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Nicaragua has filed an application to the International Court of Justice instituting proceedings against Germany for alleged violations of its obligations under the Genocide Convention and other norms of international law in relation to the Gaza Strip. Nicaragua’s application argues that by providing political, financial and military support to Israel and withdrawing its funding from the UN’s Relief and Works Agency for Palestine (“UNRWA”), Germany “is facilitating the commission of genocide and, in any case has failed in its obligation to do everything possible to prevent the commission of genocide”. The application calls for the ICJ to indicate provisional measures, including that “Germany shall immediately suspend its aid to Israel, in particular its military assistance including military equipment” and that “Germany must reverse its decision to suspend the funding of UNRWA as part of the compliance of its obligations to prevent genocide”. Germany is one of several countries, including the UK and the United States, which have suspended funding to UNRWA following allegations that some of its staff members were involved in the October 7 Hamas attacks.
In Russia, the human rights activist Orleg Orlov was sentenced to two and a half years in prison after he was found guilty of “repeatedly discrediting” the Russian armed forces. The sentence was ordered at a retrial. Orlov had initially received a 150,000 rouble fine (approximately £1,290) in October 2023. Orlov stated in his closing statement that “[w]e know the real reason why we’re being detained, tried, arrested, sentenced and killed. We are being punished for daring to criticise the authorities. In present-day Russia this is absolutely prohibited.”
In the courts
The High Court of Northern Ireland has disapplied sections of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (“the Legacy Act”) in a judgment handed down on Wednesday. The applicants in the lead case were relatives of individuals who had been killed during the Troubles and the victim of a shooting.
The court held that sections of the Legacy Act 2023 which provide conditional immunity from prosecution for crimes committed during the Troubles breached Articles 2, 3 and 6 ECHR and were incompatible with Article 2 of the Windsor Framework. Article 2 WF provides that the UK shall ensure that no diminution of a right set out in the Good Friday Agreement occurs as a result of the UK’s withdrawal from the European Union. The court considered that in enacting the immunity provisions, the UK government had acted incompatibly with EU law. It held that this could not have occurred if the UK had remained in the EU, and that the provisions therefore breached Article 2 WF. The court concluded that the immunity provisions should be disapplied [613].
The court made no order in relation to sections of the act which provide for the suspension of criminal investigations into Troubles-era offences and prevent new Troubles-related civil claims being brought. In relation to criminal investigations, the court found that the Legacy Act left sufficient scope for the Independent Commission for Reconciliation and Information Recovery to conduct an effective investigation as required under Articles 2 and 3 ECHR. In relation to the ban on civil proceedings, the court found that this provision did interfere with Article 6 rights, but that it was a lawful interference because it pursued the legitimate aim of promoting reconciliation.
In separate proceedings this week the High Court dismissed a challenge to a coroner’s ruling not to relist the inquest into the death of Patrick Duffy, an IRA man who was shot 14 times by undercover soldiers in Derry in 1978. A fresh inquest had been granted in March 2019 but was subject to various delays and was not relisted because it could not be completed before the 1 May 2024 deadline provided for in the Legacy Act.
This week the International Court of Justice held public hearings on the request for an advisory opinion regarding the legal consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory, including East Jerusalem. This is in response to a vote by the United Nations General Assembly to request an advisory opinion on (in the words of the UN General Assembly):
What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures?
How do the policies and practices of Israel referred to in [the] paragraph…above affect the legal status of the occupation and what are the legal consequences that arise for all states and the United Nations from this status?
In the UK
As the Russia-Ukraine war reached its second anniversary, the Home Office has published a statement of changes to the Immigration Rules closing the Ukraine Family Scheme. This scheme allowed UK residents to sponsor Ukrainian family members to come to the UK. Ukrainians currently in the UK will be able to apply for the Ukraine Extension Scheme, which will provide them with an additional 18 months’ permission to stay in the UK on the expiry of their visa. The Ukraine Extension Scheme will close on 16 May 2024. This means that the only remaining “bespoke” visa for Ukrainians outside the UK will be the Homes for Ukraine Scheme. The statement of changes has reduced the length of the Homes for Ukraine Scheme visa from three years to 18 months. It has also restricted who is eligible to be a sponsor. Previously, to be a sponsor you had to hold at least six months’ permission to stay in the UK from the date of the visa application, now you have to be a British or Irish citizen or have indefinite leave to remain in the UK.
In the courts
Shamima Begum has lost her appeal against the removal of her British citizenship. The Court of Appeal rejected the argument that in depriving Ms Begum of British citizenship, the Home Secretary was in breach of article 4 ECHR (prohibition of slavery and forced labour) by failing to consider that she was a potential victim of trafficking, to protect her from trafficking, to discharge legal obligations owed to potential victims of trafficking. The Home Secretary did not fail to take into account the risk of trafficking as a relevant consideration, and did not fail to consider Ms Begum’s de facto statelessness after the deprivation of her British nationality. The Court of Appeal also rejected arguments based on procedural fairness and breach of public sector equality duty.
Russia’s state prison service released a public statement on Friday reporting that opposition leader and vocal Kremlin critic Alexei Navalny has died in prison. Russian authorities are reportedly refusing to release the body, raising questions about the manner of his death. Navalny was sentenced in 2023 to 19 years imprisonment on a plethora of extremism charges, which he was serving in the Polar Wolf penal colony in the Arctic Circle. Lord Cameron, Foreign Secretary, said to broadcasters at the Munich Security Conference that ‘we should hold Putin accountable for this. And no one should be in any doubt about the dreadful nature of Putin’s regime in Russia after what has just happened’, while UK Security Minister Tom Tugendhat, in a post on X (formerly Twitter), has directly accused Vladimir Putin of murdering Navalny in order to silence him. Multiple judgments have been previously issued by the European Court of Human Rights finding that Navalny’s rights to fair trial, liberty and security, and freedoms of expression and association had been violated by Russian authorities.
This is a rare case involving the welfare of non-human animals balanced against the rights in the Convention. In the Court’s own words, “this is the first time that the Court has had to rule on the question of whether the protection of animal welfare can be linked to one of the aims referred to in paragraph 2 of the Article 9 of the Convention.” Thank you to Joshua Rozenberg for alerting me to this important ruling.
In his Concurring Opinion Judge Yüksel gives a useful brief description of what was at stake here.
“The case concerns decrees promulgated under Belgian domestic law which require, in the interests of animal welfare, stunning prior to the slaughter of animals. The applicants, who are of Muslim or Jewish faith, claim that the prior stunning in question would prevent them from carrying out ritual slaughter in accordance with the precepts of their religion, which would constitute an interference and therefore a violation of their right to respect for their religion within the meaning of Article 9 of the Convention
… At the heart of the case are therefore two questions: i) whether considerations linked to animal welfare can constitute a legitimate aim for the purposes of Article 9 § 2 of the Convention and ii) whether the contested measure did not actually go beyond what is necessary in a democratic society.” [para 3 of the Opinion]
The full judgment is available only in French. A summary of the salient points follows.
The proposed laws under attack
The slaughter of food animals without prior stunning has been banned in a number of countries signatory to the Convention, in the interests of animal welfare. However, both Jewish and Islamic rituals require maximum bleeding of the animal for the resultant carcass to satisfy the requirements of religious laws. Moreover, both rituals require the animal to be healthy and in good condition at the time of slaughter, and to die as a result of blood loss. But scientific research has shown that the fear that stunning would have a negative impact on bleeding is unfounded. “Electronarcosis” (see image above) is a reversible (non-lethal) stunning method that is possible for some smaller species of food animals (pigs, sheep and goats). This means that if the throat is cut immediately after this stunning method, the animal has indeed died solely of blood loss.
The Home Office has announced its intention to create new offences relating to actions taken by attendees at protests. The plans include making it an offence to possess flares or pyrotechnics at a protest, to wear a face covering at a protest, and to climb on war memorials. The changes will be added as amendments to the Criminal Justice Bill. The Home Office has emphasised that the new rules are not a blanket ban on face coverings, and only apply where the protester’s intention is to conceal their identity. Police officers already have the power to order a person to remove any item which the officer reasonably believe is being worn wholly or mainly for the purpose of concealing their identity. The changes will mean that a protestor who flouts such an order could be subject to a £1,000 fine or a one-month custodial sentence. The Home Office also added their intention to amend the law to prevent protestors from “using the excuse of protest to avoid prosecution” for offences such as criminal damage.
In international news
Israeli Prime Minister Benjamin Netanyahu has ordered the evacuation of civilians from the city of Rafah in southern Gaza ahead of an anticipated offensive operation. Rafah had a pre-war population of approximately 280,000 people and is now believed to be sheltering an additional 1.4 million Palestinians, making it home to over half the population of Gaza. The plans have attracted widespread international criticism. US President Joe Biden said that Israel should not conduct a military operation in Rafah without a “credible and executable” plan to protect civilians. Irish Minister for Foreign Affairs Micheál Martin went further, stating that a military operation would “entail grave violations of international humanitarian law” and that the evacuation order “risks mass forced displacement”. Netanyahu has said that the offensive is necessary to achieve Israel’s strategic goal of eliminating Hamas and that the IDF will pursue a “combined plan for evacuating the population and destroying the [Hamas] battalions”.
In the Courts
On 5th February the Employment Tribunal handed down judgment in David Miller v University of Bristol. The Claimant had been dismissed from his position at the University following comments he made which included his view that Zionism is a “racist, violent, imperialist ideology premised on ethnic cleansing” which “has no place in any society”. The Tribunal held that the Claimant’s anti-Zionist beliefs constitute a protected philosophical belief under the Equality Act 2010. The Tribunal concluded that the University’s decision to dismiss the Claimant was a disproportionate interference with his Article 9 and 10 rights to freedom of conscience and freedom of speech, and that his dismissal was unfair and wrongful. The Tribunal emphasised that the Claimant’s views were worthy of respect in a democratic society because he was not fundamentally opposed to the idea of Jewish self-determination, but rather to “the exclusive realisation of Jewish rights to self-determination within a land that is home to a very substantial non-Jewish population”, and because he did not support violence as a means of opposing Zionism [237]. The Tribunal reduced the Claimant’s compensatory award for unfair dismissal by 50% because his behaviour in commenting on individuals students and student societies was deemed culpable and blameworthy and had contributed to his dismissal [472].
In a significant ruling, the Court of Appeal has quashed the conviction of the appellant for an offence contrary to Section 1 of the Malicious Communications Act 1988 based on an email written to local councillors in a political dispute. In R v Casserly [2024] EWCA Crim 25, The Court gave guidance on – and placed emphasis on the importance of – directing juries on the right to free speech under Article 10 ECHR. The appeal considered the interaction between s 1 of the Malicious Communications Act 1988 and Article 10.
The Divisional Court (Lady Justice Laing and Mrs Justice Heather Williams) confirmed in R (Castellucii) v The Gender Recognition Panel and the Minister for Women and Equalities [2024] EWHC 54 (Admin) that the Gender Recognition Panel has no power under the Gender Recognition Act 2004 to issue a Gender Recognition Certificate that records an applicant’s gender as ‘non-binary’. It also held that this did not breach any of the Claimant’s rights under Article 14 of the European Convention of Human Rights.
The Claimant is referred to as ‘them’ and ‘their’ in the judgment and the Court also refers to ‘male’ and ‘female’ as gender rather than sex for the purposes of the GRA. Both are adopted in this note.
The government has confirmed the dateson which various significant changes to the Immigration Rules will come into effect:
On 14 March, the Immigration Rules will increase the minimum income for Family visas from £18,600 to £29,000. This will come into force from 11 April. The threshold will be increased in stages to £34,500 and finally to £38,700 by early 2025.
On 19 February, the Immigration Rules will be changed to remove the right for care workers and senior care workers to bring dependants (partners and children). This change will come into force on 11 March 2024.
On 14 March, the Immigration Rules will be changed to increase the earnings thresholds for those arriving on the Skilled Worker route, with the minimum threshold raising from £26,200 to £38,700. This change will come into force on 4 April 2024.
On 14 March, the Immigration Rules will be changed to remove the 20% going rate discount for occupations on the Shortage Occupation List, and temporarily add further occupations to the new Immigration Salary List, which will replace the current Shortage Occupation List.
The Home Affairs Select Committee has sent a letter regarding the living conditions aboard the Bibby Stockholm to Michael Tomlinson KC MP, the Minister for Countering Illegal Migration. The Bibby Stockholm is a barge used to accommodate asylum seekers awaiting decisions regarding their asylum claims.
The letter comes after the Committee members’ visit to the barge. It mentions, among other issues, that the inhabitants share cabins designed for one person with up to six people. The inhabitants reported limited access to GPs, mental health services, religious services for Muslims, and the local communities in Portland and the surrounding areas.
In international news:
The Secretary-General of the UN, António Guterres has appealed to countries which have suspended funding the UN agency assisting Palestinian refugees (UNRWA) to reconsider their decisions. Countries including the USA, UK, Germany, Italy, the Netherlands and others suspended funding after allegations emerged that 12 employees of the agency participated in the 07 October attack on Israeli civilians. The news agency Reuters carried a news report on allegations of involvement in 07/10 attack.
For decades, close family members have been able to claim for psychiatric illness caused by witnessing the death or serious injury of their loved ones, whether it be on the scene of the accident, hospital or mortuary. The jury has been out on the recoverability of these claims when the “qualifying accident” has been the result of admitted clinical negligence. The Supreme Court has just ruled this out as a basis for compensation. In Episode 193 of Law Pod UK, Rosalind English discusses this judgment and its implications for damages following clinical negligence claims with Judith Rogerson of 1 Crown Office Row.
As the dust settles on another year, it is (just about still) time to look back over the year gone to review some of the most dramatic, legally interesting or impactful cases of the year gone by. As ever, this is only a selection of the top cases of the year, but as a whole they reveal yet another year in which the courts have been drawn into the centre of the most important social and political debates of the society in which they find themselves.
On Friday, A 17-judge panel at the International Court of Justice delivered an interim ruling imposing provisional measures on the state of Israel in order to alleviate the ‘catastrophic humanitarian situation’ in Gaza. Though stopping short of calling for the complete suspension of military operations requested by South Africa, the court ordered that Israel must do everything in its power to prevent the commission of acts of genocide. President of the Court, Judge Joan E Donoghue, emphasised in judgment that the court does not need to find that Israel has broken the Genocide Convention in order to impose provisional measures. Rather, they must only find that Israel’s acts are ‘capable of falling within’ the remit of the Genocide Convention, and that the right of Palestinians in Gaza to be protected from genocide was plausibly under threat. The Court held that this was the case, and that there was a risk of the situation deteriorating further before final judgment could be delivered.
16 members of the court, including Israel’s own Judge Aharon Barak, voted that Israel must take ‘immediate and effective measures’ to address the ‘adverse conditions of life’ in the Gaza strip. The Court also directed that Israel produce a report within one month on the actions it has taken to give effect to the order. Judge Donoghue concluded by reiterating that this interim ruling ‘in no way prejudges’ the jurisdiction of the court to deal with the case, or the merits of the case itself – a case which may take years to reach final judgment.
In Other News
During the ECHR’s annual press conference on Thursday, President of the ECHR Síofra O’Leary reminded the UK Government of its duty to comply with the Rule 39 injunction against flights to Rwanda. This comes as the House of Lords are due to discuss the Safety of Rwanda (Asylum and Immigration) Bill on Monday, a bill which clearly provides that it is at the discretion of ministers whether they comply with the injunction. The Rwanda Scheme has come under further scrutiny this week after it has been reported that the housing secured by the UK Government for refugees has been sold on or reserved for Rwandan nationals. An undercover reporter at openDemocracy, posing as an international investor, was told at a meeting with the sales team of the housing developer that the homes were ‘not for refugees’.
The UK and the US jointly launched a second set of air strikes on Houthi targets in Yemen on Monday night. As ships affiliated with Israel and the West travelling through the Red Sea trade route continue to be attacked, the UK Government has released a statement on the legality of military action against Houthi targets. A letter sent by the Houthi-controlled Foreign Affairs Ministry to the UN’s humanitarian coordinator for Yemen on Wednesday has ordered US and British nationals, including all humanitarian aid workers, to leave the country within one month. The removal of aid workers is likely to cause further deterioration of the fragile humanitarian situation in Yemen, with opposition leader Keir Starmer asking what steps are being taken to materially support Yemenis who have already “suffered terribly as a result of that country’s civil war”. UK Foreign Secretary Lord Cameron is planning to visit the region in the coming days.
Commentators are claiming a ‘blow to the rule of law’ as Hong Kong’s Court of Final Appeal overturned the acquittal of pro-democracy protester and human rights barrister Chow Hang-tung last week. Chow had originally been convicted of ‘inciting others to take part in an unauthorised assembly’ following her involvement in organising and hosting the Tiananmen Vigil in 2021, a vigil which had been held annually for the last thirty years. Despite being later acquitted, the prosecution successfully appealed the decision. The Court of Final Appeal found by a 3-2 majority that the prohibition of the vigil had been a lawful and proportionate restriction of freedom of assembly, thereby reinstating Chow’s conviction. She remains in a maximum-security prison and is now facing a potential life sentence under a separate national security charge.
In the Courts
The High Court held this week that the Home Secretary’s withholding of decisions on leave to remain for victims of trafficking was in breach of articles 8 and 14 ECHR. The Home Office had neglected to issue decisions on leave to remain for victims of trafficking who had applied for asylum while the seminal case of R (KTT) v Secretary of State for the Home Department [2021] EWHC 2722 Admin progressed through the upper courts. The High Court and Court of Appeal had found in KTT that in order for the United Kingdom to comply with its duties under the European Convention Against Trafficking, confirmed victims of trafficking who are claiming asylum in the UK (at least in part for fear of re-trafficking) must be granted leave to remain while their asylum case is being decided. The Home Secretary was seeking to appeal this decision, though permission to appeal to the Supreme Court was eventually refused in October 2022.
Judgment was handed down on Tuesday in the case of XY v Secretary of State for the Home Department [2024] EWHC 81 (Admin), where a confirmed victim of trafficking had been denied a decision on his leave to remain while his asylum case was decided for over 18 months. Consequently, the claimant was unable to rent a property, open a bank account, or otherwise fulfil the necessary prerequisites to participating in society. Lane LJ held that this amounted to a breach of Article 8(1) ECHR, the right to respect for private and family life. A breach of Article 14 (protection from discrimination) was also found on the grounds of the differential treatment between trafficking victims who had applied for asylum and those who had not, given that both groups had equal need for a decision on leave to remain.
As of 30th January 2023, decisions on leave to remain for trafficking victims are now made according to the Nationality and Borders Act 2022.
And do listen to the latest episode of Law Pod UK, in which Rachel Marcus and Marcus Coates-Walker of 1 Crown Office Row join Lucy McCann to explore the principle of the scope of duty in the context of clinical negligence claims.
Graham Phillips, the Claimant, is a British national and video blogger who posts content from the Donbass dressed in Russian military fatigues. He says he is a journalist who provides a “counterbalance” to widespread western misunderstanding of the true situation in Ukraine but the Administrative Court disagrees. On 12 January 2024, it handed down judgment in R (Phillips) v Secretary of State for Foreign, Commonwealth and Development Affairs [2024] EWHC 32 (Admin), in which it upheld the Government’s view that the Claimant is a propagandist for Russia who is lawfully subject to a sanctions regime which allows the state to freeze his assets.
In Episode 192 of Law Pod UK Rachel Marcus and Marcus Coates-Walker of 1 Crown Office Row join Lucy McCann to explore the principle of the scope of duty in the context of clinical negligence claims: first by analysing the decision in Khan v Meadows and then discussing how the courts have grappled with scope of duty issues since.
The Post Office is being investigated by the Metropolitan Police for potential fraud offences committed in what has been termed the Horizon IT Scandal. This investigation builds on a pre-existing one into potential offences of perjury and perverting the course of justice in relation to prosecutions carried out by the Post Office. Between 1999 and 2015 hundreds of sub-postmasters were prosecuted by the Post Office for alleged theft, fraud, and false accounting, despite evidence having come to light in 2010 that the Post Office’s Fujitsu accounting systems were faulty. The prosecutions resulted in over 700 sub-postmasters being handed criminal convictions as well as being forced to pay back apparent shortfalls. A 2019 high court case overturned some of these convictions and led to partial victim compensation but the Post Office continues to oppose appeals. In the wake of a new ITV drama concerning the scandal, 50 new potential victims have come forward. Rishi Sunak has signalled that the government is taking steps to exonerate victims of the faulty technology.
Other nations have come under pressure to support South Africa’s case against Israel at the ICJ, which accuses the wartime state of committing genocide against Palestinians. The application stated that Israel’s recent actions have violated the 1948 Genocide Convention “because they are intended bring about the destruction of a substantial part of the Palestinian national, racial and ethnical group”. The White House has criticised South Africa’s accusation as “meritless … counterproductive and completely without any basis in fact whatsoever.”
The Irish government has announced it will challenge the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 in the European Court of Human Rights. The Act, which came into force in September 2023, was created to address the ‘legacy of the Northern Ireland Troubles’. The legislation has been controversial because it allows individuals accused of Troubles-related offences to be granted immunity in return for cooperation with the newly-formed Independent Commission for Reconciliation and Information Recovery (ICRIR). The Act is already facing a number of legal challenges in the Belfast High Court. In this latest challenge, the Irish government will ask Strasbourg whether the Act is compatible with the UK’s obligations under the European Convention on Human Rights.
Meanwhile, in France, new legislation has been passed which significantly toughens French immigration rules. The bill went through several iterations, with the final version including much harsher provisions than originally proposed. It includes measures for reducing access to social security benefits for immigrants, migrant quotas, and toughened rules for family members of migrants. The bill has been criticised by Human Rights Watch for putting ‘the rights of foreigners at risk.’
In the US, Donald Trump has been disqualified from running as a presidential candidate in Colorado and Maine. The Colorado Supreme Court was the first state to rule that Donald Trump should not be allowed to run for president because of Section 3 of the 14th Amendment, which disqualifies people who engage in ‘insurrection or rebellion’ from holding any office. The Colorado ruling has been appealed, and the Supreme Court is expected to decide whether to intervene on the issue early this year.
In other news
Before the Christmas break, the Court of Appeal ruled that the government’s approval of the planned Sizewell C nuclear plant in Suffolk was lawful. The legal challenge was brought by Together Against Sizewell C (TASC), who argued the government had failed to consider the need for a water supply when it approved the nuclear plant in Suffolk. The Court of Appeal disagreed, holding it was logical for the government to consider the issue of water supply separately from the plant itself. The protest group has said it would continue to fight against the development.
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