Nov 7, 2023 | News
Arbitrary restrictions and excessive government control.
(Tunis, 7 November 2023) – The draft law on associations submitted by 10 parliamentarians to the Tunisian Parliament on 10 October 2023 would violate the right to freedom of association and endanger civic space in Tunisia if adopted as currently formulated, 8 rights groups said today.
البيان باللغة العربية على هذا الرابط
The draft law, if passed, would replace Decree-Law 2011-88 on associations, which enabled the emergence of a diverse civil society in the aftermath of Tunisia’s 2011 revolution. As presently drafted, it threatens to end more than a decade of work by independent groups. According to official data, over 24,000 civil society organizations are currently registered with the Tunisian authorities, although it remains unclear how many are active today. If adopted in its current form, the draft law would grant the government pervasive control and oversight over the establishment, activities, operations and funding of independent groups, which are one of the last remaining counterweights to President Kais Saied’s autocratic rule.
While the text claims to maintain a notification system for establishing new associations, it would actually introduce a thinly disguised registration system, granting a department under the Prime Minister’s Office the authority to deny a group the right to operate within a month after of registering (article 9.2). Without being required to provide any reasons, the government would also be able to petition the judiciary at any time requesting the cancellation of an association’s registration (article 9.3).
In addition, new organizations would not be allowed to operate until a government-headed “administration of associations” publishes a notice in the Official Gazette, leaving open the possibility of denying a group’s registration. At present, under Decree-Law 2011-88 on associations, an association may begin operating once the representative of the association has notified its registration to the Official Gazette.
Under the draft law, international organizations would be required to obtain prior authorization to register from the Foreign Affairs Ministry (articles 8 and 19). Without setting conditions or deadlines for any such a process, the draft law empowers the Ministry to issue temporary authorizations and to revoke and suspend them at its own discretion (article 20). As a result, international organizations may be arbitrarily denied registration for any reason and without due process, the groups said.
In 2012, the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and association’s report on best practices related to the right to freedom of association recommended a “notification procedure”, rather than a “prior authorization procedure” requesting the authorities’ approval to establish an association as a legal entity. The 2017 Guidelines on Freedom of Association and Assembly in Africa of the African Commission on Human and Peoples’ Rights stipulate that “registration shall be governed by a notification rather than an authorization regime, such that legal status is presumed upon receipt of notification” and that the administrative body overseeing registration should carry out its functions “impartially and fairly.”
The draft law’s preamble states that associations must operate in accordance with the “principles of national orientation,” and must not “violate laws related to good morals,” “disturb public security,” “undermine the unity of the national territory and the republican system,” or “violate national sovereignty.” Such terms are vague, imprecise, arbitrary and overly broad and, as such, do not comply with the principle of legality. As a result, these concepts are open to broad interpretations and the authorities could use them to justify arbitrarily restricting or closing associations that displease them, the groups said.
The draft law places national organizations under “the supervision and control” of the Ministry relevant to their main area of work and international organizations under Prime Minister Office’s supervision (article 6). The current draft law does not specify what such “supervision and control” entail. It also requires associations to inform the pertinent Ministry of any planned activities (article 13).
The draft law also gives rise to concern about surveillance as it empowers the authorities to establish a digital database of associations and volunteers (article 14).
If the draft law is adopted in its current form, then the authorities may interpret its many vague provisions to ban or dissolve associations. The establishment of associations on religious or ethnic grounds is forbidden in the draft law. In addition, the qualification that a group’s work must be “voluntary” may be interpreted as a ban on paid labour by non-profit groups (article 2). The draft text further provides that the Prime Minister’s Office can “automatically” dissolve any group “suspected of terrorism” or that has a “terrorist background” (article 24), without judicial review.
This text also dangerously conflates associations with unions (article 15), which are currently separately governed by the Tunisian labour law, without providing any specific guarantees or sufficient protections for union rights.
National associations would have to obtain prior approval from the Prime Minister’s Office before receiving foreign funding (article 18). Associations that fail to comply with this requirement would risk immediate suspension or dissolution (article 24).
The draft law requires all existing associations to “rectify” their situation in accordance with the new law within a year of the law’s publication.
In 2013, the Special Rapporteur on the right to freedom of peaceful assembly and of association’s report affirmed that a civil society organization’s access to funding from domestic, foreign and international sources was “an integral part of the right to freedom of association.” Requiring groups to get prior government approval to receive foreign funding without specifying the grounds for refusal is inconsistent with the principle of legality and constitutes an arbitrary interference with the right to freedom of association.
Under Article 38 of the Guidelines on Freedom of Association and Assembly in Africa, governments may neither impose blanket bans on foreign funding for civil society groups nor require prior government authorization to receive it.
Decree-Law 2011-88 on associations provides sufficient guarantees and procedures to ensure that civil society groups’ funding be transparent and law compliant, the groups said. The draft law’s foreign funding provisions are open to abuse and may be used to punish and reject funding for organizations critical of the government.
In February 2022, a draft law on associations prepared by the executive that threatened human rights safeguards was leaked and denounced as restrictive by the Tunisian civil society. Shortly after, on 24 February 2022, President Saied announced his intention to “prevent foreign funding to associations.” In light of this, UN experts expressed concern over the then draft law in a communication to the Tunisian authorities in April 2022, to which the Tunisian government responded in June 2022, confirming their intention to amend Decree-law 88.
Since 25 July 2021, President Saied has dismantled Tunisia’s democratic institutions, undermined judicial independence, stifled the exercise of freedom of expression and repressed dissent.
Tunisia is obliged to respect, protect, promote and fulfill the right to freedom of association, guaranteed by Article 22 of the International Covenant on Civil and Political Rights and Article 10 of the African Charter on Human and Peoples’ Rights. Restrictions on the exercise of this right may be permissible only when they are prescribed by law and necessary in a democratic society; that is, using the least restrictive means possible and reflecting basic values of pluralism and tolerance.
“Necessary” restrictions must also be proportionate; that is, carefully balanced against the specific reason for imposing them in the first place. In addition, they may not be discriminatory, including on the grounds of national origin or political opinion or belief.
The Tunisian authorities should refrain from adopting the proposed draft law and, instead, should commit to safeguarding the right to freedom of association as enshrined in Decree-law 88 and under international human right law binding on Tunisia, the groups said. The authorities should ensure that associations are able to operate without political interference, intimidation, harassment or undue restrictions.
Signatories:
1-International Commission of Jurists (ICJ)
2-Euromed Rights
3-Human Rights Watch (HRW)
4-Avocats Sans Frontières (ASF)
5-Access Now
6-World Organisation Against Torture (OMCT)
7-Tahrir Institute for Middle East Policy (TIMEP)
8- International Service for Human Rights (ISHR)
Nov 6, 2023 | News
Today, the African Court of Human and Peoples’ Rights (AfCHPR) opens its 71st Ordinary Session. To mark the occasion, the International Commission of Jurists (ICJ), in collaboration with inkyfada, looks back at AfCHPR’s September 2022 judgement against Tunisia, in which it ordered the republic to return to constitutional democracy and establish an independent constitutional court. The ICJ examines the impact of the judgement on human rights in Tunisia, and how individuals can operationalize the AfCHPR to challenge the curtailment of fundamental freedoms, judicial independence and rule of law in Tunisia.
ICJ’s questions and answers:
It has been more than a year since the African Court on Human and People’s rights issued its judgment in case No. 017/2021, “Ibrahim Ben Mohamed Ben Brahim Belguith v. Republic of Tunisia”, of 22 September 2022. The case was brought by Mr. Belguith, a national of Tunisia and a lawyer, who complained of violations of his rights under the African Charter on Human and Peoples’ Rights and other human rights instruments as a result of the promulgation of several Tunisian presidential decrees adopted under the “state of exception” pursuant to article 80 of the 2014 Constitution since 25 July 2021. In this judgment, the African Court ordered Tunisia to repeal these decrees, to return to constitutional democracy within two years and to ensure the establishment and operation of an independent constitutional court within the same period.
What does this judgment mean and why is it important for the rule of law and human rights in Tunisia? The ICJ provides answers in the Q&A below:
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- What is the African Court on Human and Peoples’ Rights?
* The African Union
* The African Charter on Human and Peoples’ Rights
* The African Commission on Human and Peoples’ Rights
* The African Court on Human and Peoples’ Rights
* Tunisia’s adherence to the African Human Rights System
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- Why was the African Court seized of the situation in Tunisia? Contextual overview
* President Kais Saied’s power grab of 25 July 2021
* The absence of a Constitutional Court
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- What did the 22 September 2022 judgment rule?
* How the African Court came to rule on the matter: the application
* What the judgment ruled:
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- What are the next steps?
* Implementation
* Other complaints against Tunisia pending before the African Court
Download the full Q&A in English here
Download the full Q&A in French here
Download the full Q&A in Arabic here
Nov 3, 2023 | News
Former Deputies and Mayors Face Prosecution and Prolonged Incarceration for Political Speech.
The Turkish government should abide by international law and implement the binding judgments of the European Court of Human Rights (ECtHR) by immediately releasing politicians Selahattin Demirtaş and Figen Yüksekdağ, who formerly co-chaired the opposition Peoples’ Democratic Party (HDP), four rights organizations said today.
The four nongovernmental organizations—Human Rights Watch, the Turkey Human Rights Litigation Support Project, the International Commission of Jurists, and the International Federation for Human Rights—made their call on the seventh anniversary of the politicians’ wrongful imprisonment.
“The seventh anniversary of the unlawful incarceration of Selahattin Demirtaş and Figen Yüksekdağ is a stark reminder of the Erdoğan presidency’s willingness to use detention for political ends to silence democratically elected opposition politicians representing millions of Kurdish and leftist voters in Turkey,” said Hugh Williamson, Europe and Central Asia director at Human Rights Watch. “In defying the binding ECtHR judgments ordering the politicians’ release, Turkey is flagrantly violating its legal obligations under the European Convention on Human Rights and international law more broadly.”
On November 4, 2016, months after being stripped of their parliamentary immunity, Demirtaş, Yüksekdağ and eight fellow members of parliament from the HDP were arbitrarily detained and placed in pretrial detention, with four others incarcerated over the following five months. At the time, the HDP held 10.7 percent of seats in Turkey’s parliament and was backed by over five million voters. While the 12 other deputies whose cases are covered in the ECtHR judgments are no longer in detention, Demirtaş and Yüksekdağ remain incarcerated.
All the former parliamentarians have been repeatedly prosecuted in individual proceedings based exclusively on their exercise of their right to freedom of expression, protected under international law. This included their political speeches and activities, which did not involve or advocate violence. When a mass trial was opened against them in 2021, many of those ongoing individual case files were merged. The vague and wide-reaching accusations against them in this trial include allegations of “undermining the unity and territorial integrity of the State” (separatism) and even “murder.” These accusations relate to their support for protests that mainly took place in cities in southeast Turkey between October 6 and 8, 2014. The politicians have been held responsible for all offences allegedly committed over the course of these protests, which were organized against the brutal siege of the Kurdish-majority northern Syrian town of Kobane by the extremist armed group Islamic State (also known as ISIS). During the protests, 37 people reportedly died.
The evidence against the politicians, on the basis of which Demirtaş and Yüksekdağ are currently detained, consists of two social media postings supporting protests over the Kobane siege sent from the HDP Twitter account, together with the politicians’ nonviolent political speeches, lawful activities, and witness statements against them added to the case file years later that raise serious questions of credibility.
The ECtHR determined in three judgments—two pertaining to Demirtaş in November 2018 and December 2020, and one to Yüksekdağ and 12 others in October 2022—that their detention on the basis of speeches and social media postings was a politically motivated move to silence them, “stifling pluralism and limiting freedom of political debate, the very core of the concept of a democratic society.” The court found that their rights to liberty, to freedom of expression, and to be elected had been violated. The facts forming the basis on which Demirtaş and Yüksekdağ are detained and were prosecuted for in the 2021 mass trial are substantially the same as those contained in the proceedings which the ECtHR found to be insufficient grounds for their detention.
“Despite the European Court ruling that the grounds to justify Yüksekdağ and Demirtaş’s detention were insufficient, the Ankara public prosecutor in April 2023 requested their conviction on numerous alleged offences concerning their political speech, which may result in their life imprisonment without parole,” said Temur Shakirov, interim director of the International Commission of Jurists’ Europe and Central Asia Programme. “This underscores the ultimate political motives behind the ongoing case targeting the two and reinforces doubts about the fair administration of justice in the country.”
After Demirtaş and Yüksekdağ’s detentions in November 2016, Turkey held a landmark referendum and several crucial election campaigns. The April 16, 2017 constitutional referendum introduced a system of governance concentrating power in the hands of the president. It was followed by the June 24, 2018 presidential election in which Demirtaş ran as a candidate from his prison cell against President Recep Tayyip Erdoğan, the March 31, 2019 local elections, and, most recently, the May 14-28, 2023 parliamentary and presidential elections.
“With two prominent figures of the opposition in detention, the country has been deprived of a significant measure of meaningful democratic debate and fair elections around these crucial campaigns,” said Reyhan Yalçındağ, vice president of the International Federation for Human Rights. “With the March 2024 local elections fast approaching, the Committee of Ministers and the other Council of Europe bodies need to use all available means to ensure the end of the continuing violations of Demirtaş’s and Yüksekdağ’s rights, including their rights to participation in public affairs, which is also a violation of the rights of millions of voters.”
The Council of Europe’s Committee of Ministers, responsible for overseeing member states’ implementation of ECtHR judgements, has issued six decisions and two resolutions calling on Turkey to release Demirtaş from detention. At its December 5-7 session this year, the Committee of Ministers will for the third time examine Turkey’s failure to implement the judgment pertaining to Yüksekdağ and release her from detention.
The four nongovernmental organizations have made a joint submission to the Committee of Ministers asking it to issue a decision in December calling for the release of Yüksekdağ.
“Turkey has ignored the Committee’s numerous decisions and interim resolutions calling for Demirtaş’s immediate release. This refusal to comply with Turkey’s international obligations has been repeated in the case of Yüksekdağ,” said Ayşe Bingöl Demir, director of the Turkey Human Rights Litigation Support Project. “The Committee must intensify its scrutiny against Turkey in relation to these cases without further delay, and this must include the triggering of infringement proceedings, in line with the route rightly followed in the case of the imprisoned rights defender Osman Kavala.”
Eighteen other elected former party officials and mayors from the HDP and an affiliated party, the Democratic Regions Party, are also currently detained. Among them is the prominent former elected mayor of Diyarbakır, Gültan Kışanak, detained since October 25, 2016, and Sebahat Tuncel, former co-chair of the Democratic Regions Party, detained on November 6, 2016. Kışanak’s pretrial detention has exceeded the legal limit of seven years under Turkish law, notwithstanding that seven years’ pretrial detention is a flagrant violation of international human rights law. The detentions of the politicians are blatantly arbitrary and politically motivated, and those imprisoned should be immediately released, the organizations said.
Press release in Turkish: Turkey Demirtas and Yuksekdag press release TURKISH
Nov 2, 2023 | News
The International Commission of Jurists renews its call for an immediate ceasefire in the Gaza Strip following the most recent Israeli attacks on the densely populated Jabalia refugee camp in northern Gaza on 31 October and 1 November 2023.
According to the Gaza Health Ministry, the two strikes killed at least 195 people. The Israel Defence Forces (IDF) claimed that the 31 October airstrike targeted and killed Ibrahim Biari, a claim Hamas denied. The IDF further claimed that Biari was one of the Hamas commanders responsible for the 7 October attacks in Israel.
Intentionally directing an attack against civilians or civilian objects or intentionally launching an attack knowing it will cause disproportionate civilian harm is a war crime. The Office of the UN High Commissioner for Human Rights expressed concern that these attacks may be “disproportionate attacks that could amount to war crimes”.
Gaza’s Health Ministry maintains that the number of Palestinians killed since 7 October has surpassed 9,000 and the Committee on the Rights of the Child has expressed concern that more than 3,500 children have been killed.
The ICJ considers that an immediate, durable and fully respected ceasefire by all sides, and an immediate cessation of hostilities in the Gaza Strip, including direct, indirect and disproportionate attacks on civilians and civilian objects, are necessary to stop further loss of civilian life.
According to the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, there is already clear evidence that war crimes may have been committed in Israel and Gaza since 7 October.
In this regard, the ICJ notes the visit by the Prosecutor of the International Criminal Court, Karim Khan KC, to the Rafah Crossing on the Gaza-Egypt border on 29 October 2023 and, in particular, commends his commitment to investigate the ongoing attacks, and his call for all further attacks to cease immediately. The Prosecutor confirmed that his Office has an ongoing investigation with jurisdiction over the Palestine situation, including current events in Gaza.
In light of the above, the ICJ considers that, only an immediate ceasefire will prevent war crimes, and prevent the risk of crimes against humanity and genocide.
The ICJ calls upon Palestinian armed groups to adhere to their obligations under international humanitarian law, including by releasing all hostages in their custody, and urges the IDF, particularly its military advocate generals, to ensure full respect for international humanitarian law in the conduct of hostilities.
Contact:
Said Benarbia, Director, ICJ’s Middle East and North Africa Programme, email: said.benarbia@icj.org
Katherine Iliopoulos, Legal Adviser, ICJ’s Middle East and North Africa Programme, email: katherine.iliopoulos@icj.org
Nov 1, 2023 | Committee on the Elimination of Racial Discrimination, Legal submissions, News, Treaty Bodies, Work with the UN
The International Commission of Jurists (ICJ) made a submission to the UN Committee on the Elimination of Racial Discrimination in view of the Committee’s examination of the Combined Ninth to Eleventh Periodic Reports of South Africa under Article 9 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The submission focussed primarily on the treatment of non-citizens with reference to the 2019 National Action Plan and on South Africa’s violations of the right to access health care and treatment, the right to work, as well as on concerns around residence and humanitarian protection for Zimbabweans.
The following are among some of the recommendations featured in the submission, which ICJ addressed to the South African government, to tackle a number of violations of the ICERD:
- Enact legislation that permits trained attorneys who are non-citizen/non-permanent residents to be admitted into the South African legal profession. Remove unequal practices and policies that discriminate against non-citizens and deny or undermine their ability to work in their chosen profession. Promote and advance the rights to work, to free choice of employment, to just and favorable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favorable remuneration;
- Acknowledge that, based on the demographics of South Africa’s migration trends, discrimination based on national origin and citizenship status carries a quality of xenophobia and racial discrimination and should be recognized as unconstitutional and a violation of South Africa’s obligations under the Convention;
- Halt the termination of the ZEP programme and institute a pathway toward permanent residency for the 178,000 Zimbabweans who have lived and worked in South Africa for over a decade under the ZEP programme; and
- Extend the ruling that found denying access to public healthcare for non-citizen mothers, lactating mothers and children under the age of six is unconstitutional so as to ensure that denial of access to public healthcare to any individual in South Africa is unconstitutional;
- Formalize the informal economy by ensuring that informal economy workers are catered for under labour, occupational health and safety, social protection and non-discrimination laws;
- Ensure that by-laws and regulations comply with the right to work and the right to non-discrimination in the South African Constitution and under the Convention.
The following organizations have endorsed this submission:
- Lawyers for Human Rights
- Section 27
- Centre for Applied Legal Studies
- Health Justice Initiative
- Kopanang Africa Against Xenophobia
- Solidarity Centre
- The Consortium for Refugees and Migrants in Southern Africa.
Download the submission
Oct 28, 2023 | Analysis briefs, News
The ICJ, in cooperation with the Union of Lawyers of Tajikistan, the Office of the High Commission of Human Rights (OHCHR) Regional Office for Central Asia (ROCA), and the Organization for Security and Cooperation in Europe (OSCE) in Dushanbe convened a round table in Dushanbe, Tajikistan, titled “The Use of International Law and International Mechanisms by Lawyers in Tajikistan”.
