Nov 22, 2019 | News
A wide range of stakeholders in Mbabane, Eswatini came together to discuss the challenges they face in combating sexual and gender-based violence (SGBV) in the country.
On 21 November, the ICJ hosted a symposium with representatives of the Attorney General, Ministry of Justice, police, Human Rights Commission and Law Society on cases involving economic, social, and cultural rights and SGBV. The event was followed by an integrated meeting involving State officials in the justice sector to discuss the implementation of the Sexual Offences and Domestic Violence (SODV) Act was discussed.
The Kingdom of Eswatini faces widespread instances of SGBV and it is hoped that new initiatives, such the enactment of the Sexual Offences and Domestic Violence (SODV) Act in 2018, will be effective in addressing the scourge of SGBV in the country.
The symposium was led by Justice Qinisile Mabuza, Principal Judge of the Eswatini High Court and ICJ Commissioner, accompanied by ICJ Commissioners Justice Sanji Monageng of Botswana and Professor Michelo Hansugule of the University of Pretoria, and Justice of the High Court in Zimbabwe Amy Tsanga. The ICJ’s Senior International Legal Adviser Emerlynne Gil gave a presentation on gender stereotypes and international legal standards on SGBV ICJ Africa legal associate Khanyo Farisè and ICJ consultant Mary Pais Da Silva also participated in the symposium.
Speakers emphasized the critical role of the judiciary and other justice sector actors in ensuring that Eswatini meets its legal obligations under international human rights law, including standards governing the African region, to protect survivors of SGBV.
“The judiciary is a critical component in the intervention against SGBV. The judges have to know about human rights, appreciate what SGBV actually entails, understand what those violations mean, and the international standards and local roles where they exist. Judges also should be able to use jurisprudence from other jurisdictions to justify their decisions,” Commissioner Monageng said.
The participants of the symposium, were subsequently joined by representatives from the Department of Public Prosecutions (DPP), the One Stop Care Centre for sexual violence survivors, and the Deputy Prime Minister’s Office, came together to discuss the implementation of the SODV Act. Recommendations included better collaboration with judicial actors, the training of law enforcement agencies on receiving report of sexual violence, better case management and the development of forensic laboratories were made.
Contact
Khanyo Farisè (Legal Associate): e: Nokukhanya.Farise(a)icj.org
Shaazia Ebrahim (Media Officer): e: shaazia.ebrahim(a)icj.org
Nov 22, 2019 | News
On 20 November 2019, the ICJ and Tineke Strik, Member of the European Parliament, hosted a roundtable discussion in Brussels on the ICJ’s report Accountability for Crimes under International Law in Libya: An Assessment of the Criminal Justice System.
Panelists called for the establishment of a Human Rights Council mandated Commission of Inquiry on Libya and for States to refrain from entering or implementing agreements that could give rise to support for or complicity in violations of international law.
They also called for the intensification of monitoring of Libyan Coast Guard operations and publication of its key findings, and for the European Commission to ensure its cooperation with Libyan authorities is conditional on meeting concrete, verifiable and timebound benchmarks.
At the launch, Said Benarbia and Kate Vigneswaran, MENA Programme Director and Senior Legal Adviser respectively, discussed the findings and recommendations of the ICJ’s report examining the criminal justice framework in Libya. The report finds that investigations and prosecutions of crimes under international law have been limited to a handful of cases, and substantial reforms to the legal framework are required to ensure fair and effective justice in future cases.
In light of the report’s findings, Marwa Mohammed, Head of Advocacy and Outreach for Lawyers for Justice in Libya, discussed the arbitrary detention of thousands of migrants, refugees and asylum seekers in Libya, systematic human rights violations and abuses being committed against them, and absence of options for protection, repatriation and return, including as a result of EU States’ policies.
Philippe Dam, Advocacy Director for Europe and Central Asia at Human Rights Watch, then discussed the engagement of the EU, European Commission and EU States with Libyan authorities, including in the context of violations and abuses committed against migrants, refugees and asylum seekers intercepted by the Libyan Coast Guard.
The panel was introduced by Karolina Babicka, Legal Advisor for the ICJ’s Europe and Central Asia Programme, and moderated by Tinneke Strik. It was attended by representatives of the European Commission, the EEAS, UNHCR, non-government organizations and independent persons
Nov 21, 2019 | News
The Upper House of Parliament must revise the Transgender Persons (Protection of Rights) Bill, 2019, which was passed by the Lower House of Parliament on 5 August 2019.
The Bill does not adequately protect the rights of transgender people, and fails to comply with India’s constitutional and international human rights obligations, the ICJ said today.
The Government introduced the Transgender Persons (Protection of Rights) Bill, 2019, before the Parliament on 19 July 2019. It was passed by the Lok Sabha (the Lower House of Parliament) on 5 August, 2019, despite a lack of consultation with the transgender community and serious weaknesses in the Bill, which would be in violation of the Supreme Court’s NALSA judgment.
“If the Upper House of Parliament adopts the Bill in its current form, without any amendments, it will miss an important opportunity to introduce a law that respects, protects and fulfills the human rights of transgender people as required by the Supreme Court’s decision in NALSA v. UOI and India’s international obligations,” said Frederick Rawski, ICJ Asia Pacific Director.
The current draft, fails to address key concerns that have been repeatedly raised by the transgender community and human rights organizations.
Critically, the Bill appears to continue to mandate sex reassignment surgery for transgender people. This requirement would contravene the Supreme Court’s judgment in NALSA v. UOI, which guarantees the right to self-identification without the need for medical intervention. Further, the Bill does not make provision for affirmative action in employment or education despite the Supreme Court’s mandate in NALSA v. UOI.
Moreover, the Bill sets out lighter sentences for several criminal offences, such as “sexual abuse” and “physical abuse”, when they are committed against transgender people. In addition, the Bill does not adequately define these offences and retains provisions that could be used in a discriminatory manner to target transgender people for criminal prosecution. It also fails to address the lack of an effective mechanism to enforce the legal prohibition against discrimination on the ground of gender identity.
The ICJ has recommended the deletion of provisions that mandate sex reassignment surgery and that set out lighter sentences for criminal offences against transgender people. In addition, the ICJ recommends the inclusion of provisions addressing affirmative action for transgender persons in education and employment.
“We urge the Upper House of Parliament to address these deficiencies before passing the Bill into law, in accordance with India’s constitutional and international law obligations, and to ensure meaningful consultation with the transgender community” Rawski said.
Contact
Maitreyi Gupta (Delhi), ICJ International Legal Adviser for India, e: maitreyi.gupta(a)icj.org, t: +91 7756028369
Read also
ICJ 2019 Report on India Living with Dignity: Sexual Orientation and Gender Identity-Based Human Rights Violations in Housing, Work, and Public Spaces in India. The Report details human rights violations suffered by LGBTQ persons in their family homes, workplaces, and public spaces including streets, public toilets, public transport and shopping centres.
ICJ Briefing Paper on India: Legal and Jurisprudential Developments on Transgender Rights, SAATHII Vistaara Coalition. The paper analyses in detail the domestic judicial developments on transgender rights as well as the legislative process undertaken until the Transgender Persons (Protection of Rights) Bill, 2018 was passed on 17 December 2018.
ICJ Briefing Paper on The Transgender Persons (Protection of Rights) Bill, 2016, analyzes the 2016 Bill, its shortcomings, and India’s international obligations, as it is the basis of the 2018 Bill.
ICJ Briefing Paper on Implementation of NALSA Judgment discusses the 2014 April NALSA decision that affirmed that transgender people have the right to decide their self-identified gender. The paper analyses the responsibilities placed on Indian authorities, gaps in implementation, and India’s relevant international law obligations.
Nov 19, 2019 | News
Sri Lanka’s newly elected president, Gotabaya Rajapaksa and his government must demonstrate that they will uphold human rights and rule of law, and ensure that Sri Lanka sustains its international obligations and commitments to justice and accountability, said the ICJ today.
Gotabaya Rajapaksa faces credible allegations of involvement in war crimes and crimes against humanity that took place during the country’s armed conflict.
“The election of Gotabaya Rajapaksa, after a highly polarizing campaign, has alarmed human rights defenders in Sri Lanka and abroad, who have little reason to believe that someone facing such serious allegations of perpetrating human rights violations can be relied upon to meet the country’s obligations under international law,” said Frederick Rawski, ICJ Asia Pacific Director.
Gotabaya Rajapaksa, who won the presidency with 52.25% of votes, served as Sri Lanka’s Secretary of the Ministry of Defence from 2005 to 2015 during the tenure of his brother Mahinda Rajapaksa, at the height of the armed conflict against the Liberation Tigers of Tamil Eelam (LTTE).
Both the military and LTTE perpetrated war crimes and gross human rights violations during the conflict, and particularly during its bloody final stages. As Defence Secretary, Gotabaya was accused of ordering the killing of surrendering LTTE fighters, ordering strikes on civilians and hospitals, and authorizing attacks on human rights defenders.
International condemnation of atrocities committed during the conflict led to the UN Human Rights Council demanding that the Sri Lankan government commit to a process of transitional justice, in view of the systematic failures of accountability mechanisms in Sri Lanka in the past, as documented by the ICJ in its submission to the Human Rights Council, and others. Despite commitments from the Sri Lankan government, the transitional justice process has effectively stalled and impunity has prevailed.
“The ICJ is deeply concerned that even the limited strides made over the past five years in Sri Lanka on transitional justice, positive constitutional amendments and institutional reform will be reversed,” said Rawski.
The ICJ urged the Government to deliver on its commitment to the transitional justice process, including by holding those responsible for human rights violations and abuses accountable, and complying with the obligations set out in United Nations Human Rights Council Resolutions 30/1, 34/1 and 40/1.
Contact:
Frederick Rawski, ICJ’s Asia Director, t +66 644781121; e: frederick.rawski(a)icj.org
Nov 18, 2019 | News
Authorities in Hong Kong must avoid using excessive force to respond to protesters as the political crisis in the city deteriorates, the ICJ said today.
Media reports today show scenes of spiraling violence as police try to force their way into the campus of Hong Kong Polytechnic University (PolyU) past barricades erected by students and demonstrators.
“Any police who use excessive force, particularly as they surround and attack student protesters inside PolyU, must be sanctioned,” said Frederick Rawski, ICJ’s Asia Director.
“The events of the past week mark a further deterioration in the situation in Hong Kong – one that can only be effectively addressed through genuine political dialogue, and a commitment to holding police who use unlawful force accountable,” he added.
This morning, more than 100 people were also arrested in Tsim Sha Tsui, hands zip-tied by police and detained in public.
The ICJ urges the Hong Kong SAR government to:
• Ensure that people are able to exercise their freedom of expression, assembly, association and right to political participation;
• Review the means and methods used for the policing of assemblies, including the use of water cannons, tear gas, batons and shields, to ensure that they are not applied indiscriminately and excessively or against peaceful protesters and that they do not result in an escalation of tension;
• Ensure that all victims of excessive use of force by law enforcement officials are provided with access to medical services;
• Ensure that the detained people’s rights to timely and confidential access to counsel;
• Undertake prompt, independent, impartial and thorough investigation of all allegations of unlawful use of force, with a view to holding accountable any responsible authorities including possibilities of criminal prosecution of police officers, and providing an effective remedy and reparation, including compensation and rehabilitation to victims.
Additional information
- Under the Bill of Rights Ordinance and Basic Law Article 39, the International Covenant on Civil and Political Rights is applicable in Hong Kong. Pursuant to the ICCPR, the Hong Kong SAR government has a duty to guarantee and protect the rights to freedom expression and freedom of assembly and freedom from torture and other cruel, inhuman or degrading treatment or punishment, including through the unlawful use of force.
- Under the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, “Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.”
- Since June, large numbers of people have taken to the streets of Hong Kong to protest against the now-withdrawn extradition bill, which would have allowed case-by-case fugitive transfers to mainland China.
- Police have used excessive and indiscriminate force against protesters, in contravention of international standards, as well as arrested, harassed and attacked journalists. Police have regularly deployed tear gas against crowds and using water cannons, rubber bullets, pepper spray, and batons on protesters. On 15 November, hundreds of riot police fired more than 1,500 canisters of tear gas on the grounds of the Chinese University of Hong Kong (CUHK). On November 11, a police officer shot a protester with live ammunition.
Contact
Frederick Rawski, ICJ’s Asia Director, t +66 644781121 ; e: frederick.rawski(a)icj.org
Boram Jang, ICJ Legal Adviser, Asia & the Pacific Programme, e: boram.jang(a)icj.org
Nov 18, 2019 | News
The ICJ today called on the Hungarian authorities to desist from instigating disciplinary proceedings threatened against Judge Csaba Vasvári, a judge of the Central District Court of Pest and a member of the Hungarian National Judicial Council.
The imminent threat of disciplinary action is a consequence of a preliminary reference Judge Vasvári made to the Court of Justice of the European Union.
“Judge Vasvári faces disciplinary action as a direct result of his request for a preliminary ruling of the Court of Justice of the EU on the very question of judicial independence in Hungary. This is an extremely concerning attempt to interfere with the independence of a judge in discharging his judicial function which, if it proceeds any further, will set a dangerous precedent.” said Róisín Pillay, Director of the ICJ’s Europe and Central Asia programme.
A motion to begin disciplinary proceedings against Judge Vasvári was brought by the Acting President of the Budapest Regional Court in October, following Judge Vasvári’s request in criminal proceedings before him last July, for a preliminary ruling the Court of Justice of the EU (CJEU) under Article 267 of the Treaty on the Functioning of the European Union (TFEU).
In the request to the CJEU, Judge Vasvári raised questions regarding compliance with the principle of judicial independence under Article 19.1 of the Treaty of the European Union (TEU), in particular the appointment procedures for court presidents, and remuneration for judges, as well as questions regarding the right to interpretation in court.
Following a decision of the Hungarian Supreme Court in September that the reference was contrary to Hungarian law since it was irrelevant to the case, disciplinary action against judge Vasvári was sought on the grounds that in making the reference, he violated the requirement to conduct himself with dignity and refrain from action which would undermine the dignity of the judiciary.
The motion for disciplinary proceedings is now expected to be considered by a panel of the Service Court, which will decide if disciplinary proceedings will commence.
“The actions of Judge Vasvári in making a preliminary reference to the CJEU were an entirely legitimate exercise of his judicial functions in accordance with EU law. It is essential that judges are able to use all appropriate judicial avenues to address and uphold the rule of law, including to protect the right to a fair trial and the independence of the judiciary” said Róisín Pillay. “It is also necessary for the proper application of EU law, that judges are able refer questions to the CJEU under Article 267 of the Treaty without undue hindrance.”
The ICJ recalls that under international standards on the independence of the judiciary, judges must decide matters before them impartially, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason (Principle 2, UN Basic Principles on the Independence of the Judiciary). Council of Europe Recommendation CM/Rec (2010) 12 of the Committee of Ministers specifies that “the interpretation of the law, assessment of facts or weighing of evidence carried out by judges to determine cases should not give rise to civil or disciplinary liability, except in cases of malice and gross negligence.”
The UN Basic Principles on the Independence of Judiciary (principle 8) also affirm that “members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.”
