Renewed Hopes for Justice in Georgia

Following the international armed conflict (IAC) that erupted between Georgia and the Russian Federation (Russia) in 2008, the ICC (International Criminal Court) Prosecutor announced the initiation of a proprio motu (i.e. on the Prosecutor’s own initiative) preliminary examination into the Situation in Georgia on 14 August 2008. Subsequently, on 27 January 2016, Pre-Trial Chamber I (PTC) authorised the opening of an investigation into the Situation. In this regard, the Office of the Prosecutor (OTP) has been investigating alleged crimes against humanity and war crimes committed by all parties to the IAC in and around South Ossetia between 1 July and 10 October 2008.

The investigation marked many firsts for the Court: it was the first ICC investigation covering a situation outside the African continent, the first ICC investigation probing crimes allegedly committed in the context of an IAC, and the first ICC investigation into a situation arising from a post-Soviet country. Due to this last aspect in particular, the Situation in Georgia was initially seen as an important indicator for how the OTP might proceed with regard to other post-Soviet situations such as that of Ukraine.

The Prosecutor’s request for arrest warrants

In early March 2022, the Prosecutor announced that pursuant to Article 58 of the Rome Statute, he had filed an application seeking arrest warrants with regard to the Situation for:

  • Lt.-Gen. Mikhail Mayramovich Mindzaev, Minister of Internal Affairs – de facto South Ossetian administration;
  • Gamlet Guchmazov, Head of the Preliminary Detention facility – de facto Ministry of Internal Affairs of South Ossetia; and
  • David Georgiyevich Sanakoev, de facto Presidential Representative for Human Rights of South Ossetia.

All three are alleged to have committed war crimes that fall under Article 8 of the Rome Statute (para. 3) in and around the territory of South Ossetia between the 8th and 27th of August 2008 in the context of the occupation of Georgian territory by the Russian armed forces.

The Georgian government has been cooperating with the ICC since the initiation of its preliminary examination and welcomed the Prosecutor’s recent move terming it “another victory for Georgia”. However, Russia’s attitude towards the ICC has been less than amiable. The initiation of the ICC investigation in 2016 drew the ire of Russia. Accusing the ICC Prosecutor of siding with the aggressor and initiating “an investigation aimed against the victims” where all blame was placed on South Ossetian and Russian soldiers, Russia stated that it was “forced to fundamentally review its attitude towards the ICC”. Subsequently, in November 2016, Russia withdrew its signature from the ICC’s constitutive instrument, the Rome Statute. This symbolic move however, does not alter the position of any Russian nationals who are alleged to have committed core international crimes on Georgian territory. As Georgia is an ICC state party, the ICC is still capable of prosecuting any Russian nationals who are alleged to have committed crimes falling within its jurisdiction.

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Anti-LGBTQ+ Protests in Hungary: Limiting Representations of Homosexuality to Minors

In June 2021, the Hungarian Parliament amended various laws that limit the spread of information regarding homosexuality and sex reassignment (H&SR) for juveniles and school children. Among other things, the law: 1) prohibits minors from accessing material encouraging or depicting H&SR or any other type of deviance from one’s sex designated at birth; 2) forbids delivering instruction about the aforesaid information and restricts sex education in registered organizations; and 3) forbids broadcasts exhibiting H&SR while bringing a new rating – Category V (not intended for children) – to any such programming. On August 6, 2021, the scope of this decree was expanded to include places near churches and also in schools. 

These modifications are due to rising anti-LGBTQ+ views, which fall on the heels of previous legislative backsliding, including: 1) restrictions on same-sex marriage, as well as the heteronormative definition of conjugal relationships and family groups (2013); 2) university prohibitions on gender studies (2018); 3) denial of official gender acknowledgment by substituting ‘gender’ with ‘sex at birth’ in the Civil Registry (2020); and 4) the constitutional restriction on child adoption for unmarried adults (2020). 

Despite repeated requests from the European Commission (EC) and many European Union (EU) legislators, Prime Minister (PM) Viktor Orban’s government refused to remove the modifications. This comes after international condemnation of Hungary’s apparent association of sexual and gender identity [“SGI”] with pornography and pedophilia. In reaction, the EC has initiated a “rule of law” action against the Hungarian administration, claiming a breach of the values of dignity and equality as mentioned under Article 2 of the Treaty on the Functioning of the European Union. Violations are likely to occur for a variety of reasons, including:

  1. Article 1 [dignity], 7 [expression & information], 11 [respect for private life], and 21 [non-discrimination] of the EU Charter of Fundamental Rights for failing to substantiate the damage that such exposure has brought to children’s general well-being;
  2. Article 34 & 56 of the Treaty on the Functioning of the EU by failing to show that the limitations were properly reasoned, non-discriminatory, and ;
  3. Article 3 of the Audiovisual Media Services Directive, which imposes excessive and discriminatory constraints on the open dissemination of audio-visual media across borders; and 
  4. Disproportionate limitations on ‘information community services’ from other Member State under Article 3 of the E-Commerce Directive. Those limits may be enforced for the ‘safeguard of juveniles’ if there is a detriment to the cause or a substantial and grave danger of harm.
  5. Article 10 [ right to freedom of expression] & 14 [ right to non-discrimination] of the European Convention of Human Rights for limiting free discussions about gender identity and sexual orientation out of concern of ‘brainwashing youngsters’, and for expressly labeling LGBTQ+ material as undesirable and immoral.

The latest law of the Hungarian Parliament prohibits problems relating to the LGBTQIA+ population from being presented on prime time media. This has  the consequence of entirely eliminating the opinions of the community from public debate, thereby depriving them of their right to be heard. Similarly, while the amendments affected the rights of LGBTQIA+ people, their opinions were largely ignored during the legislative process. Furthermore, by prohibiting the simple representation of homosexuality to children, the legislation seeks to obscure the population. The purposeful obfuscation of the LGBTQIA+ population undermines its presence in society. As a consequence, familiarity and behaviorals standards are not sufficiently formed, thereby causing the interplay to be defined by the status quo inequality. 

Similar to Russia’s controversial ‘Gay Propaganda’ Law [2013], which, prohibited minors from being encouraged to engage in ‘non-traditional sexual unions,’ these modifications must be subjected to the same level of worldwide outrage and examination. Russian legislation made it illegal to make public declarations or posts about SGI, resulting in the imprisonment of numerous gay rights advocates. The European Court of Human Rights (“ECtHR”) found an infringement of Article 10 [freedom of expression] & 14 [non-discrimination] following the petition of three such advocates. While the Russian government contended that societal acceptance of homosexuality was inconsistent with Russian societal norms and family ideals, the ECtHR cited a broad European agreement concerning the acknowledgment of gender identity and self-determination. The ECtHR found that the administration had failed to show how open homosexuality would have an adverse influence on Russian family ideals and norms. On the contrary, the Court found that sharing impartial information and scientific on SGI has a good impact on public health care and awareness. The right to exhaustive and non-discriminatory sexual education [Article 28], the right to acquire and transmit knowledge and thoughts of all forms [Article 13], and the right to receive contents targeted at devotional, social, physical well-being, and moral [Article 17] are all guaranteed by the Convention on the Rights of the Child, which binds both Hungary and Russia. The ECtHR stated in a detailed dissection of the claims made by Russian attorneys, by passing such laws, the Russian government promotes discrimination and ecnourages hompobhia, which is inconsistent with the values of fairness, diversity, and tolerance in a democratic country”. 

Opponents have compared the amendments with this propaganda, which according to independent experts has exacerbated societal hatred and fueled vigilante assaults against LGBT persons in the EU’s eastern neighbour. Nevertheless, if left unaddressed, the implications of these institutional reforms in Hungary could be disastrous. For one, this kind of nationalist discourse creates in-groups and out-groups, gaining support by inventing imagined concerns to the nation-state.  As a result, the LGBTQ+ group is regarded as a domestic threat as well as a foreign impact. The introduction of the phrase ‘gender ideology’ implies a refusal of fundamental sexual liberty and privacy rights. Conservative nationalists frequently give the phrase a stereotyped connotation, blaming it on so-called ‘Western liberal innovations’ of transgenderism, gender flexibility, and feminism, etc. 

As evidenced by multiple empirical studies performed over the last decade, Hungary’s persistent and intrusive effort against the LGBTQ+ community has left the population incredibly insecure in their own country. In 2010 & 2017, the Hatter Society conducted a comprehensive survey, finding that LGBTQ+ students face constant discrimination in schools.  According to a 2010 study [n=1991], 1 in every 5 students has faced discrimination at school. As per the findings of a 2017 survey, in an online poll of 928 LGBTQ+ students aged 13 to 21, more than 51% & 70% of participants indicated they had heard transphobic and homophobic statements from other classmates, professors, and school personnel regularly or often in the prior school session, respectively. In fact, 35% of those polled stated that the school officials never interfered. In addition, approximately 64% had experienced vocal and 22% had experienced physical abuse at school s due to their sexual identity. More than 56% of individuals who had revealed their sexual identity had been verbally abused (and 19% physically abused) in the prior school session. 

These emotions of uneasiness and insecurity at school can have a negative impact on an individual’s potential to not only achieve academically but also to create effective connections with classmates and participate in intra/inter-school activities. As per the Millennium Cohort Study, prejudice in academic institutions, resulting in a nearly threefold increase in degrees of depression, low-life contentment, and self-harm characteristics in LGBTQ+ adults as contrary to non-LGBTQ+ adults. This not only hinders physical and emotional development, but the atmosphere of disinformation and a lack of discussion produces a stagnant repressive environment for future generations. 

Hungary’s amendments, on the other hand, are certain to collide with the same legal currents that brought down its Russian equivalent. The post-COVID-19 rehabilitation package earmarked for Budapest [a sum of about 7.2 Billion Euros] has been vetoed by the European Commission. While PM Orban contends that the same is true in the case of the LGBTQ+ policy, the European Union has repetitively reiterated that it is founded on Hungary’s failure to follow through on anti-corruption and autonomous judiciary commitments. Hungary, therefore, has only a few months to answer to the European Commission and confronts imminent dangers of being directed to the European Court of Justice for a judgment. As an instant response, Orban pledged to hold a national vote on issues like facilitating gender identity workshops, the accessibility, and promotion of gender reassignment surgery, as well as the exposure of information that may influence a child’s gender identity. Nonetheless, no referendum has been conducted as of October 2021, with questions about its legitimacy still lingering. 

Persistent prejudices and the execution of prohibited legislation, as demonstrated in Russia’s history, are frequently unaffected by the simple favorable outcome of such judicial procedures. It is critical, then, to keep a constant eye out for such new and hidden forms of social tyranny. 

CONCLUSION

The proposed legislative reforms are in violation of international and European human rights principles. Hungary has failed to fulfil its obligations as a member state by passing this law that targets homosexuals. The major argument given for doing so is to ensure that the mental and moral development is preserved. Moreover, in the matter of Alekseyev vs Russia, the ECtHR specifically stated that there is no scientific evidence to support the conclusion that the simple mention of homosexuality has a negative influence on children. The modifications leave no room for anything except one-sided and biased education, allowing stigmatisation and harassment of LGBTQ+ individuals to flourish.

On the Job! [Helton Fellowship]

On the Job! compiles interesting vacancy notices, as follows:
ASIL

 Applications are welcome from recent or current law graduates for the position of Helton Fellow.  The holder of this position receives funded contributions from ASIL members, interest groups, and private foundations to pursue field work and research on significant issues involving international law, human rights, humanitarian affairs, and related areas. Deadline is Monday, January 15, 2018; details here https://www.asil.org/about/helton-fellowship-program.

Telling Places with Georgian IDPs

Photograph of Georgian IDP camp, copyright Hannah Mintek, 2010.

Telling Places with Georgian IDPs

Although it created new opportunities for many Soviet peoples, the end of Soviet rule also left many wounds unhealed, while creating new traumas. In the Caucasus, the post-Soviet decades were marked by frequent bloody conflict, from Chechnya to Nagorno-Karabakh to Abkhazia. Wars raged among Georgians, Russians, Ossetians, Chechens, Ingush, and Abkhazians over borders that had been contested since the advent of Soviet rule, if not earlier.

In the Republic of Georgia, one upshot of over two decades of violence is the nearly 300,000 internally displaced people (IDPs) who now reside a country with a total population of 4.6 million. How can these IDPs be integrated into Georgian society, and move on with their lives, given all the damage that has been inflicted by war and the fact that many of them still lack permanent homes? How, in short, do people build new lives after catastrophe?

A new project I am organizing with geographer Elizabeth Dunn of Indiana University, “Telling Places: Forced Migration and Spatial Memory in the Caucasus,” seeks a partial resolution to the emotional upheavals of the 2008 Georgian-Russian war. In partnership with Georgian NGOs and Georgian scholars, we will use digital mapping technologies (GIS) to create a resource that will be eventually managed by IDPs. This resource will provide a transferable technology usable by IDP communities around the world seeking to reconstruct their lives.

We are calling this resource a ‘convening point’ rather than a website, given the degree of interactivity we envision. The Telling Places convening point will interactively map the villages from which IDPs were ethnically cleansed, and keep the pasts these villages represent for IDPs alive in digital form. As a spatially-organized multi-media repository, Telling Places will gather interviews, video, and writings by IDPs with the family documents and maps that IDPs have preserved during their displacement. This resource will help IDPs rebuild their attachments to their home villages and preserve their memories for future generations.

 

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Investigating Crimes against Peacekeepers in the Situation in Georgia

The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) has officially requested authorisation from the court to initiate an investigation into alleged war crimes and crimes against humanity committed during the armed conflict in Georgia between the breakaway region of South Ossetia and Georgia (also involving the Russian Federation) in August 2008. A key strand of the investigation concerns alleged attacks against peacekeepers, in this case, the Joint Peacekeeping Forces Group or JPKF, created in 1992 to monitor the Sochi agreement between Georgia and Russia, and comprised of peacekeepers from Russia, Georgia and North Ossetia.

In its request, the OTP argues that there is reasonable basis to believe that both South Ossetian (potentially with Russian armed forces exercising overall control) and Georgian armed forces committed the war crime of attacking personnel or objects involved in a peacekeeping mission. Georgian peacekeepers were reportedly heavily shelled from South Ossetian positions, killing two Georgian peacekeepers and injuring five more, while, in a separate incident, ten Russian peacekeepers were reportedly killed and thirty wounded as a result of an alleged attack by Georgian forces against their base, which was also, reportedly, destroyed. While the OTP faces many challenges in this case (for discussions see here, here and here), from the perspective of sufficiency of evidence for substantive crimes, these allegations may be the most difficult to prove.

The ICC Statute gives the Court jurisdiction over the crime of intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian or peacekeeping missions in accordance with the UN Charter, as long as they are entitled to the protection given to civilians or civilian objects under international humanitarian law (Articles 8(2)(b)(iii) and 8(2)(e)(iii)). Proving that an attack against peacekeepers has occurred is a two stage test. Firstly, it must be shown that the force in question was ‘a peacekeeping mission established in accordance with the UN Charter’, a concept that is open to different interpretations. The ICC has already considered this matter in some detail in its Abu Garda Decision on the Confirmation of Charges, where the Pre-Trial Chamber relied upon three basic principles when determining whether or not a peacekeeping mission was constituted, namely: (i) whether the consent of the parties to the mission has been obtained; (ii) that the mission is impartial; and (iii) that the mission did not use force other than in self-defence. If these principles are fulfilled, the mission constitutes a peacekeeping mission, and its personnel are entitled to civilian status and consequent protection under international humanitarian law (IHL).

The OTP acknowledges that there are difficulties surrounding whether the JPKF in fact fulfilled these criteria. This is particularly so regarding whether the mission was impartial (paras. 151-155). For example, the submission refers to sources cited by the Government of Georgia arguing that Russian peacekeeping sources were not impartial, but were supporting the South Ossetian de facto authorities (para. 152), there are also suggestions that infrastructure connected with Russian peacekeeping forces was being used to make an effective contribution to the military action of a party to the conflict (para. 172). Thus, the OTP’s conclusion that the ‘JPKF fulfilled the criteria of a peacekeeping mission in accordance with the UN Charter and so was entitled to protected civilian status’ (para. 160) is open to question. Continue reading