Jun 1, 2021 | News, Publications
European legislators should reject the Screening Regulation proposal and revise the amended Asylum Procedures Regulation proposal that were proposed as part of the European Union Pact on Migration and Asylum. These proposals would result in the prolonged detention of migrants and refugees, said the International Commission of Jurists (ICJ) in a briefing paper released today.
“These proposals would result in impermissible detention of people not having committed any crime including those fleeing danger and seeking safety in the European Union in violation of international law, and would be especially cruel for children, who should not be detained at all,” said Karolína Babická, Legal Adviser at the ICJ.
The briefing paper published today comments on two proposals of the EU Pact, focusing on the impact of the new proposals on immigration detention and deprivation of liberty, providing recommendations to co-legislators in relation to the proposed EU Screening Regulation and the border procedures that would be established by the amended Asylum Procedures Regulation proposal.
If the proposals are adopted as proposed by the European Commission, prolonged immigration detention will inevitably result in practice, due to a lack of safeguards in the legislation. And there is a high risk of systematic detention at the border in breach of international human rights and refugee law.
In order to comply with international law obligations, detention during the screening and border procedures must only be used as a measure of last resort, applicable only in well-defined situations and based on a case-by-case assessment of the situation, while privileging alternatives to detention. Furthermore, children, as well as people in need of special procedural guarantees or with special reception needs, must not be detained.
The new EU Pact on Migration and Asylum developed by the European Commission was communicated by the Commission to other EU institutions on 23 September 2020. The Pact proposes a set of new legislation and amends existing proposals. The proposed Regulations will be directly applicable in EU Member states when adopted.
See the full briefing paper here: Detention in the EU Pact proposals-briefing-2021-ENG
May 27, 2021 | Advocacy, Non-legal submissions
The ICJ today addressed an emergency Special Session of the UN Human Rights Council on the Occupied Palestinean Territories and Israel, calling for accountability for the serious violations of international humanitarian law and international human rights law committed by all parties.
The Special Session is expected to adopt a resolution to address this situation.
The ICJ statement read as follows:
“Madame President,
May 2021 has witnessed the commission of serious crimes under international law by Israel in occupied East Jerusalem and the West Bank, and by Israel and Palestinian armed groups in the context of the recent round of hostilities in the Gaza Strip. As in the past, the conflict exacted a heavy toll on civilians taking no part in hostilities, including more than 65 slain Palestinian children. Unlike the past, those responsible must be held criminally accountable for these crimes.
The International Commission of Jurists calls on the Council to establish a Commission of Inquiry to investigate serious violations of international humanitarian law and international human rights law committed by all parties with a view to:
- Establishing the facts, documenting, and reporting on alleged violations and abuses of international humanitarian law and international human rights law;
- Collecting and preserving evidence of crimes under international law committed in the West Bank, including East Jerusalem, Israel and in the context of the Gaza hostilities; and
- Identifying all those responsible for such crimes.
This Council should call on all States to cooperate with the ongoing investigation of the International Criminal Court. All States, and any mechanisms of this Council, should cooperate and share relevant information with the Commission of Inquiry.
Thank you.”
Contact:
Massimo Frigo, ICJ UN Representative, e: massimo.frigo(a)icj.org, t: +41797499949
May 26, 2021 | News
The ICJ welcomes the ruling by the European Court of Human Rights in the case of B.B.W. and others v. the United Kingdom, setting out important guarantees against mass surveillance online.
On 25 May, the Grand Chamber of the European Court of Human Rights issued its final ruling in this case in which the ICJ intervened. The case deals with the human rights implications of the system of intelligence mass surveillance of the United Kingdom, which was unveiled by the revelations of Edward Snowden.
“The judgment sets out clear guarantees to be respected in order to carry out bulk interception of communications”, said Massimo Frigo, Senior Legal Adviser for the ICJ Europe and Central Asia Programme, “it is a first important step towards ensuring that protection of human rights is as effective online as it is offline. All Member States of the Council of Europe must now ensure that their surveillance systems respect these minimal guarantees.”
In its judgment, the Court recognised the difference between surveillance of individual communications and bulk interception of communications with the use of metadata and introduces a set of procedural guarantees to be respected at initial, intermediary and final stages of bulk data surveillance.
The Court found that these guarantees also apply when a State receives intelligence based on bulk interception carried out by foreign States.
The judgment, however, does not fully address the implications for human rights of States’ participation in close transnational surveillance cooperation such as the system of the “Five Eyes” including the UK, USA, Canada, Australia and New Zealand.
“These transnational surveillance systems entail a higher level of responsibility by States under international human rights law in light of the high risk of bypassing national remedies”, said Massimo Frigo, “We hope the Court will be able to address these important issues in the future to strengthen the protection of human rights online in Europe.”
Contact:
Massimo Frigo, ICJ Senior Legal Adviser, t: +41797499949, e: massimo.frigo(a)icj.org
May 26, 2021 | Advocacy, Non-legal submissions
At a UN dialogue on counter-terrorism, the ICJ warned States and UN institutions against the use of overbroad and ill-defined concepts in the 7th revision of the UN Global Counter-Terrorism Strategy, because they could breach the principle of legality and undermine protections under international human rights law.
The ICJ intervened today in the virtual two-day dialogue with human rights and civil society partners on the theme of “Building a Better Paradigm to Prevent and Counter Terrorism,” organised by the United Nations Office of Counter-Terrorism (UNOCT) and the Permanent Mission of Spain to the United Nations.
The Dialogue brings together Member States, UN entities, human rights representatives, women groups, youth and civil society actors, as well as experts and other stakeholders for a practical exchange of views on how to address terrorism and violent extremism while safeguarding and promoting human rights, in particular the rights of women, children and victims of terrorism.
The ICJ Statement reads as follows:
“Madam Special Rapporteur, Your Excellencies, Colleagues,
Thank you very much for the organizing this consultation.
The International Commission of Jurists has been working for decades to ensure that counter-terrorism measures are compliant with, and do not lead to violations and abuses of human rights and the rule of law.
The ICJ has produced authoritative guidance, such as the ICJ Berlin Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism of 2004 and a four-year study concluded in 2009 by the ICJ Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights, the result of 16 hearings across the globe.
That Panel concluded that the approach many States had taken in short-circuiting foundational rule of law and human rights principles caused “enduring long term harm.”
The ICJ has been insistent that countering terrorism and protecting human rights are important objectives that not only are not in conflict, but are part of a single shield of protection that States must provide for.
This finding is as valid today as it was then, as the Global Counter-Terrorism Strategy itself recognizes that “when counter-terrorism efforts neglect the rule of law … and violate international law … they not only betray the values that they seek to uphold, but they may also further fuel violent extremism that can be conducive to terrorism.”
In this regard, we are concerned at the possible use in the UN Global Counter-Terrorism Strategy of undefined concepts and terms, like “violent extremism”, “violent nationalism”, political concepts of “far right” and “far left” or “extremism”.
The abusive invocation of these terms carries risks for the protection of freedom of expression, freedom of religion and belief, freedom of association and the right to political participation, all protected under international human rights law.
Critically, from a rule of law perspective, legal certainty is a key principle of human rights law that informs the requirement that any legitimate restrictions of human rights including when countering terrorism must be prescribed by law.
Any undefined or widely defined concept of terrorism or extremism should not be promoted or applied in international instruments, standards or strategies, that, where incorporated into national laws and practice, would lead to violations of this international human rights law violations.
In this regard, we share the assessment by the Special Rapporteur on the promotion and protection of human rights while countering terrorism in her 2020 report to the UN Human Rights Council (A/HRC/43/46) and by the OHCHR in its Report on best practices on countering violent extremism (A/HRC/33/29, para. 19).
Concepts like “violent extremism”, nationalism, political opinions and other forms of religious, ethnic, or other belief or opinion, however extreme, cannot be part of the GCTS, as they are otherwise protected by international human rights law guarantees to protect the rights to freedoms of expression, religion or belief, and/or of association.
Furthermore, their insertion would water down the anti-terrorism focus of the strategy and lead the way to the application of very pervasive measures clearly restrictive of human rights for conduct that is not linked to terrorism.
The Global Strategy should focus exclusively on countering terrorism. Any more expansive approach will risk leading to measures in breach of human rights law and, therefore, of the founding values of the UN under article 2 of the Charter.
I thank you.”
(The ICJ Statement is at minute 2:48:21)
ICJStatement-OCTSpainVirtualDialogue-SessionI-final (download the statement)
Contact:
Massimo Frigo, ICJ UN Representative, e: massimo.frigo(a)icj.org, t: +41797499949
May 12, 2021 | Advocacy, News
The International Commission of Jurists (ICJ), the Turkey Litigation Support Project (TLSP) and Human Rights Watch (HRW) have intervened before the European Court of Human Rights in a case concerning the arrest and pre-trial detention of Turkish opposition politician Selahattin Demirtaş, on a series of charges relating to the exercise of his freedom of political expression. The applicant alleges that his pre-trial detention was arbitrary and unlawful.
In the intervention, the organisations underline that restrictions on freedom of expression, widespread detention and criminal prosecution under expansive anti-terrorism laws, and the impact on democratic debate and rights protection are now well documented in Turkey. This is particularly striking, and the repercussions serious, when opposition politicians are targeted for their expressions of opinion and engagement in democratic debate.
The interveners address:
- the nature and application of anti-terror criminal laws in Turkey and the implications for protection of the right to liberty (Article 5(1) of the European Convention on Human Rights (ECHR)) and freedom of expression (Article 10 ECHR) and for the limitation on use of restrictions on rights (Article 18 ECHR); and
- the effectiveness of the individual application procedure to the Turkish Constitutional Court as a remedy in detention cases, in particular in cases concerning the exercise of freedom of expression, in light of delays, the erosion of the independence and impartiality of the judiciary, and non-compliance of lower courts with the Constitutional Court’s decisions that protect Convention rights.
Full text of the intervention can be downloaded here.
