The European Court of Human Rights as a Pathway to Impunity for International Crimes

by Sonja C. Grover

Overview

Introductory Remarks on the Perspective and Intent of the Author in Writing This Monograph The European Court of Human Rights comments in the judgment Korbely v. Hungary that: However, clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in the Convention States, the progressive development of the criminal law through judicial law making is a well-entrenched and necessary part of legal tradition…The Court’s role is confined to ascertaining whether the effects of such an interpretation [interpretation by the national courts and authorities of domestic law which sometimes may refer to or incor- rate international law principles or agreements] are compatible with the Convention 1 [European Convention on Human Rights and Fundamental Freedoms] (emphasis added). This book then examines to what degree this “inevitable element of judicial interpretation” has been applied by the European Court of Human Rights in a manner consistent with the guarantees of the most fundamental human rights under international criminal, human rights and humanitarian law.

Product Details

ISBN-13:	9783642107979
Publisher:	Springer Berlin Heidelberg
Publication date:	04/21/2010
Edition description:	2010
Pages:	298
Product dimensions:	6.40(w) x 9.30(h) x 1.10(d)

About the Author

Sonja C. Grover, Ph.D., is a Professor with Lakehead University, Canada. She has authored 7 books and over 80 refereed articles; over 60 on the topic of human rights published in leading international human rights and law journals, has presented numerous international conference papers and published book chapters in this field. She has also written several books on children’s human rights including, "Children's Human Rights: Challenging Global Barriers to the Child Liberation Movement" (2007); "The Child’s Right to Legal Standing" (2008) and a major reference book, "Prosecuting International Crimes and Human Rights Abuses Committed Against Children: Leading International Court Cases" (2009).

Table of Contents

Part I Selected Factors Facilitating Impunity for International Crimes Through the European Court of Human Rights 1

I The European Court of Human Rights' Derogation of the Jus Cogens Nature of Certain Fundamental Human Rights 2

A Immunity as a Pathway to Impunity for International Crimes 2

Case 1 Al-Adsani v. United Kingdom 5

B Another Landmark Case on the Issue of State Subject Matter (Functional) Immunity and Absolute Personal Immunity of Individual Perpetrators Against Civil and Criminal Liability 35

Case 2 Democratic Republic of Congo v. Belgium 35

C Torture Versus Inhuman or Degrading Treatment or Punishment: Implications for Universal Criminal Jurisdiction and the Chances for Impunity 42

Case 3 Ireland v. United Kingdom 43

D The European Court of Human Rights' Deference to Domestic Legislation via Application of the "Margin of Appreciation" Principle: Another Potential Pathway to Impunity 62

Case 4 Thiemann and Others v. Norway 62

References 90

Part II The European Court of Human Rights' Reluctance to Classify European Convention Violations as International Crimes Even When Those Violations Likely Constitute 'Genocide' or 'Crimes Against Humanity' in Times of Peace or in Immediate Post-conflict Periods 91

I De Facto Abrogation of Potential International Crimes Due to the European Court of Human Rights' Rulings Classifying Such Acts Exclusively as European Convention Human Rights Violations 91

A Introduction 91

II Forced Sterilization of Roma Women as Part of a Widespread Systemic Discrimination Against, and Persecution of the Roma People: Are the Elements Present for the ICC Crimes of "Genocide by Causing Serious Bodily or Mental Harm" (Article 6(b)); "Genocide by Imposing Measures Intended to Prevent Births" (Article 6(d)) and the Crime Against Humanity of "Enforced Sterilization" (Article 7(1)g-5)? 93

A Overview of the Plight of Roma Women in Contemporary Europe 93

B Case 1: Commentary on K. H. and Others v. Slovakia 100

C Other Cases of Interest Regarding Forced Sterilization of Roma Women 112

D Case 2: Commentary on V. C. v. Slovakia 114

III A Systemic Pattern of Severe Physical Harm to Roma Living in Lead Contaminated United Nations IDP Refugee Camps in Northern Kosovo: Are the ICC Elements Present for the ICC Crimes of Genocide by Causing Serious Mental or Bodily Harm (Rome Statute Article 6(b)), and the Crimes Against Humanity of Apartheid (Rome Statute Article 7(l)(j)) and Persecution (Rome Statute Article 7(l)(h))? 129

A Introduction 129

B Case 3: The U.N. Kosovo Lead Contaminated Roma Refugee Camps Case (The 2006 Case Brought by the European Roma Rights Centre Against the United Nations Interim Administration Mission in Kosovo (UNMIK) on Behalf of 184 Residents Living in U.N. Refugee Camps (Near Contaminated Abandoned Lead Smelters and Mines in Northern Kosovo) and the European Court of Human Rights' Decision Declining Review of the Case Based on the Court's Alleged Lack of Jurisdiction Over the Case) 132

C Commentary on the Lead Contaminated UN Kosovo Roma Refugee Camps and the Failure to Prevent or End Harms to the Roma and Other Minorities Due to Extraordinarily High Lead Exposure to Those Inhabiting the Camps: Are Those Responsible Potentially Guilty of Genocide by Causing Serious Physical or Mental Harm and/or the Crimes Against Humanity of Persecution and Apartheid? 138

IV Death and Injury to Civilians Due to the Failure of KFOR and/or UNMIK to Remove Unexploded Cluster Bombs in Post-conflict Kosovo 146

A Case 4: Behrami and Behrami v. France (Application 78166/01), European Court of Human Rights Grand Chamber Judgment (Heard together with Saramati v. France, Germany and Norway, 2 May 2007) 146

V Interim Measures Requested by the European Court of Human Rights in Mamatkulov and Askarov v. Turkey Versus the Court's Denial of a Request for Interim Measures by Roma Victim Applicants Living in U.N. Lead-Contaminated Refugee Camps in Kosovo 162

A Introduction 162

B Case 5: European Court of Human Rights' Grand Chamber Judgment in Mamatkulov and Askarov v. Turkey (Applications 46827/99 and 46951/99) 163

C Conclusion: Individual State Responsibility and Accountability Relating to the Kosovo U.N. Lead Contaminated IDP Camps 175

D The Failure of the U.N. to Effectively Exercise Its Humanitarian and Human Rights Mandate Regarding the Kosovo U.N. Roma IDP Camp Situation and the Implications for Individual State Accountability 181

VI The Implications of the European Court of Human Rights' Refusal to Hold an Admissibility Hearing on the Roma Lead Contaminated IDP Camps Case and to Indicate Interim Measures Requiring the Camp Inhabitants Be Relocated to Safe Areas on an Urgent Emergency Basis 185

A Fostering a Climate of Impunity Regarding the Victimization of the Kosovo Gypsy Minorities Placed in U.N. Lead Contaminated IDP Camps 185

B The Kosovo Human Rights Advisory Panel to UNMIK: Is This a Vehicle for Just Reparation and Public Acknowledgement of Fundamental Human Rights Violations Against the RAE Inhabitants of U.N. Lead Contaminated IDP Camps Managed by UNMIK, or But an 'Alice in Wonderland' Version of an Independent Forum for Achieving Justice? 189

C Comments on the So-Called 'U.N. Supremacy Clause' 202

References 205

Part III The European Court of Human Rights' Reluctance to Classify European Convention Violations as International Crimes Even When Those Violations Likely Constitute 'War Crimes' or 'Crimes Against Humanity in Times of Armed Conflict' 207

I Introduction 207

II Case 1 Streletz, Kessler and Krenz v. Germany (Applications 34044/96, 35532/97 and 44801/98) European Grand Chamber Judgment 210

A Background Facts and Procedural History 210

B Commentary on Streletz, Kessler and Krenz v. Germany 217

III Case 2 Kolk and Kislyiy v. Estonia (Application 23052/04), European Court of Human Rights Chamber Judgment of 17 January 2006 on Admissibility 230

A The European Court of Human Rights' Reasoning in Kolk and Kislyiy v. Estonia 230

B Commentary on Kolk and Kislyiy v. Estonia 232

IV The European Court of Human Rights De Facto Exoneration of Persons Convicted Domestically of 'War Crimes' or 'Crimes Against Humanity' and the Implications for Impunity 236

A Case 3 Korbely v. Hungary (Application 9174/02) European Court of Human Rights Grand Chamber Judgement of 19 September 2008 236

B Commentary on Korbely v. Hungary 244

V Case 4 Kononov v. Latvia (Application 36376/04) European Court of Human Rights Chamber Judgment of 24 July 2008 (Referred to the Grand Chamber 26 January 2009) 253

A Background and Domestic Proceedings 253

B Commentary on Kononov v. Latvia 262

References 272

Part IV The Importance of Moral Legitimacy in International Human Rights Court Rulings 275

I A Few Preliminary Points 275

II Moiwana Village v. Suriname (IACHR): An Exemplary Case Regarding Moral Legitimacy in International Human Rights Court Rulings 277

A Case 1: Moiwana Village v. Suriname Inter-American Court of Human Rights Judgement of 15 June 2005 277

III On the Issue of Alleged Ex Post Facto Application of International Human Rights Conventions 284

IV Moiwana Village v. Suriname and the Issue of a Denial of Justice as an 'Ongoing (Convention) Violation' 286

V Moral Legitimacy of International Human Rights Court Rulings as Essential to the Promotion of an Internationalized Rule of Law 291

References 293

Index 295

Editorial Reviews

Aus den Rezensionen:

 “... hier vorliegenden Monographie anerkennt diesen Umstand, unterzieht die Judikatur des EGMR jedoch einer kritischen Betrachtung. ... Die Autorin übt schwerwiegende Kritik an der Judikatur des EGMR, begründet ihre Aussagen jedoch stichhaltig anhand zahlreicher konkreter Fälle, deren Inhalt sie ausführlich wiedergibt. Insgesamt ist eine derartige Betrachtung des europäischen Systems »von außen« durchaus wünschenswert, da auf diesem Weg unter Umständen leichter über die positiven Effekte und Errungenschaften des EGMR hinausgeblickt und zu einer konstruktiven Fortentwicklung des internationalen Menschenrechtsschutzes beigetragen werden kann.“ (Petra Pann, in: NLMR Newsletter Menschenrechte, 2010, Issue 5, S. 327)

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