Apr 29, 2020 | Advocacy, News, Op-eds
An opinion piece by Carolina Villadiego Burbano, ICJ Legal and Policy Adviser for Latin America.
Several Latin American governments have adopted exceptional emergency measures to face the COVID-19 health crisis. The measures, motivated by policies with the objctive of urgently protecting people’s health, have been accompanied by restrictions to personal freedoms (i.e. quarantines, isolations).
Judiciaries have also adopted specific measures too to protect the right to health of persons involved in proceedings while providing services for guaranteeing access to justice during the emergency. They have reduced physical operations; adopted social distancing measures in courts; postponed proceedings; authorized remote work for judges and administrative officers; incorporated urgent mechanisms to guarantee fundamental rights and allowed the use of technology.
Judiciaries fulfil different roles under international humans rights law and, as a recent ICJ briefing note recalls, these roles remain as or even more important during the pandemic. Those roles include guaranteeing individual rights, including the right to a fair trial, freedom from arbitrary detention, freedom from torture and other ill-treatment and the right to an effective remedy. In addition, the responsibility of the judiciary is to securing the rule of law more generally by reviewing the government’s decisions during the emergency.
This blog illustrates measures adopted by South American judiciaries and some preliminary and personal reflections on some of the factors to be considered in assessing their proportionality and effectiveness.
Specific measures to protect health while guaranteeing access to justice
Brazil’s National Council of Justice has recommended to judges several measures that could reduce epidemiological risks, such as reassessing pre-trial detentions. This review could include revoking pretrial detentions when detainees were pregnant women or were under pretrial detention for more than 90 days.
Chile’s Supreme Court has established criteria for judges and other personnel to work remotely, and for holding specific hearings by videoconference with previous coordination with the parties and by ensuring due process guarantees. Also, instructions have been given to prioritize cases linked to the sanitary emergency and related to the protection of rights of persons in vulnerable conditions.
Colombia’s Judicial Council postponed proceedings except for urgent ones, such as those essential for the protection of fundamental rights (tutela), habeas corpus, constitutional and legal control of the emergency governmental decrees, decisions regarding persons deprived of liberty and protective measures related to domestic violence cases. The judiciary has published email addresses where urgent applications could be made electronically and allowed the use of videoconferencing and remote work for judges.
Ecuador’s Judicial Council has allowed remote working by judges, and videoconference hearings have been adopted for crimes committed in flagrante delicto. Judicial proceedings have been postponed, except for urgent cases, such as for crimes committed in flagrante delicto, domestic violence, juvenile justice and prisoners’ guarantees. The Supreme Court and the Constitutional Court has defined rules applicable to the procedures under their jurisdiction.
Peru’s Executive Council of the Judiciary postponed proceedings and established that some judges should work physically at courts on urgent proceedings, such as those related to rights of detainees, domestic violence and payment of parental support. Some remote work has also been allowed.
Other judiciaries have adopted similar measures. Provincial judiciaries from Argentina and judges from Bolivia have held hearings through videoconferences. Paraguay’s judiciary identified urgent matters for which it would provide services.
Judiciaries, right to an effective remedy and access to justice: what next?
More than one month after those judicial measures were adopted it is important to reflect on their proportionality and their effectiveness. It is also important to envision a middle-term plan to deal with the consequences of postponement of proceedings and the likely increase of judicial workload when restrictions end. I suggest three sets of issues that could be considered as a starting point for such reflection by Latin American judiciaries, civil society and international bodies and agencies:
- Effects on the protection of the right to health and on rights of judges and court personnel
- There should be a review of the measures adopted to guarantee in-person services, especially analyzing if adequate health standards have been guaranteed for all persons participating in proceedings. There has been some criticism that protective measures have been insufficient and sometimes they were only available for judges and courts’ administrative staff.
- There should be an assessment with judges and other personnel, whether the remote work complied with health-work standards. It is crucial to review the conditions of persons working remotely, in particular in relation to information technology, and if work schedules have been flexible when judges/personnel were caring for children or dependent adults.
- There should be a review as to whether there has been a disproportionate effect in the workload of female judges or other female personnel while working remotely, caring for children and performing domestic activities.
- General considerations with a human rights approach
The following questions might be considered:
- Review whether judicial proceedings continue to be accessible wherever necessary to guarantee the right to an effective remedy regarding human rights, and to otherwise ensure judicial review of the lawfulness of governmental decisions. The Inter-American Commission on Human Rights has established that “appropriate legal proceedings to ensure the full exercise of rights and freedoms” should not be suspended.
- Review whether judicial measures that guarantee the right to an effective remedy are accessible for all persons in a country, especially for those in a situation of vulnerability or risk.
- Establish priorities and policies for cases related to persons or groups in conditions of particular risk (e.g. detainees, migrants, refugees), and for persons without access to technology.
- Review if hearings held by videoconferences guaranteed parties’ rights, such as due process, right to defense, right to call and confront evidence, and right to consult confidentially with one’s lawyer.
- Assess whether the security protocols used by the remote work and videoconferencing technologies, ensure that sensitive, confidential or otherwise private information, is adequately protected.
- Adopt transparency policies and adopt public assessment of the measures adopted, so individuals can exercise control and oversight of these measures as they affect defendants, parties, lawyers and the general public.
- Medium-term plan for Judiciaries
- Judiciaries should develop a medium-term plan soon to guarantee the right to an effective remedy to address the adverse human rights effects that COVID-19 has brought and may continue to generate. The plan should be public and should consider the possible increase of workload due to postponement of proceedings and impacts on specific rights, such as health, work, water and sanitation and food. It could consider deploying teams of emergency judges to provide access to an effective remedy for these rights and the use of adaptive case management tools.
- Judiciaries should develop a strategy to ensure that cases of human rights violations that constitute crimes under international law, enforced disappearances, extrajudicial killings, torture and ill-treatment, are not indefinitely delayed, cancelled or otherwise compromised. Such impediments must not be allowed to result in impunity of perpetrators or pose obstacles to ensuring that victims receive complete information regarding the advance of their cases.
The COVID-19 pandemic has modified judiciaries’ methods of work. As they adopted specific measures to protect the health of persons as well as to provide judicial remedies, it is important to review their measures with a human rights approach. It is also critical that judiciaries themselves analyze their practices and adopt changes when necessary. The Inter-American Commission of Human Rights and the UN Special Rapporteur on the Independence of Judges and Lawyers should continue to specifically monitor these measures and report on them.
In PDF: Latin-America-Judiciaries-During-COVID-OpEd-2020-ENG
Apr 9, 2020 | Events, News
Various States in the Latin American region have adopted exceptional measures to address the pandemic and manage the health crisis. These measures impact peoples’ human rights and freedoms. A series of webinars will cover this topic. The third one takes place today.
Access to justice and the right to an effective remedy are particularly at risk. In that regard, it is worth analyzing: How are justice systems reacting to the pandemic? What is required to continue guaranteeing access to justice, especially for those people and groups most vulnerable? How does this pandemic affect the provision of services in the justice sector? How can justice systems innovate to respond to this situation?
In order to address these questions, the ICJ together with DPLF, Fundación Construir, Fundación Tribuna Constitucional, Observatorio de Derechos y Justicia, and Fundación para la Justicia y el Estado Democrático del Derecho, supports an initiative of webinars led by a group of women human rights defenders in Latin America.
The webinars will be held in Spanish and through the Zoom platform. Registrations for each webinar can be made by sending an email to info@dplf.org Registered persons will receive the zoom link where the activity can be followed.
The first three conversations are as follows:
- Essential justice services in times of emergency: Thursday 02 of April
At: 14.00 México-Central America/ 15 hours Colombia-Perú-Ecuador/ 16.00 Washington-Bolivia/ 17.00 Chile -Argentina/ 22.00 Geneva
- Working from home and being a judge: challenges for women that are judges: Tuesday 07 of April
At 14.00 México-Central America/ 15.00 Colombia-Perú-Ecuador / 16.00 Washington-Bolivia / 17.00 Chile -Argentina/ 22.00 Geneva
- Innovating in the justice system during times of emergency: Thursday 09 of April
At 14.00 México-Central America/15.00 Colombia-Perú-Ecuador/ 16.00 Washington-Bolivia/ 17.00 Chile -Argentina/ 22.00 Geneva
Apr 8, 2020 | Feature articles, News
A Feature Article by Rocio Quintero, Legal Adviser, ICJ Latin American Programme, based in Bogota.
Throughout several decades, a large number of Colombians have been victims of serious crimes related to the ongoing armed conflict. In particular, human rights defenders have been targets of serious human rights violations and abuses, such as killings, death threats, and harassments.
Just this year, the United Nations High Commissioner for Human Rights (OHCHR) has received information of 56 possible cases of killings of human rights defenders. Unfortunately, the COVID-19 outbreak has not stopped the violence against human rights defenders.
In that regard, since the first confirmed case of COVID-19 in the country on 6 March 2020, the Organization of American States (OAS) and International Amnesty has reported six killings. The perpetrators of those crimes have not been identified yet.
Human rights violations and abuses against local communities have not stopped either. Quite the opposite seems to be true.
In that regard, it is said that armed groups, including paramilitary groups and new groups made up of dissident FARC-EP members, are taking advantage of the outbreak to commit illegal actions with fewer constraints, mainly, in rural areas of the country.
Among these actions, it should be highlighted the enforced displacement of 250 people and the forced confinement of 770 families due to combats between a paramilitary group and a guerrilla group. Both actions took place in the pacific region of the country, an area where the conflict has intensified after the peace agreement. In addition, at least three ex-members of the FARC-EP have been murdered in March 2020.
Despite the seriousness of the situation described above, the Colombian government response to the COVID-19 crisis has focused on the creation and implementation of non-conflict-related measures.
In that regard, the Government has decreed various and vital regulations to mitigate the social and economic impact created by the virus. Among others, the president declared a state of emergency and a mandatory 19-day national quarantine that started on 25 March 2020.
The Government also established a program of economic and social aid for those who will be affected most by the quarantine.
None of the measures were designed bearing in mind the particular situation of human rights defenders. Consequently, their protection is not a central element of the Colombian pandemic policies.
Since the implementation of the peace agreement and victims’ rights are not top priorities of the current Government, the approach adopted is not entirely unexpected.
Although, to be fair, it should be recognized that the State programmes for the implementation of the peace agreement have continued operating during the pandemic.
It might be argued that the pandemic has the potential to affect predominantly human rights that have not been directly linked with the internal conflict.
Therefore, following this point of view, the prioritization of non-conflict-related measures is justified and required.
Although this position is based on a valid premise, which is that the COVID-19 pandemic creates several challenges that go beyond conflict-related human rights problems, it ignores a central element of Colombian reality: the existence of an ongoing armed conflict.
Currently, the conflict affects a considerable part of the Colombian population directly, including the majority of human rights defenders. In that regard, last year, it was reported illegal actions related to the internal armed conflict in at least 10 out of 32 departments of Colombia.
In this context, ignoring the importance of the conflict might lead to the implementation of ineffective pandemic measures. This is because, in conflict zones, the protection of human rights requires addressing the specific challenges that the pandemic has created in those territories.
For instance, the presence of illegal groups can prevent local communities from getting tested for COVID-19 and access to health services. Likewise, due to the quarantine, illegal groups might identify easier the location of human rights defenders and retaliate against them.
In relation to human rights defenders, it should also be highlighted the problems related to access to adequate protection measures. In that regard, Amnesty International has denounced that the protection measures for some human rights defenders have been reduced due to the pandemic.
In a similar way, a local NGO expressed concerns for the decision of the National Protection Unit to suspend indefinitely the sessions of the commission where protection measures are defined.
In light of the above, beyond political considerations and the general Government’s priorities, it is imperative that the Government adopts a more comprehensive approach to tackle the pandemic.
It should address the differential impact the pandemic might have on people who lead social and legal transformations in the conflict zones of the country.
In particular, it should implement or adapt protection measures to be effective during the COVID-19 crisis. Similarly, the right to an effective remedy and reparation should also be not only guaranteed, but realized, in compliance with international standards.
Additionally, it is also important that the national Government reinforce its efforts to obtain a humanitarian ceasefire by all illegal groups during the COVID-19 crisis.
A total ceasefire would contribute to (i) protecting the civilian population for violent actions, (ii) implementing the pandemic measures in conflict zones, and (iii) avoiding a proliferation of the virus in vulnerable communities.
This is a crucial measure that has already been requested by national civil organisations, the Head of the UN Verification Mission in Colombia, the OAS, and some parliamentarians.
As yet, only one illegal group has accepted a ceasefire: the National Liberation Army (Ejército de Liberación Nacional, ELN), the largest active guerrilla in Colombia, who declared a unilateral ceasefire during April.
To conclude, acknowledging the importance of the conflict is essential to tackle the human rights implications of the COVID-19 crisis.
This is not only necessary to have comprehensive pandemic policies, but also to make sure that the problems and needs in the conflict zones are not neglected and aggravated during the pandemic.
On this point, as recently stated by UN Secretary-General, people who are most vulnerable during a conflict are also “most at risk of suffering “devastating losses” from the disease.”
Apr 3, 2020 | News
Millions of indigenous people in Guatemala (Mayas, Garífunas and Xincas) are at increased risk of falling victim to COVID-19 unless the government immediately provides them with necessary information and ensures they have access to adequate health care without discrimination, the ICJ said today.
“Guatemala’s indigenous people face an increased risk of suffering during this global pandemic because of the historic and systemic discrimination against them, which means that they don’t have access to proper information needed to protect themselves, nor to health care should they fall ill because of COVID-19,” said Ramón Cadena, ICJ’s Central America Director.
“The most suffering indigenous communities could be those very poor indigenous communities living at the border with México.”
The ICJ called on Guatemalan authorities to ensure that information about public health measures regarding COVID-19 be offered in the languages most used by indigenous communities (mayan languages such as ixil, quiché, mam, q´eqchí, kaqchikel; and garífuna and xinca languages).
During the pandemic the State of Guatemala has not taken into account the difficulties, such as financial, geographical, technological or linguistic barriers, that indigenous people face in accessing information.
On the other side, the ICJ has noticed that the information about the governmental measures to face the pandemic, has been disseminated in a very limited way.
Indigenous communities have been excluded from the official health system because of the discrimination against them and the lack of resources invested in the health system of Guatemala due to processes of privatization of social services, which have been implemented in Guatemala after the signature of the Peace Accords.
“The general weakness of the Guatemalan public health system, historic racism against the indigenous community and the tremendous general social inequality in the country all aggravate the potential impact of the pandemic on the indigenous community,” Cadena said.
The ICJ urges the State of Guatemala to take the necessary legislative, administrative, and judicial measures to protect Indigenous Peoples and preserve their human rights during the current emergency, specifically their right to health, food, and housing.
The ICJ also called on the Guatemalan government to avoid measures that threaten the life and dignity of people, including those from the indigenous community who are generally most subject to violations of their civil and political rights.
“Any measures taken in response to the pandemic must be limited to those that are strictly necessary, legitimate, and proportionate to the risk facing the community, and limited in time and subject to review,” Cadena said.
“There are certain guarantees, such as the right to an effective judicial remedy, that cannot be suspended or repealed and that are vital so that citizens, including indigenous people, can safeguard their rights, and even as the pandemic inevitably affects the legal system the government must do all it can to avoid discrimination against the indigenous community, which already suffers from racism and lack of access to justice.”
Feb 28, 2020 | News
The ICJ today welcomed the judgement of the Canadian Supreme Court in the Case of Araya v, Nevsun, which allows a civil lawsuit by a group of Eritrean plaintiffs to proceed against Canadian company Nevsun Resources Ltd. for its alleged involvement in forced labour, slavery, torture and other serious human rights abuses against plaintiffs.
The ICJ together with Amnesty International-Canada intervened in the case as a third party, arguing that Canada’s common law should be read in a manner consistent with the right to an effective remedy for human rights violations under international law and the Canadian Charter of Rights and Freedoms.
“This judgment is a landmark achievement for workers and other victims of human rights violations as well for international rule of law and justice,” said Carlos Lopez, Senior Legal adviser at the ICJ.
“The Supreme Court of Canada has shown that misapplied legal doctrine should not stand in the way of people’s right to effective remedy and reparations,” he added.
In the case, the Supreme Court of Canada rejected the company’s contention that the “act of state doctrine” would preclude the case from going forward.
The Court concluded that this doctrine is not in fact part of Canadian law.
The company also contended that the allegations of breach of customary international law could only be applicable to States and not to the company itself.
The Court, however, held that customary international law, including customary human rights law, is part of Canadian law and could apply to Nevsun as a corporate entity.
In a significant victory for the plaintiffs and other similarly situated alleged victims, the Supreme Court has allowed the case to proceed, dismissing jurisdictional and procedural objections from Nevsun.
The proceedings before the Supreme Court originated in an appeal by the defendant company Nevsun Resources Ltd against the British Columbia Court of Appeal’s judgment of 2017 which upheld the rights of claimants to sue in Canada.
The claim filed in 2015 argued that Nevsun Resources was involved in various ways in the practice of forced labour, slavery, torture, cruel, inhuman or degrading treatment, and crimes against humanity at the Bisha mine (picture) against hundreds of Eritreans who were conscripted into the Eritrean National Service Programme and forced to working in the mine operated jointly by Nevsun and Eritrean State companies.
The claimants were allegedly forced to work in the Bisha mine and fled the country to find refuge in Canada, where they sued Nevsun.
