Mar 18, 2021 | News
The ICJ today condemned Sri Lanka’s new ‘de-radicalization’ regulations, which allow for the arbitrary administrative detention of people for up to two years without trial. The regulations could disproportionately target minority religious and ethnic communities.
Sri Lankan President Gotabaya Rajapaksa promulgated Prevention of Terrorism (De-radicalization from holding violent extremist religious ideology) Regulations No. 01 of 2021, which was publicized by way of gazette notification on 12 March, 2021. The “regulations”, which were dictated by the executive without the engagement of Parliament, would send individuals suspected of using words or signs to cause acts of “religious, racial or communal violence, disharmony or feelings of ill will” between communities to be “rehabilitated” at “reintegration centres” for up to two years without trial.
“These regulations, which have been dictated by executive fiat, allow for effective imprisonment of people without trial and so are in blatant violation of Sri Lanka’s international legal obligations and Sri Lanka’s own constitutional guarantees under Article 13 of the Sri Lankan Constitution.”
– Ian Seiderman, ICJ’s Legal and Policy Director
Article 9 of the International Covenant on Civil and Political Rights (ICCPR), to which Sri Lanka is a party, provides for a number of procedural guarantees for any person deprived of their liberty, many of which are absent in the Regulation. Administrative detention of the kind contemplated under the Regulations, is not permitted, as affirmed repeatedly by the UN Human Rights Committee.
Even prior to the promulgation of the new regulations under Sri Lanka’s Prevention of Terrorism Act No. 48 of 1979 (PTA), Sri Lankan authorities had already been invoking the PTA and the International Covenant on Civil and Political Rights Act, No. 56 of 2007 (enacted to incorporate certain provisions of the ICCPR into domestic law) effectively to persecute people from minority communities. Yet little or no action has been taken by the authorities against those inciting hatred or violence against minorities.
“The new regulations are likely to be used as a bargaining tool where the option is given to a detainee to choose between a year or two spent in “rehabilitation” or detention and trial for an indeterminate period of time, instead of a fair trial on legitimate charges.”
– Ian Seiderman, ICJ’s Legal and Policy Director
Contact
Osama Motiwala, Communications Officer – osama.motiwala@icj.org
Background
Section 3(1) of the ICCPR Act which prohibits advocacy of hatred that constitutes incitement to discrimination, violence or hostility has hitherto been misused to target members of minority communities. In April 2020, Ramzy Razeek, a retired government employee, was arrested for a Facebook post calling for an ideological ‘jihad’ against the policy of mandatory cremation of people who had died as a result of Covid-19. He was detained under the ICCPR Act for more than five months and finally released on bail due to medical reasons in September 2020.
In May 2020, Ahnaf Jazeem, a young Muslim poet, was arrested under the PTA in connection with a collection of poems he had published in the Tamil language, which were apparently misinterpreted by Sinhalese authorities to be read as containing extreme messages. Just last week, a few days after the promulgation of the new regulations, Ahnaf’s lawyers expressed alarm that both Ahnaf and his father were being pressured to make admissions that he had engaged in teaching ‘extremism’. The ICJ had previously raised concerns about the arbitrary arrest and prolonged detention of Human Rights lawyer Hejaaz Hizbullah. After being detained under the PTA for 10 months without being given reason for his arrest, he is now being tried for speech-related offences under the PTA and ICCPR Act.
The ICJ has consistently called for the repeal of the Prevention of Terrorism Act, which has been used to arbitrarily detain suspects for months and often years without charge or trial, facilitating torture and other abuse. The ICJ reiterates its call for the repeal and replacement of this vague and overbroad anti-terror law and regulations brought under it, in line with Sri Lanka’s international obligations.
The new PTA regulations require those who surrender or are arrested on suspicion of using words or signs to cause acts of violence, disharmony or ill will between communities to be handed over to the nearest Police Station within 24 hours after which a report is to be submitted by the Police to the Defence Minister (the position is currently held by President Gotabaya Rajapaksa) to consider whether the suspect should be detained further. The regulations would also apply to those who had surrendered or been taken into custody under the PTA, the Prevention of Terrorism (Proscription of Extremist Organizations) Regulations No. 1 of 2019 and the Emergency (Miscellaneous Provisions and Powers) Regulation, No. 1 of 2019.
The Attorney General is given the power to decide if a suspect should be tried for a specific offence or be send to a rehabilitation centre as an alternative. If the decision is to rehabilitate, the suspect would be produced before a Magistrate with the written consent of the Attorney General. The Magistrate may thereafter order that the suspect be referred to a rehabilitation centre for a period not exceeding one year. Such period can be extended by a period of six months at a time up to one more year by the Minister upon the recommendation of the Commissioner-General for Rehabilitation. The regulations further state that the Commissioner–General should provide the detainee with psycho-social assistance and vocational and other training during the rehabilitation period to ensure reintegration into society. The regulations also provide that such detainee may with the permission of the officer in charge of the Centre be entitled to meet their parents, relations or guardian once every two weeks.
Mar 17, 2021 | News
Imposition of Martial Law in several areas of Myanmar subjects civilians to trial by military tribunals, a dangerous escalation of the military’s repression of peaceful protests, said the ICJ today.
“Use of martial law marks the return to the dark days of completely arbitrary military rule in Myanmar. It effectively removes all protections for protestors, leaving them at the mercy of unfair military tribunals.”
– Ian Seiderman, ICJ’s director of law and policy
On 14 March, the Myanmar military issued Martial Law Order 3/2021, covering a number of townships of different provinces in Myanmar. According to this order, military officials assume full authority from civilian officials, and civilians may be subjected to military tribunals for charges of 23 violations of the criminal code and other laws. The 23 crimes include many of the charges used most against peaceful protesters in the past month, including charges of ‘disrupting or hindering government employees and services’ and ‘spreading false news’ about the government, and ‘exciting disaffection towards the government.’
The Martial Law Order also assigns disproportionately severe sentences, including the death penalty and prison sentences with hard labor. Judgments of military tribunals are not subject to appeal, even if the death penalty is imposed.
“Martial law has been imposed in precisely the areas where the military have used unlawful and lethal force against peaceful protesters, and removes even the pretense of access to courts for the people whose rights have been violated systematically by the military, ” said Seiderman.
The ICJ’s detailed review of military courts has documented that they lack competence, independence and impartiality to prosecute civilians. International law provides that the jurisdiction of military tribunals must generally be restricted solely to specifically military offenses committed by military personnel.
“The military courts lack transparency, due process and judicial oversights. It leaves no possibility to appeal the sentences, including the death sentences that have been handed down by military generals, ” said Seiderman.
Since the military coup d’etat of February 1 and the declaration of a state of emergency, the military has enacted and amended legislation enabling ongoing gross human rights violations, including possible crimes against humanity. More than 200 people have been unlawfully killed, with 2,000 more injured as security forces have used excessive force to suppress peaceful protests.
Background
On 14 March, the military-appointed State Administration Council, in accordance with Article 419 of the Constitution, enacted Martial Law Order 1/2021, imposing martial law in a number of areas in Yangon. The affected areas were further expanded through two other orders issued on 15 March, Martial Law Order 2/2021 and 3/2021. These orders transfer all power to the Military Commander in those areas. All local administration bodies have been placed under martial law, effectively giving military full control of all judicial and administrative processes.
The Order 3/2021 in particular is divided into six main sections with the most concerning provisions in relation to the list of crimes to be heard by military tribunals, and the proscribed punishments.
Contact
Osama Motiwala, ICJ Asia-Pacific Communications Officer, e: osama.motiwala(a)icj.org
Mandira Sharma: ICJ Senior Legal Adviser, e: mandira.sharma(a)icj.org
Mar 17, 2021 | News
All children regardless of their age must have access to procedural rights when they are accused of criminal acts, the Council of Europe’s European Committee of Social Rights decided in a landmark case (No. 148/2017) brought by the International Commission of Jurists (ICJ) with support from the Prague-based Forum for Human Rights.
The ICJ and Forum lodged a complaint challenging the failure of the Czech Republic to provide for legal assistance to children under the age of 15 (the age of criminal responsibility in the Czech Republic) in the pre-trial stage of proceedings and failure to provide alternatives to formal judicial proceedings for them.
The European Committee of Social Rights, which is responsible for oversight of the European Social Charter of 1961, found the Czech Republic was violating the rights of children under 15, who face proceedings in the child justice system but are below the age of criminal responsibility. The Committee found that the failure to provide these due process safeguards violated the rights of the children to social protection under Article 17 of the 1961 Charter. Human rights protected under the European Social Charter are legally binding on States party to it.
“The Committee’s decision is ground-breaking in many ways, yet two implications are revolutionary. First, it clearly emphasises the inter-dependence between fair-trail rights and child’s well-being. In modern human rights law, there is no such a thing as a clear-cut division between civil and political rights and social rights. But most importantly, the decision undermines paternalistic attitudes towards young children who enter the juvenile justice system and makes clear that all children – regardless their age – must be ensured adequate procedural protection in the course of the whole proceedings, based on the restorative justice principles,” said Maroš Matiaško, senior legal consultant of Forum.
The decision of the European Committee on Social Rights should lead to fundamental changes in the Czech child justice system, Forum for Human Rights and the International Commission of Jurists said today.
“We brought this case to ensure that children below the age of criminal responsibility do not have lower standards of protection of their rights compared to the older children in the child justice system,” said Karolína Babická, ICJ Legal Adviser. “We expect the Czech Republic to swiftly implement the decision of the Committee and ensure that all children regardless their age have access to procedural rights and alternative procedures like settlements and conditional termination or withdrawal of prosecution.”
Background
The legal findings come following a collective complaint submitted to the European Committee on Social Rights by Prague-based Forum for Human Rights and the International Commission of Jurists in 2017.
The Committee’s decision is built on two legal grounds, (I) mandatory legal representation for all children in conflict with the law regardless of age already in the pre-trial stage and (II) their access to alternatives in line with restorative justice principles.
On the first ground, the Committee found that the State must ensure mandatory legal assistance to children below the age of criminal responsibility already in the pre-stage of the proceedings. The reasoning is built on four grounds:
–Children below the age of criminal responsibility are not always able to understand and follow pre-trial proceedings due to their relative immaturity. It cannot therefore be assumed that they are able to defend themselves in this context.
–Children below the age of criminal responsibility should be assisted by a lawyer in order to understand their rights and the procedure applied to them, so as to prepare their defence. The failure to ensure legal assistance for children below the age of criminal responsibility in the pre-trial stage of proceedings is likely to impact negatively on the course of the proceedings, thereby increasing the likelihood of their being subjected to measures such as deprivation of liberty.
–Legal assistance is necessary in order for children to avoid self-incrimination and fundamental to ensure that a child is not compelled to give testimony or to confess or acknowledge guilt.
–The assistance of a lawyer is also necessary in situations where parents/legal guardians have interests that may conflict with those of the child and where it is in the child’s best interest to exclude the parents/legal guardians from being involved in the proceedings. Therefore, the Committee concluded that mandated separate legal representation for children is crucial at the pre-trial stage of proceedings.
In relation to the second legal ground, the Committee emphasised that diversion (alternatives to proceedings, such as settlement or conditional termination or withdrawal of criminal proceedings) from judicial proceedings should be the preferred manner of dealing with children in the majority of cases and diversion options should be available from as early as possible after contact with the system, before a trial commences, and throughout the proceedings. The principle applies to an even greater degree to a situation in which children below that age can still be engaged in the child justice system.
It may be left to the discretion of States Parties to decide on the exact nature and content of diversion measures, and to take the necessary legislative and other measures for their implementation, though there are relevant standards that should be taken into account, especially those developer by the UN Committee on the Rights of the Child.
Collective complaints alleging violations of obligations under the European Social Charter, may be brought against States which have ratified the 1995 Additional Protocol to the European Social Charter. On the basis of the European Committee on Social Rights’ decision on a collective complaint, the Council of Europe Committee of Ministers may recommend that the State take specific measures to implement the decision.
Read the full decision here.
See more information about the case here.
Watch our talk on the case and its importance:
Contact:
Karolína Babická, Legal adviser Europe and Central Asia Programme; karolina.babicka(a)icj.org
Mar 16, 2021 | News
The participation of private actors including pharmaceutical companies in the development and delivery of COVID-19 vaccines has important implications for human rights, in particular the rights to life and to health, that have not been properly considered, a panel of experts asserted in a webinar organized by the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), the ICJ and the Konrad Adenauer Stiftung (KAS) on March 11.
Taking place exactly one year after the World Health Organization declared COVID-19 a global pandemic, the webinar, entitled “What are the obligations of States and corporations to ensure access to a COVID-19 vaccine?”, brought together Dr Sharifah Sekalala from the University of Warwick, Fatima Hassan, the founder and head of the Health Justice Initiative, and Prof. David Bilchitz, the director of SAIFAC.
As the United Nations Committee on Economic, Social and Cultural Rights (CESCR) has recently reaffirmed, vaccine access raises human rights issues relating to both the obligations of States and the responsibilities of businesses.
Carlos Lopez, ICJ’s Senior Legal Adviser stressed:
“It is clear that States have a duty to protect the right to health which entails an obligation to appropriately regulate private actors in health – including those involved in vaccine production and distribution – to retain the affordability and accessibility of COVID-19 vaccines for all. Corporate entities, for their part, have a responsibility to respect the right to health which they violate when they adopt practices which limit or inhibit non-discriminatory vaccine access to all people around the world.”
One of the main elements in the debate is the issue of people’s access to vaccines that are adequate and affordable, and how the capacity of the States to fulfil this key aspect of their international law obligations is being constrained by the operation of certain trade and intellectual property rights law, in particular the Trade-Related Intellectual Property Rights (TRIPS) Agreement of the WTO.
Dr Sekalala, pointed to a fundamental underlying issue relating to the predominant rationale of States and companies:
“One of the things that bothers me as a global health lawyer is the lack of transparency around this process and also, in some ways, the fact that States are still clinging on this research and development rationale, maintaining intellectual property rights”.
This also raises serious questions about the nature of the responsibilities that corporate entities may have to respect the right to health, as has been clarified in General Comment 24 of the CESCR and the UN Guiding Principles on Business and Human Rights.
“There is a moral dimension to the question about vaccine access: what should society expect of the corporations? And there is also a legal one: what does the law require? Fundamental rights are essentially urgent moral claims that demand legal institutionalization. Fundamental rights recognized in international law, in the South African Constitution and many other constitutions around the world require, in my view, that corporations have positive obligations but if such positive obligations are not recognized in legal systems, domestically or internationally, the claim is they ought to be”, said Professor Bilchitz.
Although vaccine access may implicate human rights responsibilities of a range of private business entities, such considerations are especially pronounced with regard to pharmaceutical companies given the direct impact of their business operations on vaccine access. Vaccine access raises clear issues about the protection of human rights and the rule of law both internationally and in particular domestic jurisdictions like South Africa.
“Pharmaceutical companies and some wealthier governments that have actually co-funded a lot of the accelerated vaccine research are basically using their own law… right now they are acting as if they are God, they are determining access for the entire world, including the Global South. The Constitution has been thrown out of the window, particularly in the domestic context of South Africa”, said Hassan.
Watch the webinar here.
A powerpoint for Dr Sekalala’s presentation is available here.
A powerpoint for Professor Bilchitz’s presentation is available here.
A powerpoint for Fatima Hassan’s presentation is available here.
CONTACT:
Timothy Fish Hodgson, Legal Adviser on Social, Economic and Cultural Rights, e: timothy.hodgson@icj.org
Tanveer Rashid Jeewa, Communications and Legal Officer, e: tanveer.jeewa@icj.org
Mar 16, 2021 | News
On the first day of the trial before the eastern Cairo criminal military court of those accused in connection with the 2016 explosion in the Haram district of Giza, the ICJ calls on the Egyptian authorities to: investigate allegations of torture and other ill-treatment; ensure reparation for those arbitrarily detained; and end the trials of civilians before military courts.
“The case has been under investigation by the State Security Prosecution for more than five years, involving prolonged pre-trial detention and severe restriction on the right to legal counsel, in a flagrant violation of Egyptian and international law,” said Said Benarbia, the ICJ’s MENA Programme Director. “Detaining people pending trial for that length of time makes this case yet another example of how the authorities are using pre-trial detention as a tool of repression and to punish, in violation of Egypt’s obligations under international human rights law”.
In January 2016, hundreds of people were arrested, and some forcibly disappeared in connection with an explosion in the Haram district of Giza that killed seven police officers and four civilians, and injured 15 others.
A number of those detained have reportedly been subjected to ill-treatment and denied fair trial rights guaranteed by Egyptian and international law, including the right to receive family visits. In addition, to the ICJ’s knowledge, while all the accused may have briefly met their lawyers in highly restrictive circumstances at the state prosecution office each time they have been remanded into custody, over the years, they have been denied their right to legal counsel before trial as their lawyers have not been allowed to visit them in prison.
The ICJ calls on the Egyptian authorities to investigate the incidents of enforced disappearance, ill-treatment and other human rights violations with a view to bring those responsible to justice.
“Notwithstanding the gravity of the charges involved, civilians should not be brought before military courts,” said Benarbia. “the jurisdiction of military courts should be limited to trials of military personnel in cases of strictly military offences; it should not extend to crimes over which civilian courts have jurisdiction, human rights violations or crimes under international law,” he added.
Contact
Said Benarbia, Director, ICJ Middle East and North Africa Programme, t: +41-22-979-3817; e: said.benarbia(a)icj.org
Asser Khattab, Research and Communications’ Officer, ICJ Middle East and North Africa Programme, e: asser.khattab(a)icj.org
Download
Press release in English and Arabic.
Mar 15, 2021 | News
As Syria marks 10 years of a devastating armed conflict, the UN Security Council continues to abdicate its responsibility to address the gross human rights abuses committed by the Syrian government and various other actors in the country, including the use of chemical weapons and the perpetration of other crimes against humanity, likely genocide and war crimes, the International Commission of Jurists (ICJ) said today.
Since a popular uprising began in March 2011, the regime’s unabated repression has driven Syria into a full-scale civil war. Hundreds of thousands have been killed; tens of thousands have been tortured and forcibly disappeared; over 11 million have been forcibly displaced, either internally or to host countries; and tens of thousands continue to to be arbitrarily detained.
Notwithstanding this, Russia and China have vetoed at least 15 Security Council resolutions seeking to address and deter the perpetration of crimes under international law in Syria, including through the establishment of investigations into the use chemical and other weapons, by imposing sanctions over such use, and by referring the Syria situation to the International Criminal Court (ICC).
“The SC’s failure to address the Syrian conflict has been chronic and structural, and so wrong about so much and at the expense of so many”, said Said Benarbia, MENA Programme Director at the ICJ. “The SC’s failure calls into question its very role as a guarantor of peace and security and its relevance in upholding a rule-based order.”
To end impunity and ensure victims’ right to justice and effective remedies, the SC must reform its accountability practices, including by ensuring that decisions on the investigation of crimes under international law, the referral of these crimes to the ICC, and the establishment and operationalization of other forms of accountability be based on the existence of overwhelming evidence of such crimes, rather than political expediency.
In the meantime, individual UN Member States must act to begin filling the accountability gap in Syria, including by supporting United Nations accountability mechanisms, such as the the International, Impartial and Independent Mechanism, and by seeking out, prosecuting and punishing those responsible for the atrocities committed in the country pursuant to the principle of universal jurisdiction, as the recent, first-ever guilty verdict against a former official of the Syrian regime delivered by the Higher Regional Court in Koblenz, Germany, shows.
Contact:
Asser Khattab, Research and Communications Officer, ICJ Middle East and North Africa Programme, asser.khattab@icj.org
