International Commission of Jurists
COVID-19: Use of digital surveillance technologies must be human rights compliant

COVID-19: Use of digital surveillance technologies must be human rights compliant

Apr 2, 2020 | News

Today, the ICJ joined more than 100 other organizations to urge States to ensure that any use of digital technologies to track and monitor individuals and populations as part of measures to tackle the COVID-19 pandemic is fully human rights compliant.

The organizations warned that efforts to contain the virus must not be used as a cover to impose greatly expanded systems of invasive digital surveillance that are likely to be abused, unless adequate safeguards are put in place to protect freedom of expression, the right to privacy and other rights.

Technology can and should play an important role in the midst of the current crisis to protect the rights to health, life and security.

Deploying non-consensual State digital surveillance powers however can risk violations of the rights to privacy, freedom of expression, information and association. If implemented in an arbitrary or discriminatory way, and without adequate oversight, these measures risk damaging public trust in state authorities and undermining the effectiveness of any public health response. Non-consensual digital surveillance measures may also disproportionately exacerbate discrimination against already marginalized communities.

The organizations called on all governments to ensure that increased digital surveillance measures meet the following conditions:

  1. Surveillance measures adopted to address the pandemic must be lawful, necessary and proportionate. Governments must be transparent about the measures they are taking so that they can be scrutinized and, if appropriate, later modified, retracted, or overturned.
  2. Expansion of monitoring or surveillance measures must be time-bound, and only continue for as long as necessary to address the current pandemic.
  3. States must ensure that increased collection, retention, and aggregation of personal data, including health data, is only used for the purposes of responding to the COVID-19 pandemic. Data collected, retained, and aggregated to respond to the pandemic must be limited in scope, time-bound in relation to the pandemic and must not be used for commercial or any other purposes.
  4. Governments must take every effort to protect people’s data, including ensuring sufficient security of any personal data collected and of any devices, applications, networks, or services involved in collection, transmission, processing, and storage. Any claims that data is anonymous must be based on evidence and supported with sufficient information regarding how it has been anonymized.
  5. Any use of digital surveillance technologies in responding to COVID-19, including big data and artificial intelligence systems, must address the risk that these tools will facilitate discrimination and other rights abuses against racial minorities, people living in poverty, and other marginalized populations, whose needs and lived realities may be obscured or misrepresented in large datasets.
  6. If governments enter into data sharing agreements with other public or private sector entities, they must be based on law, and the existence of these agreements and information necessary to assess their impact on privacy and human rights must be publicly disclosed – in writing, with sunset clauses, public oversight and other safeguards by default. Businesses involved in efforts by governments to tackle COVID-19 must undertake due diligence to ensure they respect human rights, and ensure any intervention is firewalled from other business and commercial interests.
  7. Any response must incorporate accountability protections and safeguards against abuse. Increased surveillance efforts related to COVID-19 should not fall under the domain of security or intelligence agencies and must be subject to effective oversight by appropriate independent bodies. Individuals must be given the opportunity to know about and challenge any COVID-19 related measures to collect, aggregate, and retain, and use data.
  8. COVID-19 related responses that include data collection efforts should include means for free, active, and meaningful participation of relevant stakeholders, in particular experts in the public health sector and marginalized population groups.

Link to joint statement here.

See also

ICJ, ‘Southeast Asia: States must respect and protect rights in combating misinformation online relating to COVID-19’, 1 April 2020

Turkey : ICJ urges extension of alternatives to detention for prison population amid COVID-19 crisis

Turkey : ICJ urges extension of alternatives to detention for prison population amid COVID-19 crisis

Mar 30, 2020 | News

The ICJ is calling on the Turkish Parliament to extend the planned provision of alternatives to detention in response to the COVID-19 crisis to all those imprisoned for non-violent crimes who do not pose a current threat to members of the public, regardless of the nature of the offences for which they have been charged.

In particular, alternatives to detention should apply to all those detainees who are particularly at risk at losing their life or suffering severe health effects from COVID-19.

Measures to protect the right to life, the right to health and other human rights must apply equally and without discrimination in line with Turkey’s international legal obligations.

The government have announced the tabling of a draft law to reduce the prison population that has been under discussion in recent months. The process has been accelerated with the purported aim of addressing the serious health risk that an outbreak of COVID-19 contagion would pose to the prison population. However, the draft law has not been adapted to address the health crisis and contains several shortcomings.

The new measures would grant alternatives to detention, including house arrest or early parole to an estimated one-third of the prison population.

This welcome move is however limited by the exclusion of those convicted or under trial for terrorism offences or offences against the State.

“In Turkey, terrorism offences and offences against the State have long been abused to arrest, try and jail human rights defenders, lawyers, judges and political opponents,” said Massimo Frigo, Senior Legal Adviser for the ICJ Europe and Central Asia Programme. “The rights to life and health of these groups are now at particular risk.”

The ICJ considers that it is also essential that all detainees who are members of a group whose life or health may be at risk because of COVID-19 have either access to alternatives to detention, if they do not pose a current threat to public safety, or, otherwise, to detention conditions that may preserve them as far as possible from such risk.

 “The State has a non-derogable obligation to protect the right to life of all its prison population, without discrimination of any sort,” Massimo Frigo added.

 

Russian Federation: constitutional amendments undermining human rights protection should be withdrawn

Russian Federation: constitutional amendments undermining human rights protection should be withdrawn

Mar 26, 2020 | News

Following the decision to postpone a referendum on amendments to the Russian Constitution, the ICJ calls on the authorities of the Russian Federation to refrain from adoption of the amendments or revise those amendments which are likely to have a detrimental effect on the rule of law and human rights protection.

“Amongst the wide range of amendments proposed, are some that would restrict the implementation of international human rights law, and in particular the decisions of international human rights courts, in the Russian Federation,” said Róisín Pillay, Director of the Europe and Central Asia Programme of the ICJ.

“Other amendments would damage the independence of the Russian judiciary through changes to judicial appointments and dismissal procedures.”

The ICJ draws attention to these issues in a briefing paper on certain amendments to the Constitution of the Russian Federation, published today.

“We urge the Russian authorities to use the opportunity presented by the postponement of the referendum, to reconsider amendments that would damage the ability of the justice system to provide an effective remedy to people whose human rights have been violated,” added Pillay.

Background

On 15 January 2020 the President of the Russian Federation announced a decision to introduce more than forty amendments to the Constitution adopted in 1993. They are to be adopted through an extraordinary procedure which includes public vote, organised specifically for these amendments.

The amendments touch upon a range of issues not necessarily connected with each other. They among other things erode the role of international law and tribunals as well as weaken the independence of the national judiciary.

On 25 March, Russian Federation President Vladimir Putin announced that a planned referendum on the constitutional amendments would be postponed due to COVID-19.

This ICJ briefing paper analyses how these amendments may run contrary to international commitments of the Russian Federation and further impede the judicial independence. The briefing paper addresses three particular changes proposed to the 1993 Constitution:

  • The role of international law and of decisions of international courts or other mechanisms (Article 125 of the Constitution)
  • Appointment of judges (Article 83 of the Constitution)
  • Procedures of appointment and removal for judges (Articles 83, 102 and 128 of the Constitution).

Full Briefing Paper (in PDF): Russia-constitution changes-Advocacy-Analysis Brief-2020-ENG

Turkey: re-arrest of Osman Kavala immediately after his acquittal is a travesty of justice

Turkey: re-arrest of Osman Kavala immediately after his acquittal is a travesty of justice

Feb 19, 2020 | News

The ICJ and IBAHRI condemn yesterday’s re-arrest of Turkish human rights defender Osman Kavala, immediately following his acquittal on charges connected to the Gezi Park demonstrations that began in May 2013.

Osman Kavala was arrested on his release from prison yesterday evening, on suspicion of “attempting to disrupt the constitutional order” connected to the failed coup attempt of 2016.

“For Osman Kavala to be acquitted yesterday, on charges for which there was never credible evidence against him, only to be immediately re-arrested on another highly improbable charge, suggests a criminal justice system that is operating to suppress independent civil society rather than uphold due process and the rule of law,” said Róisín Pillay, Director of the ICJ’s Europe and Central Asia Programme.

Osman Kavala has been held in pre-trial detention since October 2017.  The European Court of Human Rights recently ordered that Turkey must act to secure his immediate release, and found that his detention violated his right to liberty (Article 5.1 ECHR) and his right to speedy judicial review of detention (Article 5.4 ECHR), and pursued an improper purpose (Article 18 ECHR).

“It is disgraceful that the Turkish authorities seek to evade compliance with their obligation under the European Convention on Human Rights to end the arbitrary detention of Osman Kavala, by releasing and re-arresting him. We call for these new charges to be dropped and for Osman Kavala to be immediately released,” said Baroness Helena Kennedy QC, IBAHRI Director.

Background

Mr Kavala has been in detention since 18 October 2017 pending trial on charges connected to the Gezi Park protests. The Gezi Park protests began in May 2013 as an effort by a group of environmentalists to save a park in central Istanbul from being rezoned, but soon grew into nationwide demonstrations. Police quelled the protest in Taksim Square with the use of tear gas and water cannons.

Mr Kavala’s trial, along with 15 other defendants, took place before Istanbul 30th Assize Court. The IBAHRI and the ICJ jointly sent international observers to attend all hearings of the trial.

Contact :

Róisín Pillay, Director for Europe and Central Asia Proramme, t: +32 2 734 84 46; e: roisin.pillay(a)icj.org

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