Jun 21, 2021 | Agendas, Events, News
Children should never be detained in immigration context. Immigration detention of children is never in their best interests and is not justifiable, said experts during a transnational workshop on Alternatives to detention vs. alternative forms of detention of migrant children held by the International Commission of Jurists (ICJ) and partners on June 17 and 18.
“Instead of detaining children, case management should be used instead, and a community assistance and placement model should be used for families and children as an effective alternative to detention. Unaccompanied children should be placed within the mainstream care system,” Karolína Babická, legal adviser at the ICJ said.
During the workshop experts and practitioners from seven EU countries and international experts explored good and bad practices of alternatives to detention. In particular, the principle of the ‘best interests of the child’ was discussed as well as procedures for age assessment, and specific alternative arrangements for the care of children in migration, such as the return houses in Belgium, and regular reporting.
The group further explored ways to include unaccompanied migrant children in the mainstream child-care system rather than under the management of immigration authorities. The case-management and community placement model by the International Detention Coalition (IDC) was discussed in detail.
It was agreed that children must have access to procedural rights, including the right to be heard and to participate, access to information and to legal assistance and legal aid, access to interpretation, effective remedy and a guardian. Best interest of the child assessments as well as age assessment must be done through a rights-based approach, following child-friendly procedures and safeguards.
Any alternatives to detention applied by states should be monitored and regularly evaluated to ensure these do not constitute alternative forms of detention.
The workshop took place as part of the CADRE project and will be followed by second and third workshop as well as by on-line conferences and national trainings during the second year of duration of the project.
See the agenda here: Agenda CADRE Transnational workshop_17-18 June_final
Jun 21, 2021 | Advocacy, News
Victims of sexual and gender-based violence during Nepal’s 10-year-long civil war still face major obstacles to justice, concluded the participants of a virtual consultation on 19 June 2021, on the occasion of the International Day for the Elimination of Sexual Violence in conflict.
The consultation was organized by the International Commission of Jurists (ICJ), in collaboration with the Conflict Victim Women National Network (CVWN), to address “Enhancing Access to Justice for Survivors of Conflict-Related Sexual Violence”. The Nepali version of ICJ Briefing Paper on “Nepal: Transitional Justice Mechanisms with Gender Perspective” was also launched as part of the consultation.
The ICJ consultation with stakeholders highlighted Nepal’s obligation under international law to ensure right to an effective remedy to the victims of sexual and gender-based violence of Nepal’s decade-long armed conflict, which came to a close with a peace accord in 2006.
Around 80 participants, including human rights defenders and conflict victims from different parts of the country attended the consultation. The participants expressed particular concern at lack of attention to gender issues in the context of Nepal’s transitional justice process since its very beginning, and urged that gender considerations be mainstreamed in the transitional justice process.
Ms. Shrijana Shrestha, Chairperson of the CVWN, underscored the lack of government data on victims of conflict-related sexual violence, and denounced the hurdles victims face in seeking justice, due to social and cultural taboos, lack of a support system, and the current statute of limitation to register complaints of sexual violence.
Ms. Mandira Sharma, ICJ Senior Legal Adviser, highlighted that, as a party to various international human rights instruments, Nepal has an obligation to ensure victims’ right to an effective remedy. Further, she expressed concern about the lack of political will since the beginning of the peace process to address the needs of women victims, in particular of victims of conflict-related sexual violence. She emphasized the need to amend the Truth and Reconciliation (TRC) Act in consultation with victims of the armed conflict.
Similarly, Dr. Susan Risal, human rights activists, emphasized the need to develop strong strategies to deal with conflict-related sexual violence in Nepal, taking into consideration the best practices of different countries.
Ms. Laxmi Pokharel, ICJ Legal Adviser, pointed out that the ICJ Briefing paper (“Nepal: Transitional Justice Mechanisms with Gender Perspective”) has analyzed the TRC legislation comprehensively, and can therefore be of use as a powerful advocacy tool for legal reform. She summarized the main findings of the briefing paper and its recommendations, including:
- Amend the TRC Act, through consultative and participatory process, in line with the Supreme Court’s order and Nepal’s international obligations;
- Ensure the participation of women in both Commissions (i.e., the Truth and Reconciliation Commission and the Commission on Investigation of Disappeared Person) at all levels of staffing and in the appointment of Commissioners with a view to ultimately achieving gender parity;
- Provide gender-sensitive training to the Commissioners and staff of the Commissions in order to enhance their ability to address gender issues in their operation;
- Amend the Criminal Code to remove the statutory limitation for filing complaints of rape and other instances of sexual violence;
- Ensure that amnesties and mediation will not be granted to perpetrators of gross human rights violations, including rape and other forms of sexual violence.
During the discussions, the participants highlighted the following major concerns:
- Despite more than six years of its establishment, the Truth and Reconciliation Commission (TRC) and the Commission on Investigation of Disappeared Person (CIDP) have failed to ensure victims’ right to truth, justice, reparation and guarantee of non-repetition;
- There is an urgent need to identify victims of conflict-related sexual violence and provide them with support in order to address their immediate needs;
- The TRC Act needs to be amended in consultation and with the participation of all main stakeholders;
- The existing statute of limitation to file complaints of rape and other forms of sexual violence is a major barrier for victims of conflict-related sexual violence, and must be amended so that victims can access justice.
The event was organized under the ‘Enhancing Access to Justice for Women in Asia and the Pacific’ project funded by the Swedish International Development Cooperation Agency (SIDA). Due to the COVID–19 pandemic, the webinar was conducted virtually via Zoom and broadcasted live on Facebook. The webinar was conducted in Nepali with simultaneous English translation.
Contact
Laxmi Pokharel, ICJ Legal Adviser – Nepal, e: laxmi.pokharel(a)icj.org
Download
Briefing paper on “Nepal: Transitional Justice Mechanisms with Gender Perspective” in English and Nepali.
Jun 20, 2021 | News
On 19-20 June, the ICJ, in partnership with the Tunisian Association of Judges (AMT), organised a workshop on ‘Legal reasoning and judgment drafting in the cases before the Specialized Criminal Chambers (SCC)’ in Tunis, Tunisia.
Twenty-five SCC judges and prosecutors from across the country participated in the two-day workshop.
Said Benarbia, ICJ’s Middle East and North Africa Programme Director; Anas Hmedi, AMT’s President; and Martine Comte and Philippe Texier, ICJ Commissioners, were the main speakers.
On the first day, speakers and participants focused on legal reasoning and interpretation challenges before the SCC.
ICJ Commissioner Philippe Texier spoke about the principles of legality and non-retroactivity, res judicata and the non-applicability of statutes of limitations, which are all recognised under Tunisian law.
Texier underlined that, when properly understood and applied, both the principle of non-retroactivity of the criminal law and the non-applicability of statutes of limitations would not necessarily be a bar to the prosecution of crimes and gross human rights violations within the jurisdiction of the SCC, since international law, including customary international law, already proscribed them at the time of their commission.
Said Benarbia stressed the importance of applying international law and standards, especially with regard to international crimes that Tunisian domestic penal law does not proscribe yet, such as the crime under international law of enforced disappearance. With respect to the hierarchy of norms, he underscored that the Tunisian Constitution clearly recognises that international law and treaties are superior to national law.
As a result, SCC judges are required to have regard to and apply relevant international law and treaties ratified by Tunisia in adjudicating the cases before them. Judges have the power and the responsibility to interpret Tunisian law in light of international law, including, whenever necessary, by filling certain gaps in domestic legislation.
ICJ Commissioner Martine Comte then spoke about the attribution of individual criminal responsibility and modes of liability, procedural guarantees and the rights of victims and the accused, as well as reparations and guarantees of non-repetition. She emphasised that, under the 2013 Tunisian law on Transitional Justice, guarantees of non-repetition are a constitutive and fundamental element of the transitional justice process.
Comte also explained that the doctrine of command responsibility is a well-recognised general principle of international law, established and applied in many jurisdictions, and therefore to be applied, as relevant, in cases before the SCC.
Comte underlined the importance of enforcing and monitoring the respect of procedural guarantees and the rights of both the victims and the accused, including the right to the presumption of innocence, the principle of equality of arms and the right to adversarial proceedings.
She added that the first reparation of all is the establishment of the truth and of the facts of each case, which, in turn, aims to restore the dignity of victims and their families by recognizing the harm they suffered.
Finally, Comte and the other speakers talked about conviction and sentencing and the challenges faced by SCC judges when the sentence is not defined in nor international law nor Tunisian law.
On the second day, expert speakers and participants discussed judgment drafting in cases before the SCC. They discussed how SCC judges, while addressing the challenges related to the complexity of the cases at hand, can ensure organized, clear, and effective judgment drafting, including through the establishment of a coherent judgment outline; and by providing a clear analysis of factual issues and how they should be resolved.
Texier stressed that the SCC are not exceptional in their nature: they are composed of ordinary judges and have to adhere to the standards of fair trial. SCC judgments differ from ordinary judgments in that they carry a historic significance, by establishing a negated truth and contributing to the duty of remembrance, both of which are crucial elements of the transitional justice process.
Said Benarbia spoke of one of the main challenges facing the work of the SCC, namely, the voluntary absence of the accused who do not appear before court despite being summoned. Drawing on examples from other transitional justice contexts, he concluded that in this respect Tunisia is an exception, as the transitional justice process is typically accompanied by a political will that ensures the presence of the accused.
Benarbia also stressed the importance of the presence of the accused before the Court as one of the fundamental guarantees of the right to a fair trial.
Comte underscored the need to comply with the law regarding the admissibility of evidence (e.g., ensuring that a confession has not been obtained by torture or other cruel, inhuman or degrading treatment or by any other coercive means).
She then addressed the need for the judgment to provide a thorough analysis of the admissible evidence presented at trial on which the ultimate decision is rendered in light of the applicable law and stated that, under Tunisian law, the judges’ decision must be based on firm conviction, beyond any reasonable doubt.
Finally, Benarbia presented an outline for judges to rely upon when drafting the first SCC judgments, based on several judgments rendered by international tribunals. He underscored that such a structured and comprehensive outline would help judges in drafting coherent and exhaustive judgements.
Contact:
Said Benarbia, Director of the ICJ’s Middle East and North Africa programme, email: said.benarbia@icj.org phone number: +41 79 878 35 46
Asser Khattab, Research and Communications Officer at the ICJ’s Middle East and North Africa programme, email: Asser.khattab(a)icj.org
Jun 18, 2021 | Agendas, Events, News
On 22 June, the ICJ, Human Rights Watch, the Cairo Institute for Human Rights Studies, the Center for Reproductive Rights and the International Planned Parenthood Federation, with the co-sponsorship of the Kingdom of Spain, organize an online event on the 10th anniversary of the Council of Europe’s Convention on preventing and combating violence against women and domestic violence (Istanbul Convention).
This side event at the margin of the 47th regular session of the UN Human Rights Council has convened expert speakers to illustrate the situation of human rights protection to combat and prevent violence against women in Europe, how the Istanbul Convention has crucially contributed to this goal and the obstacles to its effective implementation.
Preventing and combating violence against women, as well as its causes and consequences, are a priority of the UN Human Rights Council. While UN standards are central to achieving this goal, regional standards have to date provided a key contribution in this field. The Council of Europe’s Istanbul Convention is the most far-reaching international treaty specifically designed to counter violence against women.
On 11 May 2021, the Istanbul Convention turned 10 years old. It is now time to take stock of the achievements that this Convention has contributed to as well as the challenges ahead, including countering the spread of misinformation about the Convention and ensuring states continue to champion its principles and standards.
Women and girls are still suffering the aftermaths of the COVID-19 crisis. The pandemic effects have shown a worrying increase on violence against women. The universalization of the Istanbul Convention is more important than ever because the pandemic has unveiled the “permanent shadow pandemic” that women and girls are suffering around the world.
When: Tuesday June 22nd, 13:00 – 14:00 CEST
Where: Zoom
Language: English
Panelists
- María Isabel Sanchís, Senior Advisor, Office of the Commissioner on Violence against Women of the Government of Spain
- Dubravka Šimonović, UN Special Rapporteur on violence against women, its causes and consequences
- Dame Silvia Cartwright, former Governor General of New Zealand, former CEDAW member, Commissioner of the International Commission of Jurists
- Professor Feride Acar, former chairwoman of CEDAW and GREVIO
- Hillary Margolis, Senior Researcher, Women’s Rights Division, Human Rights Watch
Moderator Massimo Frigo, UN Representative, ICJ
To confirm your participation and receive connection details, please RSVP to Massimo Frigo, email: Massimo.Frigo@icj.org .
Event-Invitation-Side Event-IstanbulConvention-UN-HRC47-final-2021-eng (download the event leaflet)
Jun 18, 2021 | News
European Union affairs ministers should put the governments of Hungary and Poland on notice that there is no place for attacks on the rule of law in the EU and step up scrutiny of their human rights-abusive policies, the International Commission of Jurists (ICJ), Amnesty International, Human Rights Watch, the International Federation for Human Rights (FIDH), the Open Society European Policy Institute (OSEPI) and Reporters Without Borders (RSF) said today.
Ministers from EU member states meeting in the General Affairs Council session on June 22, 2021 will discuss the situations in Poland and Hungary under the Article 7 procedure. Article 7 is the mechanism provided for in the EU treaty to hold accountable governments whose actions threaten the bloc’s rule of law, human rights, and democratic principles.
“The EU should respond to the critical situation in Hungary and Poland by using the powers available to it under Article 7 TEU to defend human rights and the rule of law. We hope that EU Ministers will finally send a strong signal to Poland and Hungary next week that undermining these values cannot be accepted,” said Róisín Pillay, Director of the ICJ Europe and Central Asia Programme.
Resuming hearings on the situations in Hungary and Poland under Article 7 is a strong signal from the Council that violations of EU principles will not go unnoticed within the Union, the organizations said. But EU ministers have a responsibility to make up for the time lost and show readiness to take further action as the situations in both countries continue to deteriorate.
Read the full statement here: euart7june17-ENG-2021
Further information:
The European Commission invoked Article 7 in December 2017 for the first time since its creation in response to the dramatic erosion of judicial independence in Poland by the Law and Justice (PiS) Party government. But the EU Council, consisting of the member states, has not held a formal hearing regarding the situation since September 2018.
The European Parliament triggered article 7 in September 2018 for Hungary because of the repeated deliberate attacks on democratic institutions and human rights by the Fidesz-led government, but the Council has not convened a hearing on the matter since December 2019. EU officials contended that discussions related to Article 7 could not take place during the Covid-19 pandemic, allegedly because EU ministers could not meet in person during this period.
While EU action has stalled Poland’s government has continued to strengthen its grip on the judiciary. Many judges and prosecutors have faced arbitrary disciplinary proceedings for speaking up against problematic judicial reforms. The government has used a politically compromised Constitutional Tribunal to bypass parliamentary objections to its efforts to undermine independent institutions and erode rights across the board. The concerns over the functioning of the Tribunal include, in particular, mishandling of cases by its president and unlawful change in the composition of the already designated hearing benches.
In October 2020, at the behest of the Polish government, the Constitutional Tribunal severely undermined access to sexual and reproductive rights for women in Poland by extending the existing ban on abortion to include cases of “severe and irreversible fetal defect or incurable illness that threatens the fetus’ life”. In April, the government used the same tribunal to discontinue the mandate of the country’s human rights Ombudsman, despite the delays in the appointment of a successor. The government is also using the Constitutional Tribunal to seek decisions on the validity of the Istanbul Convention on preventing violence against women and to try to undermine the binding nature of decisions by the EU Court of Justice on Polish law.
In Hungary, the government used the Covid-19 pandemic as a pretext to intensify its attacks on the rule of law and public institutions, increase executive power, and limit human rights, including the rights to freedom of expression, information and peaceful assembly. Hungary finally abided by the June 2020 EU Court decision by repealing a 2017 law forcing civil society organizations receiving over 20,000 EUR per year in foreign funds to register as foreign-funded. But at the same time the government introduced a new bill requiring the national State Audit Office to conduct annual financial inspections of civil society organizations that report more than around 55,000 EUR, with the risk that it could create a new method to demonize and obstruct the work of watchdog groups. The draft bill leaves untouched the controversial 2018 law criminalizing groups giving assistance to asylum seekers.
In July 2020, the editor-in-chief of Hungary’s largest online independent daily, Index.hu, was fired as a result of a financial takeover of the company controlling its revenues by a person with close links to the country’s ruling party. In September, the Media Council, a broadcast regulator tied to the executive after controversial changes passed early in the decade, revoked the frequency for the independent Budapest radio station Klubradio, forcing it off the air. On June 9, the European Commission opened a new legal proceeding against Hungary on the basis that the decision to take Klubradio off the air was discriminatory and non-transparent.
Civil society groups in Poland, Hungary and elsewhere in the EU have criticized the European Council and European Commission for failing to uphold the bloc’s founding values of respect for human rights and the rule of law in countries that breach them.
In December, the EU established a new mechanism conditioning EU funding upon respect for the rule of law, but both the European Commission and the Council have succumbed to Hungary and Poland’s blackmailing and announced they would not start enforcing the measure until autumn. On June 10, the European Parliament took the European Commission to Court if it further delays the implementation of the mechanism.
European ministers should continue to convene regular hearings on the situations in Poland and Hungary and take all steps available under Article 7 to hold both governments to account for violating the EU’s core values. These should include adopting specific rule-of-law recommendations that Poland and Hungary’s governments should carry out by a set deadline and, absent any concrete steps toward compliance, work toward the required four-fifth vote to determine that there is a clear risk of a serious breach of the values protected by the EU treaty. Such a determination would open up the possibility of sanctions that the Council could adopt, by unanimity, to react to this breach.
For more information please contact:
Karolína Babická, +32475462067, karolina.babicka@icj.org
Jun 16, 2021 | News
The International Commission of Jurists (ICJ) called today on Turkish authorities to immediately drop charges of ‘propaganda for terrorism’ against Cihan Aydın, a lawyer and former President of the Diyarbakır Bar Association.
Cihan Aydın learned that he was the subject of a criminal investigation on May 26, apparently based on a statement of the Women Rights Centre of the Diyarbakir Bar Association in 2019 calling for an end to Turkish military action in Syria and calling for diplomatic resolution of the conflict.
Aydın, the President of Diyarbakır Bar Association until April 2021, is known for his human rights litigation and advocacy before domestic courts as well as the European Court of Human Rights including in high-profile and sensitive cases.
The charges amount to an unjustified interference with freedom of expression, the ICJ said.
“This criminal investigation is yet another case of the misuse of criminal proceedings to attack lawyers and human rights defenders in Turkey,” said Roisin Pillay, ICJ’s Europe and Central Asia Director. “The charge against Cihan Aydin of propaganda for terrorism, based on a call for peace by an institution within the Bar Association, is clearly arbitrary, in violation of freedom of political expression, and should be dropped. The criminal law should never be applied to suppress a call on the government to pursue a peaceful solution to conflict.”
Turkey has obligations under international human rights law, including under Article 10 of the European Convention on Human Rights (ECHR) and Article 19 of the International Covenant on Civil and Political Rights (ICCPR) to uphold freedom of expression, which can only be restricted to the extent strictly necessary and proportionate to a legitimate aim. Speech on matters of public interest, including political debate or criticism of government policy, must be particularly protected. Moreover, under Article 20 of the ICCPR, states have a duty to protect against war propaganda, and that duty is likely to be undermined if a state seeks to prohibit and punish views that may be critical of war.
Background
On 26 May 2021, Aydin was requested to give his statement about the accusation of “propaganda for terrorism”.
This prosecution follows other investigations against the Diyabakir Bar Association: following a statement about the statement on Armenian Genocide and a statement denouncing the Head of Religious Affairs Directorate for his comments about LGBTI.
The ICJ has extensively documented government persecution of lawyers in Turkey as well as improper restrictions on freedom of expression:
