Mar 14, 2018 | Events, Multimedia items, News, Video clips
Today, the ICJ highlighted threats to and defenders of the rule of law around the world, at a side event to the UN Human Rights Council, at the Palais des Nations in Geneva.
The rule of law is under attack and human rights and human rights defenders everywhere are at risk, whether as targets or “collateral damage”.
The human rights movement has overcome similar challenges in the past. This side event to the 37th session of the Human Rights Council discussed the situation today and lessons from the ICJ’s history since its founding in 1952.
ICJ’s regional directors, gathering in Geneva from around the world, provided a unique snapshot of the “state of the world” for rule of law and human rights, from ICJ’s position on the global frontlines of the struggle to defend essential legal safeguards:
• Saïd Benarbia, Director for Middle East North Africa
• Ramón Cadena Rámila, Director for Central America
• Róisín Pillay, Director for Europe and Central Asia
• Frederick Rawski, Director for Asia and Pacific
• Arnold Tsunga, Director for Africa
Moderator: Saman Zia-Zarifi, Secretary General
In addition to highlighting the global and regional trends, specific examples for discussion included Azerbaijan, Cambodia, China, Egypt, Guatemala, Honduras, Hungary, Kenya, Lesotho, Libya, Myanmar, the Philippines, Poland, the Russian Federation, South Sudan, Swaziland, Syria, Thailand, Turkey, the United States of America, Venezuela and Zimbabwe.
For more information, contact un@icj.org
Watch the video:
https://www.facebook.com/ridhglobal/videos/10157996747579616/
Universal – Rule of law frontlines – News – Event – 2018 – ENG (Event flyer in PDF)
Mar 8, 2018 | News
The Sri Lankan government must act swiftly and in line with human rights to prosecute those responsible for recent communal violence.
Particularly for attacks against the minority Muslim community in Kandy district, while avoiding the abusive practices of the past, said the ICJ today.
Sri Lanka’s President, Maithripala Sirisena, proclaimed an island-wide state of emergency on 6th March 2018, following a curfew imposed in several areas since Monday.
The action came following a spate of attacks against members of the Muslim community that was spreading in the Kandy district, following attacks in Ampara last week, in Gintota in 2016, and Aluthgama in 2014.
“The government must show that it will bring to account those who have incited communal violence, particularly notorious figures who have been emboldened by the pervading impunity to preach hatred openly and publicly. The arrest of key suspects yesterday is a start and convictions must follow,” said Frederick Rawski, ICJ’s Asia director.
“But the government must ensure that its investigation is impartial and effective and follows due process of the law,” he added.
The ICJ called upon the government of Sri Lanka to swiftly prosecute those responsible for inciting and carrying out the communal violence using existing legal provisions in the Penal Code and the ICCPR Act, the latter of which prohibits advocating “national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.”
The ICJ is concerned that the Emergency Regulations issued by the President through powers under the Public Security Ordinance, confer excessively broad powers on the army and the police to search, arrest and investigate.
“Given Sri Lanka’s experience of Emergency Regulations, the government should ensure that these regulations are time-bound and comply with Sri Lanka’s international human rights obligations, including under the International Covenant on Civil and Political Rights,” said Rawski.
The government has further restricted access to selected instant messaging applications and social media platforms “as an extraordinary but temporary response to limit the increasing spread of hate speech and violence through social media websites and phone messaging applications.”
“Blocking social media and other communication channels, even with the best of intentions, typically has the negative effect of restricting affected persons from seeking assistance, journalists from reporting around the situation and may actually undermine efforts to counter violence and hate speech. Any such measures should be narrowly targeted and limited in time,” said Rawski.
“A better approach would be for the Sri Lankan government to aggressively push back against these hateful narratives by demonstrating in actions as well as its rhetoric that Sri Lanka is a diverse country in which all of its citizens’ rights are respected and protected equally,” he added.
Background
Chapter XVIII of the Constitution and the Public Security Ordinance of Sri Lanka empowers the President to make emergency regulations in the interest of ‘public security and the preservation of public order or for the maintenance of supplies and services essential to the life of the community.’ Sri Lanka has a history of governance using emergency powers, which in the past has posed a challenge for democratic governance and human rights, providing law enforcement with wide powers, circumventing ordinary checks and balances.
The President, while justifying circumstances that led to his proclamation of a state of emergency, has stated that he “has given special instructions the Police and the tri-forces to take action in terms of these regulations, in a lawful manner in good faith while ensuring minimum disturbance to the life and well-being of people, in conformity with Fundamental Human Rights of people.”
Mar 6, 2018 | News
The ICJ today welcomed the first referral of allegations of gross human rights violations to the recently constituted Specialized Criminal Chambers (SCC) at the Tribunal of First Instance of Gabés.
On 2 March 2018, the Truth and Dignity Commission (“Instance Vérité et Dignité”, IVD) transferred a case concerning 14 suspects and the crime of enforced disappearance to the SCC, established to bring justice and accountability for the legacy of serious human violations allegedly committed in Tunisia from 1 July 1955 to 31 December 2013.
“The IVD’s decision is an important first step in the process of ensuring accountability and dismantling the structural impunity that has prevailed over cases of gross violations of human rights in Tunisia,” said Said Benarbia, Director of the ICJ Middle East and North Africa Programme.
“We call on the responsible Tunisian authorities to fully support this process and remove the obstacles that continue to impede the IVD’s work, including by ensuring its full, rapid and unimpeded access to archives and to information related to the conduct of police and security forces under the former regime,” he added.
The ICJ also reiterated its previous call on the Tunisian authorities to remove the legal and practical obstacles that may hinder the SCC’s capacity to deliver justice effectively.
In two memos addressing the jurisdiction and the procedures to be applied by the SCC, the ICJ identified such obstacles and formulated recommendations for amendments and reform.
“The Government must reform the legal framework and procedures to be applied by the SCC so that they can effectively exercise their jurisdiction, establish the truth about past violations, hold those responsible to account, and deliver meaningful justice and reparation for victims,” Benarbia said.
Contact
Said Benarbia, Director of the ICJ Middle East and North Africa Programme, t: +41 798783546, e: said.benarbia(a)icj.org
Background
The SCC were formally established by Decree No. 2014-2887 of 8 August 2014 and have been set up within the Tribunals of First Instance of thirteen Courts of Appeal.
Under article 8 of the 2013 Transitional Justice Law, the SCC have jurisdiction over cases related to gross violations of human rights, as defined in international treaties applicable to Tunisia and in the provisions of the 2013 Law, involving “murder, rape and other forms of sexual violence, torture, enforced disappearances, and death penalty without fair trial guarantees”.
The 2013 Law attributes a leading role to the IVD with respect to how cases are brought before the SCC. According to article 42 of the 2013 Law, the IVD refers to the Office of the Public Prosecutor (OPP) “cases where gross human rights violations are proven”. As of 15 June 2016, the deadline for victims to submit files, the IVD has received over 60000 cases.
Tunisia-SSC disappearances-News-2018-ARA (full story in Arabic, PDF)
Feb 27, 2018
An opinion editorial by Tim Fish Hodgson, ICJ Legal Adviser in Johannesburg, South Africa
A Kenyan Court of Appeal decision handed down last week has, once again, reaffirmed the Kenyan government’s international obligation to arrest Sudanese President Omar al-Bashir should he ever return to Kenya.
The Court concluded “the Government of Kenya by inviting al Bashir to Kenya and failing to arrest him acted not only with complete impunity but also in violation of its international obligations.”
The African Union and some individual States such as South Africa, Uganda and Kenya appear to have serious concerns relating to what they perceive the conflicts between their obligations to arrest al-Bashir under the Rome Statue of the ICC and their obligation to respect his diplomatic immunity as a Head of State.
This apparent conflict is clearly expressed by both the African Union’s ‘Withdrawal Strategy Document’ and the draft International Crimes Bill introduced by the Minister of Justice to South African Parliament.
But the greatest testament to this discomfort is these and other states repeated failures to arrest al-Bashir despite their international legal obligations and pressure from local, regional and international human rights defenders.
The Kenyan Appeal Court recognized the “rare geopolitical predicament” faced by the Kenyan government in balancing its “focal role” in Sudan and “remaining true the African Union resolution not to cooperate with the [ICC]” with its obligations in terms of the international criminal law which is has domesticated in its own International Crimes Act.
Nevertheless, grounding its judgment in the historical foundations of international criminal law, the Court quotes with approval the Nuremberg Tribunal’s observation that “perpetrators cannot shelter themselves behind their official positions in order to be freed from punishment in appropriate proceedings”.
The Court notes that when a state commits acts which violate ius cogens norms it “waives any rights to immunity” and concludes that, similarly, “we have no doubt that an exception to immunity exists in cases where the individual is responsible for crimes against humanity”.
This, it reasons, is because “acts amounting to international crimes of individuals cannot be considered legitimate performance of official functions of State” capable of attracting immunity in the first place.
In taking this approach the Kenyan Court of Appeal deftly acknowledges that despite the potential political conflicts that there is no real legal conflict between provisions on the Rome Statute with respect to immunity.
This same approach was supported by the ICJ’s submission to South African Parliament signed by six former Constitutional Court Justices and Navi Pillay the former United Nations High Commissioner for Human Rights.
In a judgment that has received praise from international law experts John Dugard and Guénaël Mettraux no less, the Supreme Court of Appeal of South Africa too concurred with this approach, noting that allowing immunity to prevent arrest in such situations “would create an intolerable anomaly”.
Highlighting the irony that Kenya’s government disregard of its international obligations in inviting al-Bashir to the inauguration of Kenya’s progressive Constitution, the Court also notes that the government’s actions violate a specific provision of the Kenyan Constitution itself.
Article 143(4) of the Constitution reads “[t]he immunity of the President under this Article shall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity”.
Despite these categorical statements of Kenya’s legal obligations to arrest al-Bashir pursuant to the Kenyan Constitution, the International Crimes Act and the Rome Statute of the ICC, the Court overturned the provisional arrest warrant for al-Bashir issued by the High Court on the ground the requisite urgency no longer existed at the time the order was issued.
This, it reasoned, is because section 131(1)(c) of Kenya’s International Crimes Act explicitly permits the issuing of a provisional warrant only if “it is necessary or desirable for an arrest warrant to be issued urgently”.
This aspect of the Court’s judgment, which is inconsistent with the Rome Statute, strongly implies that future applications relating to al-Bashir’s arrest would need to be heard and determined urgently before or during a visit to the country.
This despite the Court’s own observations that the Kenyan government remains bound by its international obligation to cooperate with the International Criminal Court by executing warrants the ICC had issued when al-Bashir’s visit in 2010.
Bolstering the possibility of the urgent issue of a provisional arrest warrant in a Kenyan High Court, however, the Court’s decision affirms that human rights organizations such as the Kenyan Section of the International Commission of Jurists have legal standing to approach the High Court requesting the issue of a provisional arrest warrant.
This will mean that, as with litigation initiated by the Southern Africa Litigation Centre in South Africa, the Kenyan government’s own continued indifference or deliberate resistance to its international obligations, would not prevent al-Bashir’s arrest should he return to the country.
The judgment of the Kenyan Court of Appeal is of regional and international significance in the face of increasing threats of collective withdrawal of African countries from the ICC.
Most particularly, after failing to arrest al-Bashir on a visit to South Africa in 2015, the South African government appears to be charging ahead with its intention to withdraw from the ICC by proposing the enactment of woefully inadequate domestic legislation.
As a decisive statement by an African court this judgment will be useful for human rights defenders, lawyers and judges in South Africa who are consistently accused of lacking regional legitimacy by the government in their attempts to ensure that al-Bashir is arrested and prevent South Africa’s withdrawal from the ICC.
In the South African context, it remains to be seen whether newly appointed President Cyril Ramaphosa may change the South African government’s headstrong tune in the face of considerable, consistent and widespread criticism.
Finally, to some the Kenyan Appeal Court’s decision to invalidate the provisional arrest warrant for al-Bashir may appear to provide legitimacy to the Kenyan governments action. Properly read, this is perhaps merely politically astute exercise of its powers and is clearly overshadowed by the Court’s decisive condemnations of the government’s intransigence and strong findings which make absolutely clear that the Kenyan government is obliged to cooperate in al-Bashir’s arrest should he ever return to Kenya.
In terms of 163(4) of the Kenyan Constitution decisions of the Appeal Court may be appealed to the Supreme Court of Kenya if it can be shown that the matter involves the interpretation or application the Constitution or if it is decided that it is a matter of “general public importance”.
Feb 26, 2018
In a private letter sent to select UN member states, nearly 20 human rights organizations called for clear and concrete actions to denounce China’s current rollback in respect for human rights at the UN Human Rights Council, which opens its session in Geneva today.
The groups highlight five cases of human rights defenders that would benefit from further pressure being brought to bear on the Chinese government. They include:
– Liu Xia, a poet kept under house arrest after the death of her husband, Nobel laureate Liu Xiaobo, in July 2017;
– Wang Quanzhang, a rights lawyer held incommunicado since July 9, 2015;
– Gui Minhai, a Swedish citizen arbitrarily detained in China since he vanished from Thailand in October 2015;
– Tashi Wangchuk, a Tibetan cultural rights and education advocate who has been detained more than two years on charges of inciting separatism; and
– Yu Wensheng, a prominent human rights lawyer disbarred, then arbitrarily detained, in January 2018.
The report of the UN Special Rapporteur on Human Rights Defenders, Mr Michel Forst, to the current Human Rights Council session, describes the dire situation for human rights lawyers and other defenders in China (see paragraphs 277 to 297 of the report.
‘These are just five cases among hundreds, if not more. Taken together, they show that the ferocious crackdown on human rights defenders, including lawyers, that has intensified since President Xi Jinping assumed power continues unabated’, say the authors of the letter.
‘The Human Rights Council should take further steps to show China that undermining key legal protections for freedoms of expression and association and the rights to a fair trial, not to mention disappearing or arbitrarily detaining dissenting voices, is unacceptable behaviour – especially for a would-be “global leader”’.
In March 2016, twelve States presented a historic joint statement focused on the human rights situation in China. Following President Xi’s consolidation of power at the 19th Party Congress in November 2017, a renewed commitment to a joint statement condemning China’s human rights violations has never been more timely.
The organisations urge the governments to call for the release of all arbitrarily detained individuals; condemn the use of ‘residential surveillance in a designated location’, which the UN Committee against Torture has said ‘may amount to incommunicado detention in secret places,’; and promptly grant relevant UN experts unhindered access to all parts of the country.
‘The Council’s credibility is based on its ability to act swiftly and effectively to address human rights situations and to uphold universal values. However, this has come under attack in recent years, particularly from China and likeminded governments’.
‘In this context, it is critical for countries to demonstrate their commitment to the protection and promotion of human rights in China, and to defend the values underlying the international human rights system’.
This year is particularly important, as human rights defenders inside and outside China prepare for the country’s next Universal Periodic Review, scheduled for November 2018.
The letter to governments concludes: ‘For human rights defenders to have the courage to engage in this important process, with all the risks that it entails, it’s critical that they know that they are not alone’.
China – UNHRC Accountability -Advocacy-Open letter – 2018 – ENG (full report in PDF)
