Apr 7, 2021 | News
Victims of gross human rights violations must be provided with effective reparations and guarantees of non-recurrence by Tunisia’s Specialized Criminal Chambers (SCC), judges and prosecutors asserted during a workshop held by the ICJ and the Association of Tunisian Magistrates (AMT) on 3 and 4 April.
The workshop highlighted the need for the SCC to adopt restitution, compensation, rehabilitation and satisfaction measures to achieve to the fullest extent possible reparation for material and moral damage suffered by victims of gross human rights violations in Tunisia.
Participants further emphasized that SCC decisions should include recommendations on guarantees of non-recurrence, including on legal and institutional reforms.
The workshop was attended by more than 25 Tunisian judges and prosecutors attached to the 13 Specialized Criminal Chambers. Discussions involved also international experts and ICJ representatives.
“It is important that the SCC, consistent with international standards, adopt a comprehensive notion of victims and persons entitled to reparation,” said Philippe Texier, ICJ Commissioner.
“In this respect, reparative measures should focus not only on direct victims, but also indirect victims, including the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims,” he added.
Federico Andreu-Guzmán, international expert, noted the non-derogable nature of the right to reparation under international law and that SCC should seek to ensure that all their decisions comply with this right.
“SCC decisions should include wide-reaching recommendations in order to guarantee that the violations will not be repeated,” said Said Benarbia, Director of ICJ’s Middle East and North Africa Programme.
The workshop also offered the opportunity to participants to discuss a set of recommendations targeting the High Judicial Council and its role in supporting the SCC.
The recommendations, which were developed by a group of SCC judges and prosecutors following the ICJ’s roundtable of 13-14 March, aim to find joint approaches to address ongoing procedural obstacles before the SCC and will be subject of future meetings and roundtable discussions organized by the ICJ and the AMT.
Contact
Valentina Cadelo, Legal Adviser, ICJ Middle East and North Africa Programme, e: valentina.cadelo(a)icj.org
Asser Khattab, Research and Communications’ Officer, ICJ Middle East and North Africa Programme, e: asser.khattab(a)icj.org
Mar 23, 2021 | Advocacy, News, Op-eds
[TOC]By Tim Fish Hodgson, Legal Adviser on Economic, Social and Cultural Rights at the International Commission of Jurists and Rossella De Falco, Programme Officer on the Right to Health at Global Initiative on Economic, Social and Cultural Rights.
Historically pandemics have often catalyzed significant social change. As historian of epidemics Frank Snowden puts it: “epidemics are a category of disease that seem to hold up the mirror to human beings as to who we really are”. At the moment gazing in that mirror remains a regrettably unpleasant experience.
United Nations human rights Treaty Body Mechanisms and Special Procedures, the World Health Organization (WHO), UNAIDS and numerous local, regional and international human rights organizations have produced reams of statements, resolutions and reports bemoaning the human right impacts of COVID-19 and almost every single aspect of the lives of almost all people around the world. The latest being the UN Human Rights Council Resolution adopted today by consensus on “Ensuring equitable, affordable, timely and universal access for all countries to vaccines in response to the coronavirus disease (COVID-19) pandemic”.
Key amongst the human rights law and standards underpinning these analyses is the protection of the right to the highest attainable standard of health, which, certainly for the 171 States Parties to the International Covenant on Economic, Social and Cultural Rights places an obligation on States to take all necessary measures to ensure “the prevention, treatment and control of epidemic, endemic, occupational and other diseases”, and, in the context of access to medicines the right to “enjoy the benefits of scientific progress and its applications”.
Despite these legal obligations, in late February, the UN Secretary General António Guterres felt compelled to highlight the rise of a “pandemic of human rights abuses in the wake of COVID-19”, including, but extending beyond violations of the right to health. The impact of COVID-19 on human rights has, and continues to be, sufficiently ubiquitous that an Indonesian transwoman activist Mama Yuli perhaps captured it best when telling a journalist that she and others in her position were “living like people who die slowly”.
Vaccines for the few, but what about the many?
Disappointingly, however, instead of a symbol of hope of a light at the end of the Coronavirus tunnel, the COVID-19 vaccine has fast become yet another pronounced illustration of the parallel pandemic of human rights abuses described by Guterres. The disastrous state of COVID-19 vaccine production and distribution throughout the world – and even within particular countries where vaccines are available – is now often described by many activists, including significantly the People’s Vaccine campaign, as “vaccine nationalism” and profiteering which has produced a “vaccine apartheid”.
What this means, in human rights language, is that States have often arranged their own affairs in a way that is detrimental to access to vaccines in other countries in spite of their extraterritorial legal obligations to, at very least, avoid their actions that would foreseeably result in the impairment of the human rights of people outside their own territories.
It is worth emphasizing that it has still been only some four months since the first mass vaccination campaigns began in December 2020. At the time of writing, approximately 450 million people had been vaccinated worldwide, while many African nations, for example, had yet to administer a single dose. While in North America 23 COVID-19 vaccine doses have been administered per 100 hundred people, with the number standing at 13/100 in Europe, the ratio decreases dramatically in the Global South with 6.4/100 in South America, 3.8/100 in Asia, 0.7/100 in Oceania and a mere 0.6/100 in Africa.
Vaccines, State Obligations and Corporate Responsibilities
The inadequate and inequitable distribution of vaccines has a variety of causes.
First, is the generally dysfunctional nature of the global health system due to what the UN Committee on Economic, Social and Cultural Rights described in its first statement on COVID-19 as early as April 2020 as “decades of underinvestment in public health services and other social programmes”. The incredible inequities caused by privatization of healthcare services, facilities and goods in the absence of sufficient regulation is well-documented, both in the Global North and the Global South.
Second, are the obstacles to vaccine access created and maintained by States, singly but collectively in the form of intellectual property rights regimes. This is not for a lack of guidance or legal mechanisms to ensure the flexible application of intellectual property protections in favour of the protection of public health and the realization of the right to health. The TRIPS agreement is an international legal agreement concluded by members of the World Trade Organization which sets minimum standards for intellectual property rights protections.
States are specifically permitted to interpret intellectual property rights protections “in the light of the object and purpose of” TRIPS and States therefore retain “the right to grant compulsory licences and the freedom to determine the grounds upon which such licences are granted” in the specific context of public health emergencies. Nor is it the first time that epidemics have necessitated the engagement of flexible arrangements to ensure expeditious, universal, affordable and adequate access to life saving medications and vaccines.
This is why the majority of States and an overwhelming majority of civil society actors have supported South Africa and India’s request that the WTO issue a “waiver” of the application of intellectual property rights for COVID-19 “diagnostics, therapeutics and vaccines”. This request has also been formally supported by a number of independent experts of the UN Human Rights Council of UN Special Procedures, and recently received the emphatic endorsement of the UN Committee on Economic, Social and Cultural Rights. There is already precedent for such TRIPS waivers, with the WTO having already applied a waiver until 2033, for example, for least-developed countries (LDCs), which are exempted from applying intellectual property rules on pharmaceutical products and clinical data.
Disappointingly, however, the ink had barely dried on the issuing of the CESCR’s statement, when, plainly disregarding all of these recommendations, the waiver was blocked by a coalition of wealthier nations, many of whom already have substantial and advanced vaccine access. Importantly, the CESCR’s recommendations were not just made on vague policy grounds, but as the best way to fulfill States’ clear legal obligation in ICESCR that, “production and distribution of vaccines must be organized and supported by international cooperation and assistance”.
The recently adopted Resolution of the UN Human Rights Council, led by Ecuador and States of the Non-Aligned Movement and adopted on 23 March 2021 provides some hope of the alteration of this existing collision course with disaster. The resolution, which calls for “equitable, affordable, timely, and universal access by all countries”, reaffirms vaccine access as a protected human right and openly acknowledges “unequal allocation and distribution among countries”.
The resolution proceeds to call on all States, individually and collectively, to “remove unjustified obstacles restricting exports of COVID-19 vaccines” and to “facilitate the trade, acquisition, access and distribution of COVID-19 vaccines” for all.
However, despite the protestations of civil society organizations involved in deliberations about the resolution, the resolution only restates the right for States to utilize TRIPS flexibilities, as opposed to endorsing such measures as a best practice for realizing State human rights obligations. This tepid approach (which follows principles of international trade while, ironically given the resolution emanates from the Human Rights Council, ignoring human rights standards) to perhaps the pressing issue relating to vaccine access is inconsistent with the Resolution’s otherwise firm grounding of vaccine access in human rights. It therefore remarkably even falls short of insisting that States comply with their own long-established international human rights obligations.
The resolution also inexplicably fails to address corporate responsibilities, including those of pharmaceutical companies, to respect the right to health in terms of the UN Guiding Principles on Business and Human Rights, and States’ corresponding duty to protect the right to health through adopting adequate regulatory measures.
Third, and connected to the above, is the general failure of States to fully and adequately centre their human rights obligations in the broader context of COVID-19 responses worldwide. The subtle but important phrasing of the exercise of TRIPS flexibilities as a “right of States” rather than as one of the optimal ways of fulfilling an obligation, exposes the degree to which the attitudes by State policy makers and legal advisors towards and understanding of human rights are out of sync with the obligations that they have willingly assumed by becoming party to treaties like the ICESCR.
A Critical Moment: it does not have to be this way
As Snowden’s insightful work predicted, the COVID-19 pandemic represents a critical moment in human history. States, collectively and individually, are presented with a unique opportunity to set a precedent and begin to seriously address the root causes of inequality and poverty which are prevalent across the world.
Making the right decision and taking a moral stand on the importance of access to COVID-19 vaccines is both practically and symbolically important if these efforts are to succeed. Vaccines must be accepted and acknowledged as global public health goods and human rights. Private companies too should not stand in the way of equitable and non-discriminatory vaccine access for all people.
For this to happen, bold leadership is required from international human rights institutions such as the UN Human Rights Council, the UN General Assembly and the WTO. Unfortunately, at present, not enough has been done and politicking and private interest continue to trump principle and public good. Until this changes, many people around the world will continue to exist, “living like people who are dying slowly”. It does not have to be this way.
Mar 19, 2021 | News
The ICJ called today on the Turkish authorities to immediately release human rights defender and lawyer Öztürk Türkdoğan, who was arrested this morning after an unlawful search of his home. The charges against him, if any, are unkown and he is currently being held without access to his lawyer.
Öztürk Türkdoğan is the chair of the Human Rights Association and a lawyer and member of the Ankara Bar Association.
“The arrest and search of Öztürk Türkdoğan’s continues a systematic pattern of misuse of the criminal law to harass and persecute human rights defenders and lawyers in Turkey in recent years,” said Roisin Pillay, ICJ’s Europe and Central Asia Programme Director. “Öztürk Türkdoğan must be released immediately. If he remains in detention then he must be ensured immediate and confidential access to a lawyer, and be informed of the nature of any charges against him and brought promptly before a court.”
The arrest occurred during a search of Öztürk Türkdoğan’s home without the presence of a lawyer, which is in direct contravention of Turkish criminal procedural law.
While no information has been made available on the charges against Öztürk Türkdoğan, he is currently being detained without access to a lawyer for 24 hours, which indicates that the charges are likely related to terrorism or to offences against the State. These offences, contrary to obligations under international human rights law, are vaguely and broadly defined and have been long used and abused by prosecutors in Turkey to suppress human rights defenders, lawyers and political opponents.
Under international human rights law, anyone arrested has a right to prompt and confidential access to a lawyer, and to information on the charges against them. Arrests and searches of homes must not be arbitrary and must be carried out in compliance with international standards and national laws and procedures.
“Hundreds of lawyers, judges and prosecutors have been improperly arrested, harassed and detained in the past few years by Turkish authorities ” said Roisin Pillay. “Using the criminal justice system in this way is contrary to the most fundamental principles of the rule of law.”
Background
Systematic violations of human rights in investigation and prosecution of counter-terrorism offences in Turkey have also been documented by the UN Special Rapporteur on the promotion and protection of human rights while countering terrorism, the UN Special Rapporteur on the situation of human rights defenders, the UN Special Rapporteur on the independence of judges and lawyers, theWorking Group on Arbitrary Detention, the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, and the Commissioner for Human Rights of the Council of Europe.
The ICJ has extensively documented these violations:
Mar 17, 2021 | News
All children regardless of their age must have access to procedural rights when they are accused of criminal acts, the Council of Europe’s European Committee of Social Rights decided in a landmark case (No. 148/2017) brought by the International Commission of Jurists (ICJ) with support from the Prague-based Forum for Human Rights.
The ICJ and Forum lodged a complaint challenging the failure of the Czech Republic to provide for legal assistance to children under the age of 15 (the age of criminal responsibility in the Czech Republic) in the pre-trial stage of proceedings and failure to provide alternatives to formal judicial proceedings for them.
The European Committee of Social Rights, which is responsible for oversight of the European Social Charter of 1961, found the Czech Republic was violating the rights of children under 15, who face proceedings in the child justice system but are below the age of criminal responsibility. The Committee found that the failure to provide these due process safeguards violated the rights of the children to social protection under Article 17 of the 1961 Charter. Human rights protected under the European Social Charter are legally binding on States party to it.
“The Committee’s decision is ground-breaking in many ways, yet two implications are revolutionary. First, it clearly emphasises the inter-dependence between fair-trail rights and child’s well-being. In modern human rights law, there is no such a thing as a clear-cut division between civil and political rights and social rights. But most importantly, the decision undermines paternalistic attitudes towards young children who enter the juvenile justice system and makes clear that all children – regardless their age – must be ensured adequate procedural protection in the course of the whole proceedings, based on the restorative justice principles,” said Maroš Matiaško, senior legal consultant of Forum.
The decision of the European Committee on Social Rights should lead to fundamental changes in the Czech child justice system, Forum for Human Rights and the International Commission of Jurists said today.
“We brought this case to ensure that children below the age of criminal responsibility do not have lower standards of protection of their rights compared to the older children in the child justice system,” said Karolína Babická, ICJ Legal Adviser. “We expect the Czech Republic to swiftly implement the decision of the Committee and ensure that all children regardless their age have access to procedural rights and alternative procedures like settlements and conditional termination or withdrawal of prosecution.”
Background
The legal findings come following a collective complaint submitted to the European Committee on Social Rights by Prague-based Forum for Human Rights and the International Commission of Jurists in 2017.
The Committee’s decision is built on two legal grounds, (I) mandatory legal representation for all children in conflict with the law regardless of age already in the pre-trial stage and (II) their access to alternatives in line with restorative justice principles.
On the first ground, the Committee found that the State must ensure mandatory legal assistance to children below the age of criminal responsibility already in the pre-stage of the proceedings. The reasoning is built on four grounds:
–Children below the age of criminal responsibility are not always able to understand and follow pre-trial proceedings due to their relative immaturity. It cannot therefore be assumed that they are able to defend themselves in this context.
–Children below the age of criminal responsibility should be assisted by a lawyer in order to understand their rights and the procedure applied to them, so as to prepare their defence. The failure to ensure legal assistance for children below the age of criminal responsibility in the pre-trial stage of proceedings is likely to impact negatively on the course of the proceedings, thereby increasing the likelihood of their being subjected to measures such as deprivation of liberty.
–Legal assistance is necessary in order for children to avoid self-incrimination and fundamental to ensure that a child is not compelled to give testimony or to confess or acknowledge guilt.
–The assistance of a lawyer is also necessary in situations where parents/legal guardians have interests that may conflict with those of the child and where it is in the child’s best interest to exclude the parents/legal guardians from being involved in the proceedings. Therefore, the Committee concluded that mandated separate legal representation for children is crucial at the pre-trial stage of proceedings.
In relation to the second legal ground, the Committee emphasised that diversion (alternatives to proceedings, such as settlement or conditional termination or withdrawal of criminal proceedings) from judicial proceedings should be the preferred manner of dealing with children in the majority of cases and diversion options should be available from as early as possible after contact with the system, before a trial commences, and throughout the proceedings. The principle applies to an even greater degree to a situation in which children below that age can still be engaged in the child justice system.
It may be left to the discretion of States Parties to decide on the exact nature and content of diversion measures, and to take the necessary legislative and other measures for their implementation, though there are relevant standards that should be taken into account, especially those developer by the UN Committee on the Rights of the Child.
Collective complaints alleging violations of obligations under the European Social Charter, may be brought against States which have ratified the 1995 Additional Protocol to the European Social Charter. On the basis of the European Committee on Social Rights’ decision on a collective complaint, the Council of Europe Committee of Ministers may recommend that the State take specific measures to implement the decision.
Read the full decision here.
See more information about the case here.
Watch our talk on the case and its importance:
Contact:
Karolína Babická, Legal adviser Europe and Central Asia Programme; karolina.babicka(a)icj.org
Mar 11, 2021 | Advocacy, Non-legal submissions
Today, the ICJ called on the Office of the High Commissioner for Human Rights to guarantee transparency and participation in its activities in Venezuela in an oral statement delivered during the interactive dialogue on the oral update by the UN’s High Commissioner of Human Rights on Venezuela.
The statement reads as follows:
“Madame President,
The International Commission of Jurists (ICJ) welcomes the High Commissioner’s oral update on the situation of human rights in Venezuela, particularly regarding the cooperation between her office and the Venezuelan authorities.
The ICJ underscores the importance of transparency on the activities conducted under the Memorandum of Understanding (MoU) signed by both parties. Publication of the MoU to inform the public and ensure the optimal engagement of stakeholders is critical to its success.
The ICJ stresses that in addition to civil and political rights, economic, social, cultural rights continue to be violated in Venezuela, a situation aggravated by the COVID-19 pandemic. As of January 2021, at least 37 health workers have died due to the lack of protective equipment and basic supplies in healthcare centers.
In light of recent announcements by Venezuelan authorities, political considerations appear to be a driving factor in the COVID-19 vaccine prioritization plan, instead of objective and public health criteria, which could lead to discrimination and a denial of equal protection of law.
The ICJ recommends that the High Commissioner monitor and report on the status of the Venezuelan authorities’ compliance with her previous recommendations, and on her broader engagement with local civil society with a view to protecting human rights.
Thank you.”
Contact:
Massimo Frigo, ICJ UN Representative, e: massimo.frigo(a)icj.org, t: +41797499949