Russia

Renewed Hopes for Justice in Georgia

/ B. Aloka Wanigasuriya / Leave a comment

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.

Continue reading →

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

/ Mili Gupta / Leave a comment

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.

Investigating Crimes against Peacekeepers in the Situation in Georgia

/ Joanna Nicholson / 1 Comment

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 →

On Crimean Secession, Fairness, and Self-Determination

/ Milena Sterio / Leave a comment

On March 16th, 2013, the Crimean people voted in a referendum, expressing their desire to secede from Ukraine and re-join Russia (Crimea was a part of Russia until 1954, when Khrushchev transferred it to Ukraine; some historical accounts suggest that Khrushchev was drunk at the time).  Crimean population is predominantly Russian, with a large Ukrainian minority and a somewhat smaller ethnic Tatar community.  Much has been written so far on the Crimean crisis, and the recent Russian involvement in the region.  Here, I will focus on the issue of self-determination and secession, in order to shed light on the legality of the Crimean referendum and the de facto separation of Crimea from Ukraine and its de facto merger with Russia. 

International law recognizes the right of self-determination for every “people.”  In the decolonization context, the right to self-determination has been interpreted as leading toward remedial secession, because the colonized peoples were not properly represented by the governments of their mother-states (the colonial powers).  Outside of the decolonization context, however, international law does not positively recognize the right for groups to separate from their mother states.  Instead, international law proposes a distinction between so-called internal self-determination and external self-determination.  The former signifies that groups or peoples are entitled to a form of self-government or autonomy within the confines of their mother state.  This type of autonomy may translate into a free exercise of cultural or linguistic rights, or into the creation of a regional parliament, at best.  As long as the mother state respects the people’s right to internal self-determination, the analysis should stop there (see the Canadian Supreme Court in its advisory opinion on the proposed secession of Quebec).  The latter, more drastic form of self-determination, so-called external self-determination, gets triggered by the mother state’s utmost lack of respect for the relevant people.  If the mother state’s central government is so abusive toward the people that its rights are not properly represented, then international law may suggest that such a people should have a right to external self-determination, which would lead to its separation from the mother state.  Most states, unsurprisingly, are extremely reluctant to recognize a right to external self-determination for any minority group, and the International  Court of Justice, in the recent advisory opinion on Kosovo, failed to develop any sort of a useful normative framework on self-determination (the court instead found that the Kosovar declaration of independence was legal, but did not proclaim that external self-determination or secession would ever be legal).  This state of affairs has led some scholars to note that international law “tolerates” external self-determination and secession, but that no positive right to secession exists within international law. 

How does the above discussion translate into the Crimean situation? One possible argument for the legality of Crimean secession is to focus on the Crimean people’s right to external self-determination.  The argument would go as follows: the Ukrainian central government was no longer representative of ethnic Crimean Russians’ rights, and this triggered the latter’s right to external self-determination, leading toward a remedial secession.  Why was the Ukrainian central government not properly representative of the ethnic Crimean Russians’ rights? Because the Ukrainian Parliament recently voted to cease the use of the Russian language in public life, and because the Crimean Russians felt threatened that this was the first step toward an annihilation of their other rights.  This argument is a stretch because of its speculative nature – while it is possible that the Ukrainian government was about to stop respecting ethnic Russians’ rights, we simply do not know as of now that this was going to happen.  Another argument to support the legality of Crimean secession is to compare Crimea to other secessionist regions around the world.  Unsuccessful recent secessions or attempts at secession include Chechnya and Georgian provinces (South Ossetia and Abkhazia), whereas successful secessions include East Timor, Kosovo, Eritrea, and South Sudan.  How is Crimea different from the former and similar to the latter, or similar to the former and different from the latter? Crimea can arguably be distinguished from Kosovo, because the Serbian government in that case was highly abusive toward the Kosovar Albanians, whereas Ukraine has so far treated ethnic Crimean Russians fairly well.  Crimea can probably be distinguished from East Timor, Eritrea and South Sudan, because all three latter regions (now states) involved instances od delayed decolonization, or delayed rectification of post-colonial borders.  But is Crimea legally distinguishable from Chechnya and the Georgian provinces? If Crimea is entitled to separate from Ukraine, shouldn’t Chechnya be allowed to separate from Russia, and shouldn’t South Ossetia and Abkhazia be allowed to separate from Georgia? And what about other state-like entities, inhabited by peoples entitled to the respect of their self-determination rights, which have been denied statehood due to geo-political reasons (here, I am thinking of Tibet, the Palestinian territories, Northern Cyprus, Republika Srpska, Bougainville, etc.).  At best, one can conclude that self-determination quests by various peoples across the globe have not produced consistent results, and that such quests are often influenced by Great Powers’ politics and foreign policy stances. 

Finally, from a fairness perspective, let me quote a question which one of my International Law students recently posed: since Crimea used to be a part of Russia until 1954, since the legitimacy/rationale of its transfer to Ukraine in 1954 is dubious, and since the majority of its population is Russian and may truly wish to re-join Russia, what is so bad about the referendum and its result? The biggest obvious issue related to the referendum has to do with its own fairness – were the people of Crimea truly able to vote and express their wishes, or was the referendum influenced by the presence of Russian forces? Were the results properly tallied? Assuming that the referendum was conducted fairly, my student’s question seems pertinent and right on point. 

I do not mean to suggest that secessions should start occurring throughout our planet all the time, or that any group should be able to stand up and proclaim its right to separate from its mother state.  I also do not mean to suggest that Putin is a “good guy” – many of his policies appear outright aggressive and calculated to derive the most benefit for Russia at the expense of smaller regions/state.  If Putin truly cared for international law, he should be the first one to recognize the Chechens’ right to self-determination and possible secession from Russia.  What I try to argue in this post is that the Crimean issue is complex, and that instead of simply proclaiming that Ukraine is right and Russia is wrong, we need to step back and analyze the region’s history, as well as to take into account its population’s true desires. 

P5+1: The international agreement where all parties are happy

/ Azin Tadjdini / 6 Comments

Sunday 24 November 2013, it was announced that the P5+1 (the United States, United Kingdom, Germany, France, Russia and China, facilitated by the European Union) had reached an agreement with Iran regarding the latter’s nuclear program. According to each country’s statements the agreement is a success and everyone is a winner. But when have we ever witnessed an agreement of such kind?

Although the agreement is not officially published in full, we get a glimpse of some of its important features from the points that have been released in media. The least interesting thing about the “Nuclear agreement” is the nuclear issue.

For a non-democratic regime that faces strong opposition from within and which has been severely crippled by economic sanctions, the agreement proves to be a life-saving last solution- at least for six months. Under the agreement, a few of the economic sanctions are lifted. In return the regime will stay a live and in power as a de facto protectorate with minimal economic sovereignty still intact. The agreement places the major income source- the oil trade- under the control of the P5+1, by providing that Iran’s crude oil sales cannot increase in a six-month period, resulting in what is estimated to be about $30 billion  in lost revenues to the country. Further restrictions are placed on Iran’s access to its oil sales; on its foreign exchange holdings and on a number of other financial services. A regime that preaches fight against imperialism and “the West”, now finds itself in the peculiar situation where its survival rests precisely on “the West” and a new kind of economic imperialism resulting from the country’s lack of acknowledgement of international law and the rules of the game.

On the bright side, the agreement might have prevented a more serious conflict. But here we can only guess. What we can be certain about, however, is that any agreement where the world’s major powers are involved and where all are smiling has wider geopolitical significance than the nuclear issue.