Sep 14, 2015
The UN Working Group on Arbitrary Detention will today present to the Human Rights Council its “Basic Principles and Guidelines on remedies and procedures on the right of anyone deprived of their liberty to bring proceedings before a court” (UN Doc A/HRC/30/37 (2015)).
“The Basic Principles and Guidelines act to reflect important elements necessary to preserve and protect the right to liberty,” said Wilder Tayler, Secretary-General of the ICJ.
“The document assists States, international organization and civil society to enhance, in law and in practice, respect for the right to challenge the lawfulness of detention by habeas corpus or equivalent procedures,” he added.
As concluded by the ICJ’s Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights, there has been a progressive erosion of international law principles since the so-called ‘war on terror’.
Along with many other aspects of the Basic Principles and Guidelines, the ICJ has therefore welcomed the attention given to the application human rights standards alongside international humanitarian law and the related provisions of the document pertaining to detention in armed conflict.
“In light of some recent State practices, including in the context of unlawful rendition and secret detention programmes, there is an especially important value in this aspect of the Basic Principles and Guidelines, including for the combating of incommunicado and secret detention, enforced disappearance and torture and other cruel, inhuman or degrading treatment,” Tayler said.
“It is for this reason that the ICJ has produced a Legal Commentary on elements of the Basic Principles and Guidelines pertaining to detention in armed conflict,” he added.
The ICJ’s Legal Commentary supports the general approach adopted by the Working Group in its formulation of the Basic Principles and Guidelines as they pertain to detention in armed conflict.
It provides further explanation and justification for the Working Group’s approach, with particular reference to international law and standards, showing why the Basic Principles and Guidelines – as they apply to detention in armed conflict – should be scrupulously followed.
Background
Under its resolution 20/16 (2012), the UN Human Rights Council requested the Working Group on Arbitrary Detention to prepare draft basic principles and guidelines on remedies and procedures on the right of anyone deprived of his or her liberty.
The Basic Principles and Guidelines were adopted by the Working Group in April 2015, following a two-year process of deliberations and open consultations.
The Working Group set out a first draft set of principles and guidelines ahead of its global consultation on the subject in September 2014.
From 2 to 5 February 2015, the Working Group met to continue its elaboration of the Basic Principles and Guidelines, resulting in the adoption of a second draft.
The Working Group adopted its final iteration of the document at the conclusion of its session on 29 April 2015.
The ICJ engaged in all stages of the Working Group’s elaboration and consultations.
It made written submissions in November 2013, April 2014 and March 2015.
Its staff, Matt Pollard and Alex Conte, gave panel presentations at the September 2014 global consultation.
Contact:
Alex Conte, Senior Legal Adviser at ICJ, t: +41 22 979 3838 ; e: alex.conte(a)icj.org
Universal-Commentary-WGAD-PrincGuideArmedConflict-Advocacy-2015-ENG (full text in PDF)
Jul 17, 2015
In a briefing paper released today, and an accompanying letter to Nepal’s Constituent Assembly, the ICJ raises a number of concerns about Nepal’s Draft Constitution.
The Constituent Assembly’s endorsement of a Draft Constitution on 7 July 2015, and the subsequent opening of a 15-day public consultation on this draft, represents a unique and crucial moment in Nepal’s constitutional history, the ICJ said.
But to fulfill the promises of the Comprehensive Peace Accord that ended the decade-long armed conflict and the guarantees of the Interim Constitution it will replace, changes to the drafting process must ensure adequate opportunity for meaningful and inclusive public participation, and amendments to the Draft Constitution are required to protect human rights in accordance with Nepal’s international obligations.
“This 15-day timeframe must be expanded, and provisions of the draft Constitution must be amended, to ensure that the Nepali people have the opportunity to frame a Constitution which guarantees the rule of law, human dignity and enhanced human rights protection,” said Wilder Tayler, Secretary General of the International Commission of Jurists.
In a letter to the Chairperson of the Constituent Assembly on 17 July 2015, accompanied by a detailed briefing paper, the ICJ has made recommendations for changes to both the constitution-making process and text of the Draft Constitution in light of Nepal’s obligations under international human rights law.
The ICJ has underscored that, while the renewed momentum within the Nepali government in the aftermath of the earthquake to finalize and adopt the long-awaited Constitution is welcome, the speed and manner in which the consultation on the first Draft Constitution is being conducted is undermining people’s right to participate.
“Such ‘fast-tracking’ risks delegitimizing the constitution-making process by undermining people’s right to participate in it”, Secretary-General Tayler said. “The government must urgently revise the timetable to ensure that all individuals, including minorities, historically marginalized groups and people in remote areas whose accessibility is further compromised by the rainy season, have the necessary time and resources to meaningfully review and comment on the draft”.
The ICJ has also noted several provisions of the Draft Constitution that must be amended to fully comply with international human rights standards and to protect the rule of law.
The ICJ’s analysis of the provisions of the Draft Constitution on citizenship, fundamental rights and judicial independence, in light of Nepal’s international human rights obligations, found that:
- The citizenship provisions are vague and discriminatory, and risk making people stateless;
- Non-citizens are excluded from key rights entitlement and protections;
- Several rights, including women’s rights and key economic, social and cultural rights, are not adequately protected;
- Restrictions on the rights to free speech, expression, information and press freedom, as well as the rights to freedom of association and assembly are broad and vague and do not conform with international human rights standards;
- Provisions on remedy for human rights violations are lacking;
- Protections of the independence of the judiciary are weak and inadequate;
- Provisions on emergencies and consequent restriction of rights are overbroad.
“Amendments to the Draft Constitution to address these concerns, among others are needed if Nepal is to adopt a strong and progressive Constitution which safeguards the rule of law, human rights and the independence of the judiciary, consistent with the country’s obligations under international human rights law,” Tayler said.
Download the ICJ’s letter to the Constituent Assembly here:
NEPAL-DRAFT CONST-ADVOCACY-OPEN LETTER-2015-ENG
Download the ICJ’s full briefing here:
NEPAL-CONSTITUTION-ADVOCACY-ANALYSIS BRIEFS-2015-ENG
Contact:
Nikhil Narayan, Nepal Head of Office and ICJ Senior Legal Adviser, m: +977-(0)9813187821, e-mail: nikhil.narayan(a)icj.org
Apr 15, 2015
In a briefing paper released today, the ICJ provides answers to key questions regarding the legal framework and political context of Pakistan’s move to allow military courts to try civilians for offenses allegedly related to terrorism.
The ICJ is publishing this paper as the Supreme Court of Pakistan (photo) is about to resume hearings (tomorrow), in a constitutional challenge to the newly enacted legal framework granting jurisdiction to military courts to try civilians for terrorism related offences.
The briefing paper analyses the new provisions and military court proceedings in the light of international standards guaranteeing the right to fair trial before independent and impartial courts.
“Pakistan’s new system of ‘military justice’ falls well short of domestic and international fair trial standards, flouts previous Supreme Court rulings, and goes against a regional and global trend of limiting rather than expanding military courts’ jurisdiction,” said Sam Zarifi, ICJ’s Asia director.
Earlier this month, the Chief Justice of Pakistan, Nasir-ul-Mulk, constituted a full-bench of the Supreme Court comprising of all 17 justices to hear over a dozen petitions that argue that the extension of military court’s jurisdiction over civilians is a violation of the right to a fair trial and the independence of the judiciary, and a breach of the principle of separation of powers.
“The failure of the government and military authorities to make public information about the time and place of the trials, the charges against accused persons as well as the procedures used by military courts have confirmed fears of human rights groups and the legal community that the military trials in Pakistan are secret, opaque and violate Pakistan’s domestic and international fair trial obligations,” Zarifi added.
“The Supreme Court has in the past contributed positively to protecting human rights, notably in cases of enforced disappearance and the rights of religious minorities,” he said.
“All eyes are now on the Court to remedy the militarization of justice in progress in Pakistan under the guise of combatting terrorism.”
Background
On 6 January, Pakistan’s Parliament passed the 21st amendment to the Constitution and amendment to the Army Act, 1952, to allow military tribunals to try civilians accused of belonging to “a terrorist group or organization using the name of religion or a sect” carrying out acts of violence and terrorism.
On 2 April, military courts delivered their first set of verdicts under the new legal provisions. Seven accused persons were convicted for undisclosed offences: six were sentenced to death and one was sentenced to life imprisonment.
Contact
Sam Zarifi, ICJ Asia Pacific Regional Director (Bangkok), t: +66 807819002; email: sam.zarifi(a)icj.org
Reema Omer, ICJ International Legal Adviser for Pakistan (London), t: +447889565691; email: reema.omer(a)icj.org
Pakistan -Q and A Military Courts-Advocacy-Analysis Brief-2015-ENG (full text in PDF)
Feb 11, 2015
The ICJ presented its opinion in regard to the case of Oleg Evloev v. Kazakhstan. The underlying matters in the proceeding had been the subject of a decision by the UN Committee against Torture (CAT).
The ICJ outlined the States’ obligations under the UN Convention Against Torture, the Procedure under Article 22 of the Convention, as well as the National Courts’ role vis-a-vis the decisions of the CAT.
Contact:
Róisín Pillay, Director, Europe Programme, roisin.pillay(a)icj.org
Temur Shakirov, Legal Adviser, Europe Programme, temur.shakirov(a)icj.org
Russia-Evloev expert opinion-Advocacy-analysis brief-2015-eng (full text in PDF)
Russia-Evloev expert opinion-Advocacy-analysis brief-2015-rus (full text in PDF)
Oct 30, 2014
An ICJ report, published today following a mission to Italy, examines the effectiveness of the Italian legal system in delivering access to justice for undocumented migrants who challenge orders for their expulsion or administrative detention.
