By Professo Nicolás Zambrana-Tévar, Study Group of Private International Law and Human Rights, University of Navarra

The first Spanish judicial decision sentencing a person for the crime of Genital Mutilation carried out outside Spain was issued last 4 April, 2013 by the Spanish Audiencia Nacional of Madrid.

The Spanish Criminal Code was amended in 2003 (art. 149.2) and a new offense was introduced, namely genital mutilation (male and female). Furthermore, the Spanish jurisdiction statute was amended in 2005 in order to give Spanish courts extraterritorial jurisdiction to allow them to hear cases on Female Genital Mutilation (article 23.4). So far, several cases of FGM have already been heard in Spain but only one has reached the stage of oral proceedings, finishing with a sentence of six years for the father and two years for the mother of the mutilated girl. In December, 2012, the Spanish Supreme Court confirmed the latter sentence issued by the Teruel Court of First Instance. In May, 2013, another couple from Gambia who lived in Vilanova i la Geltrú (Catalonia) was also sentenced to 12 years in prison for having performed FGM or allowed FGM to have been performed upon her two daughters.

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By Rebecca M.M. Wallace (Professor of International Human Rights and Justice, Robert Gordon University, Aberdeen, UK) and Karen Wylie (Research Assistant, Robert Gordon University, Aberdeen, UK)

The principle of the best interests of the child is enshrined in international law by Article 3 of the 1989 UN Convention on the Rights of the Child (UNCRC). Similarly the right to family life is protected by Article 8 of the European Convention on Human Rights (ECHR). In June 2012, in the case of BH (AP) (Appellant) and another v The Lord Advocate and another (Respondents) (Scotland) KAS or H (AP) (Appellant) v The Lord Advocate and another (Respondents) (Scotland) Trinity Term [2012] UKSC 24, On appeal from: [2011] HCJAC 77 (hereafter referred to as BH), the UK Supreme Court had to consider the weight to be given to these principles in the context of the extradition of a couple to the US and the effect this would have on their children.

Very briefly, the charges against the couple, Mr and Mrs H, were conspiracy and unlawful importation into the US of chemicals used to manufacture methamphetamine in the knowledge of, or having even cause to believe, that they would be used for that purpose. Mrs H is the mother of six children whose ages ranged, at the time of the case, from 14 to one year. Mr H is the father of the four youngest children. The Supreme Court acknowledged that the children’s interests would be interfered with, at least to some degree, by the extradition of either parent, and if both parents were to be extradited the effect on the family life of the children would be “huge”. The issue confronting the Supreme Court was the weight to be given to the children’s best interests, and whether on considering these best interests, the extradition of both parents, or either of them, would be proportionate. In assessing the parents’ case the Court relied heavily on a previous case, ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011), in which the weight to be given to the best interests of a child who faced the removal of one of his parents from the UK, was discussed at length.

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By Robert Grabosch, Attorney at law

Claimants from all over the world have brought various lawsuits against non-US companies because of human rights being violated outside of the United States. Currently, a supposed clash of extraterritorial jurisdiction of civil courts with the international law principle of state sovereignty, or non-intervention, has put all litigation under the US Alien Tort Claims Act to a halt. The Notepad repeatedly commented on this kind of litigation (see the ATCA / ATS tags). In a post over at grabosch-law.eu, I try to explain that provisions of extraterritorial jurisdiction – i.e. jurisdiction in cases which have no or hardly any connection to the forum state – are well known in legal systems outside of the United States. At least from a German understanding of international law, civil courts’ jurisdiction is not at odds with the principle of non-intervention. Read the rest of this entry »

By Dr Olga Martin-Ortega (University of East London, Centre on Human Rights in Conflict) and Iva Vukusic

Over 300 participants; academics, practitioners, ICTY judges, prosecutors, defense lawyers as well as representatives of national judiciaries gathered in The Hague last November to examine the global legacy of the International Criminal Tribunal for the former Yugoslavia (ICTY). The discussions throughout the conference, organized by the ICTY, were self-congratulatory, lacking in constructive criticism.

This was an opportunity to take stock of all the achievements of the ICTY, accomplishments made at times against all odds. Today, this is a court that has no fugitives left, it has conducted proceedings in relation to 161 persons and, little by little, it is approaching the end of its mandate. Two more trials, for the last fugitives caught – Ratko Mladic and Goran Hadzic are yet to begin.

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By Iva Vukusic (The Hague) 

Now that the last of the fugitives has been arrested, the International Criminal Tribunal for the Former Yugoslavia (ICTY) faces a calmer future. Two trials, those of the two most recent suspects to arrive to The Hague have yet to begin and several judgments will be rendered both in the first instance and on appeal. Then, maybe in five years or so – when all the trials are completed – the ICTY will go down in history as one of the most successful international institutions dealing with war crimes. 

Eighteen years ago, images of attacks on civilians in Sarajevo, camp detainees in western Bosnia and ethnic cleansing on a massive scale caused a shift in public opinion and political will resulting in a new institution being born – one like no other before. Back then no one knew how successful it might be.

If you asked those involved in the early stages of the Tribunal’s work if all its suspects will one day be arrested, few would have probably answered affirmatively. Yet, all of them have been arrested. No other judicial institution can claim the same success.

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By Belachew Mekuria Fikre, Addis Ababa University Centre for Human Rights

Book Review; Mervyn Frost, ‘Constituting Human Rights: Global Civil Society and the Society of Democratic States’. London and New York: Routledge, 2002. 161 pp. ISBN: 0-415-27227-0

‘[H]ow are we to think about the clash between our civilian rights and our citizenship rights?’ This is the fundamental ethical question that Mervyn Frost’s book examines in light of a previously articulated ‘constitutive theory.’[i] Professor Frost argues for the centrality of human rights discourse in global politics in which ethical dilemmas of these types are unavoidable. The arguments are constructed based on the two fundamental practices that most of us are participants, as members of the global civil society and as members of democratic and democratising states. Then he takes on an extensive investigation of various ethical conundrums we found ourselves in because of our membership in these ‘apparently’ conflicting practices. The central problem that the book intends to address is the indifference within the practice of international relations to take human rights seriously. Accordingly, through the instrumentalities of constitutive theory, Frost propounds the urgency of bringing human rights back in to reconcile these conundrums.

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By Belachew M Fikre, Lecturer at Addis Ababa University, Institute of Human Rights

The European Court of Human Rights (ECtHR) has given on the 7th July 2011 a judgement (Al-Jedda case) holding the United Kingdom responsible for the acts of its military forces in Iraq in what may be called a significant blow to the ever unchecked multinational military operations under the names of maintaining international peace and security, war on terror, or as recently emerging dubious guise ‘to protect civilians and civilian populated areas under threat of attack.’

The case (Al-Jedda v the United Kingdom, available here) involved an Iraq-born individual who had been interned or detained in Basra for over three years, between 2004 and 2007. Basra internment centre was controlled and run by the British forces in Iraq and he was held for purposes of investigation on his alleged involvement, among others, in recruiting terrorists outside Iraq to commit atrocities in Iraq, for helping an identified terrorist explosives expert travel into Iraq, and conspiring with that explosives expert to conduct attacks with improvised explosive devises against coalition forces near Fallujah and Baghdad. 

After his release (and being denied re-entry into the UK to which he had become a national), Al-Jedda had brought actions, though unsuccessfully, before various national organs until his case was dismissed by the House of Lords which reiterated that because of the UN Security Council’s (UNSC) Resolution, the British government’s responsibility under the European Convention on Human Rights (ECHR) cannot be invoked. The House of Lords reasoned that the mandate the UNSC Resolution 1546 had placed on the UK government brings the UN as the proper organ responsible for the internment measures taken on Al-Jedda which, because of Article 103 of the UN Charter displaced the applicability of Article 5(1) of the ECHR. According to Article 103 of the UN Charter ‘in the event of conflict between the obligations of the members of the UN under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’

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