May 10, 2015 | News
From 11-15 May 2015, the mission will meet with a variety of stakeholders, including officials in the executive, the Ministry of Justice, the judiciary, members of Parliament, the legal profession, media, political analysts and civil society.
The International Fact Finding Mission in Swaziland (IFFM-SZ) is led by the ICJ, in collaboration with the Africa Judges and Jurists Forum (AJJF), Judges for Judges Netherlands (J4J) and the Commonwealth Magistrates’ and Judges’ Association (CMJA).
The mission aims, among other things, to:
- Assess the domestic legal framework (constitutional, legislative and administrative) and practice as it pertains to the independence of the judiciary and the legal profession in Swaziland;
- Identify obstacles posed – legal, structural, and practical – by the state of the independence of the judiciary to the capacity of the judiciary to fairly administer justice, including in relation to the protection of human rights;
- Gather information on and assess the relations between the critical stakeholders in the justice delivery chain;
- Gather information and assess the operations of the Chief Justice’s office in key delivery areas, such as the case management system (including the allocation and tracking of cases);
- Consider practice directives on administration of justice;
- Evaluate systems and practices for the appointment and disciplining of judicial officers and support staff;
- Assess whether an adequate programme of continuous legal education is in place for judicial officers; uphold the institutional and individual independence of the judiciary; and
- Assess the availability of access to justice.
The mission will rely on international human rights law and standards.
After the completion of the field meetings and interviews, ICJ will release a report detailing its findings and recommendations directed to key stakeholders for their consideration and implementation.
The ICJ is committed to supporting all stakeholders in strengthening the independence of the judiciary, the legal profession and observance of the rule of law in Swaziland.
The mission comes against the background of a number of recent developments of concern for the independence and accountability of the judiciary in the country.
Read also:
Swaziland: arrest of judges raises serious concerns
Leading legal voice intervene at UN level in the case of detained Swazi lawyer Thulani Maseko
Additional information:
The mission team is composed of Judge Moses Chinhengo (of Ruwa, Harare, Zimbabwe, retired High Court Judge Botswana and Zimbabwe; ICJ Commissioner; Interim Chair AJJF, Head of the IFFM-SZ) ; Judge Charles Mkandawire (of Lilongwe, Malawi, High Court Malawi; ICJ Commissioner; Regional President-CMJA and member of the IFFM-SZ) ; Judge Oagile Dingake (of Gaborone, Botswana, Professor of Public Law at University of Cape Town, Judge Residual Special Court of Sierra Leone, Judge High Court Botswana; member of the IFFM-SZ) ; and Judge Tamara Trotman (of The Hague, Netherlands, Judge of Court of Appeal in The Hague, Chair Judges for Judges, member of the IFFM-SZ).
The judges are supported by technical staff: Laurens Hueting (Legal Adviser, ICJ-Centre for Independence of Judges and Lawyers), Otto Saki (Senior Legal Adviser, ICJ-Africa Regional Programme) and Justice Mavedzenge (ICJ Consultant and University of Cape Town PhD Candidate and Rapporteur).
Contact:
Arnold Tsunga, Director, ICJ Africa Regional Programme Director, t: +27731318411 ; e: arnold.tsunga(a)icj.org
Picture by Darron Raw
May 4, 2015 | Advocacy, Non-legal submissions
The ICJ welcomes the opportunity offered by the UN Committee on Economic, Social and Cultural Rights to contribute to its current work on the right to just and favourable conditions of work.
Like other UN treaty bodies, the Committee elaborates general comments to interpret the treaty it is in charge of monitoring and to provide guidance on how to implement the provisions and thus comply with the obligations under this treaty.
Currently, the Committee is consulting relevant actors on its further general comment on article 7 of the international Covenant on Economic, Social and Cultural Rights.
This article guarantees a number of rights to individuals at work, including regarding remuneration and occupational health.
The ICJ is particularly pleased to be given the possibility to share its international and country-based experience on the very topical issues covered by article 7.
In addition to its written submission (read below), the organization will actively participate in the further consultation that will take place during the Committee’s next session in June.
Universal-CESCR Draft General Comment Article 7-Advocacy-Non legal submission-2015-ENG (full text in PDF)
Apr 30, 2015 | News
The ICJ welcomes yesterday’s adoption, by the UN Working Group on Arbitrary Detention, of the Working Group’s “Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of His or Her Liberty by Arrest or Detention to Bring Proceedings Before Court”.
Under its resolution 20/16 (2012), the UN Human Rights Council requested the Working Group to prepare draft basic principles and guidelines on habeas corpus. The Working Group set out a first draft set of principles and guidelines ahead of its global consultation on the subject in September 2014. From 2 to 5 February 2015, the Working Group met to continue its elaboration of the Basic Principles and Guidelines, resulting in the adoption of a second draft. The Working Group adopted its final iteration of the document at the conclusion of its session on 29 April 2015. The Basic Principles and Guidelines will be presented to the Human Rights Council during the Council’s 30th regular session, to be held from 14 September to 2 October 2015.
The ICJ welcomes the Basic Principles and Guidelines as a means of assisting States to enhance, in law and in practice, respect for the right to habeas corpus. It especially welcomes certain aspects of the document, including:
- Paragraph 68, in which applicable qualifications are set out to any derogating measures to accommodate constraints on the application of some procedural elements of the right to habeas corpus;
- Principle 6 and Guideline 4 which reaffirm that habeas corpus petitions must be heard by courts that bear all characteristics of competence, independence and impartiality (paras 27, 70 and 72(a)), that competence includes the power to order immediate release if detention is fund to be arbitrary or unlawful (para 27), that immediate implementation of such orders is required (para 71(c)) and that courts must give reasoned and particularized decisions (para 71(d));
- Guideline 7, in which it is provided that individuals are entitled to take proceedings multiple times (paras 81 and 82), that expediency is required, including in cases of subsequent challenges, and especially in cases alleging, among other things, torture or ill-treatment (para 83) and that authorities remain obliged to ensure regular review of the continuing need for detention (para 84);
- Principle 9 and Guideline 8 concerning legal representation and legal aid;
- The clarifications in Principle 10 and Guideline that persons able to bring proceedings include counsel, family members or other interested parties, whether or not they have proof of the consent of the detainee (paras 34 and 92) and that no restrictions may be imposed on a detainee’s ability to contact such persons (para 35);
- The express recognition in Guideline 12 that information obtained by torture or other forms of ill-treatment may not be used in evidence;
- Guideline 13 concerning disclosure and limitations applicable to any non-disclosure of information on security or other grounds;
- Guideline 14, reflecting authorities’ obligation to justify the need and proportionality of detention;
- Principle 15 and Guideline 16 (on remedies), reflecting the overarching right to remedies and reparation (paras 43), the need for authorities to give immediate effect to an order for release (para 44) and the right to compensation, restitution, rehabilitation, satisfaction and guarantees of non-repetition (paras 109-112); and
- Principle 16 concerning the application of Article 9(4) of the International Covenant on Civil and Political Rights (ICCPR) alongside international humanitarian law (paras 45 and 47), the application of Article 9(4) to civilians in an international armed conflict (para 47), the application of habeas principles to prisoners of war (para 48), and the question of administrative detention or internment in the context of a non-international armed conflict (para 49).
The ICJ has engaged in all stages of the Working Group’s elaboration and consultations. It made written submissions in November 2013, April 2014 and March 2015. Its staff, Matt Pollard and Alex Conte, gave panel presentations at the September 2014 global consultation.
Apr 28, 2015 | Advocacy, News, Non-legal submissions
The ICJ is urging the European Council to immediately act to take effective measures to protect the lives of migrants at sea, after it failed to respond adequately to the repeated tragedies at a special meeting held on 23 April.
The special meeting of the European Council was called after the sinking of a boat in the Libyan Search and Rescue Zone left at least 700 persons dead. Since then, other incidents have brought the death toll in the Mediterranean to more than 1,000 in one week.
In its statement, released following the meeting, the European Council directed the EU institutions and the Member States to take a set of actions with the stated aim of preventing further loss of lives at sea.
The ICJ is deeply saddened by these tragedies that are the concern not only of the Mediterranean region and of Europe, but of the whole of the international community.
It is deeply regrettable that the reaction of the European Union and its Member States at a moment of such gravity has concentrated on presevering security of borders, and returning migrants, rather than on humanitarian and human rights concerns, particularly strengthening search and rescue operations in order to save lives, the ICJ says.
Although the European Council has affirmed that its “immediate priority is to prevent further loss of life at sea”, the measures envisaged in this statement are not designed to achieve this aim. Instead, they reflect a continuing security-based policy, centred on the need to “fight the traffickers” and on combatting irregular migration.
The ICJ supports the call of the UN Special Rapporteur on the rights of migrants, Fraçois Crépeau, urging the EU and Member States to focus their migration policies on the introduction of safe and legal migration routes and combatting the black labour market.
The framing of migration policies around narrowly perceived “security” interests and the strengthening of border controls creates a situation in which smugglers provide the only route for many migrants and this is leading to serious abuses of human rights. Migrants, many of whom are fleeing war or persecution, should not have to resort to such means of reaching safety in Europe.
“Strengthening our presence at sea”
While welcoming the increase in financial support for Frontex operations Triton and Poseidon with a view to foster its search and rescue capabilities, the ICJ is concerned that this commitment in the context of operations presently aimed to “control irregular migration flows towards the territory of the Member States of the EU and to tackle cross-border crime” risks marginalizing rescue at sea within these operations.
Resources must also be allocated directly to increase search and rescue capacities at the EU and national levels, in order to ensure that the human rights of migrants are protected, and that lives are saved.
“Fighting traffickers in accordance with international law”
The commitment in the statement to increase intelligence and police co-operation with third countries as a means of fighting trafficking, without corresponding human rights protections. Any such co-operation must be carried out in compliance with the EU Charter of Fundamental Rights, the European Convention on Human Rights and other international human rights law and standards.
Without strong safeguards in law and in practice, there is a risk that such co-operation may lead to exchange of information or evidence with, or transfer of suspects to, States in which human rights abuses are systematic or widespread or where particular individuals may be at risk.
This may lead to violations of human rights, including of the right to asylum, the right to the protection of non-refoulement, the right to be free from torture and ill-treatment and the right life.
In addition, engagement in intelligence and police cooperation, while an important tool in effective law enforcement, risks, if not undertaken with adequate safeguards, leading to infringements to the right to privacy, the right to data protection, and the prohibition of collective expulsions.
All of these rights are protected by the EU Charter of Fundamental Rights, as well as by international human rights treaties binding on EU Member States.
Regarding the commitment to take systematic action to capture and destroy vessels used by traffickers in the Mediterranean, the ICJ is also seriously concerned that any such any action risks to be in violation of international law and could lead to a risk of loss of lives.
Finally, the proposal to use Europol to detect and request removal of internet content used by “traffickers” to attract migrants and refugees may lack a sufficient legal basis in EU or national law.
While welcoming the statement’s acknowledgment that such measures must be in accordance with national constitutions, the ICJ recalls that they must also be in compliance with the EU Charter and international human rights law.
Any new measures must include safeguards and limitations to ensure that human rights, including the rights to freedom of expression and association are fully respected.
“Preventing illegal migration flows”
The ICJ is concerned that the stepping up of cooperation initiatives envisaged in the statement, with the aim of preventing irregular migration, poses a risk of complicity by the EU, i.e. aiding or assisting in violations of human rights by third countries.
The ICJ urges that any co-operation with third countries in preventing irregular migration must be in compliance with the EU Charter of Fundamental Rights and international human rights law.
Furthermore, the ICJ is particularly concerned by the decision of the European Council to promote further the readmission to third countries of “unauthorised economic migrants” and to order the establishment of a new return programme for the rapid return of “illegal migrants” from frontline member states, co-ordinated by Frontex.
While the content of the new fast return programme proposed by the Council remains unclear, as does the definition of “rapid return,” the ICJ considers that such a programme is likely to increase the possibility of European Union complicity in violations of the protections of non-refoulement, the right to asylum, the prohibition of collective expulsions and the right to an effective remedy, against its obligations under the EU Charter of Fundamental Rights.
The ICJ is concerned that the rapidity of the return could be linked to certain national expulsion practices that are at odds with the Member States’ obligations under the EU Charter and international human rights and refugee law. Furthermore, the ICJ recalls that under article 9 of the Frontex Regulation, Frontex, in its joint return operations, is not able to assess the compliance of return decisions on the merits. This lack of control increases the risk of aiding or assisting in serious violations of human rights.
“Reinforcing internal solidarity and responsibility”
Finally, in regard to the commitment to provide emergency aid to frontline Member States, the ICJ supports the rapid deployment of a long-term, sustainable programme of aid to such states, directed at the provision of search and rescue operations in the Mediterranean, and designed to safeguard the lives and rights of migrants.
The ICJ also recalls that, consistent with the dictates of the UN charter and international human rights treaties, States are under a general obligation to engage in international cooperation and assistance to protect human rights.
Conclusion
The ICJ deplores the fact that, following the tragic death of more than 1,000 people in one week, the EU Member States and the European Council, have failed to act meaningfully to protect the lives of migrants by taking decisive measures to protect the right to life of those crossing the Mediterranean.
In prioritizing border security and returns over search and rescue, the Member States of the European Union have demonstrated a reckless disregard for the human rights of migrants fleeing war, persecution or dire standards of living.
The ICJ urges the EU Member States and the EU institutions to take swift action, centred on the protection of lives and rights of migrants, in order to uphold the EU founding values of the rule of law and human rights, affirmed in article 2 of the Treaty on the European Union.
