Apr 9, 2020 | Advocacy, Non-legal submissions
The ICJ has joined other NGOs highlighting key human rights issues in the COVID-19 pandemic, at a virtual meeting of the UN Human Rights Council.
In the informal conversation, exceptionally organised by video-conference, the High Commissioner for Human Rights presented a statement, as did the President of the Council and a number of States, followed by several statements by NGOs.
The ICJ joined statements delivered by CIVICUS (on civil and political rights), ISHR (on the UN system response), and FORUM-Asia (on economic, social and cultural rights), on behalf of a large number of NGOs from around the world.
The statements focussed on, among other things:
- the obligations of States individually and collectively to mobilize the maximum available resources to respond to the pandemic and protect those at risk, including by respecting, protecting and fulfilling economic, social and cultural rights;
- the need to guard against abuse of emergency powers and undue restrictions on fundamental rights, including non-discrimination, freedom of expression and right to access information, the right to privacy, rights of persons deprived of liberty, and taking into account the situation of particularly-at-risk groups;
- the role of the Human Rights Council, Special Procedures and Secretary General to monitor, report on, and respond to human rights aspects of the pandemic and States’ responses, and ensuring that civil society continues to be able to participate in all relevant UN and other processes.
The full statements may be downloaded in PDF format here:
Civil and Political Rights: UN-JointStatement-COVID19CPR-2020-final
Economic, Social and Cultural Rights: UN-JointStatement-COVID19ESCR-2020-final
United Nations Mechanisms: UN-JointStatement-COVID19UN-2020-final
Abbreviated versions were delivered in the dialogue, due to the limited time available.
In extensive and detailed closing remarks, the High Commissioner responded to many of the questions and observations made during the discussion, concluding, on the topic of access to justice in times of crisis, as follows (unofficial transcription):
“Courts become more important than ever to safeguard rights in times when major decisions with broad impact are being taken and implemented at great speed. In these circumstances, we have already seen the real risk for abuse of power, legal over-generalization and mistake. The courts must remain available to address these issues, if necessary of course by modifying their working methods. We have seen courts in many countries taking measures to ensure they remain accessible while protecting their staff and clients.”
A video recording of the event can be viewed here.
The High Commissioner’s specific remarks on access to justice can be accessed directly here.
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 12, 2020 | Advocacy, Non-legal submissions
At the UN, the ICJ today highlighted the need for Kazakhstan to ensure the independence of the legal profession and the judiciary, in particular by ending the arbitrary disbarment of lawyers.
The statement, delivered during the adoption of the outcome of the Universal Periodic Review of Kazakhstan by the Human Rights Council in Geneva. The statement read as follows:
“The International Commission of Jurists (ICJ) welcomes the acceptance by Kazakhstan of the recommendations by Denmark (138.83), France (139.85), Mexico (139.86) and Austria (139.113) to uphold the rule of law and to protect the independence of the legal profession and the judiciary.
The ICJ however regrets that Kazakhstan only noted and did not explicitly support the recommendation by Czechia to “take immediate measures to ensure the effective protection of lawyers, media workers, bloggers and human rights defenders against any form of harassment” (139.114).
Furthermore, based on ICJ research, we regret to report that Kazakhstan’s assertion that the accepted recommendations are “in the process of implementation” (A/HRC/43/10/Add.1, para. 4) is simply not correct.
On the contrary, the ICJ considers that the independence of the legal profession is being actively undermined in the country.
The ICJ expresses particular concern at disbarment proceedings initiated by the Ministry of Justice, including the recent disbarment of Amanzhol Mukhamediarov and Yerlan Gazymzhanov.[1]
Finally, the situation is exacerbated by a Law on Advokatura that does not require the Bar Association’s authorisation to initiate disbarment proceedings.
To actually implement the recommendations accepted by Kazakhstan, ICJ calls on Kazakh authorities to stop all harassment of lawyers through disciplinary proceedings, readmit the lawyers unduly disbarred and reform its Law on Advokatura in line with international standards on independence of the legal profession.”
[1] See ICJ statement at https://www.icj.org/kazakhstan-disbarment-of-erlan-gazymzhanov-and-amanzhol-mukhamediarov-undermines-the-independence-of-the-legal-profession-icj-says/ .
Mar 11, 2020 | Advocacy, Non-legal submissions
ICJ has joined other NGOs in urging India, Pakistan and the Human Rights Council, to take action to address the grave situation for human rights in Jammu & Kashmir.
The joint statement read as follows:
“Our organizations express grave concern over the human rights situation in Jammu & Kashmir, where the authorities imposed severe restrictions after a decision to revoke constitutional autonomy on 5 August 2019, including one of the world’s longest internet shutdowns, which the Indian Supreme Court has said violates the right to freedom of expression.
Hundreds were arbitrarily arrested, and there are some serious allegations of beatings and abusive treatment in custody, including alleged cases of torture. Three former chief ministers, other leading politicians, as well as separatist leaders and their alleged supporters, remain in detention under the Public Safety Act (PSA) and other abusive laws, many without charge and in undisclosed locations outside of Jammu & Kashmir. This violates fair trial safeguards of the criminal justice system and undermines accountability, transparency, and respect for human rights. Journalists and human rights defenders have been threatened for criticizing the clampdown. These violations, as those committed over the past decades, are met with chronic impunity.
We urge the government of India to ensure independent observers including all human rights defenders and foreign journalists are allowed proper access to carry out their work freely and without fear, release everyone detained without charge, and remove restrictions on the rights to freedom of expression and freedom of movement, including where they have been denied the right to leave the country by being placed on the ‘Exit Control List’.
We also call on the governments of India and Pakistan to grant unconditional access to OHCHR and other human rights mechanisms to Kashmir.
We further urge the Council to establish an independent international investigation mechanism into past and ongoing crimes under international law and human rights violations by all parties in Kashmir, as recommended by the UN High Commissioner for Human Rights.
Thank you.
- Amnesty International
- Asian Forum for Human Rights and Development (FORUM-ASIA)
- CIVICUS – World Alliance for Citizen Participation
- Human Rights Watch
- International Commission of Jurists
- International Federation for Human Rights Leagues (FIDH)
- International Service for Human Rights
- World Organisation Against Torture (OMCT)”
Mar 10, 2020 | Advocacy, Non-legal submissions
The ICJ and other NGOs today highlighted the discriminatory character of India’s Citizenship Amendment Act, and called for accountability for violence and excessive use of force in relation to protests against it, today at the Human Rights Council in Geneva.
The joint statement, delivered in a general debate, read as follows:
“India’s Citizenship (Amendment) Act, 2019 (CAA) arbitrarily excludes certain groups at risk of persecution, such as Muslims, from accessing an expedited path to citizenship, based on their religious affiliation.
The CAA is inconsistent with rule of law principles and international law, including the right to equality before the law and the right to non-discrimination, protected under human rights treaties such as the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination, to which India is a party.
The implementation of the National Register of Citizens (NRC) in Assam risks making 1.9 million persons stateless. A nationwide NRC will put more people at risk.
Our organizations urge the Indian government to amend the CAA to ensure that any path to citizenship provides for equal protection for persecuted persons, and does not discriminate on grounds such as religion or national origin.
We also urge India to develop a comprehensive refugee law that addresses the plight of persecuted minorities in a non-discriminatory manner, and to accede to the 1951 Refugee Convention and its 1967 Protocol.
We further call on India to respect the right to peaceful assembly, and to ensure accountability for those alleged to have instigated violence or used excessive force in relation to the nationwide protests against the CAA.”
The statement was delivered by ICJ on behalf also of Asian Forum for Human Rights and Development (FORUM-ASIA), CIVICUS – World Alliance for Citizen Participation, Human Rights Watch, International Service for Human Rights (ISHR), Minority Rights Group International, and World Organization against Torture (OMCT).
The statement can be downloaded in PDF format here: ICJ statement GD item 4 India (10-03-2020)
