Tunisia: parliament must amend or reject the draft law on the protection of security forces

Tunisia: parliament must amend or reject the draft law on the protection of security forces

The Tunisian Parliament should amend or reject the revised Draft Organic Law No. 25-2015 on the protection of security forces scheduled for discussion in Parliament today, said the ICJ. The Law if adopted would reinforce impunity for violations committed by security forces and undermine the rule of law and human rights.

The revised Draft Law was approved by the Parliamentary Commission in July 2020, following unsuccessful attempts to adopt it in 2015 and 2017.

Article 7 of the Draft Law provides for the exoneration of security forces from criminal responsibility for using lethal force to repel attacks on a security building, when the force is necessary and proportional to the danger posed to the building. In 2017, the ICJ and other organizations urged Parliament to reject a prior draft which included the same provision.

“More than 10 years after the uprising, Tunisia’s security forces continue to enjoy impunity for decades of serious human rights violations,” said Said Benarbia, the ICJ’s MENA Programme Director.

“The Parliament should adopt all the effective measures at its disposal to end such impunity, not entrench it by allowing the use of lethal force when it’s not strictly necessary to protect lives.”

Article 7 of the Draft Law would preserve the operation of Law No. 69-04, which permits the use of firearms to defend property, “mitigate” a resistance, or stop a vehicle or other form of transport in the context of public meetings, processions, parades, public gatherings, and assemblies. It allows for the use of lethal force to disperse an unlawful gathering where other means of dispersal have failed.

Under international law, including the United Nations Basic Principles on the Use of Force, the intentional use of lethal force must be reasonable, necessary and proportional, and is only permissible if strictly necessary to protect life from an imminent threat to life, not a threat to property.

In the context of non-violent assemblies, the use of force should be avoided and, where unavoidable, restricted to the minimum extent necessary against only those individuals posing an imminent threat of death or serious injury.

The Draft Law appears to preserve an exemption under article 42 of the Criminal Code and Article 46 of Law No. 82-70 on the Statute of Internal Security Forces of 6 August 1982. Article 42 of the Criminal Code provides that a person is not liable for crimes under the Criminal Code, including homicide, if their acts were carried out pursuant to other laws or orders from a competent authority. Article 46 of Law No. 82-70 limits this immunity in relation to orders given to officers of the Internal Security Forces by requiring the orders be given “by their superior in the framework of legality.” Under international law, superior orders cannot serve as a ground of defence to a crime of unlawful killing by a State agent, such as a member of a security force.

“The Tunisian Parliament should reject the Draft Law and conduct a complete review of all laws regulating the conduct of the security forces to ensure they meet standards necessary to protect the population from the excesses demonstrated in the past,” said Kate Vigneswaran, the ICJ’s MENA Programme Senior Legal Adviser.

“Members of the Parliament should send a clear, unequivocal message that the impunity of the security forces can no longer be tolerated.”

Contact:

Said Benarbia, Director, ICJ Middle East and North Africa Programme, t: +41-22-979-3817; e: said.benarbia(a)icj.org

Kate Vigneswaran, Senior Legal Adviser, ICJ Middle East and North Africa Programme, t: +31-62-489-4664; e: kate.vigneswaran(a)icj.org

Tunisia-draft law security forces-News-2020-ARA (story in Arabic, PDF)

Accountability in Libya; Independence of lawyers in Ukraine (UN statement)

Accountability in Libya; Independence of lawyers in Ukraine (UN statement)

The ICJ today highlighted the need for accountability for crimes under international law in Libya, and concerns for the independence of lawyers in Ukraine, at the UN Human Rights Council in Geneva.

The oral statement, delivered in the general debate on technical cooperation and capacity building, read as follows:

“Madame President,

The International Commission of Jurists (ICJ) welcomes the oral updates on Ukraine and Libya.

Technical assistance and capacity building objectives in Libya can only be achieved if the protection of human rights, entrenchment of the rule of law and pursuit of accountability are prioritized.

States should support the Fact-Finding Mission by extending its reporting mandate, increasing contributions to the UN budget necessary to establish the Mission’s secretariat, and fully cooperating with it.

States should also support the Berlin Process working groups, ensuring that the political and accountability pillars work in unison and making meaningful commitments to implement their recommendations.

Across all of Ukraine, lawyers continue to be associated with their clients and may face consequences for representing them by private individuals and also through abuse of legal proceedings. High-profile cases bear risks for independent lawyers who choose to diligently represent their clients.

The decline in security of lawyers in and outside of courts, and the problem of threats, harassment, and attacks against lawyers, should be addressed as a matter of priority, including through technical cooperation. Measures should be taken to build the capacity of law enforcement agencies and court security personnel to ensure that lawyers and others involved in court proceedings can work in an atmosphere free from intimidation, harassment, and improper interference.

Thank you.”

Philippines: NGOs decry inadequate UN response

Philippines: NGOs decry inadequate UN response

The ICJ today joined other NGOs in expressing concern that the Human Rights Council is poised to fail to adequately respond to the human rights crisis in the Philippines, and urging stronger action.

The statement, which was delivered by the World Organization against Torture (OMCT) on behalf of the group of NGOs in a general debate on item 10, read as follows:

“On behalf of 15 organisations, including colleagues in the Philippines, we are deeply disappointed that the draft Item 10 resolution on the Philippines fails to reflect the gravity of the situation, including as documented in the OHCHR report.

Colleagues from the Philippines have tirelessly advocated for an international investigation, at great personal risk. The thousands of victims of killings and other violations and their families continue to be deprived of justice.

This is a collective failure by the States at this Council. We are shocked by the lack of support for a more robust response.

We acknowledge the rationale presented for constructive engagement with the Government of the Philippines. However, an approach based purely on technical cooperation and capacity-building has no realistic prospect of meaningful impact with a government that denies the true scale and severity of the human rights violations, has publicly endorsed the policy of killings, avoids independent investigations, and continues to crack down on civil society.

Despite the shortcomings of the resolution, it at least keeps the situation on the agenda for the next two years and allows for robust reporting by the OHCHR on the situation – including the implementation, or lack thereof, of OHCHR report recommendations. The Council must follow developments closely and be ready to launch an independent investigation if the killings and the crackdown on civil society do not immediately end and prosecution of perpetrators is not pursued.

I thank you.”

  • Alyansa Tigil Mina (ATM)
  • Amnesty International
  • Asian Forum for Human Rights and Development (FORUM-ASIA)
  • CIVICUS
  • Ecumenical Voice for Human Rights and Peace in the Philippines (EcuVoice)
  • Franciscans International
  • Harm Reduction International
  • Human Rights Watch
  • iDefend
  • International Commission of Jurists (ICJ)
  • International Federation for Human Rights (FIDH)
  • International Service for Human Rights (ISHR)
  • KARAPATAN
  • Philippine Alliance of Human Rights Advocate (PAHRA)
  • World Organisation Against Torture (OMCT)
Bombs or Disease: The false choice in Myanmar’s conflict areas

Bombs or Disease: The false choice in Myanmar’s conflict areas

An opinion piece by Jenny Domino, Associate Legal Adviser, ICJ Asia-Pacific Programme.

If Myanmar needs a guide in its fight against COVID-19, it need look no further than what human rights law already demands of it.

As COVID-19 cases surged in Rakhine State in late August, State Counsellor Daw Aung San Suu Kyi affirmed that government responses to the pandemic would not discriminate based on faith or ethnicity. No one would be left behind in the fight against COVID-19, she promised.

These words carry particular weight in northern Rakhine, where an ethnic-based armed conflict persists. Fighting between the Myanmar military and the Arakan Army has led to the death, rape, psychological trauma and mass displacement of thousands of inhabitants caught in the crossfire, be they ethnically Rakhine, Rohingya, Daingnet, Chin or Mro. Women and children have been the victims of shelling, heavy artillery and landmines. And despite the surge in local transmission of COVID-19, a mutual ceasefire still seems unlikely.

Add to these horrors the spectre of political disenfranchisement. Concurrent with government-imposed stay-at-home orders to prevent the spread of the virus, internet restrictions ostensibly aimed at disrupting AA communications remain in place in several townships. In addition to undermining people’s access to health services and information, the internet restrictions curtail the exercise of people’s political rights as election campaigns increasingly move online. Both voters and candidates there now have to contend with limited connectivity during a crucial general election.

How should Myanmar’s response to COVID-19 be evaluated in a situation of armed conflict? In a briefing paper titled “COVID-19 and Human Rights: Upholding the Right to Health in Myanmar’s Conflict Areas,” the International Commission of Jurists offers some insight.

The international law prohibition on discrimination is relevant. The International Covenant on Economic, Social and Cultural Rights, which Myanmar has ratified and to which it is bound, prohibits discrimination and guarantees the right to the highest attainable standard of health for all persons. The treaty requires that Myanmar enable access to healthcare for every person within its jurisdiction regardless of “race, colour, sexual orientation or gender identity, age, gender, religion, language, political or other opinion, citizenship, nationality or migration status, national, social or ethnic origin, descent, health status, disability, property, socio-economic status, birth or other status.” This applies even in situations of armed conflict.

Crucially, while some ICESCR obligations depend on state capacity and are therefore “progressively realisable”, the obligation not to discriminate based on any of the above criteria is not. This means that the state cannot invoke a lack of resources to justify discriminatory laws, policies and practices in fulfilling its obligations under the ICESCR. Non-discriminatory access to healthcare under the ICESCR requires not only physical and economic access to healthcare facilities, goods and services, but also to information. To comply with this latter requirement, Myanmar must ensure access to health-related education and information for everyone. In the context of COVID-19, the UN Committee on Economic, Social and Cultural Rights recommended that information about the pandemic be provided on a “regular basis, in an accessible format and in all local and indigenous languages”.

Opening up lines of communication and information-sharing is crucial, according to the UN Committee, to reduce the risk of transmission and to overcome COVID-19-related disinformation. As the recent ICJ report “Living Like People Who Die Slowly: The Need for Right to Health Compliant COVID-19 Responses” shows, states must generally refrain from censoring, withholding or misrepresenting health-related information and from preventing people from accessing it.

The internet restrictions, though not a total ban, still effectively isolate communities and undermine their ability to access health-related information – particularly crucial during a pandemic. Armed conflict does not justify these blanket restrictions. A non-discriminatory approach that ignores citizenship status, nationality, ethnicity, religion, or belief, would require Myanmar to fully restore 3G or 4G connectivity in these townships.

In addition to its international human rights law obligations, Myanmar must also comply with its international humanitarian law obligations, which regulate the conduct of hostilities between parties to a conflict and protect persons who take no active part in the hostilities. Importantly, it is not only the Myanmar government but also the AA that have obligations under international humanitarian law.

The AA, as a non-state actor, is not formally bound by the ICESCR. However, as the de facto authority in the areas under its effective control, the AA bears a general responsibility to respect human rights under international law in these areas, including the right to health. Article 3 common to the four Geneva Conventions requires both parties to distinguish between persons who take active part in the hostilities and those who do not. The killing of civilians, through the use of landmines, is illegal under international humanitarian law.

Both the Myanmar military and the AA must also ensure that the wounded and sick receive timely and adequate medical attention, without distinction. For this purpose, they must ensure the safe passage of medical personnel and vehicles, and the continued operation of medical facilities in conflict areas.

Medical vehicles bearing the UN logo have particular significance in this context. The logo signals to both groups that such a vehicle must not be attacked. Medical personnel must also be protected from physical risk and from the threat of prosecution based on their treating victims without regard to ethnic or political affiliation.

People need not be forced to choose between bombs and disease; they have the right to simultaneous protection from both. To avoid this situation, the UN secretary-general has called for a global ceasefire to enable everyone to focus on the “true fight of our lives”– COVID-19. In Myanmar, members of the diplomatic community, civil society and ethnic armed organisations have similarly called for the cessation of hostilities. Observing a ceasefire would enable all parties and the government to abide by its international law obligations.

As COVID-19 cases continue to increase in Myanmar, the pandemic has acutely underscored the importance of eroding man-made divisions like race and religion, and it has made clear the need to ensure access to healthcare and health information for all. If Myanmar needs a guide in its fight against COVID-19, it need look no further than what human rights law prescribes.

First published in Frontier Magazine on 2 October: https://www.frontiermyanmar.net/en/bombs-or-disease-the-false-choice-in-myanmars-conflict-areas/

Eswatini:  ICJ and partner organization launch guide to reporting gender-based violence for journalists

Eswatini: ICJ and partner organization launch guide to reporting gender-based violence for journalists

To assist in efforts to combat gender-based violence, the ICJ and Swaziland Action Group Against Abuse (SWAGAA) collaborated to create a guide on reporting gender-based violence for media practitioners in Eswatini.

The guide, designed by SWAGA, was launched on 2 October 2020 in a webinar attended by media practitioners from Eswatini.

Media practitioner, lecturer and trainer Pontsho Pilane gave an introduction to and answered questions about reporting gender-based violence. Her own interests include the intersection between health, race and gender.

Pilane said it was important for journalists to find different ways of presenting accounts in ways that are empowering to survivors and to readers and uphold the dignity of the most important people in the story: the survivors.

In her address, Pilane also highlighted the need for “solutions-based journalism” or reporting that focuses on adequate responses to social issues in addition to describing the problems themselves.

“Supporting survivors is crucial, as well as including things like how a survivor can find help and move forward from experiences with SGBV in our reporting,” she said.

It is also important to connect readers and survivors to NGOs like Swagaa who have the necessary tools to assist them.

In an effort to combat the various challenges presented by SGBV, the Kingdom of Eswatini introduced the Sexual Offences and Domestic Violence (SODV) Act in 2018.

Executive director of Swagaa Nonhlanhla Dlamini said the journey to enacting the SODV Act was a consultative one and that she was impressed with efforts by journalists in reporting on the Act.

“We hope that this manual will help journalists to improve their reporting on gender-based violence,” Dlamini said.

The Guide is intended as a valuable tool and resource as editors and journalists in Eswatini in supporting their collective efforts to contribute towards reporting which is respectful of survivors of gender-based violence, consistent with the law and contributes to ensuring a non-discriminatory public discourse on gender-based violence in Eswatini.

Read this guide with the ICJ Practitioner’s Guide No. 12 on Women’s Access to Justice for Gender-Based Violence and the ICJ Access to Justice: Challenges Faced by Victims and Survivors of Sexual and Gender-based Violence in Eswatini report.

Download

South Africa – Reporting GBV Guide – 2020 – ENG (full paper in PDF)

Contact

Shaazia Ebrahim (ICJ media officer), c: +27716706719 e: shaazia.ebrahim(a)icj.org

Translate »