GPIL - German Practice in International Law

Situation in Israeli-occupied Hebron reminiscent of apartheid

Published: 15 December 2017 Author: Stefan Talmon

In response to U.S. President Trump’s recognition of Jerusalem as the capital of Israel, pro-Palestinian demonstrators took to the streets of Berlin burning Israeli flags and chanting anti-Semitic slogans. Prompted by these events Foreign Minister Gabriel discussed the issue of anti-Semitisms among Muslims in Germany with representatives of Berlin’s Muslim community. During the meeting on 14 December 2017, Foreign Minister Gabriel made it clear that there was no place for anti-Semitism in Germany and that Germany had a special responsibility for Israel. That being said, it obviously must also be possible on this basis to criticise Israeli policy B as regularly happened, for instance in relation to Israeli settlement activities. In this context, he mentioned that some years ago, after visiting Hebron in the Israeli-occupied Palestinian territories, he had said that what he saw there reminded him of apartheid. On 14 March 2012, after a visit to Hebron Gabriel had posted the following statement on his Facebook wall:

“I was just in Hebron. There’s a legal vacuum there for Palestinians. This is an apartheid regime, for which there is no justification.”

He later clarified the reference to “apartheid regime” in a follow-up post saying: (more…)

Reporters Without Borders lodges ECHR application against Germany

Published: 1 December 2017 Author: Stefan Talmon

On 30 November 2017, Reporters Without Borders Germany (RSF) lodged a complaint with the European Court of Human Rights over the mass surveillance practices of Germany’s foreign intelligence agency BND. RSF complained that the BND had been spying on its email traffic with foreign partners, journalists and other persons as part of the agency’s signals intelligence surveillance.

The Federal Administrative Court had rejected RSF’s lawsuit against the BND’s mass surveillance in a decision rendered on 14 December 2016. The Federal Constitutional Court refused to admit RSF’s constitutional complaint against this decision on 26 April 2017 on the grounds that RSF had failed to adequately demonstrate that the organisation was directly affected by the BND’s surveillance activities. The Constitutional Court’s decision was transmitted to RSF by letter, dated 30 May 2017, which was received on 31 May 2017. By lodging the application on 30 November 2017, RSF thus stayed within the six month time limit for making such an application (see Article 35, paragraph 1, ECHR).

RSF claimed a violation of Article 13 (right to an effective remedy), Article 8 (right to respect for private and family life) and Article 10 (freedom of expression) of the European Convention on Human Rights.

The text of the application (in German) may be found here. (more…)

Trial of Chinese civil rights lawyer Jiang Tianyong

Published: 24 November 2017 Author: Stefan Talmon

Jiang Tianyong was a prominent Chinese civil rights lawyer who took on politically sensitive cases before being disbarred to practice law in 2009. He then became a legal activist advising dissidents and activists and publicizing the plight of lawyers detained in China. Jiang was detained on 21 November 2016. In March 2017, he apparently gave an interview to a State newspaper and was shown on state TV saying that he had made up a story about a lawyer, Xie Yang, being tortured in custody. On 22 August 2017, he was put on trial in a local court in Hunan province on charges of incitement to subversion of State power.

On 25 August 2017, the German ambassador to China made the following statement on the trial of Jiang Tianyoung:

“We are closely following the trial of Chinese human rights lawyer Jiang Tianyong, the hearings of which took place in Changsha this week. For years, Jiang Tianyong has campaigned with great commitment for human rights and the rule of law in China, including the lawyers and activists affected by the so-called ‘709 crackdown’.

We are concerned that throughout the proceedings Jiang Tianyong has not been allowed access to the lawyers of his own choosing and that he was obviously prejudged before his trial had even begun by means of a ‘confession’ aired by Chinese media. Under these circumstances, a fair trial is impossible. We call on the Chinese institutions to ensure proceedings are conducted with due process and in adherence with relevant United Nations conventions, and to enforce the stated objective of the Chinese leadership of strengthening the rule of law.

Ever since his arrest in November 2016, the Federal Government has raised Jiang Tianyong’s case in high-level meetings with Chinese officials. Germany will continue to take an active interest in his fate.”

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Suing Germany over the genocide in Namibia in U.S. courts: the pitfalls of serving a summons on the German Government

Published: 23 November 2017 Author: Stefan Talmon

On 5 January 2017, representatives of several Ovaherero and Nama organizations filed a class action complaint against Germany in the United States District Court for the Southern District of New York. They requested the court to award damages for genocide carried out more than a century ago by German colonial troops in today’s Namibia more than a century ago, and to declare that the exclusion of the plaintiffs and other lawful representatives of the Ovaherero and Nama people from the ongoing talks between the governments of Namibia and Germany about an official apology by Germany for the genocide and potential payments by Germany to Namibia constituted a violation of international law. The summary of complaint read in part:

“Plaintiffs bring this action on behalf of all the Ovaherero and Nama peoples for damages resulting from the horrific genocide and unlawful taking of property in violation of international law by the German colonial authorities during the 1885 to 1909 period in what was formerly known as South West Africa, and is now Namibia. Plaintiffs also bring this action to, among other things, enjoin and restrain the Federal Republic of Germany from continuing to exclude plaintiffs and other lawful representatives of the Ovaherero and Nama people from participation in discussions and negotiations regarding the subject matter of this Complaint, in violation of plaintiff’s rights under international law, including the U.N. Declaration on the Rights of Indigenous People to self-determination for all indigenous peoples and their right to participate and speak for themselves regarding all matters relating to the losses that they have suffered.”

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Detention and disappearance of Egyptian human rights lawyer Ibrahim Metwally Hegazy

Published: 07 November 2017 Author: Stefan Talmon

On 3 July 2013, the Egyptian military removed democratically elected President Mohammed Morsi from power and suspended the constitution. Since the military takeover of government and the assumption of the presidency by Field Marshall Abdel Fattah el-Sisi a year later, Egypt has seen a large-scale crackdown on dissent and the followers of former president Morsi. According to media reports hundreds have been killed, tens of thousands have been detained, and many have been forcibly disappeared.

In response to his own son vanishing in 2013, Egyptian lawyer Ibrahim Metwally Hegazy co-founded the Association of the Families of the Disappeared in Egypt. He also assisted the family of Giulio Regeni, an Italian PhD student who was found tortured and killed in Cairo in February 2016.

On 10 September 2017, Mr. Metwally Hegazy disappeared at Cairo International Airport before boarding a flight to Geneva, where he was to report on enforced disappearances in Egypt at the invitation of the United Nation Human Right’s Council’s Working Group on Enforced or Involuntary Disappearances. He reappeared two days later before the High State Security Prosecutor being charged with founding and leading an organization that was created illegally, spreading false news, and communicating with foreign entities in order to undermine national security. He has since been detained in the high-security wing of Egypt’s notorious Tora prison. (more…)

The right to freedom of religion for the Baha’i in Iran

Published: 03 November 2017 Author: Stefan Talmon

The Federal Government has been concerned about the situation of the 300,000-member strong religious Baha’i community in Iran for many years. According to the United Nations Special Rapporteur on the situation of human rights in Iran more than 90 Baha’is are currently in detention in prison in the country. The Federal Government has taken a particularly strong interest in the fate of the seven members of the ad hoc Baha’i leadership committee who were arrested on 5 March and 14 May 2008. After being held for over two years without charge the seven were sentenced on 8 August 2010 to 20 years’ imprisonment each for espionage, propaganda against the government, collusion and collaboration for the purpose of endangering national security and spreading corruption. However, it was widely considered that the real reason for their imprisonment was the fact that they managed the religious and administrative affairs of their community.

On 12 May 2017, the Federal Government Commissioner for Human Rights Policy and Humanitarian Aid at the Federal Foreign Office issued the following statement on the detention of leading members of the Baha’i faith in Iran: (more…)

Non-recognition of Catalonia’s unilateral declaration of independence

Published: 29 October 2017 Author: Stefan Talmon

Catalonia is an autonomous region within Spain with a strong independence movement. On 1 October 2017, the Catalan regional authorities held an independence referendum which had been declared illegal by the Spanish constitutional court. The Catalan authorities claimed that 90 percent of voters supported independence, but turnout was only 42.3 percent and there were reports of irregularities. On the evening of the referendum, Catalan regional President Carles Puigdemont, declared:

“With this day of hope and suffering, the citizens of Catalonia have won the right to an independent state in the form a republic. My government, in the next few days will send the results of today’s vote to the Catalan parliament, where the sovereignty of our people lies, so that it can act in accordance with the law of the referendum.”

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Violence against the Rohingyas in Myanmar’s Rakhine state

Published: 27 October 2017 Author: Stefan Talmon

The Muslim Rohingya are an ethnic minority who have lived for centuries in Myanmar’s western state of Rhakine. The Rohingya are denied citizenship in mainly Buddhist Myanmar and have been the object of repeated violent attacks by Buddhist nationalists and the State security forces. In a report released on 24 August 2017, the Advisory Commission on Rakhine State headed by former UN Secretary-General Kofi Annan identified the issue of citizenship rights as “a broad concern, and a major impediment to peace and prosperity in Rakhine.”

On 25 August 2017, Rohingya militants attacked police and army posts in the border region with Bangladesh killing several members of the security forces. These attacks led to a fresh outbreak of violence against the Rohingya in Rakhine state which caused hundreds of thousands of them to flee their homes and cross the border into Bangladesh. The government of Myanmar said it was fighting insurgents but those who fled said troops and Rakhine Buddhists are conducting a brutal campaign to drive them from their homes. They accused local Buddhist mobs, backed by government forces, of burning their villages. Myanmar’s government, on the other hand, claimed that the Rohingyas were burning their own homes.

Ob 6 September 2017, Germany condemned the violence in Myanmar and called for the repatriation of refugees as soon as possible. In a statement the Government said: (more…)

Immunity of German diplomats in the United States

Published: 19 October 2017 Author: Stefan Talmon

German diplomat‘s daughter stabs boy at school

On 5 September 2017 an incident in the Washington D.C. area attracted a fair bit of attention in the United States. The 12-year-old daughter of a member of the staff of the German embassy in the United States stabbed a 13-year-old boy twice in the shoulder with scissors at the British Independent School in Georgetown. The boy had to be rushed off to hospital but the injuries were not life-threatening. A spokesperson for the Metropolitan Police Department declared:

“The suspect has been identified, however, because of her diplomatic status, there’s going to be no arrest at this time. Any questions regarding the diplomatic status can be referred to the State Department.”

There were also no criminal charges brought against the girl. A spokesperson for the German embassy stated that the embassy would conduct its own review. If it were discovered that the parents had contributed in any way to the stabbing, they could be subject to disciplinary action. (more…)

Abolition of the death penalty

Published: 12 October 2017 Author: Stefan Talmon

On 10 October 2017, the World Day against the Death Penalty, the Foreign Minister of Germany together with his colleagues from Austria, Liechtenstein, Luxembourg, Slovenia and Switzerland, published the following opinion piece:

“Today, on this World Day against the Death Penalty, we reaffirm our commitment to the universal abolition of the death penalty.

On the positive side, we have been witnessing a worldwide trend towards restricting and abolishing the death penalty for decades. Of the 193 UN member states, only 36, or just under 20%, still apply the death penalty. Whereas the death penalty was still the rule in the 1980s, today it is the exception. This cruel form of punishment is now almost banished from Europe – with one exception. It is time for Belarus to also cease executions and free all of Europe from the death penalty – forever.

We note with concern, however, that some countries in the world are seriously discussing the reintroduction of the death penalty and that executions are being resumed in other countries after longstanding moratoriums. This is contrary to the global trend and to some extent contravenes international law. We call on all states to comply with their international obligations and respect the spirit of the International Covenant on Civil and Political Rights, which provides for a progressive abolition of the death penalty. (more…)