Weekly News Recap (24-30 May 2021)




Sweden: Supreme Court Ruled that Posing with Dead Bodies during an Armed Conflict Constitutes a War Crime

On 24 May, Sweden’s Supreme Court observed that posing with dead bodies during an armed conflict constitutes a war crime. This ruling was declared following an array of decisions contemplating whether ‘protected persons’ mentioned in the Act on Criminal Responsibility for Genocide, Crimes Against Humanity and War Crimes includes dead persons as well. The Court affirmed that dead persons may be regarded as protected persons in international humanitarian law and, accordingly, this is also the purport of the Swedish regulation.

This decision follows the prosecution of a man who served as a soldier in the Kurdish Peshmerga forces during the Iraqi civil war and posed with dead bodies on at least four occasions for photographs and a film. These photos and films were shared on social media, which showed the mutilated bodies of the victims and the man, together with others, posing/sitting next to a deceased’s body, or placing his foot on the deceased’s body. The Court found that the poses in which the man engaged have been such that the dead persons were thereby subjected to humiliating or degrading treatment which were considered to have seriously violated personal dignity.


CJEU: Legal Action Against European Borders and Coast Guard Agency

On 25 May, three organisations, namely Progress Lawyers Network, Front-Lex and Greek Helsinki Monitor initiated legal action against Frontex, which is responsible for search, rescue and border interception operations on behalf of the 27 EU member States and other countries in the Schengen Area. The case concerns infringement by Frontex of provisions of the Charter of Fundamental Rights of the EU, the Treaty on the Functioning of the EU, the EBCG Regulation, and international and European customary and treaty law by failing to ‘suspend or terminate its activities in the Aegean Sea Region (Greece)’ in the wake of violations of fundamental rights. It highlights the discriminatory policies introduced by Greece in March 2020 that called for “the temporal suspension of the asylum system in the country,’ introduction of collective expulsion operations and other “tactics,” and targeting of asylum seekers at its borders. In this regard, Frontex’s failure to “prevent, monitor, report and investigate the said violations constitutes, per se, a failure to act [sic] in infringement of the Treaties,” and complicity in Greece’s alleged crimes against humanity of deportation, persecution and other inhumane acts. Member states of the European Union are not permitted to ‘push back’ asylum seekers, as these constitute violations of International Refugee Law and the European Convention on Human Rights. While Greece has routinely denied allegations of push back and upholds its policies, a recent investigation by several international media outlets revealed data that suggested “Frontex assets were actively involved in one pushback incident at the Greek-Turkish maritime border in the Aegean Sea,” its personnel were present at another incident, and “have been in the vicinity of four more since March.” The European Parliament has directed an investigation, and the European Anti-Fraud Office is probing mismanagement allegations against Frontex.



ECtHR: Applicants’ Right to Freedom of Expression Infringed in the United Kingdom and Sweden

On 25 May, the European Court of Human Rights (ECtHR) issued judgments against the United Kingdom and Sweden in the cases of Big Brother Watch and Others v. the United Kingdom and Centrum för rättvisa v. Sweden. The applicants, in both cases, are legal and natural persons, who complained about the scope and magnitude of the electronic surveillance programmes operated by the respective governments. Both cases highlighted the risks associated with bulk interception regimes obtaining data from communication service providers and examining them by way of signals intelligence. The ECtHR observed major shortcomings in these bulk interception regimes, which, despite its robust safeguards, had not outlined sufficient ‘end to end’ safeguards to provide adequate and effective guarantees against arbitrariness and the risk of abuse. In particular, major deficiencies were identified in Swedish laws regarding the absence of statutory rules on destroying intercepted material not containing personal data, considering privacy interests of individuals while deciding to transmit intelligence material to foreign partners and absence of ex post facto review.

With respect to U.K, the following fundamental deficiencies in the regime were highlighted in terms of lack of independent authorisation, failure to include categories of selectors in the application for a warrant, and the failure to subject selectors linked to an individual to prior internal authorisation. Hence, state interceptions in both the cases amounted to violations under Article 8 as the operations of the regimes had not been in accordance with the laws of the land. The Court further noted in one of the cases that the impugned regime, which interfered with journalist’s right to freedom of speech and expression did not comply with the robust safeguards against continued storage, examination and use of confidential journalist materials, and therefore, violated Art. 10.


ECtHR: Applicant’s Plea Against his Conviction on Grounds of Violation of Right to Freedom of Expression is Deemed Invalid in Serbia

On 25 May, the European Court of Human Rights (ECtHR) ruled against the applicant in the case of Milosavljevic v. Serbia. The applicant was born in 1960 and lives in Kragujevac. For the relevant period, he was a journalist and an editor-in-chief of Svetlost, a weekly news magazine based in the same town. The case concerns journalistic freedom and editorial expression in the context of an incident involving the alleged sexual abuse of a minor Romani girl by the head of a municipal branch office. Following the publication of two articles in Svetlost and a preliminary criminal investigation, a head of a municipal branch office was charged with the commission of attempted rape and unlawful deprivation of liberty of an underaged Romani girl. However, the local courts acquitted him of all charges, following which, a defamation suit was filed against the applicant. The constitutional court observed that ‘it was unlawful to divulge information concerning an ongoing criminal case, even if this information was accurate, or to breach one’s right to be presumed innocent. In any event, an appropriate balance had to be struck between the freedom of expression, on the one hand, and the protection of the reputation of the person concerned on the other.’ While the applicant alleged, under Article 10 of the Convention, that he had suffered a breach of his freedom of expression; the ECtHR observed that ‘Article 10 does not guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern […] rather the protection afforded by Article 10 of the Convention to journalists, as well as to editors by implication, is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism.’ Hence, the court found no violation of the impugned article.


ECtHR: Applicant’s Right to Respect for Family Life Unjustifiably Restricted in Russia

On 25 May, the European Court of Human Rights (ECtHR) ruled against Russia in the case of Nechay v. Russia. The applicant is a Russian national who was born in 1974 and lives in the town of Zheleznodorozhniy, Moscow Region. The case concerns the decision of the Russian courts to limit the applicant’s contact with his daughter to twelve hours per year, at the child’s place of residence and in the presence of the child’s mother, upon prior agreement with the latter. The applicant complained that the domestic Court’s judgment determining the contact arrangements between him and his daughter significantly reduced his ability to preserve and develop family ties with his daughter and amounted to a violation of his right to respect for his family life as provided in Article 8 of the Convention. The ECtHR observed that the ‘domestic courts did not fairly balance the interests of all parties involved in the proceedings – both parents and the child – in a decision-making process which provided the applicant with the requisite protection of his interests safeguarded by Article 8.’ Rather, they failed to give sufficient reasons commensurate with the seriousness of the interests at stake to justify their interference with the applicant’s right to respect for his family life, which was not ‘necessary in a democratic society.’


ICC: Confirmation of Charges Hearing Concluded in Abd-Al-Rahman Case

On 26 May, the Pre- Trial Chamber II of the International Criminal Court (ICC) concluded the confirmation of charges hearing in the case of The Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman. Mr Abd-Al-Rahman has been accused of 31 counts of war crimes and crimes against humanity allegedly committed between August 2003 and at least April 2004 in Darfur, Sudan. Mr Abd-Al-Rahman was transferred to the ICC’s custody on 9 June 2020, after he voluntarily surrendered himself in the Central African Republic. The purpose of this hearing is to determine whether or not there is sufficient evidence to establish substantial grounds to believe that the suspect committed each of the crimes he has been charged with. If the charges are confirmed, in full or in part, the case will be transferred to a Trial Chamber, which will conduct the subsequent phase of the proceedings: the trial. The oral submissions of the Prosecutor, the Legal Representatives of the Victims and the Defence were heard at length, following which the judges at the Pre-Trial Chamber shall now begin their deliberations and deliver its decision within 60 days. In this process, the Pre-Trial Chamber may either confirm those charges and commit the suspect to trial before a Trial Chamber; decline to confirm those charges and stop the proceedings or adjourn the hearing and request the Prosecutor to provide further evidence. While the Defence and the Prosecutor cannot directly appeal against this decision, they can request for authorisation from the Pre-Trial Chamber for filing an appeal.


The Netherlands: Court Directed Oil Giant Royal Dutch Shell to Limit Carbon Dioxide Emissions by 2030

On 26 May, a district court in the Netherlands issued a judgment against oil giant Royal Dutch Shell (RDS) in the case of Claimants v. Royal Dutch Shell PLC. Royal Dutch Shell was directed to ‘limit all [carbon dioxide] emissions into the atmosphere … by at least 45% at the end of 2030, relative to 2019 levels’. Seven environmental non-governmental organizations and 17,000 Dutch citizens filed a suit, claiming that RDS was obliged to reduce its carbon dioxide levels in accordance with the ‘unwritten standard of care’ prescribed in the Dutch Civil Code. The court has interpreted the same to include protection of “right to life and the right to respect for private and family life.” It was further alleged that the operation of RDS is in no way consistent with the global climate target to prevent a dangerous climate change for the protection of mankind, the human environment, and nature. While RDS defended themselves by highlighting their endorsement of climate target and presenting investment plans in green technologies, the court was not convinced and maintained that there is a ‘common interest of preventing dangerous climate change’ and that RDS is ‘expected to do its part’. This case has set in historical records for being the first judicial ruling holding a corporation (RDS) liable for causing climate change and compelling RDS to develop considerably expedited carbon emissions reductions plan not just for its primary operations, but also indirect emissions from its customers world-wide.



India: Chief Justice Asked to Probe Electoral Violence in West Bengal

On 26 May, more than 2,000 women lawyers in India petitioned India Chief Justice Shri NV Ramana, urging him to probe post-electoral violence in West Bengal. They want the Chief Justice to constitute a Special Investigation Team to investigate the matter. Further, the Chief Justice was asked to register First Information Reports (FIRs) from victims or witnesses to aid in the investigation. Over the past weeks, several media outlets have released reports on the incident of assaults, destruction of property, murders, and rapes targeted at protected groups such as castes and tribes. The attacks have forced residents of entire villages to flee West Bengal.


ECtHR: Applicant’s Plea Concerning Secondary Victimisation on Account of Content of the Judgment Deemed Violative in Italy

On 27 May, the European Court of Human Rights (ECtHR) issued a Chamber judgment against Italy in the case of J.L. v. Italy. The applicant, an Italian national was gang-raped by seven men. The case concerns the conditions, in which the criminal proceedings had been conducted, resulting in the acquittal of the defendants and violating applicant’s rights to personal dignity and integrity under Article 8. The judicial authorities were confronted with two conflicting versions of the events. The direct evidence available to them consisted essentially in the statements made by the applicant as a prosecution witness, which contained contradictions in terms of the report on the gynaecological examination and the findings of the numerous technical expert reports drawn up by the investigators. However, the manner in which the presumed victim of sexual offences was questioned had to strike a fair balance between her personal integrity and dignity and the defendants’ defence rights. The ECtHR observed that the ‘criminal proceedings and penalties played a crucial role in the institutional response to gender-based violence and in combatting gender inequality. It was therefore essential that the judicial authorities avoided reproducing sexist stereotypes in court decisions, playing down gender-based violence and exposing women to secondary victimisation by making guilt-inducing and judgmental comments that were capable of undermining victims’ trust in the justice system.’ While the Court acknowledged that the national authorities had strived to ensure that the entire proceedings were conducted in accordance with their positive obligations under Article 8, the applicant’s rights and interests under Article 8 had not been adequately protected, on account of the content of the judgment delivered by the court of appeal. Hence the national authorities had failed to adequately protect the applicant from secondary victimisation throughout the proceedings as a whole, in which the wording of the judgment played a very important role, especially in view of its public character.


ECtHR: Applicant’s Plea Against Termination of Pre-adoption Foster Placement and Child’s Transfer to Another Family was Denied

On 27 May, the European Court of Human Rights (ECtHR) issued a judgment against the applicants in the case of Jessica Marchi. v. Italy. The applicant had developed a genuine parental project, having applied for and obtained pre-adoption approval, and had fostered an abandoned child in the context of a placement with a ‘legal risk.’ A few months later, the applicant’s husband was accused and subsequently declared guilty of sexual offences against the children. Thereafter, the authorities examined the temporary placement and, even though the applicant had confirmed her wish to live apart from her husband and to continue looking after the child, the Juvenile Court ruled that it was in the child’s best interests to find another placement elsewhere. The applicant appealed against the court’s decision alleging that the measures adopted in respect of the child, namely removal and placement with another family with regards to adoption, had resulted in an interference with the applicant’s private life. The ECtHR, while acknowledging the interference with the applicant’s private life, took the view that the termination of the placement had been in accordance with the law and had pursued the legitimate aim of protecting the best interests of the child, including latter’s particular need for security within a foster family.


ECtHR: Applicant’s Arbitrary Pre-trial Detention and Exposure to Inadequate Living Conditions in Ukraine Contravenes Article 3 and 5

On 27 May, the European Court of Human Rights (ECtHR) issued a judgment against Ukraine in the case of Tymchenko v. Ukraine. The applicant is a Ukrainian national who was born in 1986 and lives in Berezan. This case concerns the domestic authorities’ allegedly inadequate response to the applicant’s medical needs, the living conditions of his detention, as well as the conditions of his transportation between the detention facility and the Court, while in detention from 28 August 2010 to 17 October 2011. The applicant suffers from chronic hepatitis B & C, as well as, a host of other physical ailments. The applicant was serving a pre-trial detention on charges of hooliganism at the Chernigiv pre-trial detention centre (SIZO). Relying on Article 3 (prohibition of inhuman or degrading treatment) of the European Convention, the applicant complained that the prison regime under which he had been placed was incompatible with adequate medical and living conditions; especially overcrowding in the cells, lack of access to hygiene facilities, natural light, ventilation, poor conditions of transportation to and from the court. He further alleged that he had been deprived of his liberty in violation of the procedural legislation and that his pre-trial detention had been unjustified and lengthy. The ECtHR noted that the applicant had not sufficiently substantiated his complaints as regards to the inadequacy of medical assistance provided in the prison and hence, declared this part of the complaint as inadmissible. However, the court observed that the national authorities had failed to confirm the substantive and procedural rules as regards to the poor conditions of living, transportation and lengthy pre-trial detention and were directed to pay non-pecuniary damage worth EUR 4200 to the applicant.


ECtHR: Judgment for Applicant’s Arbitrary Detention and Exposure to Inhuman Treatment in Police Custody

On 27 May, the European Court of Human Rights (ECtHR) issued a judgment against Ukraine in the case of Debelyy and Others v. Ukraine. All the applicants are Ukrainian nationals who were born in 1975, 1979, 1971 and, were deceased in 2016. The case concerns four applications alleging excessive use of force/ill-treatment by police officers, lack of independent investigations into their complaints as well as inadequate conditions of detention and lengthy pre-trial detention. The ECtHR, while admitting all the four applications on the aforementioned grounds, found that the detailed accounts of the applicants’ as to their circumstances of alleged ill-treatment, conditions, as well as, the length of detention were sufficient for the court to classify as ‘inhuman and degrading.’ The Court therefore observed that there has been a breach of Article 3 of the Convention in respect of the applicants’ alleged complaints under both its procedural and substantive limbs and directed the state to pay stipulated amount of damages to all the applicants.


ECtHR: Applicants’ Deprivation of Liberty in Detention in Ukraine Deemed Unlawful

On 27 May, the European Court of Human Rights (ECtHR) issued a judgment against Ukraine in the case of Kirillov v. Ukraine. The applicant is a Ukrainian national who was born in 1962 and lives in Feodosiya. This case concerns the alleged illegality of the applicant’s detention during the examination of the criminal cases against him, in breach of Article 5 § 1 of the Convention. The applicant, who was convicted on several corruption related-offences, complained that his detention during the periods from 10 to 11 August 2009 and from 31 May to 12 August 2010 had not been justified by any formal decision. The ECtHR, on account of available materials and evidence, found this allegation completely inaccurate and not sufficiently established and hence, declared this part of the application inadmissible. However, with regards to his complaint that the court order (for the detention period 12 August 2010 to 27 April 2012) had neither cited any grounds nor time limit, the court found a deprivation of the applicant’s right to liberty under Article 5(1). It noted that the applicant was not provided adequate protection from arbitrariness, which is an essential element of the ‘lawfulness’ of detention within the meaning of Article 5(1), and therefore the applicant’s detention from 12 August 2010 to 27 April 2012 was likewise not in conformity with the impugned article. Ukraine was directed to pay the applicant EUR 1,800 (one thousand eight hundred euros) worth of non-pecuniary damage.



UN: Military Gender Advocate Highlights Gender Dimensions in Darfur

On 24 May, UN Secretary-General António Guterres commended an award-winning Kenyan peacekeeper for her critical gender-mainstreaming work in the Darfur region of Sudan. 32-year-old Steplyne Nyaboga was commended for her work after being awarded the 2020 UN Military Gender Advocate of the Year Award. The UN Secretary-General noted that peace and security will only be achieved if all members of the society have equal protection, opportunities, and access to services and resources. On her part, Major Nyaboga stated that she was happy with the UN efforts in serving humanity and the recognition of the troops making an impact in their work. Major Nyaboga has been critical in encouraging gender-sensitive outreach to the local communities to enhance civilian protection.


UNSC: UN Peacekeeping Fatalities Spike in 2021

On 24 May, the United Nations Under-Secretary-General for Peace Operations told the UN Security Council that the UN blue helmets face increased risks in the environment in which they operate. Mr. Jean Pierre Lacroix reported that since 1 January 2021, 15 peacekeepers have lost their lives to malicious attacks. He noted that, “one peacekeeper lost continues to be too many” and that the attacks against peacekeeping personnel constitute war crimes. UN peacekeeping forces face attacks in their peacekeeping operations which derail the pursuit for peace and hinder the effective implementation of UN Security Council mandates. Further, the forces face vehicle accidents and illnesses hence affecting their ability to execute their mandates.


UN: Secretary-General Deeply Concerned Over the Arrest Of Belarus Opposition Journalist

On 24 May, UN Secretary-General said that he was deeply concerned over the forced landing of a commercial passenger jet in Belarus and the detention of a prominent opposition journalist and dissident. Roman Protasevich was flying from Greece to Lithuania when the plane was forced to land in Belarus by a Belarusian military. The Belarus authorities said that a bomb threat had forced them to divert the plane to Minsk. Mr. Roman Protasevich, who fled the country in 2019 after popular protests erupted over the disputed presidential election was arrested along with his girlfriend, after landing in Minsk. The UN Secretary-General called for a transparent, full, and independent investigation over the disturbing incident.


UNICEF: Lack of Clean Water Deadlier Than Violence in War-Torn Countries

On 24 May, UNICEF released a report titled ‘Water Under Fire Volume 3’ which highlighted that children’s access to clean water has been and continues to be threatened by conflict. According to the UNICEF report, the danger exposed to children due to lack of access to water is greater than violence itself. The report highlighted that children under the age of five are 20 times more likely to die of diarrhoeal diseases than to violence. The report focused on nine countries where conflict and violence are prevalent and the impact it has on children. UNICEF estimates that over 48 million people need safe sanitation and water services in Central Africa Republic, Libya, Iraq, Palestine, Pakistan, Sudan, Yemen, Ukraine, and Syria.


UNSC: Somali Leaders Walk from the Brink of War as Tensions Rise Over Elections

On 25 May, James Swan, the UN Special Representative for Somalia told the UN Security Council that he was hopeful that the summit involving leaders from different political factions in Somalia commenced in Mogadishu will reach an agreement to hold elections. In early April, the House of the People and the Somali Parliament adopted a special law abandoning the landmark electoral agreement reached on 17 September 2020 and extended the terms for current office holders for two years. Opposition leaders opposed the change and began mobilizing militias that exposed the divisions within the Somali Security forces. The summit was welcomed as a relief after tensions escalated, threatening peace and stability.


UNSC: A Lack of Goodwill to Use Tools to Protect Civilians in Conflict

On 25 May, UN Emergency Relief Coordinator told the UN Security Council that the international legal framework to protect civilians caught up in conflict needs to be applied by governments and armed groups. Mr. Mark Lowcock noted that despite the UN Secretary-General’s calls for a global ceasefire during the COVID-19 pandemic, deadly fighting continued and has worsened in some regions. Last year alone, conflicts led to the displacement of over 80 million people with many of them unable to return home as insecurity, sanctions, red tape, and counter-terrorism measures hampered humanitarian operations. Mr. Lowcock warned that he has witnessed a “significant deterioration” in compliance with humanitarian law and that States need to improve training to avoid civilian harm, investigate incidents and hold those guilty of violations responsible.


UNSC: Serious Humanitarian Issues Exist in Syria Despite the Calm Being Experienced

On 26 May, UN Special Envoy for Syria told the UN Security Council that the country continues to suffer from terrorism, human rights abuses, and violent conflict. Syria’s population is facing economic displacement, detention, abduction, and destitution. Mr Geir O. Pedersen stated, that it is a tragic irony that at a period of relative calm, a great humanitarian crisis is occurring in Syria. The UN Security Council was asked to tackle the dire humanitarian situation and avoid imposing sanctions that harm ordinary Syrians. Steps are needed to create a calm, neutral, and safe environment conducive for refugees and internally displaced people to return to their homes.


OSCE: Ceasefire Violations Recorded in Ukraine

On 26 May, the Special Monitoring Mission (SMM) to Ukraine recorded 76 ceasefire violations that included 22 explosions in the Donetsk region. In the Luhansk region, SMM recorded 49 ceasefire violations including explosions. SMM further followed up on reports of a man injured after the detonation of an identified explosive object in government-controlled Kreminna, in the Luhansk region. There were also two damaged inhabited houses in government-controlled Hranitne and Pisky, Donetsk region. The SMM also monitored and facilitated adherence to localized ceasefires to enable the operation of critical civilian infrastructure.


OSCE: Montenegro’s Democratic Development Key to Security and Stability

On 26 May, OSCE Chairperson-in-Office, Swedish Minister for Foreign Affairs Ann Linde concluded her official visit to Montenegro. She highlighted the importance of country’s democratic development as vital to enabling peace and security. She stated that “progress has been achieved in fulfilling strategic reforms in Montenegro and, moving forward, this must remain the focus.” She highlighted the need to continue to ensure constructive and open political dialogue. In meeting with women parliamentarians, Ann Linde highlighted that gender equality remains a priority area for the OSCE and an important element to assess the level of democracy in any society. Chairperson Linde participated in a roundtable discussion with the civil society and youth representatives.


UNSC: Arrests in Mali

On 26 May, the UN Security Council met in a closed session to discuss the derailing of the Mali transitional government. Mali’s transitional Prime Minister and President were forced to step down on Tuesday, by the leader of the military coup. Further, the UN Security Council learned that Colonel Assimi Goita, acting Vice President led the overthrow of former President, Ibrahim Boubacr Keita. In a statement released after the closed meeting, the Security Council condemned the arrest of the transitional President and other civilian leaders by the Defence Forces in Mali. The meeting affirmed the support for a civilian-led transition in Mali and called for the immediate resumption of operations for the transitional government to pave way for elections within 18-month.


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