Jun 4, 2021 | News
Colombian authorities should immediately stop law enforcement officials from using excessive force to respond to protests and withdraw the military from law enforcement functions, said the ICJ today.
Over the course of ongoing protests, largely against economic and social conditions, multiple human rights and other civil society organizations have documented widespread human rights violations, including instances of torture and ill-treatment, sexual violence, extrajudicial killings, and enforced disappearances.
“The reports of violence and excessive and often unnecessary use of force by law enforcement officials are part of a wider failure of the authorities to adopt effective measures to protect and guarantee the right to life and the right to peaceful protest” said Carolina Villadiego, ICJ legal adviser for Latin America.
According to Indepaz, a local Non-Governmental Organization, as of 30 May 2021, at least 71 people had been killed, likely unlawfully, in the context of the protests. The situation is particularly dire in Cali where in just one day, 28 May 2021, 13 people were reportedly killed. In addition, it has been documented that firearms and lethal force have been deployed against protestors, including indigenous persons, by armed individuals in Cali. In at least one incident, multiple video recordings show police officials were present during the shootings and took no action to stop the shootings or apprehend the armed individuals.
Police and other law enforcement officials have the obligation to defend the rights of people, including their right to protest, and to protect them from violence by others. Colombian law enforcement officials have not only violated their obligation to avoid use of unnecessary or excessive use of force against people, but in Cali, they seem to have failed to prevent criminal violence by armed individuals as well.
“There must be a prompt, thorough and impartial investigation into these violations with a view to holding accountable those responsible”, said Carolina Villadiego.
The ICJ is also deeply concerned with militarization of the response to the protests. On 28 May 2021, President Duque issued Decree 575 of 2021 that authorizes the intervention of military forces in at least eight departments out of thirty two in the country, to assist in the lifting of any kind of roadblocks and to prevent the installation of new blockades by protesters. The Decree fails to consider any limitation of the use of force by military forces in line with international law standards such as the UN Basic Principles on the Use of Force by Law Enforcement.
Additionally, the sweeping and overbroad scope of the Decree to involve the military forces in what are inherently law enforcement functions does not consider that they are not trained or designed to protect civilians during protests or scenarios of public order disruption.
The ICJ urges the Colombian Government to fully respect the UN Basic Principles and other international standards on the use of force and the intervention of military forces to control protests and demonstrations. In this regard, the Government must fully comply with the September 2020 ruling on measures to guarantee peaceful protests issued by the Colombian Supreme Court.
In the ruling, the Supreme Court identified serious violations regarding the intervention of law enforcement officials, especially police officials, in protests and demonstrations. The Court identified systematic violence against demonstrators, the existence of stereotypes and prejudice against those who criticize the government’s policies, and a lack of mechanisms to hold the officials accountable.
Consequently, the Court ordered several measures to address this situation and guarantee the right to peaceful protest, including adopting and implementing a protocol to regulate the use of force during protests and manifestations, in accordance with international human rights standards.
The ICJ also calls on the Colombian Government to guarantee the right to peaceful protest. As the UN Human Right Committee has clearly affirmed, the right to peaceful protest may entail the disruption of vehicular or pedestrian movement, which “may be dispersed, as a rule, only if the disruption is “serious and sustained””.
While the vast majority of protestors have acted peacefully, there have been some instances where they have not. The ICJ calls on all persons to avoid violence during the protests and condemns the crimes committed against police officials, including the killing of at least two police officers, the serious injuries suffered by one police officer after being hit by a Molotov cocktail, and the sexual violence suffered by a police woman.
The ICJ deplores the particular use of some roadblocks that have affected the delivery of essential medical services, as well as the fires at the courthouse in Tuluá and other public buildings. Any individual engaging in criminal behaviour must be impartially investigated and, if found guilty in a fair trial, brought to account.
Finally, the ICJ also urges the National Government to fully cooperate with the mission of the Inter-American Commission on Human Rights (IACHR) to Colombia that will take place from 8 June to 10 June 2021. The Government should respect and ensure the IACHR’s independence and autonomy during the visit.
Contacts:
Carolina Villadiego Burbano, Latin American Legal and Policy Adviser, email: carolina.villadiego(a)icj.org
Rocío Quintero M, Latin American Legal Adviser, email: rocio.quintero(a)icj.org
Jun 4, 2021 | Agendas, Events, News
As part of its work to raise awareness and deepen the understanding about the importance of civil liability for the objective of improved accountability of business-related human rights abuses and access to justice and reparations, the ICJ is partnering with the Bonavero Institute of Human Rights to organize an online symposium.
The symposium is open to practitioners, policymakers, civil society, academics, and students working on these subjects. It will feature two panel discussions on Zoom on 7 June 2021 and 14 June 2021.
Past decades saw an emerging trend towards reliance on civil liability claims to address business-related human rights abuses (e.g., Lungowe v Vedanta and Okpabi v Shell in the UK; Choc v Hudbay Minerals and Araya v Nevsun in Canada; Akpan v Shell in the Netherlands; Jabir and others v KiK Textilien in Germany).
The ICJ and the Bonavero Institute of Human Rights’ symposium will discuss the wider implications of recent jurisprudence and identify the remaining gaps in the law.
The discussions will focus on a range of issues, including 1) the contours of rules on the duty of care; 2) prospects for supply chain liability under the law of civil remedies; 3) parent company liability and complicity under civil law; 4) prospects of access to justice.
Please follow the links below to register separately for each panel. The symposium will also involve a series of blogs by experts in the field to be published by Opinio Juris starting 21 June 2021.
Panel 1 ‘Duty of care and parent company liability’
Day and time: 7 June 2021 at 14.00 – 16.00 BST
To register for Panel 1, please click here
Panel 2 ‘Access to justice and civil claims for business-related human rights abuses: Challenges and opportunities’
Day and time: 14 June 2021 at 14.00 – 16.00 BST
To register for Panel 2, please click here
This symposium is co-convened by Dr Carlos Lopez and Dr Ekaterina Aristova. Please get in touch with the organisers if you have any questions. The symposium is part of the project on civil liability for human rights violations led by the Bonavero Institute and funded by the Oak Foundation.
Jun 4, 2021 | Advocacy, Open letters
In May 2021 the ICJ wrote to The MultiChoice Group in South Africa urging it to suspend Emmanuel TV on any of the DSTV platforms for broadcasting televangelist Pastor TB Joshua’s multiple video clips ostensibly depicting violent ‘conversion therapy’ and hate speech against LGBT persons amounting to discrimination and human rights abuses. MultiChoice responded that it has “no editorial control or oversight” over Emmanuel TV as it is a “third-party channel” and therefore MultiChoice cannot investigate the incident further or take any remedial action.
MultiChoice claims on their website to “entertain, inform and empower African communities”. In addition to this, their entertainment platforms are a hub for approximately 14 million people across 50 countries. MultiChoice has a huge reach into African countries and in the homes of millions of people living in Africa. As a result, they have a responsibility to act in a way which does not promote harmful practises.
In response to ICJ’s letter, MultiChoice stated that it does not review the content broadcast on third-party channels such as Emmanuel TV prior to its broadcast. In place of a thorough investigation, the entertainment group said that it contacted Emmanuel TV and the latter stated that the ‘conversion therapy’ clips were not broadcast in April 2021. It is significant to note that Emmanuel TV did not deny that the clips were aired at all. Rather, MultiChoice alleged that it was simply “unable” to independently verify that the clip was broadcasted in April 2021 or at all.
Contrary to the impression given in its letter to the ICJ, MultiChoice is not limited to investigating offensive broadcasts that are aired within a specific time period. Additionally, while the ICJ notes MultiChoice’s assertion that Emmanuel TV is a third-party channel and consequently MultiChoice has no editorial control or oversight over the content of the channel, the ICJ believes that MultiChoice has a duty to not broadcast material that is discriminatory and in contravention of the South African Constitution.
MultiChoice has a responsibility to conduct a serious investigation into this matter and take the necessary remedial action. Consequently, we do not find that Emmanuel TV’s confirmation to MultiChoice, that the clip was not broadcast during April 2021 is sufficient; and MultiChoice’s inability to verify whether this program was broadcast at all, is unsatisfactory.
The UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, under the umbrella of the United Nations Human Rights Commission, has concluded in May 2020, that conversion therapy amounts to torture and ill-treatment and has called for a global ban on such practices.
In light of this, the ICJ is of the view that MultiChoice has a greater responsibility to the African audience to refrain from participating in the broadcast of such harmful practices, and must publicly take a stance against facilitating the airing of such broadcasts. The ICJ believes that MultiChoice’s responsibility as Africa’s “leading entertainment company” is not to pay “lip service” to the values of the South African Constitution, but rather to hold itself to higher thresholds of accountability.
ICJ has consequently urged MultiChoice to:
- Independently investigate this and other discriminatory and potentially unlawful broadcasts by Emmanuel TV and take appropriate remedial measures.
- Undertake to exclude Emmanuel TV as part of MultiChoice’s package to the public, or alternatively, to heavily condition its contract with Emmanuel TV to disallow the broadcast of offensive materials; should the investigation lead to the conclusion that the clip was broadcasted by them.
- Ensure that such offensive materials are not broadcast on any MultiChoice channels, irrespective of their status as third-party channels.
- Offer an apology from Multichoice Group to the LGBT persons, unless MultiChoice is able to demonstrate independently that the clip was not broadcast at all on their platform, neither by Emmanuel TV nor by any other third-party channel.
- Undertake an updating of the MultiChoice Group’s internal policies to bring them in line with human rights standards, the South African Constitution, and local laws on non-discrimination. This includes contractual arrangements with third party channels like Emmanuel TV which may broadcast discriminatory content.
Contact
Kaajal Ramjathan-Keogh, ICJ Africa Director, Kaajal.Keogh(a)icj.org
Tanveer Jeewa, Legal and Communications Officer, Tanveer.Jeewa(a)icj.org
Jun 4, 2021 | News
(Istanbul, June 4, 2021) – The Council of Europe should insist that Turkey comply immediately with judgments from the European Court of Human Rights (ECtHR), or face infringement proceedings, a group of leading nongovernmental organizations working on human rights in Turkey said today.
An upcoming Council of Europe Committee of Ministers meeting on June 7-9, 2021, will review the Turkish government’s failure to implement two leading ECtHR judgments that ordered the immediate release of the human rights defender Osman Kavala and the Kurdish politician Selahattin Demirtaş. Human Rights Watch, the International Commission of Jurists, and the Turkey Human Rights Litigation Support Project urged the committee to use all available measures to require Turkey to rectify its flagrant non-compliance with its obligations, the court judgments, and the committee’s decisions on this matter.
“The Committee of Ministers should be using every means it has to push Turkey to implement the Kavala and Demirtaş judgments,” said Aisling Reidy, senior legal adviser at Human Rights Watch. “That means that the committee should be prepared to trigger infringement proceedings against Turkey if it persists with its defiance of the European Court’s binding judgment in favor of Kavala, and to call for the immediate release of Demirtaş with a commitment to escalate measures if it does not happen.”
The three groups repeated their March 2021 call for the committee to commence infringement proceedings against Turkey for flouting its decisions requesting Kavala’s release and urged the committee to issue a second decision for Demirtaş’s immediate release. The committee should also make clear that if Demirtaş is not released, it will take further action at its September session.
The ECtHR ruled on December 10, 2019, that by holding Kavala in pretrial detention since November 2017 and prosecuting him on the basis of his human rights activities, the Turkish authorities had “pursued an ulterior purpose, namely to silence him as a human rights defender.”
Similarly, the ECtHR ruled on December 22, 2020, that by holding Demirtaş in pretrial detention since November 2016 and prosecuting him for his activities and speeches protected under the European Convention on Human Rights (ECHR), the Turkish authorities had pursued an ulterior purpose of preventing him from carrying out his political activities, depriving voters of their elected representative, and “stifling pluralism and limiting freedom of political debate: the very core of the concept of a democratic society.”
In both cases, the Court found that by using detention for political ends, Turkey had violated the right to liberty and other rights, and had misused the discretion given to governments to impose limitations on rights for illegitimate purposes (articles 5 and 18 of the ECHR respectively). The Court took the rare step of ordering their immediate release.
Despite the fact that the landmark judgments are legally binding, the Turkish authorities have snubbed the Strasbourg court and ignored the Committee of Ministers’ decisions calling for the men’s release.
“Turkish prosecutors and judges have sought to circumvent the authority of the European Court by adopting the tactic of opening new criminal proceedings against Kavala and Demirtaş based on the reclassification of the same facts,” said Helen Duffy of the Turkey Human Rights Litigation Support Project “This cynical non-compliance with the court’s judgments requires a robust response from the Committee of Ministers.”
On May 21 when the retrial of Kavala for his alleged role in the 2013 Gezi Park protests opened, Turkish authorities merged that case with another concerning his alleged involvement in the 2016 coup attempt and espionage. The Istanbul 30th Assize Court hearing the case extended his detention. The next hearing against Kavala is scheduled for August 6.
In Demirtaş’s case, Ankara 22nd Assize Court on April 19 merged an existing case against him with a new case before it despite the fact that it involved the same or similar facts, which the European Court had held consisted of peaceful political speeches and activities protected under the ECHR. In the new case, the facts used as the evidence have been reclassified under different charges.
The indictment now charges Demirtaş and 107 co-defendants with crimes that include attempting to undermine the unity and territorial integrity of the state, murder, and robbery, all on the basis of tweets and political speeches they made in the period before deadly protests that took place in southeast Turkey from October 6-8, 2014. Demirtaş’s co-defendants include current and former members of parliament from the Peoples’ Democratic Party (HDP). The first hearing of the merged cases against Demirtaş took place on April 26. The next hearing is scheduled for June 14.
Read the full press release here: Turkey Flouts European Court Judgments_press release_2021_ENG
Jun 4, 2021
An opinion piece by Massimo Frigo, ICJ Senior Legal Adviser, Europe and Central Asia Programme.
On 25 May 2021, the Grand Chamber of the European Court of Human Rights issued a landmark ruling on the compatibility of systems of mass surveillance with the European Convention on Human Rights (ECHR), the essential elements of which were first brought to public light by the revelations of whistleblower Edward Snowden in 2013.
The judgment in the case brought against the United Kingdom, challenged both the system of bulk interception of cross-border communications set up by the UK, such as the Tempora programme, and the cooperation in bulk interception and surveillance with other countries. Most importantly among these countries are the so-called ‘Five Eyes’, i.e. the United States (using programmes such as UpStream and PRISM), Canada, Australia, New Zealand and the UK.
Given the complexity of the judgment, this blog article will limit itself to conveying the gist of the Strasbourg judges’ ruling with regard to its findings on compatibility with Article 8 ECHR protecting the right to privacy, and to setting out some first impressions.
Overall, while the Court has provided some useful standards in relation to mass surveillance online, the judgment is affected by some key deficiencies that unfortunately limit considerably its contribution to provide a solution for the current human rights challenges in the digital sphere.
The importance of metadata for today’s surveillance practices
This much awaited judgment is a landmark ruling because the Court, for the first time, addresses the challenges of mass surveillance carried out not only on data but also on metadata. Metadata includes information left in the Internet such as the author of the information, the location, the subject, and other identifiers.
The Court recognizes that its jurisprudence of ten years ago or more, most of which is based on targeted surveillance on individual communications, cannot stand the test of the internet revolution, in which “lives are increasingly lived online” (para. 341). The Court recognises the centrality of metadata when dealing with the Internet, when it finds that “any intrusion occasioned by the acquisition of related communications data will be magnified when they are obtained in bulk.” (para. 342).
The consequence of this finding, for the majority of the Grand Chamber, is that end-to-end safeguards are needed, i.e. from the moment of collection of the data or metadata until the moment of cessation of the surveillance activity on a given set of information. Further, these safeguards should increase as bulk interception progresses, based on the assumption that the more advanced it becomes, the closer it gets to the individual and to the content, hence to “traditional” surveillance.
Based on this reasoning, the Grand Chamber looks at “whether the domestic legal framework clearly define[s]:
- the grounds on which bulk interception may be authorised;
- the circumstances in which an individual’s communications may be intercepted;
- the procedure to be followed for granting authorisation;
- the procedures to be followed for selecting, examining and using intercept material;
- the precautions to be taken when communicating the material to other parties;
- the limits on the duration of interception, the storage of intercept material and the circumstances in which such material must be erased and destroyed;
- the procedures and modalities for supervision by an independent authority of compliance with the above safeguards and its powers to address non-compliance; and
- the procedures for independent ex post factoreview of such compliance and the powers vested in the competent body in addressing instances of non-compliance.” (para. 361)
Sharing surveillance: how and when
The Court affirmed that “the transmission by a Contracting State to foreign States or international organisations of material obtained by bulk interception should be limited to such material as has been collected and stored in a Convention compliant manner and should be subject to certain additional specific safeguards pertaining to the transfer itself” (para. 362). These are circumstances clearly set out in domestic law; ensuring that the transferring State has in place safeguards against abuse; heightened safeguards for material requiring special confidentiality; and independent control.
However, contrary to the standard set out in EU law and by the Court of Justice of the EU, “[t]his does not necessarily mean that the receiving State must have comparable protection to that of the transferring State; nor does it necessarily require that an assurance is given prior to every transfer” (para. 362).
Finally, where intelligence surveillance concerns the UK’s request to obtain information or to search for information in the data or metadata acquired and stored by a third country, the Court forcefully stresses that these systems must not result in any circumvention of the requirements it has set out (para. 497).Therefore, requests can only be made if there is a basis in domestic law, which must be accessible and foreseeable and with clear rules “which give citizens an adequate indication of the circumstances in which and the conditions on which the authorities are empowered to make such a request … and which provide effective guarantees against the use of this power to circumvent domestic law and/or the States’ obligations under the Convention” (para. 497). In addition, there should be independent supervision and ex post facto review. Once the information is received, the standards set out by the Court for surveillance carried out by a Contracting Party to the ECHR must be applied.
Big Brother must work
As is evident, the Court has set some innovative standards to apply the Convention’s rights, in particular the right to privacy under article 8 ECHR, to the bulk interception of communications.
However, a closer analysis of the judgment – and in particular the separate opinions – shows that this landmark ruling misses the mark in the era of Big Data.
First, the judgment is vitiated by an implicit but excessive trust in the intelligence services and in the Government’s assessment that interception, storage, analysis and surveillance of data and metadata is essential to protect national security. The Grand Chamber’s majority does not attempt to assess the veracity of this sweeping assertion by the UK, with an application of the tests of necessity and proportionality, but relies blindly on it. This is a conceptual weakness, because once this premise is accepted, the judges’ reasoning builds on the primary need to make mass surveillance work.
Secondly, while the criteria established are useful and in part an improvement on its previous requirements, the Court has mostly conducted an assessment of the UK regulatory framework than of its actual, to the point that the Court found the existence of a legislation merely prohibiting the “circumvention of guarantees” to be an effective system to ensure that there is no circumvention of guarantees (see, para. 513).
Thirdly, it is problematic that some of the Court’s criteria for allowing for bulk interception can be overridden if, “when viewed as a whole, sufficient guarantees against abuse are built into the system to compensate for this weakness” (para. 370). This exception brings a degree of unpredictability to the system that in itself defeats the need to set out clear grounds for bulk interception. Both States and the Court are therefore allowed to carry out a case-by-case assessment for any kind of surveillance.
Fourth, one of the requirements of the legal framework gives up an essential guarantee of human rights protection, namely the oversight by the judiciary. While requiring that an independent authority be involved in the authorisation and ex post control processes, the Grand Chamber’s majority explicitly excludes that this must be a judicial authority and allows for “internal” authorities to be envisaged, even if they must be, at least on paper, “independent of the executive” (para. 359). On this specific point, the Court of Justice of the EU took a stronger position requiring the involvement of a judicial authority (see, Schrems II judgment, paras. 186-194).
With regard to foreign intelligence– whether the UK allows foreign intelligence services to obtain communications UK or the UK obtains or requests communications from foreign services – the Court applies lower standards and does not adopt the protection equivalency system that is provided by EU law. This means that it will be easier for the UK to request information from, for example the US National Security Agency, than to acquire it itself, with the only defence for privacy being an a priori faith in the letter of UK law, which states that “circumventing” national procedure is prohibited.
Finally, the Strasbourg judges have clearly avoided the central question of how to regulate forms of close transnational surveillance cooperation, such as that of the Five Eyes, that nurture and dispose of entire databases containing a high amount of the data produced on the Internet.
Too late and too little
In conclusion, although the Grand Chamber’s ruling made modest advances in protecting human rights on the internet, overall it missed the opportunity presented by this case to address the technological revolution of the last decade, namely Big Data.
The Court has recognised the danger, but the solutions it has posited are still based on the logic of targeted surveillance systems, according to which the level of human rights protection should increase the more the surveillance is closer to the individual. Based on this logic, the more a CCTV camera closes on you the more guarantees you should have to protect your right to privacy.
However, the current Big Data system resembles more to an infinite set of cameras installed in everyone’s houses, which intelligence services can access on demand.
The failure by the Court to recognise and effectively regulate the moment of data gathering risks being fatal to the capacity of the guarantee established by the Court to effectively protect the human rights of people subject to this kind of surveillance.
It is to be hoped that the Court will revisit its jurisprudence in future cases to more effectively ensure that its jurisprudence provides effective protection to human rights in relation to the challenges brought by the technologies of today and not those of the past.
Disclaimer: This op-ed has first appeared on Volkerrechtsblog . The ICJ has intervened as a third party in the proceedings described.
