It is often in armed conflict situations that human rights are most vulnerable and their protection most challenging. Ensuring that law is given effect in armed conflict, through the co-applicability of international human rights and humanitarian law, is a priority area of interest and expertise for HRiP.
Ziada v Netherlands: challenging Immunities for War Crimes at the ECtHR
The background facts of the Ziada v Netherlands case recently filed at the European Court of Human Rights (ECtHR) will be familiar: attacks on civilians and residential areas within a refugee camp in Gaza killing civilians and civilian objects in violation of IHL. The applicant in this case is a Dutch Palestinian man who lost his family – mother, brothers, sisters in law and nephew, ranging from 70 to 12 years old - when the family home was levelled during ‘Operation Protective Edge’ in Gaza in 2014. OPE reeked what a subsequent UN enquiry described as (then) “unprecedented” civilian devastation. Despite widespread allegations of war crimes and calls for accountability, there was no meaningful investigation and no opportunity for victims to access remedies before Israeli or Palestinian courts. The case was brought by Ziada, a Dutch national resident in NL, to Dutch courts, and was dismissed on August 2023.
The case lodged at the ECtHR on 23 December 2023 concerns the decision of Dutch courts to reject our client’s claim, on the basis that former military officials purportedly enjoy complete immunity from civil suit in foreign courts under customary international law – even when the case concerns individual responsibility for war crimes and even where there is no alternative forum and would result in a denial of justice. In our application to the European Court we argue that, on the particular facts of this case, the Dutch courts approach is out of step with current international law, and is a violation of article 6 (access to justice) and article 14 (non-discrimination) of the European Convention on Human Rights.
On 20 June the case was communicated to the Dutch government, meaning it has passed the preliminary examination phase. The government has 12 weeks to respond, and interveners 12 weeks to seek leave to intervene.
Our arguments to the ECtHR are here. For background information on the cases in Dutch courts see: https://www.nuhanovicfoundation.org/pages/litigation-support/palestine-conflict-home/ziada-case-2
Accountability in North East Syria: At the request of the European Institute for Peace (EIP), two substantial pieces of international legal advice were provided during 2020-21 in relation to proposed prosecutions of ISIS-related crimes by the de facto Kurdish authorities (the ‘Autonomous Administration’) in control of North East Syria. A briefing was provided to European state representatives and the Autonomous Authority.
The first advice focuses on whether non-state actors can investigate and prosecute consistently with international law, for which crimes under national or international law and according to what standards, as well as the implications for the lawfulness of cooperation by third states. The advice indicates that international standards have evolved to the point where there is, at a minimum, no legal impediment to such prosecution per se, or to international cooperation, provided essential justice guarantees are provided. The second follow up advice focuses in more detail on specific questions related to operationalising fair trial rights before an independent, impartial and competent tribunal, and the real challenges posed in the context of the prosecution of ISIS suspects detained in the current conditions of the notorious al Hol detention camp. It addresses the requirements of an independent and impartial tribunal, specific fair trial challenges of relevance throughout investigation and prosecution, the potential and limits of guilty pleas and abbreviated proceedings (APs); and charging considerations related to the nature of the crimes at stakes and international law. Effective investigation and fair trial would depend on careful attention being paid to each of these, greater international cooperation and changed circumstances in the camps. This refers back to the first advice regarding the lack of adequate international cooperation with repatriation and accountability, of which the Autonomous Authority has consistently complained.
A short chapter addressing ‘De Facto Justice? Prosecution by Non-State Actors in Armed Conflict’ is available here and pending publication in a book on non-state actors in international law and practice.
Advice, publications and outreach: In the context of the Russian invasion of Ukraine in March 2022, HRiP joined many others in considering and advising on the international law and human rights implications. See e.g. Helen Duffy’s radio interview with BBC World Service News Hour in April 2022 on prosecuting genocide or war crimes in Ukraine, or Dutch press article in NRC here.
Helen has many publications on IHL and human rights and regularly advises on related issues. Her book on Law Applicable in Armed Conflict (with Bohrer and Dill) published by CUP (2020) is here. Her Just Security blog on ‘Russia v Georgia; Jurisdiction, Chaos and Conflict at the European Court of Human Rights’ is here.