Jul 18, 2019 | News
The International Commission of Jurists (ICJ) today welcomed the decision of the International Court of Justice (ICJ-CIJ for its acronym) upholding the right of consular access and notification for Indian national Kulbhushan Jadhav.
The Court determined that Pakistan had unlawfully denied Jadhav consular access before and after his summary trial by a military court.
It emphasized that any “potential prejudice and the implications for the evidence and the right of defence of the accused should receive close scrutiny during the review and reconsideration.”
The Court categorically held that Article 36 of the Vienna Convention on Consular Relations (VCCR) “does not exclude from its scope certain categories of persons, such as those suspected of espionage,” as argued by Pakistan.
“The decision by the International Court today is a resounding affirmation that there can be no curtailment of the right to consular access by foreign nationals by States that are Party to the VCCR,” said Ian Seiderman, Legal and Policy Director of the ICJ.
“Consular access is essential to ensure a fair trial for foreign nationals and this human right must not in any way be made contingent upon the offence foreign nationals are charged with.”
The International Court called on Pakistan to give effect to the Court’s ruling by providing effective review and reconsideration of both his conviction and sentence, including by taking account of the principles of the right to a fair trial.
The ICJ has pointed out that Pakistan’s military justice system and procedures are incompatible with the right to a fair trial. Under international standards, military tribunals are never permissible in prosecutions against civilians for offences carrying the death penalty.
Since 3 March 2016, Kulbhushan Jadhav has been in custody of the Pakistani authorities. The circumstances of his arrest remain in dispute between the Parties.
India was informed of the arrest on 25 March 2016. On 10 April 2017, Pakistan’s military announced Kulbhushan Jadhav had been convicted and sentenced to death by a military court for “espionage and sabotage activities against Pakistan.”
India had brought the case against Pakistan before the International Court of Justice, alleging “egregious violations” of the VCCR by Pakistan because of the denial of consular access to Jadhav.
In response, Pakistan had primarily argued that Jadhav is a an Indian spy involved in acts of terrorism in Pakistan, and the VCCR is not applicable to spies or “terrorists” due to the inherent nature of the offences of espionage and terrorism.
“States around the world continue to use counter terrorism and national security as a justification to curtail human rights – the International Court of Justice’s affirmation that the protections under the VCCR are not conditional is hugely significant in this context,” said Ian Seiderman.
The International Court also held that it considered a continued stay of Jadhav’s execution as constituting “an indispensable condition for the effective review and reconsideration of the conviction and sentence.”
In May 2017, the Court had asked Pakistan to take all measures at its disposal to ensure that Jadhav is not executed pending the final decision in the proceedings.
The ICJ considers the death penalty a violation of the right to life and cruel, inhuman or degrading punishment and notes that a large majority of States, in repeated UN resolutions, have called on retentionist states to declare a moratorium on the practice with a view to abolition.
Background
In addition to the arguments regarding espionage and terrorism, Pakistan also relied on a bilateral agreement on consular access, signed by India and Pakistan in 2008, arguing that the agreement overrides the obligations under the VCCR. The International Court of Justice, however, rejected this argument, on the ground that, among other things, obligations under the VCCR may be enhanced or clarified by bilateral treaties, but cannot be diluted or undermined.
India had requested a number of other measures of relief from the Court, including the annulment of Kulbhushan Jadhav’s death sentence; a declaration that Kulbhushan Jadhav’s military trial was in violation of the VCCR and international human rights law, including the International Covenant on Civil and Political Rights (ICCPR); a directive restraining Pakistan from giving effect to the death sentence; and a directive to release Kulbhushan Jadhav and ensure his safe passage to India.
However, in accordance with its jurisdictional competencies and prior precedents, the Court denied these remedies to India. As “appropriate reparation” in this case, the Court directed Pakistan to effectively review and reconsider Jadhav’s conviction and sentence “to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Vienna Convention.”
Contact
Ian Seiderman: ICJ Legal and Policy Director, e: ian.seiderman(a)icj.org
Frederick Rawski: ICJ’s Asia Pacific Region, e: frederick.rawski(a)icj.org
May 15, 2019 | News
The ICJ today condemned a series of the acts of violence directed against the Muslim community in the aftermath of the Easter attacks on 21 April in Sri Lanka directed at churches and other places.
In the most recent attacks on 13 May, at least one person was killed in anti-Muslim mob violence in Nattandiya. In addition, various attacks have resulted in the looting and destruction of mosques, Muslim-owned businesses and houses in several parts of the island including Negombo, Chilaw, Kurunegala and Gampaha.
The ICJ called upon the State authorities to conduct independent, impartial and effective investigations into the attacks and bring all perpetrators to justice in line with international standards. Furthermore, the ICJ urges the Government of Sri Lanka to send a clear public message that acts of violence against any religious minorities are not tolerated.
“Attacks perpetrated against religious minorities are more likely to occur in a climate of impunity” said Fredrick Rawski, ICJ’s Regional Director for Asia and the Pacific. “The fact that Sri Lanka has a history of serious violations of human rights of religious minorities makes it even more urgent that the Government act to safeguard the human rights of all persons and take immediate measures to protect members of religious minorities from further violence.”
Delayed action or inaction on the part of law enforcement authorities during and in the immediate aftermath of the attacks has further exacerbated the situation. Given the recurring patterns of mob violence against religious minorities in Sri Lanka, a handful of arrests will not suffice. It must be followed up by independent and impartial investigations and, where warranted, prosecutions as part of an effective preventive strategy to counter such collectively organized violence.
Under international human rights law, including the International Covenant on Civil and Political Rights, to which Sri Lanka is a party, States have a duty to protect freedom of religion, which includes persons from religious minorities against abuses committed against them by any person or group.
The Government of Sri Lanka must take appropriate security measures in response to the worst terror attack in recent years. However, it must ensure that the volatile situation is not made worse by inaction to prevent anti-Muslim violence and vigilantism. Moreover, the State must ensure that any counter-terrorism measure is adopted and implemented in line with its international human rights law obligations and does not explicitly or implicitly target a particular community.
Mar 23, 2019 | News
Some 100 distinguished judges and lawyers from around the world commit to expanding the reach of human rights and rule of law principles, in the face of a global backlash against human rights values. The Tunis Congress is the ICJ’s 18th Global Congress since 1952.
The ICJ World Congress, consisting primarily of jurists serving as Commissioners, ICJ National Section and affiliates, and the ICJ Secretariat, is discussing strategy for concerted action and issue a final Declaration reflecting the outcome.
“Since its founding 1952 the ICJ has been steadfast in its belief in the primacy of human rights grounded in rule of law principles as indispensable for well being of all people, as well as for peaceful and just international order,” said Sam Zarifi, ICJ Secretary General.
“Cynical manipulation by authoritarian populists positions the rule of law and human rights as obstacles to the popular will. But as the ICJ’s experience over the past six decades has shown, the rule of law is inextricably bound with the proper functioning of democracy and to the protection and promotion of human rights,” he added.
The ICJ Congress will focus on five key areas of concern: the independence of judges and lawyers and administration of justice; access to justice and accountability for human rights violations; global security and counter-terrorism; equality and non-discrimination; and fundamental freedoms and civil society space.
“The international human rights legal framework has allowed for huge improvements in the lives of people around the world since the Universal Declaration of Human Rights 70 years ago, and the ICJ has played an important role in the development of this legal framework,” Zarifi said.
“But we are now witnessing a resurgence of some of the dangerous, insidious ideas and practices that have led the world to carnage and chaos in the past: the scapegoating of groups such minorities, refugees and migrants; the undermining of multilateral institutions; and the silencing of civil society and those who are giving voice to those who are marginalized on the basis of their gender, religion, ethnicity, physical capacity or sexual orientation,” he added.
“Global powers such as the United States, Russia, and China are actively attacking the rule of law and respect for human rights around the world, while the European Union is distracted by the politics of xenophobia and fearmongering,” he further said.
“It is now crucial for other States, and for people around the world, to show that respect for the rule of law and human rights are universal values and global demands, and the ICJ is proud to pull together the community of jurists from all regions of the world to support these values and demands,” he added.
In the face of these threats and challenges, the Congress will consider means to defend and strengthen the rule of law and legal protection of human rights globally, regionally and in individual countries.
The ICJ is made up of around 60 distinguished judges and legal practitioners from all parts of the world and diverse, works on all five continents and addresses human rights protection in dozens of countries.
Mar 5, 2019 | News
States at the United Nations Human Rights Council in Geneva should ensure that Egypt is not allowed to seize a leading role in relation to the mandate of the United Nations’ expert on human rights and counter-terrorism, nine international human rights organizations, including the ICJ, have said.
In light of Egypt’s record of severe and widespread abuse of counter-terrorism measures to violate human rights, the organizations warned against attempts by Egypt to undermine the expert’s mandate.
The mandate of the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism is due to be renewed in the coming weeks at the ongoing Human Rights Council session in Geneva.
Mexico has for many years led the resolution that established and maintained the expert, but is understood now to be in discussions with Egypt about a possible leadership role for Egypt.
Other changes to the resolution text may also be under consideration.
“Egypt has an appalling record of abusing counter-terrorism measures against human rights defenders and other dissenting voices, and was recently denounced by the UN Special Rapporteur on human rights defenders for severe reprisals against people who spoke with another visiting UN expert,” said Matt Pollard, Senior Legal Adviser and UN representative for the ICJ.
“To give such a country shared leadership on the renewal of the mandate of the UN’s expert on human rights and counter-terrorism would only do further harm to civil society and others in Egypt and elsewhere, undermine the work of the expert and the UN as a whole, and badly tarnish the long history of leadership Mexico has shown on these issues,” he added.
Nine organizations – ICJ, Amnesty International, ARTICLE 19, Cairo Institute for Human Rights Studies, CIVICUS/World Alliance for Citizen Participation, International Federation for Human Rights (FIDH), Human Rights Watch, International Service for Human Rights, and Privacy International – had earlier sent a joint letter to all countries representatives in Geneva highlighting their concerns.
This was followed by a joint oral statement at the Human Rights Council session on 1 March, during an interactive dialogue with the special rapporteur.
Egypt has gradually sought to dilute or distort the longstanding focus of the UN Human Rights Council’s work to protect and promote human rights and fundamental freedoms while countering terrorism, the groups said.
In 2018 it succeeded in watering down the council’s longstanding thematic resolution on the topic, in which states annually recognize concerns about abuses and urge respect for human rights at a global and abstract level.
However, any move to gain control over the resolution on which the mandate of the special rapporteur depends, or to dilute or reframe her mandate, would have far deeper and further-ranging damaging effects.
The special rapporteur acts on individual complaints, reports on the situation in particular countries, and addresses in detail topics relating to counterterrorism work around the world on an ongoing basis.
The special rapporteur also serves an essential function in providing independent oversight of counterterrorism measures from a human rights perspective within the overall UN system.
The mandate holds a uniquely important role in the UN counterterrorism architecture, as the only UN entity with the exclusive mandate to ensure the promotion and protection of human rights while countering terrorism.
The organizations have been urging other countries to strongly oppose any attempts to weaken the mandate of the special rapporteur.
The special rapporteur’s role should not be diluted by including the flawed Egyptian-led approach into the resolution for its renewal, or by sharing the leadership of the mandate renewal resolution with Egypt or other countries that have such an appalling record in relation to the very issues the mandate is to address, they said.
Allowing Egypt to jointly lead the mandate renewal would only serve to encourage a continuation of its pattern of gross human rights violations and abuses against civil society and others within Egypt in the name of countering terrorism, while shielding it from international scrutiny, the groups said.
It would also pose a long-term threat to the UN’s role in ensuring that counterterrorism measures are consistent with human rights, and that measures to uphold human rights for all and the rule of law are the fundamental basis for the fight against terrorism.
Contact
Matt Pollard, ICJ Senior Legal Adviser & UN Representative, t: +41 79 246 54 75 ; e: matt.pollard(a)icj.org
Feb 6, 2019 | News
The ICJ today expressed its grave concern over amendments to Egypt’s 2014 Constitution proposed by the House of Representatives yesterday, which could increase President el-Sisi’s control over the judiciary, extend his rule for 15 more years, expand the jurisdiction of military courts’ to prosecute civilians and broaden the military’s powers.
The amendments were proposed by one-fifth of the House of Representatives on 4 February, and reported to Parliament by its General Committee yesterday.
“The proposed amendments are a flagrant assault on the independence of the judiciary, and would expand the powers of presidency and further facilitate el-Sisi’s subordination of judicial and prosecutorial authorities,” said Said Benarbia, ICJ’s MENA Programme Director.
The amendments would grant the President authority to choose the Supreme Constitutional Court’s (SCC) President and its new members, chairs of all other judicial authorities, and the Public Prosecutor.
The President would also have authority to select the Chair and members of the Commissioners Authority, a judicial board that provides advisory opinions to judges on legal issues in cases pending before the SCC.
The General Committee’s report states the amendments are to “unify the mechanism of appointment” of these institutions.
The amendments would also establish a “High Council for Joint Judicial Affairs” chaired by the President to manage all common matters relating to the judiciary.
The amendment to Article 140 of the Constitution would extend presidential terms from four to six years.
Another “needed transitional article” would reportedly also permit President el-Sisi to run for re-election for another two terms, which, combined, could permit him to stay in office until 2034.
Article 140 of the Constitution currently imposes a two-term limit, and Article 226 prohibits amendments to “texts pertaining to the re-election of the president of the Republic…unless the amendment brings more guarantees.”
“This is an attempt to undermine constitutional safeguards aimed at protecting the right of the Egyptian people to freely choose their government and to take part in the conduct of public affairs,” said Benarbia.
“In accepting these amendments, the Parliament would abdicate its responsibility to uphold the Constitution and the rule of law,” he added.
Further amendments include the “redrafting and deepening the role of the Armed Forces” by expanding its mandate to include broad terms such as “safeguarding the constitution and democracy” and “preserving the basic elements of the state and its civilian character.”
The jurisdiction of military tribunals over civilians for “direct assault[s]” against military facilities, objects and personnel would also be expanded by the removing the requirement that the assaults be “direct.”
The amendment would make permanent a temporary constitutional provision requiring the Supreme Council of the Armed Forces—a military body—to approve the appointment of the Minister of Defense.
“The amendments effectively place the military above the law and the Constitution,” said Said Benarbia.
“They pave the way for the further entrenchment of the military in civilian affairs, which has already led to significant violations of civilian rights to participate in political life and express opinions critical of the regime,” he added.
Under international law, the jurisdiction of military courts must be limited to holding military personnel accountable for alleged violations of military discipline. No civilian should be prosecuted before military courts.
The amendments, which are still subject to parliamentary discussion and drafting by parliamentary committee, must eventually be approved in a two-thirds vote, and then by a majority in a referendum.
The ICJ expressed its concerns about the process for adoption of the 2014 Constitution, and its capacity to serve as a basis for the establishment of the rule of law in Egypt.
The ICJ made recommendations aimed at facilitating public participation in the legislative process in accordance with international standards and at ensuring constitutional provisions were consistent with international human rights law.
These concerns remain valid today.
Contact:
Said Benarbia, Director of the ICJ Middle East and North Africa Programme, t: +41-22-979-3817; e: said.benarbia(a)icj.org
Egypt-Constitution Statement-News-2019-ENG (full story with background infomation, in PDF)
Egypt-Constitution Statement-News-2019-ARA (full story in Arabic, in PDF)
