Israel-Gaza: the International Court of Justice wields soft power
On 26 January, the International Court of Justice (ICJ or ‘the Court’) delivered a landmark interim ruling in a case, brought by South Africa, which found it to be ‘plausible’ that Israel is violating its obligations under the Genocide Convention regarding the situation in Gaza. The Court ordered Israel to implement six provisional measures, which are binding legal obligations in international law. ‘The fact that the ICJ ruled that it is plausible that Israel is committing, inciting or failing to prevent a Genocide is highly significant’, says Toby Cadman, Secretary of the IBA’s War Crimes Committee.
What is also significant is that decisions on each of the six provisional measures ordered were reached by an overwhelming majority of the judges (15 to two or 16 to one). The ICJ judges come from a range of countries, some holding opposite views on the Gaza conflict. For example, the President of the Court was American, the Vice-President Russian and there were ad hoc judges from South Africa and Israel. In total, four of the judges were nationals of one of the five permanent member states of the UN Security Council.
Anne Ramberg, Co-Chair of the IBA’s Human Rights Institute and ad hoc judge at the European Court of Human Rights, suggests that the broad cross-section bolsters the Court’s legitimacy. ‘The rulings of the ICJ are highly respected within the international community and the objectivity of each judge, the spread of nationalities, and the number of states involved, ensures that the correct outcome is determined,’ she says. ‘This outcome may assist in persuading the UN Security Council to take action.’
Whatever action may follow the Court’s ruling, it has been criticised by some for not going further and ordering a ceasefire in its original provisional measures. Ramberg thinks the international community had already made its voice heard on the issue: ‘While the provisional measures of the ICJ were impactful, the ICJ should have added their voice to the global call for an immediate ceasefire in line with the resolution of the UN General Assembly of December 2023 […] That said, the ICJ has only jurisdiction over states and not over acts committed by Hamas.’ Mandating a one-sided ceasefire could have been controversial both legally and politically, potentially being seen by some as undermining Israel’s right to self-defence.
The rulings of the ICJ are highly respected. This outcome may assist in persuading the UN Security Council to take action
Anne Ramberg
Co-Chair, IBA Human Rights Institute
The ICJ’s decision has also sent a clear message to governments worldwide: parties to the Genocide Convention have an obligation to prevent genocide beyond their own borders. It is a warning to countries that their support for Israel may ultimately be found to be contrary to their treaty obligations. Dr Ardi Imseis, Professor of International Law at Queen’s University and member of the Palestinian legal team at the ICJ advisory opinion proceedings, notes: ‘This means that these states, especially those with relations with Israel, must utilise whatever power they have to incentivise Israel to cease course,’ he says. ‘This includes diplomatic, economic, cultural and political boycott, as well as pursuit of actions against individual Israelis in the domestic courts of these third states.’
National courts are also taking notice. On 12 February, a Dutch appeals court blocked the sale to Israel of F-35 fighter jet parts due to the risk that they may be used to commit serious violations of international humanitarian law. In another development, the US announced that all countries receiving US military aid will be obliged to provide written assurances that they are complying with international law, with such obligations to be reported upon by the US State Department and the Department of Defense. There have been further developments at the ICJ: on 1 March Nicaragua instituted proceedings against Germany for its financial, political and military support of Israel which it argued constituted serious breaches of international law.
Nevertheless, the broad consensus among the UN and humanitarian organisations operating on the ground is that little has changed in Gaza since the ICJ decision. Referring to the Court’s ruling which ordered Israel to prevent genocidal acts in Gaza and to allow humanitarian aid into the territory, a joint statement by various human rights and humanitarian organisations on 15 February affirmed that ‘not only has this not happened, the situation on the ground has deteriorated further’. Reports from various sources confirm that civilian casualties are mounting as famine looms in Gaza. ‘The deliberate starvation of civilians is not an act of self-defence but a method of warfare, in breach of Israel’s international obligations,’ says Ramberg. ‘This has been recognised by the ICJ and should be understood by the global community.’
The impact of the ICJ ruling on Israel’s military and political leadership appeared to be negligible. Indeed, only days after the ICJ order was issued a conference in Jerusalem, attended by Israeli government parliamentarians, including 11 cabinet ministers, heard calls for Israeli settlement of the Gaza strip and the ‘voluntary’ migration of Palestinians. The UK was ‘alarmed’, the US was ‘troubled’ by ‘incendiary and irresponsible’ rhetoric, and France reiterated ‘that the International Court of Justice recently set out Israel’s obligation to take all measures within its power to prevent and punish this kind of rhetoric [...]’. Cadman concludes of compliance with the ICJ order that ‘it is disappointing to see that it has not deterred Israel which appears to be operating with complete impunity and has failed to respect the provisional measures’.
The spotlight has, nevertheless, remained on Israel. In February, the ICJ held a week-long hearing in response to an earlier request by the UN General Assembly for an Advisory Opinion on the legal consequences of Israel’s policies and practices in the Occupied Territories. Over 50 states presented oral arguments, the vast majority critical of Israeli actions. Israel itself rejected the jurisdiction of the Court in this case, suggesting the General Assembly request was ‘ pointing a finger at one side only’ and therefore portraying the Israeli–Palestinian conflict as ‘a cartoon narrative of villain and victim in which there are no Israeli rights and no Palestinian obligations.’ Global Insight contacted Israel’s government for comment but received no reply.
The ICJ had, however, taken pains to emphasise the background to the violence in its order of 26 January: ‘‘The Court begins by recalling the immediate context in which the present case came before it. On 7 October 2023, Hamas and other armed groups present in the Gaza Strip carried out an attack in Israel, killing more than 1,200 persons, injuring thousands and abducting some 240 people, many of whom continue to be held hostage. The Court also called for the ‘immediate and unconditional release’ of Israeli hostages.
When vast numbers of civilians are being harmed and the states obligations of states under international law are being flouted, the ICJ’s increasing willingness to intervene in conflicts, and particularly its power to order short-term measures, is both necessary and welcome. As Cadman observes: ‘The ICJ is certainly leading the way in intervention […] We have seen it in Ukraine, Syria and now Palestine and we are likely to see more situations being litigated for breaches of treaty obligations.’
It remains to be seen, though, whether effective diplomatic action at the UN, or elsewhere, will follow so that legal rulings, which hitherto looked unlikely to be implemented, may finally be transformed into facts on the ground. In the opinion of Imseis ‘international law helps shape what is regarded as politically legitimate in the UN system and between states, what the ICJ determines will therefore have political consequences.’
To that end, the ICJ’s oversight of the war in Gaza is continuing. ‘Israel is required to submit a report to the Court on the steps it has taken to comply with the orders within one month of the ruling,’ says Ramberg. ‘Therefore, there is a mechanism by which the ICJ can monitor the implementation process.’
The confidential report was submitted on 26 February. What follows will be important. Not only is Israel’s reputation at stake, but also that of the international legal order. Cadman poses a pivotal question: if the international legal order can be scorned, and thousands of civilians left to die as a result, what point do the various international treaties serve other than a piece of paper to wave and vent our frustrations?’
Image credit: Alexander/AdobeStock.com
UK Parliamentary ad-hoc Inquiry on Gender Apartheid in Afghanistan and Iran publishes report
In January 2024, a UK Parliamentary ad-hoc Inquiry (the ‘Gender Apartheid Inquiry’) into situations in Afghanistan and Iran under the rule of the Taliban was convened, led by a panel of parliamentarians chaired by the IBA’s Human Rights Institute (IBAHRI) Director Helena Kennedy KC. The Gender Apartheid Inquiry was prompted by growing concerns over the segregation and oppression experienced by women and girls.
The panel engaged Afghan and Iranian human rights defenders and experts, as well as international experts, including the relevant United Nations Special Procedures mandate-holders, who urged the acknowledgment of the situation as ‘gender apartheid’.
In March the Inquiry published a report entitled ‘Shattering Women’s Rights, Shattering Lives’ which outlines how women and girls in the countries are treated as second-class citizens and deprived of their freedoms while their male counterparts exert increasing control over their lives. All these forms of discrimination are institutionalised, as they stem from policies and practices put in place by the authorities. The existing legal framework fails to fully capture the nature of this situation and, in turn, provide adequate accountability for perpetrators. In light of this, investigating the feasibility of formally recognising the crime of gender apartheid and codifying it has become imperative.
Podcast: ICC Prosecutor Karim Khan on the Court, Putin and Gaza
In the latest Global Insight podcast, IBA Director of Content James Lewis speaks to Prosecutor of the International Criminal Court (ICC) Karim Khan KC in a wide-ranging discussion that covers the ICC’s current priorities including its work on the conflicts in the Middle East and Ukraine. Khan was sworn in to his post on 16 June 2021.
In this podcast interview, Khan emphasises the importance of moving at the speed of relevance in terms of delivering on the ICC’s goals. Khan discusses how despite being stretched financially, the ICC is not shying away from tackling the crimes perpetrated during conflicts in Ukraine, the Middle East and elsewhere. He speaks passionately about the significance of issuing an arrest warrant against Vladimir Putin.
When asked about how the ICC can focus its efforts in Ukraine, Khan says that ‘you make decisions, which must be informed by many factors: the gravity, the availability of evidence and the need to work at the speed of relevance’.
‘And that's the basic approach anywhere else: we look at the most serious crimes. When there's more than one serious crime, we also look at the types of evidence available and start moving. And then we can go deeper, if and when necessary and if and when justified by the evidence’, he adds.
IBAHRI Director Baroness Helena Kennedy KC awarded The Order of the Thistle
In mid-March, IBAHRI Director Baroness Helena Kennedy of the Shaws, KC, was appointed Lady of the Most Ancient and Most Noble Order of the Thistle by King Charles III of the UK. This is the highest honour in Scotland and recognises individuals who have held public office and/or have made a significant contribution to national life.
On receiving the news of being honoured, Baroness Kennedy KC said: ‘I am taken aback but really thrilled at receiving this honour.’
Baroness Kennedy KC is a member of the UK House of Lords. With a career spanning more than half a century, she is nationally and internationally recognised as one of Britain’s most distinguished barristers. She has acted in many prominent trials and is an expert in civil liberties, constitutional issues and human rights law. She continues to be at the forefront of promoting human rights globally.
Afghanistan: IBAHRI condemns public executions
The IBAHRI has released a statement condemning the public executions by the Taliban in Afghanistan. Three people were executed by gunfire in two sports stadiums in the presence of de facto court officials and members of the public during the last week of February 2024.
The first double execution took place on 22 February 2024 at a football stadium in the city of Ghazni. The two men, Syed Jamal and Gul Khan, who were convicted by the Taliban’s de facto Supreme Court of the murder of two victims in separate cases, were reportedly shot to death by the relatives of the victims. The third execution was held on 26 February 2024 in a sports stadium in the city of Sheberghan. Nazar Muhammad, who was convicted of a murder in January 2022, was executed by gunfire in front of thousands of people, including the victim’s family.
IBAHRI Co-Chair and immediate past Secretary General of the Swedish Bar Association, Anne Ramberg Dr Jur hc, commented: ‘The recent public executions in Afghanistan, with three in less than one week, are appalling. The IBAHRI opposes the death penalty in all circumstances. Executions in public contribute an additional cruel, inhumane, and degrading layer to an already barbaric punishment, which is in violation of international human rights law’.
As a state party to the International Covenant on Civil and Political Rights (ICCPR), Afghanistan has signed up to recognise the inherent dignity and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world.
The UN Human Rights Committee recognised in its General Comment No 36 that public executions are contrary to the ICCPR, rendering the execution arbitrary in nature and also in violation of the right to life.
Read the full news release here.
Zimbabwe: IBAHRI and L4L call for greater protections for human rights lawyers
The IBAHRI and the non-governmental organisation Lawyers for Lawyers (L4L) have welcomed the decision of the Zimbabwean authorities to drop charges against two human rights lawyers, Douglas Coltart and Tapiwa Muchineripi.
In September 2023, the lawyers were arrested by officers of the Zimbabwe Republic Police and charged with ‘[d]efeating or obstructing the course of justice’, as defined in section 184 of the Criminal Law (Codification and Reform) Act, and of impeding the police from discharging their professional duty, under Article 178 of the Criminal Law (Codification and Reform) Act. They were accused of preventing police from questioning their clients, Womberaishe Nhende and Sanele Mkhuhlani – both members of the political party Citizens Coalition for Change.
In January, the Zimbabwean National Prosecution Authority withdrew the charges against the two lawyers, due to there being a lack of evidence to sustain the prosecution. Although the decision is welcomed by the IBAHRI and L4L, concern remains about the ongoing pressure on Zimbabwe’s legal profession.
The IBAHRI and L4L have called on the Zimbabwean authorities to, among other things, refrain from actions that may constitute harassment, persecution or undue interference in the work of lawyers in Zimbabwe, including their criminal prosecution on improper grounds such as the nature of cases in which the lawyer is involved.
IBAHRI raises concerns about arbitrary arrest of Palestinian human rights lawyer
The IBAHRI has raised concerns about the arbitrary arrest and detention of Diala Ayesh, a Palestinian lawyer and human rights defender who is recognised for her advocacy for the freedom and fair treatment of Palestinian political prisoners.
On 17 January, Ms Ayesh was arrested by Israeli armed forces as she passed through a military checkpoint near Bethlehem. During her arrest, she was reportedly subjected to assault, threats and intimidation by Israeli soldiers. On 25 January, Ms Ayesh was sentenced to a four-month administrative decision order.
IBAHRI Co-Chair and Immediate Past Secretary General of the Swedish Bar Association, Anne Ramberg Dr Jur hc states: ‘The IBAHRI calls on the Israeli authorities to immediately and unconditionally release Ms Ayesh, uphold her right to legal representation, and ensure access to medical treatment in accordance with international law.’
Read the press release here.
Russia: death of Kremlin critic Alexei Navalny causes global outrage
Reports of the death of jailed Kremlin critic Alexei Navalny first surfaced on Friday 16 February as most Russians were winding down for the weekend. The previous day the Russian opposition leader had been captured on camera in court. He looked thin, but, joking and laughing with the judge, appeared to be in reasonable health.
In a statement, the penal colony where Navalny was being held north of Moscow said he had fallen unwell after a walk and lost consciousness. An ambulance was called, but he died after efforts to revive him failed, said officials. Navalny’s spokesperson confirmed his death the following day.
The leader of the opposition to Russian President Vladimir Putin’s government, Navalny frequently denounced corruption in Russia, relating to both the Kremlin and Putin personally. He was barred from running for office in 2018 for what he claimed were politically motivated reasons.
In December 2020, Navalny accused Russia’s security agency, the FSB, of poisoning him with nerve agent Novichok after he collapsed on a plane. He was imprisoned in February 2021 on a range of spurious charges. Soon after, he staged a 24-day hunger strike until he received urgent medical care.
As prison life took its toll, it was well-documented that the 47-year-old’s health continued to decline. However, reports that Navalny’s family have been denied access to his body, which remains with official investigators, have only fuelled further speculation over the circumstances surrounding the sudden death of Putin’s most vocal critic.
‘My own guess is that within Russia’s enforcement system there was a promise made that he won’t survive [until] the end of Putin’s ongoing term in power,’ says Gulnaz Sharafutdinova, Director of the Russia Institute and Professor of Russian Politics at King’s College London. ‘They tried various methods of weakening and perhaps even poisoning him earlier, too; but there was no more time for waiting or experimenting. So more brutal methods were used to deliver on the promise.’
Political prisoners in today’s Russia are being isolated and are being subjected to all kinds of torture […] to send a message to others who might follow suit
Evgenia Kara-Murza
Wife of political activist Vladimir Kara-Murza
Putin’s spokesperson, Dmitry Peskov, has called accusations that Navalny was murdered ‘unfounded’ and the Kremlin has denied involvement in his death.
Mark Stephens CBE, Co-Chair of the IBA’s Human Rights Institute and a partner at Howard Kennedy in London, says the reports coming out of Russia so far are deeply concerning. ‘The two local coroners have declined to deal with the case, saying it’s too sensitive,’ he says. ‘This is indicative of state capture. In those circumstances, our thoughts have got to go to Vladimir Kara-Murza and other political prisoners in jail, who are causing irritation to Putin. We fear that Navalny may be the first of several Putin irritants who are dealt with through extrajudicial killing.’
Similar to Navalny, Kara-Murza survived two poisonings and is serving a 25-year prison sentence in an isolated prison cell. He was imprisoned in April 2023 on charges of treason after labelling the Russian authorities a ‘regime of murderers’ and discrediting the armed forces following the country’s invasion of Ukraine.
His wife, Evgenia Kara-Murza, spoke to Global Insight exclusively earlier in February 2024 about the threat political prisoners pose to the Kremlin. She says that ‘the regime is so scared of any sort of opposition and any sort of dissent that these people, […] these political prisoners in today’s Russia, are being isolated and are being subjected to all kinds of torture, to drive them into silence, to scare them into silence and to send a message to others who might follow suit.’
Navalny and Kara-Murza are just two of at least 700 people designated as political prisoners in Russia today. Since Navalny’s death, more than 400 civilians have been arrested for laying tributes to the politician.
Stephens believes his death could mark a turning point. ‘Increasingly people are seeing Navalny as a hero for standing up to Putin,’ he says. ‘People know that they are repressed by Putin. Now that [the authorities] can’t harm Navalny anymore, the idea of Navalny may well become much more powerful.’
Global leaders were quick to condemn the Russian authorities. US President Joe Biden said there would be ‘devastating consequences’ and that the tragedy should push the US Congress to send much-needed aid to Ukraine.
The mysterious circumstances surrounding the politician’s sudden death have worrying echoes of the case of Sergei Magnitsky, the Russian lawyer who died in pre-trial detention in a Moscow prison cell in 2009 after exposing a large-scale tax fraud by Russian governmental officials. His death sparked a global campaign to bring sanctions against people who commit gross human rights violations. Following the passing of the US Magnitsky Act in 2012, 35 other countries have passed similar legislation designed to hold perpetrators of human rights abuses to account.
A number of governments are considering imposing fresh sanctions following Navalny’s death, but it’s unclear what impact these might have on Putin’s inner circle or the wider Russian economy. Previous sanctions imposed by the EU, the US and the UK, among others, following Russia’s invasion of Ukraine have hindered domestic production of many Russian goods and contributed to an overall decline in living standards within the country.
Foreign ministers from the G7 countries held a minute’s silence to honour Navalny at the sidelines of the Munich Security Conference, where his wife, Yulia Navalnaya, first learnt of her husband’s death. In a video posted online on 19 February, Navalnaya said she was in no doubt about who was responsible for her husband’s death, telling viewers that, ‘three days ago Vladimir Putin killed my husband, Alexei Navalny.’ She said she would continue her husband’s work and called on his supporters to share their ‘anger, rage and hatred for those who have dared to destroy our future.’
However, Sharafutdinova says the reaction to his death in Russia has shown that society remains deeply polarised. ‘The outpouring of emotions, tears, rage and anger revealed Navalny’s central place in the minds and hearts of those who believe in a different Russia from Putin’s Russia,’ she says. ‘But there was also silence among those millions of Russians outside the big urban centres: the silent majority that Putin now relies on; the majority that does not believe in collective action and the possibility of political power outside the Kremlin walls.’
Image: Shutterstock.com / Sergey Otroshko