Ziada v. Netherlands: European Court of Human Rights case challenging immunities for war crimes in Gaza has been communicated to the Dutch government

On 20 June 2024 the European Court of Human Rights (ECtHR) communicated to the Dutch government the case of Ziada v. the Netherlands, in which we challenge the Dutch courts’ decision to grant immunity from civil suit to individuals accused of war crimes in Gaza. Six close family members of our client, Mr. Ismail Ziada, ranging from ages 12 to 70, were among the thousands of civilians killed by the Israeli defence force during ‘Operation Protective Edge’ in 2014. Those war crimes were met with impunity in Israel and elsewhere. As is well known, the targeting of civilians in Gaza has since recurred with greater intensity. The civil suit brought before Dutch courts by Mr. Ziada, who is Dutch-Palestinian, against then former IDF commanders Gantz and Eschel, was rejected on the grounds that ‘state immunity’ protected them from civil action for war crimes. The case before the ECtHR argues that the Dutch courts’ reliance on blanket ‘state immunity’ in this case is a violation of our clients rights to access justice under the ECHR.

The Court's communication to the government means the case has passed the preliminary examination phase before the Strasbourg Court. The Dutch government must respond to the allegations on admissibility and merits within 12 weeks. Within that time, interested third parties may seek to intervene. Our Application before the European Court on behalf of Mr. Zaida is available here. More information on his case and application is here.

Workshops on Judicial Independence across the EU

Judicial independence is under attack across the globe, including in the EU states. During 2023-4 HRiP has worked closely with project partners, led by International Commission of Jurists (ICJ), with Free Courts, Aditas and others on workshops on the role strategic litigation can play in response. A manual which will be written with ICJ reflecting insights from the remarkable practice to date, challenges and opportunities ahead, is forthcoming…

Breaking: case lodged on behalf of senior Tunisian judge challenging attacks on judicial independence

We filed an important complaint today at the UN Human Rights Committee on behalf of Judge Youssef Bouzakher, former president of the Tunisian High Judicial Council and one of 57 judges arbitrarily dismissed by Presidential decree. The case filed today forms part of - and epitomises - the unfolding rule of law crisis in Tunisia. Under the state of exception, the president has gradually assumed control over executive and legislative powers, and adopted a series of presidential decrees that eviscerate judicial independence, remove constitutional checks on presidential power and violate the rights of judges such as Youseef Bouzakher.

Our client was removed from his role as HJC president when the independent high judicial council, charged with safeguarding judicial independence, was disbanded and replaced by a ‘temporary HJC under presidential control. His distinguished judicial career came to an abrupt end with the mass dismissal of judges, without reasons or due process of law. A presidential decree also indicated that all dismissed judges should be prosecuted - further undermining the independence of the justice system - and he is now subject to a wholly arbitrary criminal process on spurious but serious charges.

Helen Duffy of Human Rights in Practice is counsel for Judge Bouzakher, working alongside the International Commission of Jurists. For more information see the ICJ press release and the summary complaint.

Annual Review: the work of HRiP in 2023

With this short report, I am sharing the highlights of the work of Human Rights in Practice during 2023. It was a pleasure to work with many of you last year and look forward to doing so in the year ahead. As previously, you will find links to significant submissions or decisions - there were quite a few last year - in the hope that they might be helpful to some of you in your own work.  Suggestions are always welcome. Very many thanks to those who partnered, supported and/or contributed. HD 31/1/24

Expert Indictment Review: ‘terrorist propaganda’ prosecution of Turkish academic and rights defender Rasime Sebnem Fincanci violates international law.

An expert opinion by Helen Duffy on the Indictment filed by Turkish prosecutors against academic and human rights defender Rasime Şebnem Fincancı Korur and its compatibility with international human rights law (IHRL) has been published. Dr Fincancı is a medical expert and human rights advocate, formerly President of the Human Rights Foundation of Turkey, President of the Turkish Medical Association and academic at Istanbul University. According to the indictment (No 2022/8895, originally filed on 19 October 2022 before the High Criminal Court of Ankara), Dr. Fincancı was interviewed by Medya Haber TV about the alleged use of chemical weapons by the Turkish state. She opined, based on a video she was shown on the show, that toxic, chemical and poisonous gases had been used and that these allegations should be investigated in line with human rights standards. The indictment states that during her interview, and while her name and expertise were shown on the screen, images of deceased PKK members, apparently killed by the chemical weapons in question, were shown by Haber TV with subtitles referring to them as ‘massacred’ ‘guerrillas’. As a result, she was prosecuted for disseminating propaganda in favour of a terrorist organisation, under Article 7/2 of the Anti-Terror Law in light of Articles 53, 58/9, and 63 of the Turkish Penal Code, Article 325/1 of the Code of Criminal Procedure. 

The legal analysis, finding multiple concerns with the prosecution of the accused on the basis set out in the indictment, is available here. 

22nd anniversary of the Guantanamo detention centre... and the urgent need for global leadership

The Guantanamo detention centre - unlawful, inhumane, unstrategic, a dangerous symbol of injustice and selectivity - turns 22 today. For almost as long, our client Abu Zubaydah has been detained by the CIA and at Gitmo, without charge, trial or review of the lawfulness of detention. Multiple courts and international legal authorities have now clarified that he (like the 29 others that remain at Guantanamo) are held in arbitrary detention amounting to torture, and that the US and other states must act urgently to bring this to an end.
A quick anniversary recap, just from some of the litigation we have brought on behalf of Abu Zubaydah (other detainees’ cases and other UN reports add to this chorus):
- In April 2023, the UN Working Group on Arbitrary Detention found the US, UK, Thailand, Afghanistan, Morocco, Lithuania and Poland share responsibility for violations of his rights and should ‘take the steps necessary to remedy the situation without delay’, noting the only appropriate remedy is ‘immediate release …and reparation’. (Those states were due to have reported on measures to given effect to this decision by October 2023.)
- Back in 2014 and 2018, the European Court of Human Rights found Poland and Lithuania responsible for complicity in CIA detention, torture and transfer to Guantanamo, and that they must make representations to bring to an end the ‘flagrant denial of justice’ to which he and others are subject.
- Most recently, in October last year, the Committee of Ministers of the Council of Europe underscored the urgency of 'profound humanitarian concerns' in Abu Zubaydah’s case and the arbitrariness of Guantánamo - cruel, inhuman, and degrading treatment that may also meet the legal threshold for torture. They made an ‘urgent call’ for states to step up diplomatic efforts, notably looking beyond the states directly responsible for complicity in the wrongs, and calling on ALL Council of Europe states to step up pressure for closure and repatriation.
Can we make those findings - and the human rights and international law obligations they reflect - matter in 2024? What measures are being taken by states - including offers of relocation and rehabilitation to Abu Zubaydah and others - to finally bring to an end the shameful saga of Guantanamo Bay?

Ziada v. Netherlands case filed: immunities protecting former Israeli commanders from civil suit for war crimes violate the European Convention on Human Rights

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 now lodged at the ECtHR 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.

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

UK Supreme Court’s interim judgment in Abu Zubaydah’s torture claim v UK government

The latest development in Abu Zudaydah’s long quest for justice - an important preliminary judgment on 20 December by the UK Supreme Court in the civil claim against the UK government for complicity in torture, dismissing a government appeal that would have imposed obstacles to justice.

The Government ’s appeal concerned applicable law: it had argued the claimant must argue his tort case based not on English law but on the law of the multiple states where he may have been secretly detained and tortured at the time of the alleged complicity (the UK sent questions to be posed to him in the knowledge that he was being tortured). In the circumstances of this case, where our client was secretly detained at multiple CIA detention sites, to require him to argue based on foreign law would have been unjust and imposed an excessive burden. The UK courts agreed and found that in the circumstances of his case it was substantially more appropriate for the applicable law to be English law. We hope the government will now engage constructively to redress the violations to which our client has been - and continues to be - subject to as a result of the shared responsibility of many states, including the UK, in his ongoing arbitrary detention and torture.

Abu Zubaydah has now been held for almost 22 years without charge trial or review of the lawfulness of his detention. Last year the UN Working Group on Arbitrary Detention found the UK was one of the states complicit in his torture. It called for him to be immediately released. The states responses to that decision are now due.

See press release by Bhatt Murphy, solicitors in the UK case and more information on Abu Zubaydah’s international litigation here.

COE Committee of Ministers calls for Urgent Action from all states in Abu Zubaydah cases

The Council of Europe’s Committee of Ministers (COM) has published two decisions in relation to the implementation of the European Court of Human Rights (ECtHR) judgements in Abu Zubaydah v. Lithuania and Abu Zubaydah v. Poland. The Committee of Ministers, a political body, is charged with overseeing the full implementation of ECtHR judgements and has issued decisions calling for action by states for several years. The decisions adopted on 21 September 2023 and recently published online, represent a significant intensification of the Committee of Ministers’ efforts to ensure states seriously their obligations to bring to an end our client’s plight at Guantanamo and to give full effect to these groundbreaking judgements.

-         The COM expresses its ‘deepest concern’ about ‘urgent humanitarian situation’, arising from his ongoing arbitrary detention without charge or trial since 2002.

-         It joins other voices, including the UN Working Group on Arbitrary Detention and the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, in finding the situation at Guantanamo to amount to cruel inhuman or degrading treat or torture.

-         The decisions refer back to the judgements of 2014 (Poland) and 2018 (Lithuania) which make clear both states’ obligations to carry out a full and effective investigation and to make representations with a view to bringing the ongoing “flagrant denial of justice” in our client’s case to an end. Responsible states must ensure the measures it takes are as effective as possible (which, as the COE has reiterated frequently, must be individual and collective).

-         The decisions are also critical of the United States, not only for the CIA torture programme but the ongoing violations that in their totality amount to torture cruel inhuman and degrading treatment today, and for US non-cooperation with other states which is repeatedly raised by other states as an impediment to investigation and reparation.

-         Notably, the decision adds that given the growing urgency of the issue all other member states of the Council of Europe and the Secretary General should seek to intervene and to raise his situation in relations with the United States.

These decisions are especially timing as all 6 states that the UN Working Group found to be in violation of their obligations are due to report on measures taken to given effect to the decision by the end of this month. Moreover the US is up for review of compliance with  its human rights obligations before the UN Human Rights Committee on 17 October. 

The pressure must increase on the US to end its flagrant violation of our client’s rights. All other states should be asked what measures they are taking  - including offers to relocate Abu Zubaydah and other meaningful assistance and cooperation - to finally bring an end to the shameful ‘flagrant denial of justice’ of his arbitrary detention at Guantanamo.

Helen Duffy

15 Oct 2023

Highlights from the decisions in relation to both states follows:

The Deputies

1.         recalling that in the present judgment(s) the European Court established [] responsibility on account of the authorities’ knowledge of and involvement in the implementation of the CIA “High-Value Detainee Programme” and found serious violations of several Convention rights … in the context of an “extraordinary rendition” operation which enabled the United States authorities to bring the applicant illegally under United States jurisdiction;

2.         recalling further, with the deepest concern, that the consequences for the applicant of the violations of the Convention found by the Court have not been remedied as he remains in “indefinite detention”, without charge since 2002 and without safeguards against arbitrariness, and at risk of further inhuman treatment;

3.         stressed that Mr Abu Zubaydah’s situation raises urgent humanitarian concerns, as also attested by the recent findings of United Nations expert bodies, in particular [CIA torture and lack of any prospect of a fair trial], and that the cumulative conditions of his continuing detention and other factors related to the arbitrariness of the detention at the Guantánamo Detention Facility amount to cruel, inhuman, and degrading treatment, and may also meet the legal threshold for torture;

4.         restated their profound concern at the United States authorities’ refusals, so far, to support requests for diplomatic assurances against the grave risk faced by the applicant;

5.         recalling the Committee’s urgent calls for a stepping up of […] diplomatic efforts vis-à-vis the United States;

6.         urged the [] authorities to intensify their diplomatic efforts aimed at seeking to remove, as far as possible, the effects of the violations suffered by the applicant, including by raising the issue at a higher level;

7.         invited the authorities to inform the Committee of their assessment whether, given the applicant’s current situation, as it emerges from the above-mentioned findings of United Nations expert bodies, they have deemed it necessary or advisable to change the focus of the representations they have made so far to the United States authorities;

8.         recalled once more that the United States has observer status with the Council of Europe and … exhorted them accordingly to reconsider their position and to provide all necessary assurances and assistance or take equivalent measures;

9.         in view of the urgent aspects, called on the authorities of the other member States of the Council of Europe and on the Secretary General to raise the applicant’s situation in their contacts with the United States authorities; invited the Secretary General to transmit this decision to the Permanent Observer of the United States to the Council of Europe;

10.       as regards the pending domestic investigation, [called for more effective action and] invited information of any relevant developments …;

11.       emphasising once again the importance to thoroughly explore every other relevant avenue for co-operation with member and non-member States alike and with international institutions or bodies

Two new filings in the Abu Zubaydah case:

Today in US courts Abu Zubaydah launches a civil suit against the psychologists that designed and implemented the ‘enhanced interrogation’ torture techniques, to which he was brutally subjected during CIA secret detention.

Last week our UNHRC submission pressures for release, rehabilitation and reparation… 

Our client has been tortured and detained without lawful basis, charge or trial for 21.5 years. The need to find suitable relocation options, for him to be released and for him to receive essential medical care and rehabilitation, is extremely urgent. 

A joint press statement on both filings is here.

United States before the UN Human Rights Committee -Submission filed on Guantanamo & Torture

A submission has just been filed with the UN Human Rights Committee in relation to US compliance with its ICCPR obligations. It draws particular attention to the plight of Abu Zubaydah who case epitomizes many of the worst ongoing problems of #arbitrarydetention and #torture at #Guantanamo.

His release, reparation and reckoning with the past are - or should be - urgent priorities. The submission is made in advance of the UNHRC’s periodic review of the United States in October 2023.

The brief was submitted in collaboration with the UCLA’s Promise Institute.

Complaint on Amazonian Deforestation & Indigenous rights violations admissible v. major commodity trader

 BREAKING NEWS: the complaint brought on behalf of a group of indigenous rights and environmental NGOs against a major Dutch-based commodity trader for its role in deforestation of the Peruvian Amazon and indigenous rights violations has been admitted by the Dutch OECD national contact point (NCP).

The complaint against the Louis Dreyfus corporation (LDC) concerns the impact of one of the the “big 4” global agricultural commodity traders, through its supply chain, on indigenous communities, the environment and climate change, despite its purported green credentials. Today the NCP found the complaint admissible on grounds that the allegations are material and "prima facie substantiated". The NCP has announced that both parties have accepted the ‘good offices’ of the NCP. Honoured to be involved in preparing this complaint for and with a great coalition of NGOs: 

www.rightsinpractice.org/new-blog/2023/9/4/oecd-indigenous-rights-amp-deforestation-complaint-v-dutch-based-ago-commodity-trader-prima-facie-substantiated-and-admissible

Garzón v Spain: UN report indicates complete failure of Spain to implement the UN Human Rights Committee’s decision

A recent report of the UN Human Rights Committee’s Rapporteur on Follow Up makes clear that Spain has wholly failed to implement the UN Committee’s 2021 decision in the Garzón v Spain case. In its groundbreaking 2021 decision the UNHRC condemned the arbitrary dismissal and prosecution of Judge Garzón and Spanish interference with judicial independence, and found that Spain should provide “integral reparation.” Since 2021, Helen Duffy/HRiP who represents the former Judge in his international litigation, has sought on multiple occasions to engage with the Spanish state to ensure implementation. The Spanish state’ s failure to provide any meaningful response is an affront to the authority of the UN Committee and to Spain’s international legal obligations under the ICCPR. See more information in English here, y información en Español aquí.

BREAKING DECISION: ABU ZUBAYDAH v. UNITED STATES & 6 OTHER STATES

A powerful, ground-breaking decision has just been issued in the international legal case HRiP brought on behalf of Abu Zubaydah against the United States, Thailand, Poland, Morocco, Lithuania, Afghanistan and United Kingdom.

The UN Working Group on Arbitrary Detention, in a decision made public on 28 April 2023, reached damning findings on the unlawfulness of Guantanamo, torture and disappearance by the US, and 6 other states that share 'joint responsibility' for the ongoing violations of our client's rights. The Working Group calls for Abu Zubaydah's immediate release, rehabilitation and compensation, and the investigation of what it terms "crimes against humanity."   

For more information see our press release and summary.

Review of HRiP's work 2022

A short review of some of the highlights of our work in the past year is here. Thanks to all who collaborated, supported, and/or trusted us with their cases and causes.

OECD Complaint filed v. major commodity trader for Amazonian deforestation

A potentially important OECD complaint has been filed before Dutch National Contact Point against Dutch palm oil trading giant Louis Dreyfus Company (LDC), alleging its role in the unlawful #deforestation of the Peruvian Amazon and #humanrights violations. It is the first case of its type, targeting the crucial part that commodity traders play in breaching OECD guidelines through lucrative business relationships with notorious violators in the #palmoil sector. The case concerns unlawful deforestation, contributing to dangerous #climatechange, violations of indigenous peoples rights, and the misleading of consumers and the public.

Delighted to have worked on this brief for the past year for the Centre for Climate Crime Analysis (CCCA), with a range of excellent partners in Peru and internationally (AIDESEP and FECONAU, supported by Forest Peoples Programme, Instituto de Defensa Legal, Instituto de Estudios Forestales y Ambientales – Kené, EIA - Environmental Investigation Agency, and the Center for Climate Crime Analysis). Credit to the Santa Clara de Uchunya community for its tireless fight for justice, to the coalition of NGOs bringing or supporting the claim, and to CCCA for the rigorous research that made it possible.

Let’s hope it contributes to essential change in business relationships and behaviour.

More info on the case and coalition and the brief on CCCA’s website in English (y en Español).

Statement of support from the indigenous community of Santa Clara de Uchunya.

UNCAT granted interim measures for Kazakh HRD; Sweden responds

HRiP has receives confirmation that Sweden has responded to a request by the UN Committee against Torture and temporarily suspended the deportation to Kazakhstan of our client, who faces torture, arbitrary prosecution, and psychiatric detention for her political opinions and exercising the right to dissent. HRiP is gratified that the UN Committee against Torture responded promptly and favourably to the request for interim measures in this clear and compelling case. The case forms part of the systematic repression of protesters and dissenters in Kazakhstan, which requires a decisive response from the international community. Yet the Swedish courts immigration process revealed a stark failure to engage with the clear and grave dangers arising in this case or the context in Kazakhstan. Credit is due to Sweden for this temporary suspension which should lead promptly to a longer term solution for our client. Torture survivors should not have to live with the constant fear of being delivered back to the same fate, or with the revictimisation they (often) receive at the hand of inadequate immigration processes.

UNCAT: interim measures sought for human rights defender facing torture in Kazakhstan

Just Filed - urgent request to UNCAT to grant interim measures to prevent the deportation of a government critic and #humanrightsdefender from Sweden to Kazakhstan. If returned, Botakoz Issayeva faces torture, in the form of “punitive psychiatry,” compounded by arbitrary detention & abusive criminal charges under “terrorism/extremism” legislation, on the sole basis of her political opinions and human rights activism. The Swedish immigration system has failed the applicant, refusing to engage with the compelling evidence of the serious risks HRDs face in Kazakhstan and the personal risk to the applicant. Her deportation is therefore imminent. The urgent petition is available here.

Piskin v Turkey ECtHR: thousands of dismissed Public Sector workers look to holistic implementation of ECHR judgement

The Pişkin v. Turkey judgment (2021) was the first in which the European Court ruled on the incompatibility with the ECHR of the massive arbitrary dismissals of public sector workers under the Turkish state of emergency. The submissions in this case, prepared for the Turkey Litigation Support Project, and colleagues from Amnesty International and the International Commission of Jurists, urge the Committee of Ministers to exercise robust oversight of this important case, and to adopt a holistic approach to implementation and reparation. The findings of the Court are relevant to the tens of thousands affected by this drastic practice, whose right to an effective remedy continues to be violated. Our submission of September 2022 makes clear that, despite government claims to have implemented the judgment, it has wholly failed as yet to take the individual or general measures required by the Court. Our submissions are here.

Urgent plea to UN special procedures to seek to halt HRD's deportation to Kazakhstan

Just Filed - urgent request to UN special procedures to intervene to prevent the deportation of a government critic and #humanrightsdefender from Sweden to Kazakhstan. If returned, Botakoz Issayeva faces “punitive psychiatry” & criminal charges under abusive “terrorism/extremism” legislation, on the sole basis of her political opinions and human rights activism. The Swedish immigration system has failed the applicant, refusing to engage with the compelling evidence of the serious risks HRDs face in Kazakhstan and the personal risk to the applicant. Her deportation is therefore imminent. Support is urgently sought from the UN special procedures, from interested civil society groups, parliamentarians and others to prevent irreparable harm.

The urgent petition is available here. It was submitted for the attention of:    The UN Special Rapporteur on the Situation of Human Rights Defenders, Mary Lawlor;    The UN Special Rapporteur on the Promotion and Protection of Human Rights while Countering Terrorism, Fionnuala Ní Aoláin;   The UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Alice Edwards;    The UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Expression, Irene Khan; and  The UN Working Group on Arbitrary Detention.