Oct 6, 2017 | Advocacy, Non-legal submissions
The ICJ today highlighted the role of judges, lawyers, and prosecutors at a UN seminar on prevention of torture in police custody and pre-trial detention.
The ICJ made the interventions during the “Seminar on the implementation of effective safeguards to prevent torture and other cruel, inhuman or degrading treatment or punishment during police custody and pre-trial detention” organized by the Office of the High Commissioner for Human Rights pursuant to a mandate from Human Rights Council resolution 31/31 (2016). A report of the seminar will be delivered and discussed at the March 2017 session of the Council.
The ICJ stated as follows in the first session:
The ICJ’s Commissioners are 60 senior judges and lawyers from all parts of the world. The ICJ works extensively with judges and absolutely agrees that their role is key to prevention of torture and ill-treatment in police custody and pre-trial detention.
Some of the key aspects of the role of judges include:
Judges should rigorously pursue all allegations. They should inquire when there are signs of abuse even if the detainee does not specifically allege abuse. They should demand that detainees be physically brought before them. Judges should be prepared to hold authorities in contempt of court when the authorities do not comply. The ICJ was very interested in what the Panelist Judge Dias Toffoli from Brazil said during the session about developments for custody hearings there, and how the judiciary can take practical systematic measures to fulfil their role even when legislators and other authorities may hesitate to act.
Judges should recognise and balance for evidentiary issues faced by detainees and their lawyers given the control authorities exercise over the place of detention
Judges should ensure that authorities respect rights of access to the outside world (including lawyers, family, friends, doctors, letters, and so on), both as safeguard but also to ensure detainees are not subjected to isolation that in its cumulative impact can itself amount to ill-treatment or even torture. The ICJ was pleased that Special Rapporteur Melzer highlighted the importance of such access.
Judges should ensure that confessions, other information and evidence obtained by torture and similar abuse is not allowed to be part of proceedings before them. The ICJ was interested in what justice Donoso from Chile said about relevant developments there.
In many places, judicial authorities are responsible for supervision of places of pre-trial detention. Where this is the case, judges should visit regularly, and at times without prior notice, such places of detention.
Judges should ensure accountability of perpetrators.
Judges should ensure rigorous constitutional review of relevant laws and practices, and maintain knowledge of and apply in practice international law against torture and ill-treatment. Even non-legally-binding international standards (such as the UN Standard Minimum Rules for the Treatment of Prisoners or “Mandela Rules”, and the UN Body of Principles for the protection of all persons under any form of detention or imprisonment) should be seen by judges as a useful and persuasive source of guidance in interpreting national laws.
To effectively fulfil their role, the judiciary must enjoy all necessary guarantees of independence from other authorities and other powerful interests in society. At the same time, at the ICJ we have also more recently been concerned to ensure accountability of judges when they fail to fulfil their duties to prevent and respond to torture, or are indeed intentionally complicit in mistreatment of prisoners.
Judges acting to protect human rights of criminal detainees are often subject to public criticism, and are often unable for reasons of impartiality and dignity of the court to defend themselves. It is therefore incumbent on members of the Executive, Legislature, legal profession, and others to defend such judges, and certainly not to pile on further unjustified criticism.
Finally, the ICJ would note that recent resolutions of the Human Rights Council on the independence of judges and lawyers, and on the administration of justice, stress the role of continuing professional education of judges on human rights issues (best organised by judicial institutions themselves, but involving other actors). Continuing education on prevention of torture and ill-treatment is a key area needed by all judiciaries in all countries.”
The ICJ continued as follows in the second session:
“A common thread that has already emerged from the first two panels is the role that pressure on police to obtain confessions plays in the incidence of torture and abuse in police custody. Thank you to the Panelists for their insights on this issue.
Values and signales from superiors and political leadership, including for instance in relation to practical aspects like career progression of police officials, is very important. Having clear rules is also very important in this regard. As is the perception of police that they lack alternatives to confessions as form of proof. Training on interviewing techniques, having an adequate number of officers, access to materials like fingerprinting kits and means of assuring chain-of-custody for physical evidence, are all also important.
The Seminar has addressed judges and police already, and will discuss lawyers later; the ICJ would also like to highlight the role of prosecutors in removing incentives on police to focus on obtaining confessions by any means.
The UN Guidelines on the Role of Prosecutors (Article 16) provide that prosecutors shall refuse to use evidence that they believe to have been obtained by torture.
A similar provision is incorporated in the professional standards adopted by the International Association of Prosecutors (which have also been endorsed by the UN Crime Commission). This also is an example of how international and regional professional associations can play an important role with their members in practical measures for prevention of torture and ill-treatment in police custody and pre-trial detention.”
In the third Session, the ICJ expressed its agreement with points made by Ms Miti-Drummond, the representative of the International Bar Association Human Rights Institute regarding the role of the legal profession in the prevention of torture, particularly regarding the importance of access to and presence of a competent and independent lawyer prior to and during any interview.
The ICJ also pointed out that some States have period of delay or even preclusion of access of detainee to the lawyer of his or her choosing, for instance in counter-terrorism, national security or similar cases. Often these are cases where there is a particular risk of abuse, and also may involve delay in bringing the person before a judge. In some places the independent bar association assigns a lawyer who has immediate access, if the access to the person’s lawyer of choice is denied or delayed. The ICJ invited comments or recommendations about this practice or other means to ensure lawyers can effectively prevent torture in such circumstances.
Oct 5, 2017 | Advocacy, Non-legal submissions
Today, the ICJ made a submission to the Universal Periodic Review of Azerbaijan.
The submission brings to the attention of the members of the Human Rights Council’s Working Group on the UPR issues concerning:
- Azerbaijan’s legislation governing the legal profession;
- the situation of lawyers in practice;
- the lack independence of the legal profession;
- the role of the Bar Association with regard to attacks on lawyers;
- international human rights instruments.
With respect to each of the above-mentioned concerns, the ICJ calls upon the Working Group on the UPR and the Human Rights Council to make a number of recommendations to the authorities of Azerbaijan.
Azerbaijan-UPR-Advocacy-non-legal submissions-2017-ENG (download the submission)
Oct 2, 2017 | Advocacy, Non-legal submissions
The ICJ has joined other NGOs in welcoming action by the HRC on Yemen, Burundi, and DRC, as well as on reprisals and intimidation against civil society and human rights defenders, and the death penalty, while expressing disappointment about lack of adequate action on other matters.
The full statement is as follows:
Joint statement by International Service for Human Rights on behalf of Amnesty International, Asian Forum on Human Rights and Development (Forum Asia), Cairo Institute for Human Rights Studies (CIHRS), CIVICUS, Human Rights House Foundation, International Commission of Jurists and the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA).
We welcome the adoption of the resolution intended to end acts of intimidation or reprisals. However, we regret that a small group of States – most of them regular perpetrators of acts of intimidation or reprisals – have tried to undermine the Council’s efforts to end reprisals. We thank the majority of the Council members for resisting these efforts.
We are concerned that there were attempts to dilute several resolutions at this Council with the insertion of so-called “sovereignty” clauses. While we welcome the fact that they were ultimately defeated, we are concerned that a significant number members seek to use the concept of Sovereignty to shield themselves and other States from international scrutiny.
We also welcome that the resolution on the death penalty urges States to not impose it as a sanction for specific forms of conduct such as apostasy, blasphemy, adultery and consensual same-sex relations.
We applaud the creation by consensus of an international investigative body on Yemen, and the broad State leadership on this issue. It sends a message that the people of Yemen have not been abandoned, and that accountability for international crimes is urgently required. We call on all parties to the conflict to fully cooperate with this mandate.
On Burundi, we welcome the extension of the mandate of the Commission of Inquiry (COI). This was the only credible response to the CoI’s concerns that crimes against humanity may have been committed, and the persistent non-cooperation of Burundi with both the COI and the OHCHR presence in the country. We urge Burundi to follow through on its promises to start cooperating with the UN system, in line with duties as HRC member, and – failing that – call on the General Assembly to take appropriate action.
On Myanmar, while we welcome the extension of the fact-finding mission’s mandate, we are disappointed that the Council did not do more to address the gravity of the situation on the ground, in particular acknowledging the disproportionate campaign of violence by Myanmar’s security forces in Rakhine State, which have forced around half a million Rohingya to flee to Bangladesh since 25 August. We urge States to use the ongoing UN General Assembly session to address what the High Commissioner for Human Rights described to the Council as a “textbook example of ethnic cleansing.”
On Cambodia, while the Council missed an opportunity for robust scrutiny of the worsening situation, the pre-election reporting in March should put authorities on notice.
On the Democratic Republic of the Congo (DRC), we welcome the Council’s decision to boost scrutiny of the human rights crisis for another year, which shows how horrific the situation has become. The DRC must now cooperate with all Council mechanisms, and the Council needs to keep its eyes on the country until all actors stop committing violations and abuses, and justice for victims has been obtained.
Finally, we regret the increasing effort spent on procedural tricks and manoeuvers by States in an attempt avoid scrutiny – including by abusing the privilege of being a member to seek to avoid scrutiny of their own situation – instead of spending diplomatic time and capital on ending human rights violations, which is the Council’s core mandate. A renewed commitment to addressing situations based on objective criteria is now more urgent than ever.
Sep 27, 2017 | Advocacy, Non-legal submissions
The ICJ today highlighted a sharp deterioration in the situation for human rights and the rule of law, in a statement to the UN Human Rights Council in Geneva.
The statement was delivered during the interactive dialogue with the Special Rapporteur on the situation of human rights in Cambodia, and read as follows:
“The International Commission of Jurists (ICJ) welcomes the report of the Special Rapporteur (UN Doc A/HRC/36/61) and strongly supports the renewal of her mandate.
Monitoring and action by the international community has seldom been more important for Cambodia since the Paris Peace Accords were signed in 1991.
Civil society, independent media and the political opposition are under sustained attack in what appears to be a carefully orchestrated effort to silence dissenting voices in the lead up to national elections in July 2018. Vague legal provisions in for instance the Law on Associations and Non-Governmental Organizations (LANGO) and the Law on Political Parties, are being weaponized to this end.
Human rights defenders and others, including the “ADHOC 4”, Ny Chakrya, Tep Vanny, Hun Vannak, Doem Kundy, and the President of the opposition party, Kem Sokha, face criminal charges with all the hallmarks of being politically motivated.
Prosecutors and judges lack independence and impartiality, and investigations routinely fall short of international standards, as in the case of the killing of political commentator Kem Ley.
Seeking to justify its actions, Cambodia frequently invokes the principle of the rule of law.
The ICJ, a global organisation of judges and lawyers, has worked for the rule of law for more than sixty years. The rule of law does not simply mean that laws exist and are enforced, but requires among other things: equal application of the law without discrimination, including due to political or other opinion, and ensuring that laws are only adopted and applied consistent with international human rights law.
What is happening in Cambodia today has nothing to do with the rule of law.
The ICJ would therefore ask the Special Rapporteur what further recommendations she has towards seeing the rule of law, as properly understood, truly reign in Cambodia.”
The Human Rights Council is expected to adopt a new resolution on Cambodia later this week. The ICJ and other non-governmental organisations have called for it to include additional monitoring and additional opportunities to discussion the situation at the Human Rights Council, before national elections scheduled for July 2018.
Sep 25, 2017 | Advocacy, Non-legal submissions
The ICJ today joined a group of 285 organisations from around the world calling on governments across the world to respect, protect and fulfill the right to access safe and legal abortion services and post-abortion care.
The statement, which was delivered by the NGO Action Canada for Population and Development, during a general debate at the UN Human Rights Council in Geneva, read as follows:
Through the Vienna Declaration and Programme of Action, States explicitly agreed to prioritize the human rights of women, including the eradication of gender-based discrimination and violence. However, many States have not yet made the important decision that women’s human rights deserve to be upheld and their lives are worth saving. The continued criminalization of abortion and restrictions on access to and provision of abortion and post-abortion care in many jurisdictions is stark evidence of this.
Around 22 million unsafe abortions are estimated to take place around the world annually, leading to 7 million health complications and 47,000 deaths. In addition, there are major social and financial costs to women and girls, families, communities, health systems and economies. The criminalization of abortion and failure to ensure access to quality abortion services is a violation of the rights to non-discrimination, to privacy, and to make decisions about one’s own body, and can constitute torture or ill-treatment, as repeatedly highlighted by UN bodies and experts. Prohibiting abortion pushes it underground and gives rise to unsafe abortions, violating the rights to life, health and bodily autonomy. Moreover, the poor and those already facing multiple and intersecting forms of discrimination are disproportionately affected, making the global community’s pledge to “leave no one behind” ring hollow.
These human rights violations must stop now. On September 28, the Global Day of Action for Access to Safe and Legal Abortion, we urge the Human Rights Council to address the human rights violations arising from criminalization of abortion and the denial of access to safe and legal abortion services through its resolutions, decisions, dialogues, debates, and the UPR. We demand in a collective voice that governments across the world respect, protect and fulfill the right to access safe and legal abortion services and post-abortion care.
The full statement, with the list of signatories, may be downloaded in PDF format here: HRC36-JointOralStatement-item8-GD-Abortion-2017
Sep 22, 2017 | Advocacy, Non-legal submissions
Addressing the UN Human Rights Council, the ICJ today urged Thailand to end criminal proceedings against lawyer Sirikan “June” Charoensiri, that are based on her professional activities as a human rights defender and lawyer.
The statement came during general debate at the Human Rights Council on, among other things, the report compiling cases of individual complaints that have been raised by the Special Procedures (independent experts) appointed by the Council. The statement read as follows:
“Among the many cases covered by the Communications Report of Special Procedures (A/HRC/36/25) is that of Thailand lawyer and human rights defender, Sirikan “June” Charoensiri. She was charged with sedition and other offences for actions taken, in her professional role, to protect human rights. With other lawyers, she had observed and provided legal assistance to participants in a peaceful protest.
In April, four Special Rapporteurs sent a joint communication (AL THA 2/2017) to Thailand about her case, and the related issues of restrictions on fundamental freedoms put in place following the military coup of May 2014, and prosecution of civilians in military courts.
Thailand’s response to the communication (No.52101/483) attempts to justify the charges against her by, among other things, appearing to associate her with the persons to which she and her colleagues were providing legal aid.
Principle 18 of the UN Basic Principles on the Role of Lawyers states that, “lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.”
The International Commission of Jurists considers that the case against Ms Charoensiri is incompatible with these and other international human rights standards. The ICJ calls upon Thailand ensure the legal proceedings against Ms Charoensiri are ended, and that measures are taken to end and prevent similar cases against other human rights defenders in the country.”
Exercising its right of reply to the statement, the delegation of Thailand, while appearing to accept that Ms Charoensiri is a human rights defender and lawyer, asserted that she had not been charged in her capacity as a lawyer or human rights defender, but due to the possibility that she was a principal or co-perpetrator of an offence, which the delegation said was based on unspecified information from the Royal Thai Police. The delegation affirmed that the Thai government attaches high priority to the protection of human rights defenders, and referred to several initiatives the delegation said were currently being prepared in this regard.
More detail from ICJ about the case is available by clicking here.
Details of the Special Procedures’ action on the case is available in the database of communications, by clicking here.
