Oct 26, 2020 | Advocacy, News
As the sixth session if the Open-Ended Intergovernmental Working Group (OEWG) working on a draft treaty convenes, the ICJ welcomes the Revised Draft treaty and calls on States to work to overcome political obstacles an make substantial progress towards completing its work on this much needed treaty.
The session, which takes place from 26 to 30 October, has before it a second Revised Draft of a Legally Binding Instrument, presented by the Chairmanship of the OEWG. The ICJ welcomes this draft as a very good basis for negotiations, though it considers that certain provisions still require revision and refinement.
The session takes place in the difficult and uncertain backdrop of the COVID-19 pandemic, with its serious impacts on human rights such as the right to health and strains on the capacity of States and society to tackle its consequences.
The ICJ is especially concerned at the adverse impact of the restrictions imposed on civil society participation deriving from the rules adopted by the UN for the holding of meetings, while at the same time understanding that meetings cannot be held in the normal manner particularly given the recent increase of COVID cases in Geneva.
In general and with some exceptions, the Second revised Draft LBI reflects changes in the text, structure and organization of the draft articles that improve its potential to serve as an effective protective instrument, as well as increase its overall coherence. The ICJ considers the second Revised draft as a good starting point for negotiations which states should engage into without further delay.
Universal-ICJ comments on BHR treaty 2-Advocacy-2020-ENG (full statement in PDF)
Sep 30, 2020 | Feature articles, News
Venezuela is suffering from an unprecedented human rights and humanitarian crisis that has deepened due to the dereliction by the authoritarian government and the breakdown of the rule of law in the country.
The International Organization for Migration (IOM) has estimated that some 5.2 million Venezuelans have left the country, most arriving as refugees and migrants in neighbouring countries.
The Office of the United Nations High Commissioner for Human Rights (OHCHR) in 2018 had categorized this situation of human rights, as “a downward spiral with no end in sight”.
The situation of the right to health in Venezuela and its public health system showed structural problems before the pandemic and was described as a “dramatic health crisis (…) consequence of the collapse of the Venezuelan health care system” by the High Commissioner.
Recently, the OHCHR submitted a report to the Human Rights Council, in which it addressed, among other things the attacks on indigenous peoples’ rights in the Arco Minero del Orinoco (Orinoco’s Mining Arc or AMO).
Indigenous peoples’ rights and the AMO mining projects before the covid-19 pandemic
Indigenous peoples have been traditionally forgotten by government authorities in Venezuela and condemned to live in poverty. During the humanitarian crisis, they have suffered further abuses due to the mining activity and the violence occurring in their territories.
In 2016, the Venezuelan government created the Orinoco’s Mining Arc National Strategic Development Zone through presidential Decree No. 2248, as a mega-mining project focused mainly in gold extraction in an area of 111.843,70 square kilometres.
It is located at the south of the Orinoco river in the Amazonian territories of Venezuela and covers three states: Amazonas, Bolívar and Delta Amacuro.
It is the habitat for several indigenous ethnic groups[1] who were not properly consulted before the implementation of the project.
The right to land of indigenous peoples is recognized in the Venezuelan Constitution. Yet, as reported by local NGO Programa Venezolano de Educación- Acción en Derechos Humanos (PROVEA), the authorities have shown no progress in the demarcation and protection of indigenous territories since 2016.
Several indigenous organizations and other social movements have expressed concern and rejected the AMO project.
The implementation of this project has negatively impacted indigenous peoples’ rights to life, health and a safe, healthy and sustainable environment. Human Rights Watch, Business and Human Rights Resource Center, local NGO’s, social movements and the OHCHR, have documented the destruction of the land and the contamination of rivers due to the deforestation and mining activity, which is also contributing to the growth of Malaria and other diseases.
Indigenous women and children are among the most affected. The Pan-American Health Organization (PAHO) has reported that “the indigenous populations living in border areas of Venezuela are highly vulnerable to epidemic-prone diseases”, and it raised a special concern about the Warao people (Venezuela and Guyana border) and Yanomami people (Venezuela and Brazil border).
Women and children also face higher risks of sexual and labour exploitation and of gender-based violence in the context of mining activities.
The High Commissioner’s recent report mentions that there is “a sharp increase since 2016 in prostitution, sexual exploitation and trafficking in mining areas, including of adolescent girls.”
In addition, the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) and the United Nations Children’s Fund (UNICEF) have identified a trend among adolescents of dropping out of school particularly between the ages of 13 and 17. Indigenous individuals are acutely affected, as many children leave to become workers at the mines.
Violence and crime have also increased in the AMO. Criminal organizations and guerrilla and paramilitary groups are present in the zone, and the Venezuelan government has expanded its military presence. Indigenous leaders and human rights defenders have been targets of attacks and threats; and there is a persistence of allegations of cases of enforced disappearances and extrajudicial and arbitrary killings.
Current situation under COVID-19 pandemic
The COVID-19 pandemic and the lack of adequate response to it has aggravated this situation.
The government declared a state of emergency (estado de alarma) on 13 March and established a mandatory lockdown and social distancing measures. Yet mining activities have continued without adequate sanitary protocols to prevent the spread of the pandemic.
The State of Bolívar -the largest state of the country which is located in the Orinoco Mining Arc- has among the highest numbers of confirmed cases of COVID-19 which have included indigenous peoples.
The Venezuelan authorities’ response to the pandemic in these territories has not considered culturally appropriate measures for them. In addition, although authorities established a group of hospitals and medical facilities called “sentinel centres” to attend persons with COVID-19 symptoms, they are located in cities while indigenous communities live far from cities.
Furthermore, the lack of petrol in the country aggravates the obstacles to easy transportation to these centres.
Civil society organizations and indigenous leaders complain about the lack of COVID-19 tests and the data manipulation of the real situation of the pandemic. Also, the OHCHR reported the arbitrary arrest of at least three health professionals for denouncing the lack of basic equipment and for providing information about the situation of COVID-19, and stressed that there are “restrictions to civic and democratic space, including under the “state of alarm” decreed in response to the COVID-19 pandemic.”
[1] At least Kari’ña, Warao, Arawak, Pemón, Ye’kwana, Sanemá o Hotï, Eñe’pa, Panare, Wánai, Mapoyo, Piaroa and Hiwi.
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Venezuela-COVID19 indigenous-News Feature articles-2020-ENG (full article with additional information, in PDF)
Sep 8, 2020 | Feature articles, News
Judges from six Latin American countries revealed that there were serious obstacles, but also possibilities for justice, facing regional judiciaries as they try to protect the human rights of those who have been adversely affected by the activity of business entities.
The judges gathered as part of the Regional Judicial Dialogue on Business and Human Rights organized by the ICJ of Jurists on September 7.
The Dialogue, moderated by ICJ Commissioner Professor Monica Pinto, brought together 17 judges from Central and South America to consider the role of judges in guaranteeing the right of access to justice and remedy and reparation. The judges also considered the need to guarantee the independence of the judiciary and the security of individual judges, lawyers, and human rights defenders in the context of business activities in the region.
The session featured presentations from a member of the UN Working Group on Business and Human Rights and the Office of the UN High Commissioner for Human Rights. The Dialogue took place in the context of the 5th Regional Forum on Business and Human Rights for Latin America and the Caribbean.
Discussing access to justice and remedy and reparation, the judges shared experiences and jurisprudence in cases related to serious crimes, including against humanity committed during the Argentine military regime, as well as cases of serious corruption and embezzlement in Guatemala.
In Argentina, in a case concerning the 1976 kidnapping and torture of 24 workers employed by the local Ford Motor company at their factory in Buenos Aires during the 1976-83 military dictatorship, a Federal Trial Tribunal sentenced three persons, a former military officer and two former Ford executives to prison of between 10 and 12 years, for their complicit involvement in the crimes.
Former Ford executives were accused of providing detailed information and logistical support to security agents that led to the abduction and torture of the victims, and also allowed a detention centre to be set up inside the premises of that factory.
The three judges of the Tribunal in this case attended the meeting to share the lessons learned and the significance of the criminal proceedings in the context of efforts to bring justice and reparations for the crimes of the past.
The process and the final sentence is a landmark in the fight against impunity in Argentina and an important message to all so that these crimes are not committed again. The case clarified the ways in which private individuals (the former company executives) participated in the commission of the crimes by State agents (military and security agents), elaborating upon modalities of attribution of the acts to the accessory perpetrators.
It is also an innovation in the ways it gathered and assessed the probatory value of the available evidence of crimes committed more than 30 years ago so that the crimes could still be attributed to the perpetrators.
The reparation ordered by the Tribunal in this case was “symbolic and historical”, consisting on an acknowledgment of the facts by the State and the private actors. The victims may demand now other forms of reparation from the State, but not from individuals.
The company as such was not part of the criminal proceedings nor was it sanctioned in the final sentence, since Argentinian law does not accept the criminal responsibility of legal entities such as corporations.
A participant judge from Guatemala shared a case concerning economic crimes of corruption, fraud, illicit association and assets laundering in a provincial town in Guatemala. Here, the experience and outcomes were somewhat different.
The case involved the town major and several of his relatives as well as some 20 companies out of which nearly 20 individuals and seven companies received penalties in the final sentence.
The case is of special significance in Guatemala as one of the few, large scale, corruption cases that has reached its final stage with convictions. In the investigation and collection of evidence considered during the trial, participated several public offices and the then International Commission Against Impunity in Guatemala (CICIG), which is no longer in operation.
Thanks to recent laws on corruption and money laundering, it is possible to impose sanctions on the company, as a legal entity. In the instant case, those sanctions consisted of monetary fines but not suspension or dissolution of the legal entity to allow other administrative proceedings against the same companies to continue.
In accordance with national laws and international standards, the judges ordered full reparation, including for damages, measures of satisfaction such as public statements of apologies and publications to be made by the convicted.
Citing a graphic statement contained in the final sentence, the judge Pablo Xitumul who presided the Tribunal said “corruption and impunity are even more lethal than a cancer or a pandemic, and should be combated without delay or excuses!”
Read the full story here: Americas-Judges and BHR-News-Feature article-2020-ENG
Apr 6, 2020 | Feature articles, Multimedia items, News, Video clips
As of 8:00am CET this morning, the Coronavirus COVID-19 Global Cases tracker by the Center for Systems Science and Engineering at Johns Hopkins University in the US recorded 169,049,480 confirmed cases of individuals who had contracted the COVID-19 disease in 192 countries, and 3,513,137 people who had succumbed to the virus. Read all the ICJ articles on the crisis.
Against this background, the aim of this blog is to highlight the necessity of ensuring the consistency of public health policies taken as part of the global responses to the COVID-19 pandemic with human rights law and standards.
As outlined in a prescient 2019 Lancet Commission report – The legal determinants of health: harnessing the power of law for global health and sustainable development – the law, and a firm commitment to the rule of law, play a critical role in the pursuit of global health with justice.
Ultimately, scientifically sound, evidence-based, human rights compliant, transparent and accountable public health policies and practices will also be more effective, as they will, in turn, elicit greater public support, including by prompting greater adherence to public health policy directives imposing restrictive measures on human rights.
As Michelle Bachelet, the UN High Commissioner for Human Rights recently affirmed, ‘COVID-19 is a test for our societies, and we are all learning and adapting as we respond to the virus. Human dignity and rights need to be front and centre in that effort, not an afterthought’.
China, where cases of COVID-19 were first documented, has been questioned from inside and outside for its response to the crisis, at first attempting to shut down information about the virus, leading to arrests and detentions. Outside China, while some COVID-19 health policies have been evidence-based, such as scaled-up, accurate testing for suspected cases, others are ineffective and overly broad, increasing stigmatization and misinformation.
Around the world, people of Asian descent have been subjected to xenophobia, stigmatization and racist attacks. Moreover, many States have now imposed extensive travel restrictions or even blanket travel bans; some have gone as far as using the COVID-19 pandemic as a pretext to promote their xenophobic and anti-asylum agenda and have now shut down their borders to refugee claimants, thereby flouting the right of anyone to seek asylum from persecution in other countries.
In a frontal attack against women’s human rights, in Texas and Ohio, the authorities have moved to ban healthcare providers from performing abortions in most circumstances – purporting to do so to respond to the global COVID-19 crisis. There is also a world of false information on COVID-19. For instance, Indonesia’s health minister suggested that Islamic prayers shielded people from the virus.
To foster scientifically accurate, human rights compliant global health responses – including to events such as the COVID-19 pandemic – it is crucial to enhance dialogue between the public health and human rights sectors. A good place to start framing a productive exchange in this respect is to take a close and simultaneous look at the International Health Regulations (IHR (2005)) – an agreement among 196 WHO Member States to work together for global health security – and to the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (the Siracusa Principles), setting out criteria to determine the lawfulness of measures restricting or otherwise limiting human rights taken by States to respond to – among other things – public health emergencies.
International Health Regulations & Travel Restrictions
Article 3(1) of the IHR (2005), setting out the principles informing the regulations, recalls that, ‘[t]he implementation of these Regulations shall be with full respect for the dignity, human rights and fundamental freedoms of persons’. And, perhaps tellingly, in Article 32, concerning the treatment of travellers, the IHR proclaim, among other things, that, ‘[i]n implementing health measures under these Regulations, States Parties shall treat travellers with respect for their dignity, human rights and fundamental freedoms’.
Notwithstanding the express human rights obligations enshrined in the IHR, current public policy responses to the ongoing crisis – and even public discourses around those responses – make very few, if any, direct references to human rights and, in fact, seem to be oblivious to the impact that measures taken and/or considered in the response to COVID-19 have on human rights.
But the IHR, as noted in a recent piece by Roojin Habibi et al, restrict ‘the measures countries can implement when addressing public health risks to those measures that are supported by science, commensurate with the risks involved, and anchored in human rights. The intention of the IHR is that countries should not take needless measures that harm people or that disincentivise countries from reporting new risks to international public health authorities’.
Siracusa Principles
The 1985 Siracusa Principles provide a good basis to flesh out what a human rights compliant public health response to the COVID-19 pandemic must entail. They detail criteria – by now firmly enshrined in international human rights law and standards – to determine the lawfulness of State measures restrictive of human rights.
According to the Siracusa Principles, for instance, when a State invokes public health as a ground for limiting certain rights, its actions ‘must be specifically aimed at preventing disease or injury or providing care for the sick or injured’. Even in circumstances when it is undeniable that a public health emergency may threaten the life of a nation, the Siracusa Principles reaffirm the obligation of States to ensure that any public health response to such an emergency be rooted in and compatible with human rights law and standards. Importantly, the Principles provide further interpretive guidance to States, proclaiming that restrictions on human rights may be justifiable only when they are:
- provided for and carried out in accordance with the law;
- based on scientific evidence;
- directed toward a legitimate objective;
- strictly necessary in a democratic society;
- the least intrusive and restrictive means available;
- neither arbitrary nor discriminatory in application;
- of limited duration; and
- subject to review.
The final condition – that State action be subject to review – is critical. Analogous requirements can be seen in other areas of international law. In the asylum and refugee context, for example, detention guidelines promulgated by the United Nations High Commissioner for Refugees emphasize that confinement on health grounds beyond an initial medical check must be subject to judicial oversight. Similarly, the Human Rights Committee’s General Comment no. 35 makes clear that the International Covenant on Civil and Political Rights ‘entitles anyone who is deprived of liberty by arrest or detention’ to take their case before a court to decide on ‘the lawfulness of detention’, enshrining the principle of habeas corpus.
The General Comment adds that this right also applies to house arrest, as a form of deprivation of liberty. Of course, whether involuntary home confinement constitutes deprivation of liberty – entitling those subjected to such a measure to challenge the lawfulness of their detention before a court – is a question of fact, depending, in turn, on the degree of the physical confinement imposed. Voluntarily choosing to stay at home in response to State authorities’ exhortation to do so, on the other hand, does not constitute deprivation of liberty.
Furthermore, any State action must comply with the rule of law and should respect the separation of powers. Neither the executive nor public health authorities should be immune from having their actions legitimately scrutinized by other branches of the State, namely, the legislature and the judiciary. Checks and balances are necessary to ensure respect for human rights and for democratic legitimacy.
In conclusion, both the IHR (2005) and the Siracusa Principles remind us of the fact that State responses to global public health emergencies cannot be unfettered, and must comply with States’ human rights obligations. Public responses to health emergencies and human rights need not be in conflict – indeed, grounding States’ public health measures in the human rights framework provides the most effective way to advance global health with justice.
The Lancet Commission report suggests one way to further identify human rights and rule of law compliant measures in the current and future global public health policy response. The report calls for a partnership between ‘legal and health experts to create an independent standing commission on global health and the law’ that would propose ‘evidence-based legal interventions for addressing major global health challenges, reforms of the global health architecture and international law, and strategies to build and strengthen global and national health law capacities’.
We should heed that call.
(Article written by Sam Zarifi and Kate Powers)
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Mar 6, 2020 | Advocacy, Non-legal submissions
The ICJ, speaking in a general debate at the UN Human Rights Council in Geneva, urged all States to work together towards adoption of a treaty on business and human rights, and highlighted threats to the independence of the judiciary in Europe.
The statement, delivered in the general thematic debate at the Council, read as follows:
“The International Commission of Jurists (ICJ) welcomes the report of the 5th session of the Intergovernmental Working Group (A/HRC/43/55) in charge of the elaboration of a treaty on business and human rights and notes the consensual nature of its conclusions and recommendations. Abuses of human rights and environmental degradation caused with the involvement of business enterprises have so far been met with very limited action by businesses and States.
The ICJ considers that the revised draft treaty is a serious and advanced proposal that is suitable for negotiations and thanks the Chair-Rapporteur for its efforts and leadership in this process.
The ICJ urges States that are not yet actively involved in the negotiations to join the growing number of States that are active for a final push.
The ICJ also draws the attention of the Council to serious threats to independence of judges and lawyers in European countries.
In Poland, judges are being disciplined merely for applying EU law, under legislation curtailing their freedom of expression and independence.
In Turkey, independence of lawyers and judges continues to be seriously compromised, as demonstrated by the disciplinary proceedings against the Gezi trial judges launched after critical comments by the President of Turkey.
The ICJ urges the Council to give attention to these developments of extreme concern.”
