Key MRG legal cases undertaken since 2002

Bosnia and Herzegovina (BiH): Challenging discriminatory provisions in the BiH electoral system

The electoral system in BiH (based on Dayton PA/the BiH Constitution and domestic law) is based on a strict division into Bosniak, Croats and Serbs - the nation's so called Constituent Peoples. MRG represents the applicant Jakob Finci in this case before the European Court of Human Rights (ECtHR), which turns on the fact that representation within the House of Peoples and the Presidency is restricted to Constituent Peoples only. The system therefore excludes all other citizens, including national minorities who have lived in Bosnia for centuries, such as the Roma and Jews.  Mr Finci is a Bosnian citizen and a prominent Jew.  His case was joined by the Court to the similar case of Dervo Sejdić, who is Roma. 

Since lodging the case with the ECtHR in 2007, MRG has submitted further legal arguments and documents, ultimately resulting in the case bypassing the main Chamber and being directly referred to the Grand Chamber in 2009. This decision is indicative of the huge importance with which the Court views the case. 

Listen to the June 2009 Grand Chamber hearing here

Successful judgment was delivered in December 2009. The Court found Bosnia and Herzegovina to be in breach of Protocol 12 of ECHR, which provides for the right to equal treatment and non-discrimination, in failing to allow its citizens who are not “Constituent Peoples” to stand for election to the Presidency. The Court also found a violation of Article 14 ECHR, which provides for freedom from discrimination, taken in conjunction with Article 3 of Protocol No 1, which protects free elections to the legislature, as a result of the ineligibility of “Others” – including national minorities - to stand for election to the House of Peoples. Click here to see the judgment.

The ruling is expected to have huge ramifications in Bosnia and Herzegovina and beyond. If correctly implemented, it will assist in breaking down ethnic and religious divisions in Bosnia and Herzegovina by encouraging political participation and representation and promoting social cohesion. In addition, the decision also offers important protection for minorities who lack electoral rights in other ECHR states, in providing a legally binding judgment that can be relied upon against their own Governments. The case is also hugely significant on an international level as it is the first time that the ECtHR has considered how ECHR Protocol 12 should be applied to potentially discriminatory situations.

In addition to this, the legal cases programme also submitted two shadow reports - one to the UN Committee for the Elimination of Racial Discrimination (CERD) and UN Human Rights Committee (HRC) on the above issue, resulting in substantive acknowledgment of the violations by the respective committees. These were respectively filed in February and October of 2006. The HRC shadow report was preceded by the submission of an issues paper to the UN Committee. This issues paper was submitted jointly with the International Committee for Human Rights and the Internal Displacement Monitoring Centre, both Bosnian-based organisations.

Botswana: Non-discriminatory access of non-Tswana tribes to the House of Chiefs

This case before the African Commission on Human and Peoples Rights (ACHPR) addresses issues of discrimination in access to political participation in Botswana.

At present, only 8 of the 45 tribes in this country have access to representation in the House of Chiefs. A High Court judgment in 2001 found the Chieftainship Act, which determines access to representation, to be discriminatory. The Government's failure to comply with the judgment by amending the Act led the Wayeyi community to advocate before the Committee on the Elimination of Racial Discrimination (CERD). In 2002, CERD found a violation and upheld the High Court decision. In 2003, the Botswana Government began drafting a new law, which brought only cosmetic changes to the Act, leaving the discriminatory provisions intact. MRG assisted the Wayeyi in having CERD re-open its file on the case and establish dialogue with the Government. MRG was the first NGO to ever use this follow-up mechanism through which two official letters were sent.

Further advocacy in 2006 has resulted in the preparation of an application for the ACHPR on this issue. The case was submitted for seizure in November 2006, at the 40th session and remains pending before the Commission.

Diego Garcia (British Indian Ocean Territory / UK): Forced Deportation

This case relates to the forced deportation of Chagos Islanders in the 1970s. The deportation orders were given when the UK decided to lease Diego Garcia to the US for the purposes of a military base. MRG has produced in-depth research in support of litigation undertaken by Sheridans, an international law firm with offices in London. The briefs prepared have focused on property rights, indigenous rights, self-determination and crimes against humanity. In May 2006, the case succeeded in its judicial review before the High Court, challenging the UK Government's use of an Order in Council as a response to an earlier Chagos High Court victory in 2000. The Government appealed against this May 2006 victory, which failed before the Court of Appeal in May 2007. The Government then sought a further appeal to the House of Lords, which was unfortunately successful. MRG was involved in the response to this appeal.

A case on separate but related points is currently pending before the European Court of Human Rights.  In June 2009, MRG in conjunction with Human Rights Watch submitted an amicus curiae brief in support of the Chagos Islanders' case, focusing on issues of jurisdiction and indigenous peoples' rights

Democratic Republic of Congo (DRC): Gathering evidence on Crimes against Humanity committed against the Batwa/Bambuti populations of the DRC

In an initiative linked to MRG's Batwa programme, and in response to a request of the International Criminal Court Prosecutor, MRG investigated and documented crimes against the Twa people of the Eastern DRC. Analysis of the testimony collected from the victims of alleged crimes and supporting information about patterns of violations (with a particular focus on the Twa people) was submitted to the ICC Prosecutor in April 2004. MRG produced a publication in relation to its findings entitled Erasing the Board, which was launched in July 2004 in Brussels. The launch coincided with the ICC Chief Prosecutor announcement that an official investigation would commence. In early 2005, a follow up visit was undertaken to meet with the affected communities interviewed for the collection of evidence.

In May 2008, Jean-Pierre Bemba, the former vice-president of the DRC and leader of the Mouvement de Liberation du Congo, the group responsible for the military campaign ‘Erasing the Board', was arrested in Belgium on a warrant from the International Criminal Court for four counts of war crimes and two counts of crimes against humanity, allegedly committed in the Central African Republic. The charges in particular focus on Bemba's responsibility for rapes and other sexual crimes.

Although the charges against him relate to the CAR, the ICC Prosecutor Luis Moreno-Ocampo has looked at his involvement in atrocities in the DRC and said on his arrest: "He had done it before in CAR, he had done it before in the DRC. He had to be stopped." There is therefore the possibility that charges in respect of DRC crimes may follow.

MRG continues to collect evidence of gross human rights violations amounting to international crimes in the DRC, mostly recently in September 2009.

France: Sikh Turban Cases

MRG is working with United Sikhs, a UK and French based NGO, on the issue of bans on turbans for driver's licences, passport photos and in access to education. These cases are highly contentious as they risk pitting Sikhs against Muslim communities on the basis that Sikhs can technically argue their cases on the grounds of racial discrimination (which falls under the EU Race Directive), rather than only on the issue of religion, which faces great limitations in a secular country such as France. MRG has been working closely with United Sikhs on this issue, drafting advice letters aimed at developing arguments advantageous to both communities. MRG has also assisted in the drafting of a petition sent to a EU body on the issue of discrimination in relation to turbans.

In 2008, United Sikhs submitted the cases to the UN Human Rights Committee (UNHRC). MRG submitted amicus briefs in December 2008 to the UNHRC in cases regarding the failure to renew residency cards and passports due to the applicants wearing a turban in the relevant passport or residency card photographs. The cases remain pending before the Committee.

Kenya: Indigenous Peoples Land Rights/Forced evictions

This lead case was initiated by MRG in 2003. The Endorois are semi-nomadic pastoralists who were evicted from their ancestral land in view of the creation of a national park in the 1970s. The case challenges the lack of consultation or compensation for the forced displacement, and the lack protection afforded to the Endorois' traditional way of life. The case succeeded in obtaining provisional measures from the African Commission on Human and Peoples Rights (ACHPR) in May 2004. In May 2005, the case succeeded on the admissibility arguments.

The following developments have taken place:

  • Media work was undertaken on the ground, with the result of the Government's lack of engagement in the case making the front page headlines of the national newspapers.
  • In response, the Government attended the May session of the African Commission with a delegation comprised of the Senior State Counsel of the Attorney General's office, as well as a representative from the Ministry of Justice. Both came with a mandate to negotiate with the applicants.
  • During the May 2006 session, the two parties drafted a Terms of Agreement which included a list of documents that needed to be drafted and exchanged in accordance to a September deadline, with a view to pursue further negotiations in October 2006.
  • In the interim, in July 2006, the Government finally complied with the provisional measures secured before the African Commission in 2004. Mining activities were stopped and the remaining water source for the community no longer contaminated by mining by-products.
  • In October 2006, MRG travelled to Nairobi to negotiate (alongside its partners) with the Government delegation, in accordance to the Terms of Agreement agreed in May 2006. These negotiations did not bear fruit to a satisfactory agreement, and litigation on the merits of the case was therefore rendered necessary.
  • In November 2006, the parties met before the African Commission to argue the full merits of the case in a hearing lasting 3.5 hours. MRG and its Kenyan partner (CEMIRIDE) introduced video evidence produced by US-based Witness. This video had been finalised in May 2006.
  • The final final decision of the African Commission was eventually delivered in February 2010. In a landmark case, the decision creates a major legal precedent by recognising, for the first time in Africa, indigenous peoples’ rights over traditionally owned land and their right to development. The Commission also found that in failing to provide sufficient compensation and benefits, or provide suitable alternative land for grazing after evicting the Endorois from their homeland, the government of Kenya fell short of effectively providing for the community in the development process.

>>>Download the decision (PDF)

In 2008 MRG also launched the Trouble in Paradise campaign intimately related to the issues of the case. The key message of the campaign relates to the need to strike a new balance between eco-tourism and indigenous peoples land rights. To date, the latter have often been displaced for the creation of nature reserves, despite having been the custodians of the lands in question, with traditional knowledge systems that are vital to the sustainability of these lands. The message is to view indigenous peoples as key stakeholders who must be fully engaged in any eco-tourism project, and adequately compensated for any loss.

Turkey: Kurdish names case

This case deals with the ban of Kurdish names on the basis that letters Q, X and W do not exist in the Turkish alphabet. Approximately 25% of Kurdish names are spelt with one of these three letters. The deliberate intent to marginalize Kurdish identity is made evident through the letters' everyday use by private companies such as BMW or by foreigners who settle in Turkey, who are allowed to register their names even if they include banned letters. The case was submitted to the European Court of Human Rights in July 2005. It was communicated to the Government in May 2008, and further submissions were made by the Applicants in January 2009. 

Judgment was delivered in February 2010. In a disappointing decision, the Court held that there were no violations of Article 8 (the right to privacy) and Article 14 (the right to be free from discrimination). In upholding Turkey’s current restriction against registering Kurdish names, the Court failed to allow Kurdish citizens and therefore other minorities from linking their names, which are a central component of personal identity, with the linguistic and cultural identity of the Kurdish community.  

Burundi: violation of property rights of Batwa

MRG is taking a legal case before the local courts in Burundi on the violation of property rights affecting a Batwa family.  This case does not tackle the issue of collective Batwa land rights head on, but opens the door as a stepping stone in a manner that is consistent and constructive in view of positive changes currently taking place in Burundi on these issues.  The case was due to be heard by the Supreme Court in July 2008, but the defendants did not appear.  The President of the Supreme Court therefore decided that an on-site visit was required to establish the facts of the case. This visit was due to take place in August 2008 and is yet to be re-scheduled.  MRG will visit Burundi in December 2009 to investigate how to progress the case.

Tanzania: forced evictions of pastoralists

This case concerns pastoralists who were forcibly ejected from their land on Sukenya Farm, Western Arusha, Tanzania by a US safari tour operator, and who continue to be subjected to harassment, beatings and extra-judicial arrests when attempting to access their traditional sources of water on the land.  An urgent action was submitted to the UN's Committee on the Elimination of Racial Discrimination (CERD) in March 2009 and, as a direct result, CERD wrote to the Tanzanian Government stipulating a set of interim measures to curtail the harassment, and requesting further information from the Government by 31 July 2009.  MRG has subsequently provided CERD with an update on the situation, which continues to deteriorate.

Amicus curiae briefs

Amicus curiae briefs, otherwise known as third party interventions, are meant to serve as ‘friends of the court'. The purpose of these briefs is to inform the court on a point of law that it might not be familiar with.

MRG has prepared amicus briefs in support of the following cases:

  • Cameroon (domestic court): pastoralists as benefactors of minority and indigenous rights.
  • Dominican Republic (Inter-American Court of Human Rights): racial discrimination in access to education can amount to inhuman and degrading treatment
  • Greece (European Court of Human Rights): hate speech
  • India (universal jurisdiction for conviction in the UK): genocide of Sikhs in 1980s
  • Lithuania (UN Human Rights Committee): protection of minority identity (names)
  • Turkey (domestic court): protection of minority identity (names)
  • Czech Republic (European Court of Human Rights): segregation in education
  • Turkey (European Court of Human Rights): electoral threshold bias against Kurds

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