Dec 20, 2017 | News
From 9-13 December, a delegation from the ICJ visited the company Carbones del Cerrejón LLC (El Cerrejón) to analyse the operation and effectiveness of its grievance mechanism.
The company, owned by Glencore plc, Anglo American and BHP Billiton, is located in the department of La Guajira, Colombia. The visit took place within the framework of the ICJ’s initiative on the effectiveness of grievance mechanisms established by companies to remedy negative impacts and human rights abuses.
The ICJ appreciated the collaboration of the Institute of Studies for Development and Peace (INDEPAZ) in the organization and facilitation of the visit.
It also acknowledges and thanks the company Carbones del Cerrejón for the welcome and all the facilities provided to the mission as well as the information shared with the delegation.
The ICJ also thanks the communities of Afro-descendants, peasants and indigenous Wayuu who welcomed and spoke with it.
This statement contains preliminary views and recommendations from the delegation regarding the company’s grievance system and the context in which it operates.
Subsequently, the ICJ will prepare a full report and will use this evaluation in the context of a general evaluation and recommendations on operational level grievance mechanisms.
The objective of the mission was to learn about and analyse the operation of the grievance mechanism established by the company and to evaluate in a preliminary way its effectiveness.
Cerrejón is one of the companies in the coal mining sector that started the process of establishing grievance and / or complaint mechanisms early.
Between 2009 and 2011 it was part of five pilot projects carried out by a team of the Special Representative of the UN Secretary General on business and human rights.
Contextualize the mechanism: Coal mining in La Guajira
La Guajira – province of Colombia on the border with Venezuela – besides its natural beauty and the friendliness of its people surprises visitors by the sharp contrast it presents between the great wealth generated by the extraction of coal and the poverty prevalent among its population.
The majority percentage of the population of La Guajira is made up of indigenous Wayuu populations and Afro-descendant communities, who generally live in poverty.
There is a lack of water and of employment opportunities or economic activities that are not linked to the operations of El Cerrejón, which accentuates the apparent dependence of the regional economy on the extractive activity of coal and raises doubts and questions about sustainability of the regional economy sitting on these bases in the short, medium and long term.
The information received by the delegation of the ICJ points to corruption as one of the main factors that influence and determine the lack of better health and education services, infrastructure and economic investment in the region by the State.
Corruption is more visible among the political class. Senior officials of the regional government were or are currently being prosecuted for corruption and murder.
La Guajira has had eight different governors in five years, which is a destabilizing and paralyzing factor in a highly centralized political system of government.
In this context, although considerable efforts are made by various actors, including El Cerrejón, distrust among the population is significant.
El Cerrejón, which operates in La Guajira, is one of the largest open-pit coal mining operations in the world and has an integrated operation that includes the extraction of coal, its transport by private railroad to Puerto Bolivar (150 kilometers away) and its cargo and transportation to consumer countries.
About 40 percent of the coal exported by Colombia goes to European markets. El Cerrejón is presented as an example of responsible mining both in the Colombian coal mining region and in the world and it has recently developed a series of social responsibility policies, including a due diligence process in the field of human rights.
The ICJ was informed that the experience and lessons learned from the grievance mechanism have influenced the design of these policies.
Colombia-Cerrejon-grievance-assessment-News-2018-ENG (Full text in PDF)
Watch the video (in Spanish):
Dec 20, 2017 | News
Legal Advisers from the International Commission of Jurists addressed a locally-initiated forum on human rights held in Yangon in December.
Participants who attended from across the country heard from more than twenty presenters and panelists, speaking on topics including: freedom of religion and belief; human rights in armed conflict; freedom of assembly and expression; and economic, social and cultural rights.
The ICJ’s International Legal Adviser Sean Bain joined a panel discussing ongoing human rights violations in areas of conflict and insecurity.
In November the ICJ published a report, “Questions and Answers on Human Rights Law in Rakhine State,” which lays out applicable national and international law in the human rights crisis there, and steps necessary to improve the situation.
Sean Bain emphasized that rights violations against Rohingya Muslims should also be examined with reference to the overall patterns of violations throughout the country, too often perpetrated by security forces with impunity against peoples of many ethnicities and religions, particularly in conflict areas.
On a panel discussion on religious freedom, Advocate Daw Zar Li Aye outlined relevant provisions in national and international law that protect freedom of religion and belief.
She noted, however, that in practice ambiguous and vague provisions of national laws have been applied in a discriminatory manner against members of minority groups.
Zar Li Aye also suggested that any legislative amendments incorporate clearly stated objectives to protect religious freedom, in line with the State’s international law obligations.
Many participants in the forum noted the emergence of a backlash against the language of human rights in recent months, linked to the crisis in northern Rakhine State.
Asked how human rights defenders in Myanmar may continue their work in this context, Sean Bain responded, “To be truly effective in protecting human rights for all we must stay true to our values and not accept violations against any people in any context.”
The ICJ’s involvement in this Forum is part of ongoing engagement with civil society groups in Myanmar.
Dec 18, 2017 | Multimedia items, News, Video clips
Raquel Yrigoyen Fajardo, Karabo Ozah and Charles Dinda talk about traditional justice systems in video interviews recorded at the 2017 ICJ Geneva Forum.
Dr. Raquel Yrigoyen Fajardo, Lawyer and Professor at the Law Faculty of the Pontifical Catholic University of Peru, and founding member of the International Institute on Law and Society (IIDS), describes the survival and contemporary recognition of justice systems of indigenous peoples in the Americas, despite the history of colonial domination.
She argues that indigenous justice systems often already reflect many international human rights standards, and where there may be discrepancies change should be sought through respectful engagement and consultation rather than coercive imposition.
In contrast, Ms Karabo Ozah, Deputy Director of the Centre for Child Law at the University of Pretoria in South Africa, argues that it is crucially important to ensure that customary and traditional courts respect domestic legislation and international standards on human rights.
Otherwise she warns, based on her experience, customary courts too frequently fail to protect the rights of marginalized groups, children, LGBTI, and women.
Charles Dinda, Senior Legal Adviser with the Danish Institute for Human Rights in Zambia, points out that while traditional and customary justice institutions are the most easily accessible and in many respects most credible institutions for some populations, their decisions are too often inconsistent or unfair.
To avoid this, he insists on the importance of understanding and studying the way these systems operate and on the need to engage with them to learn about their practices and to build their capacities so that they have better knowledge of international human rights standards and indeed of the national laws in the countries where they operate.
Watch the interview with Dr. Raquel Yrigoyen Fajardo
Watch the interview with Karabo Ozah
Watch the interview with Charles Dinda
NOTE:
The views expressed by the participants do not necessarily reflect those of the ICJ.
For more information about the 2017 Geneva Forum on Customary and Traditional Justice Systems, click here or contact matt.pollard(a)icj.org .
Dec 18, 2017 | News
The ICJ today called on Myanmar authorities to immediately disclose the whereabouts of two journalists who have been detained incommunicado for nearly one week, and to grant prompt access to lawyers and families.
Reuters reporters Wa Lone and Kyaw Soe Oo have not been heard from since they were arrested by police in Yangon on Tuesday 12 December.
“Fair trial rights violations seriously undermine the rule of law in Myanmar. All detainees must be allowed prompt access to a lawyer and to family members,” said Frederick Rawski, the ICJ’s Asia-Pacific Regional Director.
“Authorities are bound to respect these rights in line with Myanmar law and the State’s international law obligations,” he added.
The right to legal counsel is a bedrock rule of law principle that is set out in a range of international human rights laws and standards, including in article 11 of the Universal Declaration of Human Rights.
Sean Bain, Legal Adviser for the ICJ, said that jurists should assess if the journalists’ detention conforms to applicable laws.
“Their situation appears to constitute arbitrary detention,” he said. “The judiciary should immediately review the lawfulness of detention and demand their release if it is indeed unlawful.”
“Judges and lawyers in Myanmar have an opportunity to assert their independence by challenging the unlawful actions of officials. Such blatant violations of fair trial rights should not go unanswered,” he added.
State media reports the journalists were charged under the 1923 Official Secrets Act in connection with their work investigating actions of security forces in Rakhine State.
More than 650,000 people, mostly Rohingya Muslims, fled to Bangladesh as a result of military operations following attacks on police posts in August by the Arakan Rohingya Salvation Army.
Reuters has reported from both sides of the Myanmar-Bangladesh Border.
“The treatment of these reporters threatens freedom of expression. The harsh penalties they face sends a clear message to other journalists that they could face the same consequences for doing their job,” said Rawski.
In Myanmar, colonial-era laws were invoked to bring criminal charges against journalists in at least three jurisdictions in 2017.
Offences in these laws are often broadly defined, carry harsh penalties, and are open to abuse by authorities.
Journalists who received ten-year jail terms in 2014 under the Official Secrets Act were later released in a Presidential amnesty.
Amendments proposed at the time in parliament were rejected.
“The abuse of archaic laws like the Official Secrets Act must end. It is within the power of the National League for Democracy-dominated legislature to review these laws with a view to aligning them with the rights reflected in Myanmar’s constitution and in international law,” Rawski added.
Contact
Frederick Rawski, ICJ Asia Pacific Regional Director, t: +66 6 4478 1121 ; e: frederick.rawski(a)icj.org
Sean Bain, ICJ International Legal Adviser, e: sean.bain(a)icj.org
Background
The UN Basic Principles on the Role of Lawyers emphasize that, “Governments shall further ensure that all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than 48 hours from the time of arrest or detention.”
Sections 19 and 375 of the Myanmar Constitution also guarantee the right of legal defense, as does Myanmar’s Code of Criminal Procedure (section 340), Courts Manual (section 455(1)), the Police Manual (section 1198c) and the Prisons Act (section 40).
Sections 21(c) and 376 of the Constitution and section 61 of the Code of Criminal Procedure state that persons cannot be detained for more than 24 hours without a judge’s order.
The right to legal defense implies the right to access legal counsel during this 24-hour period.
Under section 403 of the Courts Manual, a detainee can be remanded only once he or she has appeared before a judge. It is unknown if the two Reuters journalists have appeared in court.
Competent judges are empowered to compel a search for a detainee if they have reason to believe the person is confined unlawfully, as per section 100 of the Criminal Procedure Code.
Lawyers and family members may also request the courts to review the lawfulness of detention, by submitting a habeas corpus petition to the High Court and or to the Supreme Court.
The Tshwane Principles on National Security and the Right to Information, which address the right to access and to share information, as an aspect of freedom of expression in the context of national security, affirm that journalists “should not be prosecuted for receiving, possessing or disclosing classified information to the public, or for conspiracy or other crimes based on their seeking or accessing classified information.”
Read also
Handbook on Habeas Corpus in Myanmar
Right to Counsel: The Independence of Lawyers in Myanmar
Myanmar-Reuters Journos-News-Press releases-2017-BUR (Story in Burmese, PDF)
Dec 15, 2017 | Advocacy, Cases, Legal submissions
The ICJ, together with other NGOs, intervened before the European Court of Human Rights in MA v Poland, concerning interim measures to protect applicants for asylum at the Polish-Belarus border.
The case concerned a family of asylum seekers who sought to apply for international protection in Poland, at a border crossing with Belarus, but were repeatedly turned away by border guards. The European Court granted interim measures indicating that the applicants should not be returned from Poland to Belarus, and that their asylum application should be examined by the Polish authorities. These interim measures were not complied with.
In their third party intervention in the case, the ICJ, ECRE, AIRE Centre and the Dutch Council for Refugees emphasised the binding nature of the obligation to comply with interim measures of the European Court of Human Rights, supported by the jurisprudence of the Court and by comparative standards of other international human rights mechanisms.
They further submitted that, where interim measures relate to children, irrespective of whether the children are applicants in the case, the State must abide by the measure indicated with special diligence and take the appropriate protective measures which the age, level of maturity, environment and experiences of the children require.
Poland-MA-ECtHR-amicus-ICJ&others-final-eng-2017 (download the intervention)
