Oct 23, 2023 | News
At a workshop convened on 11 and 12 October, the International Commission of Jurists (ICJ), Validity Foundation, and the United Disabled Persons of Kenya (UDPK) stepped up efforts to promote the greater use of strategic litigation to secure the rights of persons with disabilities. The workshop was aimed particularly at building the capacity of organizations of persons with disabilities (OPDs) to undertake strategic litigation.
“As a party to the Convention on the Rights of Persons With Disabilities, the African Disability Protocol and other regional and UN human rights treaties, Kenya is obliged to ensure that all persons with disabilities enjoy all human rights on an equal basis. Kenya’s obligations include a duty to ensure that effective remedies – including throughout courts – are available where persons with disabilities allege the denial of their rights,” said Wilson Macharia, ICJ Africa’s Associate Legal Advisor.
Strategic litigation is currently underutilized by persons with disabilities and their representative organizations in Kenya. At the workshop, persons with disabilities indicated that they faced barriers to instituting or participating effectively in litigation due to:
- a general lack of knowledge of their rights and the existing mechanisms to enforce these rights;
- a lack of knowledge on the operations of the available mechanisms, including complex court procedures.
- a lack of knowledge on existing legal aid programs and services.
- a failure by courts and other justice mechanisms to provide appropriate reasonable and procedural accommodations.
CSOs and lawyers who attended the workshop stressed that key stakeholders, including those who provide litigation support to indigent persons, typically do not have adequate capacity and training to advocate for the rights of persons with disabilities.
“The Law Society of Kenya should work towards establishing a committee with a specific mandate of advocating for the rights of persons with disabilities, in addition to mainstreaming disability rights in the existing committees”, said Were Bonface, an advocate from the Public Interest and Advocacy Directorate of the Law Society of Kenya.
During the workshop, the participants also discussed the need for continuous meaningful engagement between OPDs and other key stakeholders which undertake legal advocacy on human rights, including the Kenya National Commission on Human Rights, Katiba Institute, the Law Society of Kenya, and the Federation of Women Lawyers in Kenya.
Contact:
Wilson Macharia, ICJ Africa Associate Legal Adviser, e: wilson.macharia@icj.org
Background
The workshop brought together OPDs, CSOs, the Law Society of Kenya, the Kenya National Commission on Human Rights, the Judiciary, the national Legal Aid Service and other stakeholders. The workshop served as a platform to discuss potential areas of strategic litigation on the rights of persons with disabilities in Kenya, including legal reform, inclusive education, legal capacity, denial of reasonable accommodation, and accessibility. The workshop follows on from ICJ and African Union of the Blind’s partners’ previous engagement on access to justice for persons with disabilities at a half-day workshop held in Nairobi on 8 September 2022. The ICJ has also engaged with Criminal Justice Actors from Milimani Law Courts in Nairobi, and has supported Kenyan OPDs in preparing submissions to the Committee on the Rights of Persons with Disabilities.
The Constitution of Kenya 2010 incorporates widespread human rights protections for all persons, including persons with disabilities. In particular, article 54 elaborates the rights of persons with disabilities to be treated with dignity; to have equal access to all places, spaces and facilities; and to access equipment to overcome constraints arising from disability. Article 22 of the Constitution gives every person the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. In addition, the obligations under international human rights law, including the Convention on the Rights of Persons with Disabilities and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities form part of Kenyan law by virtue of article 2(6) of the Constitution.
Resources
The Constitution of Kenya 2010
Kenya Persons with Disabilities Act 2003
Convention on the Rights of Persons with Disabilities
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities
International Principles and Guidelines on Access to Justice for Persons with Disabilities
Oct 19, 2023 | News
The International Commission of Jurists (ICJ) condemns the strike on al-Ahli hospital in the Gaza Strip on 17 October 2023, which according to the Palestinian Health Ministry killed more than 500 Palestinian civilians, mainly women and children, and injured hundreds more.
“Civilians and hospitals must be protected at all times”, said Said Benarbia, Director of the ICJ’s MENA Programme. “Intentional attacks on hospitals may amount to war crimes under international humanitarian law and must cease immediately”, added Benarbia.
Palestinian sources have said that the massacre was caused by an Israeli air strike. The Israeli Defence Forces have denied any responsibility, claiming that it was caused by a failed rocket launch by Palestinian armed groups.
Under the Geneva Conventions and customary international humanitarian law, States have an obligation to investigate war crimes with a view to bringing alleged perpetrators to justice.
The ICJ calls on the Office of the Prosecutor of the International Criminal Court (ICC) to allocate the necessary resources to respond to the escalating situation in Israel and Gaza with a view to investigating and establishing criminal responsibility for alleged war crimes and other violations of international humanitarian law committed by both parties.
According to the ICC Prosecutor Karim Khan, the ICC has jurisdiction over potential war crimes committed by Palestinian armed groups in Israel and Israelis in the Gaza Strip, even though Israel is not a State party. In 2015, Palestine acceded to the ICC Statute. In 2021, the Court ruled that its jurisdiction “in the Situation in Palestine extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.”
On 12 October the Israel Defence Forces (IDF) ordered the entire population of northern Gaza, that is, more than 1 million people, to evacuate to southern Gaza within 24 hours in advance of a likely military ground offensive.
On 14 October, the World Health Organization (WHO) strongly condemned Israel’s repeated orders for the evacuation of 22 hospitals in the Gaza strip, and called on Israeli authorities to protect health facilities, health workers, patients and civilians.
“The Israeli evacuation order was issued in the absence of safe passage or a safe destination. It may amount to a transfer of parts of the population of the occupied territory, a war crime under the ICC Statute and a serious violation of international humanitarian law”, said Benarbia.
Under international humanitarian law, hospitals and other medical facilities are considered to be protected civilian objects. Unless they are used for military purposes, they shall be protected at all times and may not be the object of attack.
Under international humanitarian law, all parties to an armed conflict have an obligation to distinguish between military and civilian targets and to take all feasible precautions to protect civilians from attacks and from the effects of military operations. Indiscriminate attacks on civilians and civilian objects, including those perpetrated using weapons that are indiscriminate by nature, amount to breaches of international humanitarian law. Intentionally directing attacks against civilians amounts to war crimes under the under the Statute of the ICC and customary international law.
Furthermore, the ICJ is deeply concerned by reports of the use of white phosphorus by Israel in other military operations in Gaza and Lebanon.
“Israel must refrain from using white phosphorus, and any other means and methods of warfare that are inherently indiscriminate or that cause superfluous injury or unnecessary suffering”, added Benarbia.
White phosphorus has the potential to cause civilian harm due to the severe burns it causes and its lingering long-term effects on survivors. While it is not per se a prohibited weapon under international humanitarian law, its use in densely populated areas, such as the Gaza Strip, is prohibited as it violates the international humanitarian law requirement that parties to the conflict take all feasible precautions to avoid civilian injury and loss of life.
The ICJ also condemns the continued detention by Palestinian armed groups of approximately 200 hostages.
“Hostage-taking is prohibited under international humanitarian law, and those detained must be released immediately”, said Benarbia.
The ICJ also reiterates calls by the United Nations Secretary General, WHO and others for the establishment of a humanitarian corridor to enable humanitarian aid to enter the Gaza Strip.
Contact:
Said Benarbia, Director of the ICJ’s Middle East and North Africa Programme, email: said.benarbia(at)icj(dot)org
Oct 16, 2023 | News
The International Commission of Jurists (ICJ) condemns the arbitrary detention and criminal prosecution of three lawyers who had been defending the prominent opposition figure, Alexei Navalny.
“These criminal proceedings, constituting persecution of lawyers, severely compromise the administration of justice in Russia and undermine the ability of all lawyers to defend their clients’ human rights and uphold the rule of law”, said Temur Shakirov, interim Director of ICJ Europe and Central Asia Programme.
On 13 October 2023, Vadim Kobzev, Alexey Liptser and Igor Sergunin – who had been acting as Navalny’s defence lawyers — were arrested and detained at Basmanny District Court in Moscow on charges of purportedly participating in an “extremist community”, with a potential sentence of up to six years’ imprisonment if convicted. As such, the criminal proceedings against Vadim Kobzev, Alexey Liptser and Igor Sergunin amount to persecution.
The charges are reportedly based on accusations that the three lawyers facilitated Navalny’s communication with the outside world while in detention.
Moreover, another lawyer representing Navalny, Alexander Fedulov, apparently fearing being arrested, was forced to flee the country following the arrest of his three colleagues.
The arrest and detention of the three lawyers and Fedulov’s flight significantly disrupt Navalny’s ability to defend himself through the assistance of qualified, independent legal counsel of choice, and his ability to challenge the criminal convictions and sentences, which led to his detention since 2022 as a result of a series of criminal cases against him widely believed to be politically motivated.
“The detention of Navalny’s lawyers is likely to constitute part of a wider strategy to isolate him even further. Moreover, it sends a chilling message to anyone wishing to defend human rights and political activism”, said Shakirov. “This is contrary to the right of lawyers to practise their profession freely, and it denies Navalny his right to legal representation, a fair trial guarantee protected under international human rights law binding on the Russian Federation”.
The ICJ stresses that the harassment and arbitrary detention of lawyers contravene the Russian Federation’s obligations under international law, including under the International Covenant on Civil and Political Rights and the UN Basic Principles on the Role of Lawyers. They affirm the crucial role of lawyers in upholding the rule of law and protecting human rights. It is crucial to ensure that lawyers can perform their legitimate professional functions without intimidation, hindrance, harassment, or improper interference, as guaranteed under the Basic Principle on the Role of Lawyers.
“The ICJ calls on the Russian Federation: to immediately stop this flagrant violation of the guarantees afforded to lawyers under international human rights law; for an end to these persecutory criminal proceedings; for all charges against Vadim Kobzev, Alexey Liptser and Igor Sergunin to be dropped; and for them to be immediately released”, added Shakirov.
Furthermore, the ICJ urges the Russian authorities to cease the persecution and harassment of lawyers and to take steps to ensure a safe environment where lawyers can operate without fear of reprisal for their work.
Background:
According to the UN Basic Principles on the Role of Lawyers, governments must ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference and must not face sanctions for discharging their duties in accordance with professional standards and ethics (Principle 16). Furthermore, lawyers must not be identified with their clients or their clients’ causes as a result of discharging their functions. (Principle 18).
The UN Basic Principles also specify that lawyers like others have a right to freedom of expression and in particular the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights” (Principle 23)
The arrest of the three lawyers has prompted a call for a strike within the Russian legal community to demonstrate against the hostile environment within which lawyers in the Russian Federation operate, particularly those defending human rights and representing political activists.
Oct 16, 2023 | News
Judges and Prosecutors in Nepal have taken up the challenge to step up their efforts to ensure that victims and survivors of human rights violations are able effectively to access justice.
At a Judicial Dialogue convened by the International Commission of Jurists (ICJ) and Advocacy Forum Nepal (AFN) in collaboration with Judges Society Nepal (JSN) on 15 – 16 September 2023, judges and prosecutors from district and high courts in Gandaki Province in Nepal attended and assessed the challenges faced by victims and survivors in the context of the stalled transitional justice process which followed from the end of Nepal’s internal armed conflict in 2006.
The Government of Nepal has made repeated commitments to ensure access to justice and the Supreme Court of Nepal has affirmed that the authorities have firm legal obligations to act in the transitional justice process. Participants considered that there had been serious undue delay in the Nepalese TJ process over years, which have included ineffective commissions, non-implementation of court rulings and a failure to take into account the voices of victims of human rights violations. There was therefore a pressing need for judges and public prosecutors to play a more proactive role in order to address conflict-era gross violations delivering justice for the victims of the violations.
ICJ Commissioner and former Chief Justice of the Supreme Court of Nepal Kalyan Shrestha, emphasized that it was indispensable to adhere to international and domestic human rights law, including the jurisprudence of the Supreme Court. He expressed concern that adjudication of conflict-related cases had been significantly delayed, resulting in a prolonged wait for justice for the victims of human rights violations. Justice Shrestha also underscored the need for Nepal’s judiciary and public prosecutors to effectively fulfill their responsibilities and ensure justice for victims of human rights violations, in accordance with a well-developed body of jurisprudence on justice in the transitional context.
Justice Ishwor Khatiwada of the Supreme Court of Nepal reviewed the status of human rights guaranteed under the Constitution of Nepal. More than a thousand cases related to conflict-era human rights violations have been pending at different courts, and there was no law that restricts courts/judges from deciding the cases of human rights violations from conflict. The Government of Nepal had been refusing victims of conflict access to regular justice system arguing that they will be provided justice by transitional justice mechanisms. However, these promised TJ mechanisms had not been established even more than a decade and a half after signing the Comprehensive Peace Agreement (CPA), making commitments to create these mechanisms.
Justice Ananda Mohan Bhattarai, Justice of the Supreme Court of Nepal highlighted that jurisprudence established by the Supreme Court mandated a robust role of the judiciary in assessing the implementation of its jurisprudence.
Mandira Sharma, ICJ Senior Legal Advisor, provided insights into the global context of transitional justice and discussed the challenges, lessons learned, and good practices.
High Court Judge Tek Prasad Dhungana, General Secretary of Judges Society Nepal presented the objectives of the dialogue, which was chaired by Mr. Baburam Regmi, Acting President of Judges Society Nepal and former High Court Judge and facilitated by Kathmandu District Court judge Raju Kumar Khatiwada.
Contact:
Dr Mandira Sharma, ICJ Senior International Legal Adviser, t: +9779851048475, e: mandira.sharma@icj.org
Kashiram Dhungana, ICJ Legal Adviser, Nepal, t: +9779851226964, e: kashiram.dhungana@icj.org
Oct 13, 2023 | News
Geneva, 13 October 2023
In this statement, the International Commission of Jurists (ICJ) looks back at five weeks of consideration of a wide range of country situations and human rights thematic concerns, and at intense negotiations during the 54th session of the United Nations Human Rights Council (HRC) that ended today in Geneva.
This session resulted in some positive actions for the protection and promotion of human rights and for accountability for grave human rights violations. However, States also failed to address the dire human rights situation in a number of countries. They also failed to support unanimously a number of important initiatives towards the greater enjoyment of human rights for all without discrimination.
Welcoming the renewal of a number of Special Procedures’ mandates
The ICJ welcomes the renewal of a number of Special Procedures’ mandates on both country situations and themes. In particular, the mandates on the situation of human rights in Afghanistan, Cambodia and Russia have been extended. With regard to thematic mandates, the ICJ particularly salutes the adoption of resolutions enabling the continuation of the work of the UN Special Rapporteur on Truth, Justice, Reparation and Guarantees of Non-Recurrence, as well as of the Working Group on Enforced or Involuntary Disappearances. With respect to this, the ICJ considers it very positive that the resolution on Enforced or Involuntary Disappearances explicitly encourages States to participate in the upcoming world congress to promote the ratification of the International Convention for the Protection of All Persons from Enforced Disappearance in 2024.
Continued intergovernmental negotiations on the issue of private security companies
The ICJ is actively engaged in supporting the elaboration of new standards to enhance human rights protection in respect of the activities of private military and security companies. In this context, the ICJ has followed the HRC’s thematic debates on both the use of mercenaries and the work of the intergovernmental working group tasked with the elaboration of a new regulatory framework on private military and security companies. In light of this, the organization welcomes the renewal of the mandate of the intergovernmental working group to negotiate such standards.
Celebrating the creation of a new investigative mechanism on the situation in the Sudan
The ICJ applauds the creation of a robust independent international fact-finding mission on the human rights and humanitarian crises resulting from the ongoing armed conflict in the Sudan. The ICJ had joined a group of 120 civil society organizations that sent a letter to States, on 1 September 2023, in advance of the HRC session, urging the creation of such an independent investigative mechanism.
Adoption of important thematic resolutions
The ICJ also considers that the adoption of a new resolution providing more capacity for the Office of the UN High Commissioner for Human Rights (OHCHR) to support States in the realization of economic, social and cultural rights (ESCR) is a positive step.
However, the ICJ urges States to ensure:
• respect for the independence of the OHCHR in carrying out additional work in this area;
• that ESCR be treated on an equal footing with other human rights; and
• that any new work builds upon the existing work carried out by the HRC and by the OHCHR for several decades in this area.
After intense negotiations, the HRC eventually adopted the resolution on preventable maternal mortality and morbidity and the one on the question of the death penalty. Fortunately, all amendments aimed at weakening human rights protections in both texts were defeated.
However, the ICJ deplores the persistence of ploys intentionally engineered during the negotiations of these two resolutions, which, if successful, would have been detrimental to the enjoyment of women and girls’ human rights, including to sexual and reproductive health and comprehensive sexuality education. In addition, purported concern over States’ sovereignty negatively impacted a number of debates and threatened to impair progress in the protection of universal human rights.
Regretting the inability of the HRC to address key situations
These controversies took place at a very polarized HRC session and reflect the broader geopolitical realities and ideological tensions worldwide.
In this regard, the ICJ regrets that the HRC failed to continue the mandate of the International Commission of Human Rights Experts on Ethiopia. This commission was established to respond to the dramatic human rights situation after the conflict between the Federal Government and the Tigray People’s Liberation Front (TPLF) broke out in 2020. Since then, widespread violations of human rights and serious violations of international humanitarian law have been committed in Tigray, Amhara and Afar in northern Ethiopia. As the situation is deteriorating even further, the failure of the HRC to renew the mandate of the Commission terminates the international independent investigation of atrocity crimes committed in the context of this conflict and is an abject dereliction of duty on the part of Member States of the HRC.
With regard to Afghanistan, while the extension of the mandate of the Special Rapporteur on the human rights in the country, with additional resources to carry out his work, is an important measure towards monitoring the dire human rights and humanitarian situation, the ICJ deeply regrets that the HRC was not able to give a response commensurate with the gravity of the situation and failed to create a robust independent accountability mechanism to investigate, collect and preserve evidence of the widespread and systematic human rights violations and atrocities crimes committed in the country.
Last but not least, the ICJ regrets that the Council could not take action on the violations of international human rights law and international humanitarian law committed by all parties in Israel and the OPT since the attacks in Israel by Palestinian armed groups started on 7 October 2023.
https://www.icj.org/israel-occupied-palestinian-territory-immediately-end-attacks-on-civilians/
Oct 11, 2023 | Advocacy, News
The International Commission of Jurists (ICJ) called the Human Rights Council’s (HRC) attention to the entrenched pattern of human rights violations in Cambodia, and called on the HRC to adopt a resolution to extend the Special Rapporteur’s mandate and ensure it has adequate resources and support.
Oral statement of the International Commission of Jurists (ICJ) during the Interactive Dialogue with the Special Rapporteur on the situation of human rights in Cambodia
“Madam Vice President,
The International Commission of Jurists (ICJ) concurs with the Special Rapporteur’s assessment that Cambodia has largely failed to implement the 20 human rights-related benchmarks proposed in his previous report to this Council.
In the lead-up to the national elections, there was a rapid escalation of the human rights and rule of law crisis in Cambodia. Human rights defenders and political opponents were convicted based on non-human rights compliant laws for exercising their right to freedom of expression, both online and offline, with new draconian laws on cybercrime and cybersecurity being drafted and considered.
The authorities have arbitrarily revoked licenses and blocked online access to independent media outlets without due process. The government at the highest level has employed rhetoric, reproduced online, to threaten and incite violence against political opponents with impunity, with credible reports of actual physical violence as an apparent consequence.
This systematic disregard for Cambodia’s international human rights obligations has been further exacerbated by the absence of an independent and impartial judiciary. The convictions of human rights defenders and political opponents were frequently accompanied by massive fair trial violations, including the effective application of a presumption of guilt.
It is imperative that the Council responds decisively to reverse this entrenched pattern of human rights violations in Cambodia by adopting a resolution to extend the Special Rapporteur’s mandate and ensuring it has adequate resources and support.
Thank you.”
Contact
Sandra Epal Ratjen, ICJ UN Representative and Senior Legal Adviser, e: sandra.epal@icj.org
Daron Tan, ICJ Associate International Legal Adviser, e: daron.tan@icj.org
