Sep 8, 2020 | Feature articles, News
Judges from six Latin American countries revealed that there were serious obstacles, but also possibilities for justice, facing regional judiciaries as they try to protect the human rights of those who have been adversely affected by the activity of business entities.
The judges gathered as part of the Regional Judicial Dialogue on Business and Human Rights organized by the ICJ of Jurists on September 7.
The Dialogue, moderated by ICJ Commissioner Professor Monica Pinto, brought together 17 judges from Central and South America to consider the role of judges in guaranteeing the right of access to justice and remedy and reparation. The judges also considered the need to guarantee the independence of the judiciary and the security of individual judges, lawyers, and human rights defenders in the context of business activities in the region.
The session featured presentations from a member of the UN Working Group on Business and Human Rights and the Office of the UN High Commissioner for Human Rights. The Dialogue took place in the context of the 5th Regional Forum on Business and Human Rights for Latin America and the Caribbean.
Discussing access to justice and remedy and reparation, the judges shared experiences and jurisprudence in cases related to serious crimes, including against humanity committed during the Argentine military regime, as well as cases of serious corruption and embezzlement in Guatemala.
In Argentina, in a case concerning the 1976 kidnapping and torture of 24 workers employed by the local Ford Motor company at their factory in Buenos Aires during the 1976-83 military dictatorship, a Federal Trial Tribunal sentenced three persons, a former military officer and two former Ford executives to prison of between 10 and 12 years, for their complicit involvement in the crimes.
Former Ford executives were accused of providing detailed information and logistical support to security agents that led to the abduction and torture of the victims, and also allowed a detention centre to be set up inside the premises of that factory.
The three judges of the Tribunal in this case attended the meeting to share the lessons learned and the significance of the criminal proceedings in the context of efforts to bring justice and reparations for the crimes of the past.
The process and the final sentence is a landmark in the fight against impunity in Argentina and an important message to all so that these crimes are not committed again. The case clarified the ways in which private individuals (the former company executives) participated in the commission of the crimes by State agents (military and security agents), elaborating upon modalities of attribution of the acts to the accessory perpetrators.
It is also an innovation in the ways it gathered and assessed the probatory value of the available evidence of crimes committed more than 30 years ago so that the crimes could still be attributed to the perpetrators.
The reparation ordered by the Tribunal in this case was “symbolic and historical”, consisting on an acknowledgment of the facts by the State and the private actors. The victims may demand now other forms of reparation from the State, but not from individuals.
The company as such was not part of the criminal proceedings nor was it sanctioned in the final sentence, since Argentinian law does not accept the criminal responsibility of legal entities such as corporations.
A participant judge from Guatemala shared a case concerning economic crimes of corruption, fraud, illicit association and assets laundering in a provincial town in Guatemala. Here, the experience and outcomes were somewhat different.
The case involved the town major and several of his relatives as well as some 20 companies out of which nearly 20 individuals and seven companies received penalties in the final sentence.
The case is of special significance in Guatemala as one of the few, large scale, corruption cases that has reached its final stage with convictions. In the investigation and collection of evidence considered during the trial, participated several public offices and the then International Commission Against Impunity in Guatemala (CICIG), which is no longer in operation.
Thanks to recent laws on corruption and money laundering, it is possible to impose sanctions on the company, as a legal entity. In the instant case, those sanctions consisted of monetary fines but not suspension or dissolution of the legal entity to allow other administrative proceedings against the same companies to continue.
In accordance with national laws and international standards, the judges ordered full reparation, including for damages, measures of satisfaction such as public statements of apologies and publications to be made by the convicted.
Citing a graphic statement contained in the final sentence, the judge Pablo Xitumul who presided the Tribunal said “corruption and impunity are even more lethal than a cancer or a pandemic, and should be combated without delay or excuses!”
Read the full story here: Americas-Judges and BHR-News-Feature article-2020-ENG
Sep 8, 2020 | Advocacy, News
The ICJ, in collaboration with the Zimbabwe Anti-Corruption Commission (ZACC), today launched a whistleblowing application (tip off) mechanism in Harare.
It is common that people reporting corruption, tipping off and submitting key evidence prefer to stay anonymous, as they may have an often, well-founded, fear of reprisal by the parties involved. In such instances it is imperative for the ZACC to adopt a protective solution that guarantees user anonymity. This tip off mechanism will enable ZACC to receive information and evidence securely while the user of the mechanism remains anonymous. In turn ZACC will be able to use the information received to investigate and prosecute cases of corruption. Additionally, the application will also have a case management dashboard which will aid evaluation of ZACC’s efficiency in handling corruption cases.
Corruption undermines the rule of law by impeding access to justice through diversions of public resources for private gain. As such, the ICJ, through the support by the EU, is working towards increased transparency and integrity in the justice delivery system in order to increase access to justice for all. The whistleblowing application is not undertaken in isolation, as it builds on other initiatives to combat corruption under this programme, which include the Anti-Corruption Campaign, establishment of an anti-corruption court, capacity building, and various research initiatives.
“Corruption remains a key challenge confronting Zimbabwe. If unabated, corruption undermines democracy and the rule of law leading to violations of human rights. Its destructive effect on development disproportionately affects the poor. The participation of the public, in augmenting government efforts in combating corruption is therefore critical. It is our hope that through this awareness programme, ordinary members of the public will be able to recognize corrupt behaviour and feel empowered to take a stand against it. Further, we hope that the mechanism will sustain the momentum against corruption and increase the demand for improved accountability and transparency in various sectors in Zimbabwe thereby contributing to reduction of corruption,” said Blessing Gorejena, ICJ’s Zimbabwe Project Team leader.
Once officially launched, the whistle-blowing mechanism will be available to the public. It will be promoted and encouraged by publicizing stories of successful prosecutions and other actions as a result of information provided by whistle-blowers, as well as reporting on the effective protection of such persons from any form of reprisal or other harm.
The project is facilitated through the support of the European Union.
Contact:
Blessing Gorejena, Senior Legal Adviser and Team Leader of ICJ Zimbabwe Project, t:0772151989, e: blessing.gorejena(a)icj.org
Sep 8, 2020 | Advocacy, News
On 29 August and 5 September, the ICJ collaborated with the Integrated Bar of the Philippines (IBP) to hold a webinar series for legal aid providers in the Philippines on eliminating gender discriminatory attitudes and behaviors towards women.
Members of IBP’s legal aid committees from the Eastern and Western Mindanao Regions participated in these webinars, focused on gender stereotypes and discriminatory practices that exist in the legal profession and in the work of legal aid providers who directly engage with women when they seek justice.
Dato Ambiga Sreenevasan, ICJ’s Commissioner from Malaysia, addressed the promotion and protection of women’s human rights in the context of the legal profession: “While conditions for women have improved, there is still work to be done to achieve equality between men and women in the legal profession. At the entry level, things appear to be going well, but we must look also at women’s opportunities throughout their legal career and question why it is the case that some areas are still male-dominated.”
Mikiko Otani, ICJ’s Commissioner from Japan and a member of the UN Committee on the Rights of the Child, spoke about how gender stereotypes and gender discrimination hinder women from accessing justice. “The Bar should be at the forefront of advocating for improvement in legal structures that would help eliminate gender discrimination,” she said.
The Philippines had previously featured as one of the top ten performers in addressing gender disparities, as measured by the World Economic Forum’s Global Gender Gap Index. However, it has recently fallen to rank 16th out of 153 countries. Emerlynne Gil, ICJ Senior International Legal Adviser, acknowledged various measures adopted by the Philippines to implement the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), such as the adoption of the Anti-Violence Against Women and Children Act and the Magna Carta for Women. She noted, however, that the Philippines still must do a great deal more.
“The existing culture of impunity and lack of effective remedies for women to access the justice system are just some of the difficult challenges the country faces that prevent it from achieving this goal,” Emerlynne Gil said.
The webinar series also featured a discussion on specific challenges faced by women when accessing justice during the COVID 19 pandemic and in the context of the “drug war” in the Philippines. The lawyers discussed their role and also that of the Bar as an institution to immediately identify and eliminate these gender stereotypes to ensure their clients’ right to access to justice.
Judge Amy Alabado Avellano, a Regional Trial Court judge in the Philippines led this discussion. Attorney Burt Estrada, IBP Executive Vice President, and Attorney Marienne Ibadlit, former IBP Governor for Western Visayas, also held a dialogue with the lawyers on how the IBP as a professional association for lawyers in the Philippines could contribute towards enhancing access to justice for women in the country.
Contact
For questions and clarifications, please contact Ms. Emerlynne Gil, Senior International Legal Adviser, t: +662 619 8477 (ext. 206); e: emerlynne.gil(a)icj.org.
Sep 7, 2020 | News
Turkish authorities should immediately release human rights defender Osman Kavala, in compliance with the Council of Europe Committee of Ministers’ decision of 3 September 2020, the International Commission of Jurists (ICJ), Human Rights Watch and the Turkey Human Rights Litigation Support Project said today.
The decision followed a Committee of Ministers hearing to assess the execution of the judgment of the European Court of Human Rights in the case of Osman Kavala. The Committee, acting in its supervisory capacity for Court Judgments, ordered the Turkish authorities, “to ensure the applicant’s immediate release,” pointing to, “a strong presumption that his current detention is a continuation of the violations found by the Court.”
“After the finding by the European Court of Human Rights that Kavala’s detention is unlawful, the Committee of Ministers has affirmed that Turkey is continuing to violate his rights by keeping him in detention” said Roisin Pillay, director of the Europe and Central Asia Programme at the International Commission of Jurists. “European Court rulings are binding, and Osman Kavala should be released immediately.”
Despite the unlawful detention and an acquittal by the Turkish criminal court presiding over his trial, Osman Kavala has been kept behind bars under a newly issued charge of “espionage” since March 2020. His lawyers are currently challenging the lawfulness of the detention before Turkey’s Constitutional Court. However, the Committee of Ministers indicated in its decision that Turkey should not wait for a ruling of the Constitutional Court but should release Kavala immediately.
In June, the ICJ, Human Rights Watch and the Turkey Human Rights Litigation Support Project made a detailed submission to the Committee of Ministers of the Council of Europe, which oversees enforcement of European Court of Human Rights judgments. The submission argued that the sequence of events and repeated local court decisions to ensure Kavala’s detention subsequent to the European Court’s ruling in December 2019 demonstrated that Turkey was prolonging the violations found by the European Court.
The European Court judgment in Kavala v. Turkey (Application no. 28749/18) found violations of the following provisions of the European Convention on Human Rights: Article 5(1) (right to liberty and security), Article 5(4) (right to a speedy decision on the lawfulness of detention), and the rarely used Article 18 (limitation on use of restrictions on rights) taken together with Article 5(1). The Court required Turkey to release Kavala and said that any continuation of his detention would prolong the violations and breach the obligation to abide by the judgment in accordance with Article 46(1) of the Convention.
The judgment on Osman Kavala’s case is particularly significant because it is the first final ruling of the European Court of Human Rights against Turkey in which the Court determined that, in interfering with an individual’s rights, Turkey acted in bad faith and out of political motivations, violating Article 18 of the European Convention on Human Rights. The Court said that by detaining Kavala since November 2017 and prosecuting him, the Turkish authorities had “pursued an ulterior purpose, namely to silence him as human rights defender.”
Kavala has been held in detention since November 2017, initially on bogus allegations that he used the 2013 Istanbul Gezi Park protests as a pretext for an attempt to overthrow the government, and that he was involved in the July 15, 2016 attempted military coup. On February 18, 2020, Kavala and his eight co-defendants were acquitted on charges of “attempting to overthrow the government by force and violence” in the Gezi Park trial.
But Kavala was not released, and a court ordered his detention again immediately on one of the grounds for his initial detention on 1 November 2017, namely the charge of “attempting to overthrow the Constitution by force and violence” because of the ongoing July 15, 2016 coup attempt-related investigation against him. Turkey’s President Recep Tayyip Erdoğan had publicly criticized his acquittal just before he was detained again. Weeks later a court ordered his detention a second time on another charge (“espionage”) but under the same investigation file on the coup attempt and relying on the same evidence.
“The decision by the Council of Europe Committee of Ministers confirms our submission that political considerations are behind the court orders prolonging Osman Kavala’s detention , and that there has been a concerted official effort to prevent Kavala’s release,” said Emma Sinclair-Webb, Turkey director at Human Rights Watch.
“Instead of complying with the European Court’s judgment, Turkey has continued to violate Kavala’s human rights.”
The targeted harassment in Turkey of rights defenders is part of a wider practice of arbitrary detentions and abusive prosecutions of journalists, elected politicians, lawyers, and other perceived government critics. This practice has been well-documented in many reports by the Council of Europe, the European Union, and human rights organizations.
“The campaign of persecution against Osman Kavala and the failure to release him and drop all charges have perpetuated a chilling environment for all human rights defenders in Turkey,” said Ayşe Bingöl Demir, co-director of the Turkey Human Rights Litigation Support Project.
“Ending this blatantly unlawful detention, which has been ongoing for over 1000 days, will not only play a role in preventing further violations to Osman Kavala’s rights, it will also give a strong signal to the human rights defenders community that the oversight mechanisms in place to ensure Turkey’s compliance with its international human rights obligations can still be effective.”
Contact:
Róisín Pillay, Director of ICJ’s Europe and Central Asia Programme, t: +32-2-734-84-46 ; e: roisin.pillay(a)icj.orgMassimo Frigo, Senior Legal Adviser, ICJ’s Europe and Central Asia Programme, t: +41-79-749-99-49 ; e: massimo.frigo(a)icj.org ; Twitter: @maxfrigo
Türkiye: Osman Kavala Serbest Bırakılmalı
Yetkililer, Avrupa Konseyi’nin İnsan Hakları Savunucusunu Serbest Bırakma Kararına Uymalıdır
(Cenevre, 7 Eylül 2020) Uluslararası Hukukçular Komisyonu (ICJ), İnsan Hakları İzleme Örgütü ve Türkiye İnsan Hakları Davalarına Destek Projesi, yaptıkları açıklamada Türkiye makamlarının insan hakları savunucusu Osman Kavala’yı Avrupa Konseyi Bakanlar Komitesinin 3 Eylül 2020 tarihli kararına uygun olarak derhal serbest bırakması gerektiğini ifade etti.
Bu karar, Osman Kavala davasında Avrupa İnsan Hakları Mahkemesi’nin kararının uygulanmasını değerlendiren Bakanlar Komitesi oturumunu müteakiben alındı. Mahkeme kararlarının uygulanmasını denetleme yetkisi olan Komite, Türk makamlarına “başvuranın derhal serbest bırakılmasını sağlama” talimatı vererek “mevcut tutukluluğunun mahkeme tarafından tespit edilen ihlallerin devamı olduğuna dair güçlü bir karine bulunduğuna” işaret etti.
Uluslararası Hukukçular Komisyonu Avrupa ve Orta Asya Programı Direktörü Roisin Pillay,” Avrupa İnsan Hakları Mahkemesi’nin, Kavala’nın tutukluluğunun hukuka aykırı olduğunu tespit etmesinden sonra, Bakanlar Komitesi, Türkiye’nin Kavala’nın tutukluluğunu sürdürerek onun haklarını ihlal etmeye devam ettiğini doğruladı” dedi. Pillay, “Avrupa Mahkemesi kararları bağlayıcıdır ve Osman Kavala derhal serbest bırakılmalıdır” dedi.
Hukuka aykırı tutukluluğuna ve davasının görüldüğü Ceza Mahkemesinin verdiği beraat kararına rağmen, Osman Kavala yeni ileri sürülen bir “casusluk” suçlaması nedeniyle Mart 2020’den bu yana parmaklıklar ardında tutulmaya devam ediliyor. Kavala’nın avukatları, Türkiye’nin Anayasa Mahkemesi önünde tutukluluğun hukuksuz olduğuna ilişkin itirazlarda bulunuyorlar. Ancak Bakanlar Komitesi, kararında Türkiye’nin Anayasa Mahkemesinin vereceği bir kararı beklemeksizin Kavala’yı derhal serbest bırakması gerektiğini işaret ediyor.
Haziran ayında, ICJ, İnsan Hakları İzleme Örgütü ve Türkiye İnsan Hakları Davalarına Destek Projesi, Avrupa İnsan Hakları Mahkemesi kararlarının uygulanmasını denetleyen Avrupa Konseyi Bakanlar Komitesi’ne ayrıntılı bir bildirim sundu. Bildirim, Avrupa Mahkemesi’nin Aralık 2019’daki kararının ardından Kavala’nın alıkonmasını sağlamak için gelişen olaylar serisinin ve tekrarlanan yerel mahkeme kararlarının, Türkiye’nin Avrupa Mahkemesi tarafından tespit edilen ihlalleri devam ettirdiğini gösterdiğini savundu.
Avrupa Mahkemesi, Kavala/Türkiye kararında (Başvuru no. 28749/18), madde 5/1 (özgürlük ve güvenlik hakkı), madde 5/4 (alıkonmanın yasaya uygunluğuna ilişkin ivedi karar alma hakkı) ve nadiren kullanılan madde 18 (haklara getirilecek kısıtlamaların sınırlanması) ile birlikte madde 5/1’in ihlal edildiğine karar vermiştir. Mahkeme, Türkiye’nin Kavala’yı tahliye etmesini zorunlu kılmış, tutukluluğunun devam etmesinin ihlalleri devam ettireceğini ve Sözleşmenin 46(1) maddesi uyarınca AİHM kararlarına uyma yükümlülüğünü ihlal edeceğini belirtmiştir.
Osman Kavala kararı, Türkiye’nin kötü niyetle ve siyasi amaçlarla bir bireyin haklarına müdahale ettiğini ve Avrupa İnsan Hakları Sözleşmesi’nin 18. maddesini ihlal ettiğini tespit eden Türkiye aleyhindeki ilk nihai karar olduğundan özel bir önem taşımakta. AİHM, Osman Kavala’yı Kasım 2017’den bu yana alıkoyup yargılayan Türk makamlarının “başvuranın bir insan hakları savunucusu olarak susturulmasını sağlamak için örtülü bir amaç taşıdığını” tespit etmişti.
Kavala, Kasım 2017’den bu yana, 2013 İstanbul Gezi Parkı protestolarını, hükümeti devirme girişimi için kullandığı ve 15 Temmuz 2016 askeri darbe girişimine müdahil olduğu yönündeki asılsız iddialarla tutuklu. 18 Şubat 2020’de Kavala ve diğer sekiz sanık, Gezi Parkı davasında “cebir ve şiddet kullanarak hükümeti ortadan kaldırmaya teşebbüs” suçlamasından beraat etmiştir.
Ancak Kavala cezaevinden tahliye edilmemiş ve bir hakim kararıyla 2016 darbesiyle ilgili devam eden bir soruşturmayla ilişkili olarak “anayasal düzeni cebir ve şiddet kullanarak ortadan kaldırmaya teşebbüs” suçlamasıyla tekrar tutuklanmıştır. Tekrar tutuklanmasından kısa bir süre önce Cumhurbaşkanı Recep Tayyip Erdoğan halka açık şekilde Kavala’nın beraatini eleştirmiştir. Kavala haftalar sonra, yine bu delillere ve soruşturma dosyasına dayanan bir başka suçlama ile (casusluk) bir kez daha tutuklanmıştır.
İnsan Hakları İzleme Örgütü Türkiye Direktörü Emma Sinclair-Webb,” Avrupa Konseyi Bakanlar Komitesi’nin kararı bildirimimizi doğrulamakta, Osman Kavala’nın tutukluluk halini uzatan mahkeme kararlarının arkasında siyasi değerlendirmelerin olduğunu ve Kavala’nın serbest bırakılmasını önlemek için ortak bir resmi çabanın bulunduğunu ortaya koymaktadır” dedi.
Sinclair-Webb, “Avrupa Mahkemesi’nin kararına uymak yerine, Türkiye, Kavala’nın insan haklarını ihlal etmeye devam etmiştir” dedi.
Türkiye’de insan hakları savunucularına yönelik baskı, daha genel olarak gazetecilere, seçilmiş siyasetçilere, hukukçulara, hükümeti eleştirdiği düşünülenlere yönelik keyfi alıkoymalar ve yargısal tacizin bir parçasıdır. Bu uygulama Avrupa Konseyi, Avrupa Birliği ve insan hakları örgütlerine ait birçok raporla belgelendirilmiştir.
Türkiye İnsan Hakları Davalarına Destek Projesi Eş Direktörü Ayşe Bingöl Demir “Kavala’ya karşı yürütülen yıldırma kampanyası, onun tahliye edilmemesi ve hakkındaki suçlamaların düşürülmemesi, Türkiye’deki tüm insan hakları savunucuları için baskı ortamının sürmesine sebep olmuştur” dedi.
“1000 gün boyunca devam eden açıkça hukuka aykırı olan tutukluluğun sona ermesi, yalnız Osman Kavala’nın haklarının daha fazla ihlal edilmesini önlemek konusunda değil, aynı zamanda insan hakları savunucuları topluluğuna Türkiye’nin uluslararası insan hakları yükümlülüklerine uyumunu denetleyen mevcut gözetim mekanizmalarının hala etkili olabileceği yönünde güçlü bir sinyal verecektir.”
İnsan Hakları İzleme Örgütü’nün Türkiye ile ilgili diğer raporları için tıklayınız:
https://www.hrw.org/europe/central-asia/turkey
Daha fazla bilgi için :
İstanbul’da, Emma Sinclair-Webb (İngilizce, Türkçe): +90-538-972-4486 (Whatsapp); ya da sinclae@hrw.org. Twitter: @esinclairwebb
Cenevre’de, Massimo Frigo (İngilizce, Fransızca, İspanyolca ve İtalyanca): +41-79-749-99-49; ya da massimo.frigo@icj.org. Twitter: @maxfrigo
Brüksel’de, Róisín Pillay (İngilizce, Fransızca): +32-2-734-84-46 (cep telefonu); ya da roisin.pillay@icj.org
New York’ta, Aisling Reidy (İngilizce) +1-917-378-3178 (cep telefonu); ya da reidya@hrw.org
Sep 7, 2020 | News
Ongoing attacks by United States officials on the International Criminal Court (ICC) and its staff amount to a full-frontal assault on international justice and the rule of law, said the ICJ, today.
On 2 September 2020, the US Secretary of State, Michael Pompeo, describing the ICC as a “thoroughly broken and corrupted institution,” indicated that the US would place on sanctions on ICC Prosecutor Fatou Bensouda, and the ICC’s Head of Jurisdiction, Complementary, and Cooperation Division, Phakiso Mochochoko, “for having materially assisted Prosecutor Bensouda” pursuant to the President’s 11 June 2020 Executive Order.
“The US must end these despicable and destabilizing attempts to interfere with the independence of the ICC and the functioning of its mandate to pursue justice for victims of the most serious crimes under international law,” said Kingsley Abbott, Coordinator of the ICJ’s Global Accountability Initiative.
“It is imperative that the 123 countries that are States Parties to the Rome Statute continue to work in solidarity to defend the Court and show the world that even individuals from a global superpower are subject to the rule of law.”
“Retaliating against individual ICC staff for merely working to fulfill the mandate of the Court sets a dangerous precedent and must be condemned specifically in the strongest possible terms,” added Abbott.
Background
On 21 September 2018, the ICJ, together with ten other organisations, sent a joint letter to UN Special Procedures regarding threats made by the then US National Security Adviser, John Bolton, against the ICC and its staff.
On 22 March 2019, the UN Special Rapporteur on the situation of human rights defenders, Michel Forst, and the Special Rapporteur on the Independence of Judges and Lawyers, Diego García-Sayán, issued a press release expressing concern at Bolton’s remarks, reaffirming the important mandate of the ICC and saying they were in contact with the US authorities on the issue.
On 11 June 2020, the ICC issued a statement expressing “profound regret at the announcement of further threats and coercive actions, including financial measures, against the Court and its officials, made earlier today by the Government of the United States.” The Court said the US action “represents an attack against the interests of victims of atrocity crimes, for many of whom the Court represents the last hope for justice.”
On 18 June 2020, the ICJ urged the United Nations Human Rights Council’s Special Procedures to act in response to steps taken by the United States against staff of the International Criminal Court (ICC) and their families.
On 25 June 2020, UN Human Rights Special Procedures experts issued a statement condemning US attacks on the ICC and its staff saying they “have been in contact with the US authorities on the issues.”
On 2 September 2020, the ICC issued a statement condemning the economic sanctions imposed on the Prosecutor and Phakiso Mochochoko, saying that the attacks “are unprecedented and constitute serious attacks against the Court, the Rome Statute system of international criminal justice, and the rule of law more generally.”
Contact
Kingsley Abbott, Coordinator of the ICJ’s Global Accountability Initiative, t: +66 94 470 1345; e: kingsley.abbott(a)icj.org
Sep 1, 2020 | News, Publications, Reports, Thematic reports
In a new report published today, the ICJ called on all States to ensure that their responses to the public health emergency brought on by the COVID-19 comply with the international human rights law and the right to health.
The report emphasized the particularly acute and discriminatory impact of the pandemic on already marginalized people and the need for access to health facilities, goods and services necessary to combat COVID-19 without discrimination.
The report Living Like People Who Die Slowly: The Need for Right to Health Compliant COVID-19 Responses documents the adverse human rights effects wrought by the COVID-19 pandemic.
The title comes from the words of Mama Yuli, an Indonesian transwoman, who has said that the pandemic left many elderly transwomen feeling like “they live like people who die slowly”.
The report emphasizes the need for a human rights and rule of law-based approach to the pandemic, with States working cooperatively to address a health crisis that by its nature knows no national boundaries.
“The COVID-19 pandemic is public health crisis that presents immeasurable threats to human rights and the rule of law globally, said Ian Seiderman, the ICJ’s Legal and Policy Director.
“But what is crucial is that States responses themselves not only respond immediately and effectively to COVID-19 as a public health emergency, but also as a human rights crisis”, he added.
Building on the ICJ’s earlier responses to COVID-19, the report details the disproportionate impact of COVID-19 on non-citizens, older persons, women and girls, LGBT persons, persons deprived of their liberty, persons with disabilities, sex workers and healthcare workers.
The report also emphasizes the need for the provision of health information by State authorities in the context of COVID-19 and scrutinizes measures taken by States which have often curbed the rights to freedom of expression, information and privacy.
For example, though “contracting tracing” measures may be effective they must also be human rights compliant and information gathered through such measures should not be used inappropriately or as an instrument of repression of individuals and human defenders.
Acknowledging the interconnectedness of all human rights, the report emphasizes the need for States to ensure provision and protection of access to the “social determinants of health” such as housing, food and water, themselves also internationally protected rights.
The report provides recommendations to States that may assist in ensuring right to health and human rights compliant responses to COVID-19.
The ICJ called on States to respect the various guidance offered by UN human rights treaty bodies and independent experts on how best to comply with their human rights obligations while responding to the pandemic.
The human rights system provides important guidance to States that was not available, for example, during the 1918 influenza pandemic, which ultimately resulted in an estimated 50 million deaths.
“States must heed these calls for a human rights and rule of law-based response to COVID-19, as failure to do so will certainly result in death and human suffering that can still be avoided,” said Seiderman.
The report also raises the importance of compliance by businesses, including particularly private actors in the healthcare sector, with their responsibility to respect human rights, including the right to health.
This will be critical, for example, in ensuring the success of combined efforts of States and private companies in the development and ultimate distribution of a COVID-19 vaccine.
Contact
Timothy Fish Hodgson, ICJ Legal Adviser on Economic, Social and Cultural Rights, t: +27828719905 e: timothy.hodgson@icj.org
Download
Universal-Global Health COVID-19 Exec Sum-Publications-Reports-Thematic Reports-2020-ENG (Executive Summary, in PDF)
Universal-Global Health COVID-19-Publications-Reports-Thematic Reports-2020-ENG (Full report, in PDF)
Myanmar-ICJ-Right-to-Health-Report-2021-BUR.pdf (Full report in Burmese)
Read also
Human Rights in the time of COVID-19: Front and Centre – ICJ news, articles, op-eds, legal blogs, videos
COVID-19 Symposium: COVID-19 Responses and State Obligations Concerning the Right to Health (Part 1)
COVID-19 Symposium: COVID-19 Responses and State Obligations Concerning the Right to Health (Part 2)
Watch
