jujuy, but these have not yet been arranged.


Amnesty International is sharing its preliminary findings ahead of a report that will be prepared and presented to the authorities, communities and the general public.


The full article can be found here.

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