Jun 4, 2021 | Agendas, Events, News
As part of its work to raise awareness and deepen the understanding about the importance of civil liability for the objective of improved accountability of business-related human rights abuses and access to justice and reparations, the ICJ is partnering with the Bonavero Institute of Human Rights to organize an online symposium.
The symposium is open to practitioners, policymakers, civil society, academics, and students working on these subjects. It will feature two panel discussions on Zoom on 7 June 2021 and 14 June 2021.
Past decades saw an emerging trend towards reliance on civil liability claims to address business-related human rights abuses (e.g., Lungowe v Vedanta and Okpabi v Shell in the UK; Choc v Hudbay Minerals and Araya v Nevsun in Canada; Akpan v Shell in the Netherlands; Jabir and others v KiK Textilien in Germany).
The ICJ and the Bonavero Institute of Human Rights’ symposium will discuss the wider implications of recent jurisprudence and identify the remaining gaps in the law.
The discussions will focus on a range of issues, including 1) the contours of rules on the duty of care; 2) prospects for supply chain liability under the law of civil remedies; 3) parent company liability and complicity under civil law; 4) prospects of access to justice.
Please follow the links below to register separately for each panel. The symposium will also involve a series of blogs by experts in the field to be published by Opinio Juris starting 21 June 2021.
Panel 1 ‘Duty of care and parent company liability’
Day and time: 7 June 2021 at 14.00 – 16.00 BST
To register for Panel 1, please click here
Panel 2 ‘Access to justice and civil claims for business-related human rights abuses: Challenges and opportunities’
Day and time: 14 June 2021 at 14.00 – 16.00 BST
To register for Panel 2, please click here
This symposium is co-convened by Dr Carlos Lopez and Dr Ekaterina Aristova. Please get in touch with the organisers if you have any questions. The symposium is part of the project on civil liability for human rights violations led by the Bonavero Institute and funded by the Oak Foundation.
May 26, 2021 | News
The ICJ welcomes the ruling by the European Court of Human Rights in the case of B.B.W. and others v. the United Kingdom, setting out important guarantees against mass surveillance online.
On 25 May, the Grand Chamber of the European Court of Human Rights issued its final ruling in this case in which the ICJ intervened. The case deals with the human rights implications of the system of intelligence mass surveillance of the United Kingdom, which was unveiled by the revelations of Edward Snowden.
“The judgment sets out clear guarantees to be respected in order to carry out bulk interception of communications”, said Massimo Frigo, Senior Legal Adviser for the ICJ Europe and Central Asia Programme, “it is a first important step towards ensuring that protection of human rights is as effective online as it is offline. All Member States of the Council of Europe must now ensure that their surveillance systems respect these minimal guarantees.”
In its judgment, the Court recognised the difference between surveillance of individual communications and bulk interception of communications with the use of metadata and introduces a set of procedural guarantees to be respected at initial, intermediary and final stages of bulk data surveillance.
The Court found that these guarantees also apply when a State receives intelligence based on bulk interception carried out by foreign States.
The judgment, however, does not fully address the implications for human rights of States’ participation in close transnational surveillance cooperation such as the system of the “Five Eyes” including the UK, USA, Canada, Australia and New Zealand.
“These transnational surveillance systems entail a higher level of responsibility by States under international human rights law in light of the high risk of bypassing national remedies”, said Massimo Frigo, “We hope the Court will be able to address these important issues in the future to strengthen the protection of human rights online in Europe.”
Contact:
Massimo Frigo, ICJ Senior Legal Adviser, t: +41797499949, e: massimo.frigo(a)icj.org
May 26, 2021 | News
Prosecutors must perform an active role in proceedings before Tunisia’s Specialized Criminal Chambers (SCC), including by prosecuting the cases referred by the Truth and Dignity Commission (IVD) without indictment, and by ensuring the effective and timely execution of court decisions, such as judicial summons and other orders to compel the presence of the accused in court, the ICJ said today.
هذا البيان الصحفي متوفر باللغة العربية أيضاً
To date, prosecutors have automatically transferred around 200 cases, to the SCC pursuant to the Law on Transitional Justice. Beyond this, however, they have played little or no part in the conduct of trials thus far.
“Prosecutors are abdicating their primary responsibility to uphold the rule of law and the rights of victims, and, in so doing, they are contributing to perpetuate decades of impunity in Tunisia,” said Said Benarbia, ICJ MENA Director.
Accused are absent in most of the SCC trials. Measures ordered by the courts to compel their presence have remained mere ink on paper.
“The systematic absence of the accused defeats the very purpose of setting up the SCC as transitional justice mechanisms, including their role in establishing the truth about past abuses, and in granting victims their long overdue day in court,” added Benarbia.
Tunisian prosecutors and law enforcement officers acting under their authority must ensure that court summons and related orders be implemented in a timely manner.
Prosecutors should also ensure that effective investigations be conducted, evidence collected, and prosecutions instituted, when warranted, in those cases that the IVD referred to the SCC without indictment.
“The automatic transfer of cases to the SCC does not absolve prosecutors from their obligations under Tunisian and international law, including in respect of their duties as public interest representatives,” Benarbia added. “It’s high time for the prosecutorial authorities to live up to these obligations and uphold the rights of victims to truth, justice and effective remedies.”
Background information
The Specialized Criminal Chambers were established in 2014 to adjudicate cases involving alleged “gross human rights violations” perpetrated between 1955 and 2013 and referred by the Truth and Dignity Commission (Instance Verité et Dignité, IVD) to the SCC.
The 2013 Transitional Justice Law empowered the IVD to investigate crimes, collect evidence and refer cases to the SCC for prosecution.
At the end of its mandate in December 2018, the IVD’s referred to the SCC 200 cases of arbitrary deprivations of life, arbitrary deprivations of liberty, torture and other ill-treatment, enforced disappearance, rape and sexual assault and crimes against humanity committed by the past regime.
For more information see the ICJ Practical Guide Series on Accountability Through the Specialized Criminal Chambersand findings on the role of international law and standards in proceedings before the SCC (Practical Guide 1), the investigation and prosecution of gross human rights violations under Tunisian and international law (Practical Guide 2), and the application of principles and best practices on evidence in the administration of justice before the SCC (Practical Guide 3).
Download this press release in PDF form here.
Contact:
Said Benarbia, Director, ICJ Middle East and North Africa Programme, t: +41-22-979-3817; e: said.benarbia(a)icj.org
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
May 25, 2021 | News
As the third anniversary of the opening of trials before Tunisia’s Specialized Criminal Chambers (SCC) is approaching, the ICJ denounces the Tunisian authorities’ failure to adopt reforms necessary to advance accountability and justice for victims of gross human rights violations.
هذا البيان الصحفي متوفر باللغة العربية أيضاً
Trials before the SCC started on 29 May 2018. Since that first hearing, evident gaps and shortcomings in the Tunisian Criminal Code, the Code of Criminal Procedure and the Transitional Justice law have undermined efforts to hold perpetrators to account, bring justice to victims and prevent recurrence of gross human rights violations in the future.
“The Tunisian authorities have abdicated their responsibility to ensure the effective functioning of the SCC, depriving judges of basic tools to ensure that trials are conducted without undue delay and consistent with international fair trial standards,” said Said Benarbia, the ICJ’s MENA Programme Director.
Many offences referred by the Truth and Dignity Commission to the SCC are not adequately defined in the Tunisian law. Judicial rotation occurs mid-way through SCC trials, impacting the continuity of trials. Prosecutors are not effectively engaged in the conduct of trials. Accused are absent in most of the SCC trials, and the transitional justice framework does not provide for appeal chambers.
“By failing to address these obstacles, the Tunisian authorities are undermining the right of victims to truth and to effective remedies, and betraying the very promise of the transitional justice process to end impunity,” added Benarbia.” It’s high time for them to reverse course and live up to that promise.”
Background information
The ICJ has recommended reform to ensure the compliance of SCC proceedings with international law and standards, including through:
- Ensuring the adequate criminalization of gross human rights violations amounting to crimes under international law;
- Fully ensuring the rights of the accused to a fair trial;
- Ensuring the rights of victims, including their families, to an effective remedy and reparation;
- Ensuring the protection of victims and witnesses;
- Ensuring that the collection, admissibility and assessment of evidence guarantee the right of the accused to a fair trial and the victims’ right to an effective remedy.
In addition to the above reforms, the Tunisian authorities should remove all obstacles preventing the SCC and other judicial authorities from exercising their function in a manner that complies with international standards. To this end, the authorities should:
- Ensure that the Office of the Public Prosecutor and other investigative authorities carry out their mandate in an independent and impartial manner, as defined under the Code of Criminal Procedure;
- Ensure that the annual judicial rotation, as regulated by Organic Law No. 34 on the High Judicial Council, be consistent with the right of the accused to a fair trial
- Ensure that newly appointed SCC judges and prosecutors receive timely and adequate training in transitional justice as provided for by Organic Law No. 53 on Establishing and Organizing Transitional Justice;
- Ensure that, if the annual judicial rotation occurs mid-way through trials, safeguards be implemented with the view to ensuring that newly appointed judges hearing the case have the appropriate understanding of the evidence and arguments.
These recommendations are informed by the ICJ Practical Guide Series on Accountability Through the Specialized Criminal Chambers and findings on the role of international law and standards in proceedings before the SCC (Practical Guide 1), the investigation and prosecution of gross human rights violations under Tunisian and international law (Practical Guide 2), and the application of principles and best practices on evidence in the administration of justice before the SCC (Practical Guide 3).
The SCC were established in 2014 to adjudicate cases involving alleged “gross human rights violations” perpetrated between 1955 and 2013 and referred by the Truth and Dignity Commission (Instance Verité et Dignité, IVD) to the SCC.
At the end of its mandate in December 2018, the IVD’s referred to the SCC 200 cases of arbitrary deprivations of life, arbitrary deprivations of liberty, torture and other ill-treatment, enforced disappearance, rape and sexual assault and crimes against humanity committed by the former government.
In a briefing paper published in October 2020, the ICJ called on the Tunisian authorities to undertake substantial legal and policy reforms with a view to strengthening accountability and removing all obstacles preventing the SCC from functioning effectively.
Download this press release in PDF form here.
Contact:
Said Benarbia, Director, ICJ Middle East and North Africa Programme, t: +41-22-979-3817; e: said.benarbia(a)icj.org
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
May 17, 2021 | News
LGBTI people in Indonesia, particularly trans women, face significant discrimination in access to Covid-19 vaccines as the country rolls out its vaccination programme in the face of a surge in the pandemic, the ICJ said today.
Indonesia is planning to start vaccinating the general population in July and an electronic identity card (e-KTP) is required to be vaccinated. However, most trans women do not have, or cannot obtain, an e-KTP and are thus unable to access the COVID-19 vaccines.
“As we mark the International Day against Homophobia, Transphobia and Biphobia on 17 May, Indonesian authorities must ensure that LGBTI communities, trans women in particular, are not excluded from access to vaccines,” said Ruth Panjaitan, ICJ Legal Adviser for Indonesia.
To get an ID card, trans women need to present a Family Card, a document issued to the head of the family. However, many, trans women or waria have been kicked out of or fled their family homes without formal documents as a result of domestic violence. Between 50-60% of transwomen senior citizens reportedly do not have e-KTP, which makes it difficult for them to access government’s healthcare service, including COVID-19 vaccination.
“Most waria in Indonesia don’t even have an ID card let alone an e-KTP. The current system compounds the discrimination against trans women with the heightened risk of illness due to Covid-19. Indonesian authorities must urgently reform the e-KTP system to facilitate the legal status of people based on their own self-identified gender identity,” Ruth Panjaitan said.
Trans women who want to process their e-KTP in accordance with their gender identity have to first obtain an affirmation of their gender from a court, as the e-KTP does not recognize transgender. There is currently no definite and clear regulation for the legal gender change under Indonesia’s law or Supreme Court regulations, so the determination will depend on individual judges in each court’s jurisdiction. LGBTI activists have noted that in practice many judges apply arbitrary religious-based criteria to reject the petition to change gender. In most cases, the court that takes on the application still requires a doctor’s medical certificate that the petitioner has conducted gender reassignment surgery or other hormonal treatment as well other onerous document requirements, such as a psychiatric evaluation and witness information.
“These intrusive, arbitrary, prolonged and burdensome procedures make it even more difficult for trans women in Indonesia to get legal recognition of their gender identity, and lack of recognition of gender identity before the law blocks their access to health care,” Ruth Panjaitan said.
The Indonesian authorities have recently started their effort to reach out to transgender people in order for them to be registered in accordance with Law No.24 year 2013 and Law No.23 year 2006 regarding Civil Administration, which mentions that all Indonesian citizens have to be registered and that they have to have both ID and Family Card, so that they can get a good public service. However, the current system still falls short under international law to protect transgender people.
“Excluding and marginalizing trans women in the middle of a pandemic aggravates the longstanding discrimination they have faced from the Indonesian government, and it is also counterproductive to an effort to vaccinate as many people as possible to stop the spread of the disease,” Ruth Panjaitan said.
Additional information
Transgender people in Indonesia have a right to nondiscriminatory access to vaccines and overall rights to health, which is protected under Article 12 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) to which Indonesia is party. The UN Committee on Economic, Social and Cultural Rights has affirmed that all healthcare goods, facilities, and services must be available, accessible, acceptable and of adequate quality, especially to the most vulnerable or marginalized sections of the population, in law and in fact, without discrimination of any of the prohibited grounds.
Under international human rights law and standards, a person’s declaration of their preferred gender identity for the purpose of obtaining gender recognition should not require validation by a medical expert, judge or any other third party. Requiring someone seeking legal recognition of their self-identified gender to undergo treatment is a breach of their right to protection against attacks on their dignity and physical and mental integrity, guaranteed under the ICESCR and the International Covenant on Civil and Political Rights, to which Indonesia is a party.
As affirmed by the Yogyakarta Principles, which address the human rights of LGBTI persons, gender identity is a private matter, concerning someone’s deeply felt individual conviction, which should not be subject to arbitrary third-party scrutiny. Legal gender recognition processes protecting the rights of transgender people must be conducted without medical requirements and it must be quick, transparent, and accessible, and effectively uphold the rights of transgender people, including their right to self-determination.
As of 10 May 2021, Indonesia has reported more than 5,000 new infections on average each day and 1,718,575 cumulative confirmed COVID-19 cases. The figure brought the country to the fourth position of countries with highest cases in Asia. The inoculation programme kicked off in mid-January for those deemed to be high priority, such as health workers, the police and military, and other public workers. The proportion of Indonesia’s total population that has received at least one dose of a vaccine as at 4 May 2021 was 4.64 per cent.
Contact
Ruth Panjaitan, Legal Adviser for Indonesia, e: ruthstephani.panjaitan(a)icj.org
Download
Press Release in Bahasa Indonesia.
