Oct 6, 2023 | Cases, Uncategorized
The International Commission of Jurists (ICJ), together with the AIRE Centre (Advice on Individual Rights in Europe), the Dutch Council for Refugees and the European Council on Refugees and Exiles (ECRE) submitted today a third party intervention in the Communicated case No. 193/2022, before the UN Committee on the Rights of the Child.
The case concerns immigration detention of an 11-year-old girl from Afghanistan together with her older sister and parents, pending transfer to another EU Member State according to the EU Dublin Regulation.
The interveners focus in their submission on the prohibition of immigration detention of children, including when accompanied by family members, the right to be heard, access to information and legal representation and age assessment in the migration context.
The full intervention can be read here.
Sep 29, 2023 | News
The ICJ is concerned that the newly proposed Online Safety legislation, if adopted in its present form, would serve to crush free expression and further contract an already shrinking civic space in Sri Lanka.
On 18 September 2023, the Ministry of Public Security gazetted a bill titled “Online Safety” intended to dramatically regulate the content of online communication, including by the general public.
The ICJ considers that several provisions of the bill would serve to undermine the exercise of human rights and fundamental freedoms in the country, including freedom of information and expression. Of particular concern are provisions related to the setting up, appointment and functions of an Online Safety Commission and other experts, the vague and overbroad wording of conduct designated as punishable offences and unnecessary and disproportionate punitive sanctions.
“While the spread of online hate-speech and disinformation need to be tackled, this bill is deeply flawed in its design and would be open to abuse by the Sri Lankan government, which has persistenty failed to uphold freedom of expression,” said Ian Seiderman, ICJ’s Legal and Policy Director. “It risks being used to suppress important public debate regarding the conduct of the government and matters of public policy,” he added.
The Bill would establish an “Online Safety Commission” that would act to: “prohibit online communication of certain statements of fact; prevent the use of online accounts and inauthentic online accounts for prohibited purposes; make provisions to identify and declare online locations used for prohibited purposes in Sri Lanka and to suppress the financing and other support of communication of false statements,” as well as other unspecified matters.
The Bar Association of Sri Lanka has called for the immediate withdrawal of the bill and for the adoption of a process of meaningful consultations with all relevant stakeholders prior to gazetting bills which ‘have a serious impact on the community at large.’
“The current draft fails to adhere to the principles of legitimacy, necessity and proportionality required for any State activity that restrict rights. It must be withdrawn or amended to be brought in line with Sri Lanka’s international human rights obligations guaranteeing freedom of expression, opinion, and information.” Seiderman added.
The ICJ considers that the Bill should not be evaluated in a vacuum, but instead must be read in conjunction with existing and proposed legislation that threaten human rights. Such laws include the extremely misused ICCPR Act of 2005, the Prevention of Terorrism Act (PTA), the Bureau of Rehabilitation Act, and the proposed Anti-Terrorism law which seeks to replace the PTA. This body of legislation, taken together, fosters a chilling effect on the exercise of fundamental freedoms restricting civil society while unduly expanding the reach of the security state.
Article 14 (1) (a) of the Sri Lankan Constitution gurantees the freedom of speech and expression. Article 19 of the International Covernant on Civil and Political Rights, to which Sri Lanka is a party, affirms the right to freedom of expression and opinion.
In July 2018, the UN Human Rights Council adopted by consensus a resolution affirming that “the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice, in accordance with articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.”
Contact: Ian Seiderman, Legal & Policy Director, e: ian.seiderman@icj.org
See annexed below a summary analysis of some problematic aspects of the Online Safety Bill.
Sri Lanka: Selected flaws in the Online Safety Bill
- Wide ranging and overly broad powers of the Online Safety Commission and appointed Experts
The bill provides for the establishment of a five-member ‘Online Safety Commission’ that is to be appointed on the sole discretion of the President (clause 5). This is in contrast to other notionally independent commissions in Sri Lanka, the appointments to which require the consent of the Constitutional Council by way of nomination or ratification. This bill would give the president unfettered discretion where both appointment and removal is concerned.
The Commission would also be vested with a wide range of powers, some of which encroach into the functions of the judiciary. It essentially acts as sole arbiter of matter of fact and is entitled to issue notices or directives against any person, internet service provider (ISP) or internet intermediaries who/which is alleged to have communicated a prohibited or false statement. The bill does not specify the process through which the Commission would arrive at this decision.
Moreover, the Commission is granted authority to block websites and instruct ISPs to restrict access to specific online locations. This may result in undue government overreach and censorship and impermissible limitations on the exercise of the right to information protected by Article 14A of the Constitution and international law.
Further clause 37 allows for the Minister to appoint ‘Experts’ to assist police officers in investigations. The experts are private individuals who can accompany police officers during search procedures, but are also given the power upon authority granted by a police officer above the rank of a sub-inspector to require a person to hand over any documents or device, provide traffic data or be orally examined (clause 37 (6)). Such excessive powers in the hands of unaccountable private individuals provide avenues for abuse.
The bill does not provide provide for judicial review of the Commission’s decisions or procedures. Instead clause 49 seeks to protect the Commission, its staff, or any expert appointed under clause 37 from being brought to court for any act or omission done in good faith.
- Vague and overbroad offences
A particularly problematic aspect of the bill are provisions of vague and overbroad definitions of offences.
Article 19(3) of the ICCPR provides that the right to freedom of expression and opinion may be subject to certain restrictions, but that these restrictions must be provided by law and necessary for one of a limited numbers of legitimate purposes, namely to protect the rights and reputations of others, national security, public order or public health or morals. The measure of limitation must be proportionate, using the least restrictive means possible to achieve the purpose. The requirement that any restrictive measure be provided by law means that they must comply with the principle of legality, by which the law must be stated with precision as to allow persons to be able to conform their conduct in compliance.
Similarly, Article 15 (2) of the Sri Lankan Constitution provides for possibility of restriction of the right “as may be prescribed by law in the interests of racial and religious harmony or in relation to parliamentary privilege, contempt of court, defamation or incitement to an offence.”
The prohibitions listed in this draft legislation go beyond the restrictions allowed for under the ICCPR and the Sri Lankan Constitution, as clause 12 states that “any person who poses a threat to national security, public health or public order or promotes feelings of ill-will and hostility between different classes of people, by communicating a false statement, commits an offence.”
In addition, several acts that would constitute offence are only vaguely defined, if at all. This includes communicating a false statement “with the deliberate intention of wounding the religious feelings of any other person” (clause 16) or “outraging the religious feelings of any class of persons, insults or attempts to insult the religion or the religious beliefs of that class” (clause 17). These clauses are overbroad in that they would encompass expression that is protected under human rights law. Clause 14 makes it an offence to ‘wantonly giving provocation by false statement to cause riot’. This language is open to abuse by the authorities, as evidenced by practices arising from other legislation, including the ICCPR Act and the PTA.
Repeated mention of ‘religion’ in these provisions is a cause for concern as they come in a context where there is ongoing strife relating to contested religious sites between majority and minority religious communities, thus creating risk of selected application to silence expression by persons from minority religious communities.
- Disproportionate Punishment
The draft bill prescribes unjustifiably hefty punishments of fines and a period of imprisonment ranging from one, two, three or five years for overbroad and ill-defined offences. It also states that “in the event of a second or subsequent conviction, such term of imprisonment or fine or both such imprisonment and fine may be doubled.”
Clause 25 of the bill, which refers to ‘failure to comply with the directives of the Commission’ would make it an offence to fails to comply with such directive within a period of 24 hours and makes the person liable to imprisonment for a term not exceeding five years or to a fine not exceeding one million rupees.
Sep 27, 2023 | Advocacy, News
The International Commission of Jurists (ICJ) and four other organizations condemn in the strongest possible terms the arbitrary execution of Mr. Lê Văn Mạnh in violation of his right to life and freedom from torture and cruel, inhuman or degrading punishment. He was executed despite credible allegations that Mr. Lê Văn Mạnh had been subjected to severe beatings amounting to torture by the police in order to extract a “confession,” which was relied on at trial to convict him.
Despite the public outcry and the persistent calls within the international community for an impartial, independent and effective review of his case, the authorities proceeded with the execution of Mr. Lê Văn Mạnh on 22 September 2023, in defiance of international law and contrary to the global trend towards establishing a moratorium on the use of the death penalty and abolition of the death penalty.
According to the death certificate issued by Thu Phong village, Cao Phong district, Hòa Bình province that Mr. Lê Văn Mạnh’s family received on 23 September 2023, he was executed at 7am on 22 September 2023. His execution was carried out only four days after his mother had received the notification from the People’s Court of Thanh Hóa, informing her that as Mạnh’s relative, she could apply in writing to receive her son’s ashes or corpse.
The execution notice issued by Thanh Hóa province police indicates that the responsible authorities had exchanged two official letters in August 2023 to uphold the decision to carry out Mạnh’s execution. This means they had waited for more than one month before notifying Mạnh’s family about his impending execution, hindering any efforts by his family and the public to call for an immediate halt of the execution. Additionally, the notification letter shared with the family did not include the date of the set execution and the family was not given the opportunity of a last visit – a cruel, inhuman and degrading treatment that international human rights bodies have repeatedly condemned.
Allegations of violations of due process and procedural irregularities
Lê Văn Mạnh had been convicted of robbery, rape, and murder of a 14-year-old girl – Hoàng Thị Loan – in July 2005.
According to the case’s official records, the victim, Hoàng Thị Loan, was raped and murdered in Yên Thịnh Ward, Yên Định District, Thanh Hóa Province, in March 2005. On 20 April 2005, Lê Văn Mạnh, who was 23-year old at the time, was arrested pursuant to a temporary arrest warrant issued by the investigative police unit of Đồng Nai Province for an entirely different matter earlier that month.
However, according to the criminal complaint, just three days later, by 23 April 2005, a “confession” letter, claimed to be written by Mạnh while in police detention addressed to his father, had surfaced, admitting guilt to the rape and murder of Hoàng Thị Loan. The police confiscated this letter and used it to prove Mạnh’s guilt. The criminal complaint further showed that the investigation relied on the testimony of a 9-year-old child – who was interviewed by the police without parental permission – for leads.
Between 2005 and 2008, Mạnh underwent a total of seven court hearings, including three trials, three appeals, and one cassation trial. In all of his court hearings, Mạnh vehemently denied all of the charges and retracted his earlier “confession”, alleging that he had to provide it after being beaten by both the police officers investigating his case and his cellmates who were acting under police’s instructions.
There was no physical evidence to tie Mạnh to the alleged rape and murder. The only evidence presented by the prosecution was Mạnh’s “confession” letter, which he had already retracted because it was allegedly obtained under duress and torture. Nevertheless, Lê Văn Mạnh was convicted of the rape and murder of Hoàng Thị Loan and sentenced to death.
Recommendations
The execution was arbitrary, as it took place as a consequence of a denial of the right to fair trial among other rights. The execution also is contrary to repeated resolutions of the UN General Assembly and the overall global trend towards establishing a moratorium on the use of the death penalty with a view to abolition. We strongly urge the authorities to:
- Immediately halt all pending executions and establish a moratorium on executions with a view to abolishing the death penalty in Việt Nam;
- Initiate prompt, impartial and effective investigations into the allegations of torture or other cruel, degrading or inhuman treatment with a view to gaining a “confession” from Mr. Lê Văn Mạnh, noting that his was not the only case where there had been allegations of torture being used to extract a “confession” later used as evidence at trial, which resulted in the imposition of the death penalty; and
- Ensure that there is full transparency in the use of the death penalty, including through ensuring that essential information relevant to a specific planned execution is promptly provided to the prisoner and their family, and making publicly available information regarding death sentences, pardons, number of people on death row, notifications of any set executions and executions carried out.
Background
The UN General Assembly, in repeated resolutions and by overwhelming majorities, most recently in General Assembly Resolution 77/222 of 15 December 2022, has called on all States that retain the death penalty to impose an immediate moratorium on executions, with a view to abolition.
In line with opinions shared by many governments and the United Nations, we emphasize that the death penalty constitutes a denial of the right to life protected by Article 6 of the International Covenant on Civil and Political Rights (ICCPR) to which Việt Nam is a State party; and that it constitutes a form of cruel, inhuman or degrading punishment, prohibited under Article 7 of the ICCPR and the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). Countries like Việt Nam where the death penalty is imposed, must ensure, at a minimum, that it is only used in cases of “the most serious crimes” (i.e. intentional killing) following a trial that meets the highest level of compliance with international law and standards of fairness.
As the UN Human Rights Committee noted: “Violation of the fair trial guarantees provided for in article 14 of the Covenant in proceedings resulting in the imposition of the death penalty would render the sentence arbitrary in nature, and in violation of article 6 of the [ICCPR]” (General Comment No. 36 – Article 6: right to life, UN Doc. CCPR/C/GC/36, para. 41). Mạnh’s trial was clearly neither fair nor compliant with international human rights law.
Furthermore, as a State party to the UNCAT and the ICCPR, Việt Nam has an obligation to respect the prohibition of torture and other forms of ill-treatment at all times.
Article 15 of the UNCAT obliges State parties to “ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings.” International law prescribes that State parties must conduct prompt, impartial and thorough investigations when complaints of torture or other ill-treatment are made (Articles 12 and 13, UNCAT; and Articles 7 and 2(3), ICCPR). In addition, State parties must provide prompt and effective access to effective remedies and full reparations for victims of torture and other ill-treatment (Article 14, UNCAT, and Article 7 in connection with Article 2(3), ICCPR).
Signatories
Amnesty International
International Commission of Jurists
Legal Initiatives for Vietnam
People in Need
Vietnamese Advocates for Change
Sep 25, 2023 | News
The ICJ considers that revisions made to the draft of proposed anti-terrorism legislation, while positive, fail to sufficiently correct the deficiencies of the earlier draft and, if adopted, would risk serious human rights violations.
The revised bill, in its clause 3 continues to define acts of terrorism in a vague and overbroad matter and undercuts the inherent authority of the judiciary, as people may be detained for two months solely on order of the secretary of the Defence Ministry.
“The overbroad definition coupled with the restriction on the authority of magistrates to review initial Detention Orders is in contravention of fundamental rule of law principles and must be further revised if Sri Lanka is to deliver on its promise to protect the human rights of all of its inhabitants,” said Ian Seiderman, ICJ’s Legal and Policy Director.
The ICJ stresses that these provisions contravene article 13 of Sri Lanka’s Constitution, as well as article 9 of the International Covenant on Civil and Political rights, to which Sri Lanka is a party.
On 15 September 2023, the Ministry of Justice of Sri Lanka published the revised version of the Anti- Terrorism Bill (ATA), which would repeal and replace the Prevention of Terrorism (Temporary Provisions) Act No.48 of 1979 (PTA). A first draft of the Bill was published in March 2023 and according to government ministers the current revision was aimed at removing certain problematic provisions from the earlier draft. The ICJ had previously expressed concerns about that draft.
“Sri Lanka should dispense with special regimes like the ATA and instead address terrorism offences through criminal procedures that comply with the rule of law,” said Ian Seiderman. “At the very least, the Ministry of Justice must revise the present draft in line with international human rights law and standards before parliament takes action on it.”
Among the vague and overbroad provisions of the draft bill are the “encouragement of terrorism” (clause 10) and “dissemination of terrorist publications” (clause 11), under which persons can be detained for sharing or causing to be published statements which are interpreted by the authorities to be in support of terrorism or terrorism activities. The burden of proof for such offences would be unacceptably reversed under the bill, as the accused would be required to prove before the high court that they had not consented to or approved the utterance or publication of such statements.
The prescribed punishment for these offences is imprisonment up to 15 years and/or a fine up to one million rupees. Property owned by the accused may also be forfeited to the State.
The bill would provide the President with excessive powers to restrict the exercise of human rights, including to impose restriction orders on individual persons, proclaim curfews, designate prohibited places, and make regulations to implement “rehabilitation programmes” for persons regarding whom the Attorney-General has recommended a deferment or suspension of criminal action. Rehabilitation programmes in the past have served a punitive function, as accused persons have often been effectively coerced into accepting rehabilitation particularly in cases where the prosecutor has lacked evidence of criminal conduct.
The ICJ notes the several positive changes in the revised draft, including the removal of the death penalty as a possible punishment and removal of the power of the Deputy Inspector Generals (DIGs) of Police to issue Detention Orders (DO). The new draft would also allow the Magistrate to discharge suspects, in the absence of a DO, where the Magistrate determines that there is no justification for the arrest. DOs, which may only be issued by the Secretary to the Ministry of Defence would now allow for detention of two months without charge, as opposed to three months contemplated by the earlier draft of the bill. Finally, the revised bill removes mention of the Board of Review, which would have been empowered to hear appeals against DOs in the previous draft, and provides time limits for declarations of prohibited places by the President.
The revised draft also retains the improvements made to the PTA in the first draft including the removal of a provision which accepts “confessions” made before a police officer while in detention as evidence in courts; the issuance of a document by the arresting officer notifying arrest to a family member of the arrested person; employing women police to question or conduct searches of women detainees; access to translations in a language of the accused’s choice; and production before a magistrate every 14 days when a person is detained under a Detention Order (DO).
However, among its many flaws, the draft law is silent on compensation and redress mechanisms for those affected by abuse and misuse of the law. This is a significant shortcoming, as detainees have languished in custody for years under the PTA and have had the cases against them dismissed decades later.
Background
Past experience with the PTA has shown that provisions relating to ‘encouragement of terrorism’ or ‘dissemination of terrorist publications’ are open to abuse particularly against persons from minority communities including journalists. For instance, Ahnaf Jazeem ,whose book of poetry was spuriously identified as promoting “extremism”, was subjected to human rights violations, including arbitrary detention under the PTA. In May 2022, the UN Working Group on Arbitrary Detention stated that Sri Lanka had violated international human rights law by detaining Ahnaf Jazeem.
The ICJ has repeatedly called for the repeal of the Prevention of Terrorism Act, which has been used to arbitrarily detain suspects for months and often years without charge or trial, facilitating torture and other abuse. United Nations human rights bodies have also called on Sri Lanka to enforce a moratorium on the use of the Prevention of Terrorism Act and to repeal the Act.
Sep 22, 2023 | Advocacy, News
The International Commission of Jurists (ICJ) and International Bar Association Human Rights Institute (IBAHRI) called the Human Rights Council’s attention to the serious abuses amounting to crimes under international law linked to mercenary activities in the Sahel region of Africa, including allegations of unlawful killings, torture and ill-treatment, rape and other sexual violence, and enforced disappearances. Read the full statement below.
Oral Statement of the ICJ and the IBAHRI on the recruitment and activities of mercenaries and private military and security companies
“Mr President,
The International Commission of Jurists (ICJ) and the International Bar Association Human Rights Institute (IBAHRI) deplore the practices of predatory recruitment of people usually in vulnerable situations, such as detainees, and the harsh and risky conditions of service they endure as described in the report of the Working Group on the Use of Mercenaries (A/HRC/54/29).
The report describes opaque and deceitful contract terms, and orders to take direct part in hostilities in foreign countries without their prior consent. These practices sometimes amount to forced labour and debt bondage, in addition to human trafficking.
We remind the States with jurisdiction over persons and practices of their obligation to protect the human rights of persons in such vulnerable situations. ICJ and IBAHRI especially calls this Council’s attention to the serious abuses amounting to crimes under international law linked to mercenary activities in the Sahel region of Africa, including allegations of unlawful killings, torture and ill-treatment, rape and other sexual violence, and enforced disappearances.
We are deeply concerned at repeated allegations that some of these serious human rights abuses are committed by the so-called Wagner Group and call States concerned to promptly, thoroughly and impartially investigate these allegations and bring the perpetrators to justice.
ICJ and IBAHRI support the Working Group’s recommendations for renewal of the mandate of the Intergovernmental Working Group on an international regulatory framework on private military and security companies and call all States to constructively participate in its work (para. 42 g).
Thank you.”
For more information, contact:
Carlos Lopez Hurtado, ICJ Senior Legal Adviser, e: carlos.lopez@icj.org
