The ICJ submitted a written statement on impunity and transitional justice, ahead of the March 2018 session of the UN Human Rights Council.
The written statement can be downloaded in PDF format below:
In English: UN-HRC37-WrittenStatement-NepalPeruImpunity-EN
In Spanish: UN-HRC37-WrittenStatement-NepalPeruImpunity-ESP
From 9-13 December, a delegation from the ICJ visited the company Carbones del Cerrejón LLC (El Cerrejón) to analyse the operation and effectiveness of its grievance mechanism.
The company, owned by Glencore plc, Anglo American and BHP Billiton, is located in the department of La Guajira, Colombia. The visit took place within the framework of the ICJ’s initiative on the effectiveness of grievance mechanisms established by companies to remedy negative impacts and human rights abuses.
The ICJ appreciated the collaboration of the Institute of Studies for Development and Peace (INDEPAZ) in the organization and facilitation of the visit.
It also acknowledges and thanks the company Carbones del Cerrejón for the welcome and all the facilities provided to the mission as well as the information shared with the delegation.
The ICJ also thanks the communities of Afro-descendants, peasants and indigenous Wayuu who welcomed and spoke with it.
This statement contains preliminary views and recommendations from the delegation regarding the company’s grievance system and the context in which it operates.
Subsequently, the ICJ will prepare a full report and will use this evaluation in the context of a general evaluation and recommendations on operational level grievance mechanisms.
The objective of the mission was to learn about and analyse the operation of the grievance mechanism established by the company and to evaluate in a preliminary way its effectiveness.
Cerrejón is one of the companies in the coal mining sector that started the process of establishing grievance and / or complaint mechanisms early.
Between 2009 and 2011 it was part of five pilot projects carried out by a team of the Special Representative of the UN Secretary General on business and human rights.
Contextualize the mechanism: Coal mining in La Guajira
La Guajira – province of Colombia on the border with Venezuela – besides its natural beauty and the friendliness of its people surprises visitors by the sharp contrast it presents between the great wealth generated by the extraction of coal and the poverty prevalent among its population.
The majority percentage of the population of La Guajira is made up of indigenous Wayuu populations and Afro-descendant communities, who generally live in poverty.
There is a lack of water and of employment opportunities or economic activities that are not linked to the operations of El Cerrejón, which accentuates the apparent dependence of the regional economy on the extractive activity of coal and raises doubts and questions about sustainability of the regional economy sitting on these bases in the short, medium and long term.
The information received by the delegation of the ICJ points to corruption as one of the main factors that influence and determine the lack of better health and education services, infrastructure and economic investment in the region by the State.
Corruption is more visible among the political class. Senior officials of the regional government were or are currently being prosecuted for corruption and murder.
La Guajira has had eight different governors in five years, which is a destabilizing and paralyzing factor in a highly centralized political system of government.
In this context, although considerable efforts are made by various actors, including El Cerrejón, distrust among the population is significant.
El Cerrejón, which operates in La Guajira, is one of the largest open-pit coal mining operations in the world and has an integrated operation that includes the extraction of coal, its transport by private railroad to Puerto Bolivar (150 kilometers away) and its cargo and transportation to consumer countries.
About 40 percent of the coal exported by Colombia goes to European markets. El Cerrejón is presented as an example of responsible mining both in the Colombian coal mining region and in the world and it has recently developed a series of social responsibility policies, including a due diligence process in the field of human rights.
The ICJ was informed that the experience and lessons learned from the grievance mechanism have influenced the design of these policies.
Colombia-Cerrejon-grievance-assessment-News-2018-ENG (Full text in PDF)
Watch the video (in Spanish):
Leaders of indigenous communities in Guatemala, seeking to protect their lands and natural resources from the negative impacts of business operations and infrastructure projects, have been charged with alleged criminal offences and in some instances arbitrarily detained.
This response is designed to silence voices of protest and legitimate demands for free, prior and informed consent for infrastructure or other projects in indigenous communities.
The video includes interviews with Ramón Cadena, ICJ Director for Central America, two indigenous traditional leaders, who have been the victims of arbitrary detention, and a women community leader, explaining the impact of the detention on the family and the whole community.
The criminalization of human rights work is a phenomenon whereby community leaders are charged with different criminal activities because of their opposition to a development model based on extractive industries or the privatization of essential social services.
This development model affects the natural resources (water, land and the environment) on indigenous peoples’ territories.
This is a global phenomenon and is particularly acute in Guatemala.
The exploitation of natural resources, such as open-cast mining and the operations of extractive industries in the territories of indigenous peoples, is one of the main reasons which are behind the crackdown on social protest and human rights work.
The different communities that have been affected seek to defend their territories and oppose the different forms of exploitation of the natural resources found on their territories or in the surrounding areas because it can affect the water supply, the land and the environment.
A number of leaders have been killed because of their opposition to these projects.
Some family members of those killed have in turn taken on the task of opposing these projects and they have also been charged with criminal offences.
In Guatemala, there is also an intense social conflict because of the way in which electricity services are delivered.
As a result of the privatization of the service in 1996, the Guatemalan State has granted concessions to national and international companies to provide electricity services.
Over the years, many users have complained about the poor quality and high cost of the services that these private companies provide.
The National Electricity Commission has failed to respect its legal duty to “ensure that the obligations of the concessionaries and contractors are fulfilled and to protect the rights of users,” which many discontented users have demanded.
The social protests concern the three different phases of electricity production: the generation of electricity, involving the construction of hydroelectric dams by multinational companies that impact on indigenous peoples’ territories, the electricity transmission grids, and the electricity services.
Because of this situation, many electricity users have declared that they are in resistance, citing article 45 of the Guatemalan Constitution that states: “It is legitimate for the people to resist in order to protect and defend the rights and guarantees enshrined in the Constitution.”
Acting on this Constitutional protection has led to human rights attacks on many community leaders, lawyers and human rights defenders.
The ICJ supports access to justice for persons who are victims of these human rights violations.
The ICJ supports lawyers who defend these victims of the criminalization of social protest; it carries our trial observations in significant cases; it promotes dialogue between the communities and the relevant State authorities as well as the local Mayors; and in some cases, it supports submissions before the Constitutional Court.
US President Donald Trump’s declaration recognizing Jerusalem as Israel’s capital and indicating an intention to move its embassy there, dangerously ignores long-standing international law, the ICJ said today.
Numerous United Nations Security Council’s Resolutions have reiterated the inadmissibility of the acquisition of territory by war, and have urged the withdrawal of Israel armed forces from territories occupied in the 1967 conflict, including East Jerusalem.
Trump’s announcement turns a blind eye on this legal reality and the related 50 years of occupation.
It also implicitly condones Israeli policies and practices that aim at altering the character and status of the Palestinian territory, including through the annexation of East Jerusalem, particularly by failing explicitly to similarly endorse Palestinian claims to East Jerusalem.
“Trump’s declaration cannot form the basis for any alteration of the status of Jerusalem under international law. However, it has the potential of provoking and fuelling a new cycle of violence in the region,” said Said Benarbia, ICJ MENA Director.
Thousands of Palestinians have taken to the streets to protest against Trump’s declaration. Dozens were injured in clashed with Israeli forces.
“The Israeli authorities should guarantee the right to peaceful protest and refrain from any disproportionate use of force against protesters, including the unlawful use of lethal force,” Benarbia added.
Background
The 2016 UN SC Resolution 2334 specifically reiterate that the Security Council “will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations,” and that “the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solute on and a just, lasting and comprehensive peace.”
This reaffirms a series of similar resolutions by the Security Council since 1967.
Palestine-Trump Decla-News-2017-ARA (Statement in Arabic, PDF)
Guatemalan indigenous and peasant communities are finally finding a measure of justice and recovering lands and territories that had previously been seized by authorities or private economic actors, including during the internal armed conflict that took place from 1960 to 1996.
The ICJ learned of these encouraging developments at a workshop it held jointly with the UN Office of the High Commissioner on Human Rights (OHCHR) at an International Workshop on strategic litigation in the defense of land and territory, in Guatemala City, between 9 and 10 November.
One of the successful stories, told by Don Pedro Herrera, a community leader from Tzalbal community, municipality of Nebaj, Department of Quiché (Northern Guatemala), concerns a favourable decision by a first instance judge in Nebaj, in August 2016, ordering the restitution of some 1485 hectares (33 caballerias in the old measurement system still in use in Central America) to the Tzalbal communities.
The decision is under appeal before Guatemala’s Constitutional Court, but the Workshop heard that it had already boosted morale and hope among members of local communities on prospects for restitution for violations of their land rights.
The 33 caballerias had been segregated from the rest of municipal and community land in around 1984, in the midst of the Guatemalan civil war and as part of the counter-insurgency plans drawn by the military rulers purportedly to create loyal villages in the frontline to combat insurgency.
Most members of the community at the time had fled their homes, fearing for their lives that were threatened by both the armed insurgency and State military forces.
The de facto local authorities were coerced into signing documents agreeing to the separation of the land, but much of the population had remained unconcerned with the operation.
However, in 2011 FONTIERRAS, the government land authority, revealed to the community that their land had in fact been registered as State property following the forced separation in 1984.
Since then, Tzalbal communities started to take concerted action to recover the lands that they considered to be lawfully theirs and were the places where they maintained their homes and livelihood.
Tzalbal communities have some 70 families with some 500 people of all ages. When they learned that the land they traditionally possessed was “legally” the property of the State of Guatemala, they approached the ICJ- to provide legal assistance.
An Amparo constitutional writ was filed on behalf of the Tzalbal communities requesting the court to protect the rights of property and due process under the Guatemalan Constitution and declare the entry of land property in favour of the State in the land register invalid.
In August 2016, the first instance judge ruled in favour of the communities and ordered the register to amend the entry into the land registry. However, the State representatives have appealed against the ruling and a public hearing on the case took place the first week of November 2017. A final decision on the case by the Constitutional Court is now awaited.
Land, territory and resources are crucial assets for the survival and well being of indigenous and other local communities in Guatemala and other countries. For indigenous peoples, there is also an inherent and special relationship with land and territory which many times acquires religious and cultural significance. At the Workshop on Strategic Litigation, several other groups explained how they carry on their fight for justice and in defense of their land and territory.
Several of those groups recognized the instrumental assistance from the Guatemala office of the UN High Commissioner for Human Rights, which through its Maya Programme provides advice and support to local communities in their defense of land and territory.
One case under discussion, still underway, concerns the legal challenge to the Environmental Impact Assessment carried out by the Island Oil Company pursuant an oil exploration and exploitation contract with the government involving five municipalities of El Petén department. El Petén is the location of the largest biosphere reserve in Guatemala, where, curiously, human settlements are not allowed but some oil companies are authorized to carry out operations.
The legal battle has been led by Qeqchi, Mopan and Itza peoples and supported by the Maya Programme. An administrative remedy known as opposition was filed before MARN, the national authority for the preservation of the environment, alleging the violation of rights such as lack of consultation and consent from local communities. The administrative authority ruled in favour of the plaintiffs and ordered the exploration to stop until regulatory requirements are fully complied with.
Over time, the work of the ICJ and other groups, taken in coordination with the UN human rights office in Guatemala, has begun to show results.
More and more communities are taking concrete steps to legally challenge the actions or laws that cause or perpetuate their dispossession of their traditional land and territory.
Strong push back against US sanctions on the International Criminal Court at UN Human Rights Council
ECtHR Grand Chamber Ruling in Semenya v. Switzerland: Joint Statement of Third-Party Interveners
UN Human Rights Council struggles to fulfil its mandate in the midst of global attacks on human rights, the rule of law and multilateralism
South Africa: ICJ urges high court to apply international law protecting migrants and refugees from discrimination and xenophobia in case involving vigilante attacks