Jul 21, 2019
On 19 July, the ICJ, jointly with ILGA Europe, FIDH, KPH and NELFA submitted a third-party intervention in the case of X. v. Poland before the European Court of Human Rights.
The case concerns the refusal of the Polish authorities to grant a lesbian mother custody of her children.
It raises issues concerning whether such a refusal is the result of discrimination on the grounds of her sexual orientation, and therefore, as such, would constitute prohibited discrimination in the enjoyment of Convention rights, contrary to Article 14 of the Convention, read in conjunction with Article 8.
In the brief, the ICJ, together with its partners, set forth the current status of play of the case-law related but not limited to child custody decisions where one or both of the parents are lesbian, gay, bisexual, transgender or intersex (LGBTI) individuals.
The third-party interveners have urged the Court to build upon its recent jurisprudence asserting and protecting the rights of LGBTI persons by drawing on its approach to consider the European Convention on Human Rights as a living instrument that needs to be interpreted in the light of present-day conditions.
Europe-X v Poland_TPI-Advocacy-Legal submissions-2019-ENG (full intervention, in PDF)
Jun 28, 2019
The ICJ and Amnesty International presented today a third party intervention in the case of al-Hawsawi v. Lithuania before the European Court of Human Rights.
The interveners made submissions to the Court in this case on complicity with the US-led rendition, secret detention and interrogation programme on:
- knowledge imputable to Contracting Parties, in particular, Lithuania, at the relevant times;
- enforced disappearance as a violation of Article 3 of the Convention;
- non-refoulement obligations;
- and post-transfer obligations under the Convention.
Mustafa al Hawsawi, a Saudi Arabian national currently detained at Guantanamo, was arrested in Pakistan in 2003 and subjected to rendition and secret detention. He was one of the many “high-level” persons subjected to torture following his rendition.
He was subject to treatment that could “easily approximate waterboarding”. He arrived in Guantánamo on 6 September 2006.
He is currently subject to proceedings before a military commission together with four other defendants; they are all charged with being involved in the 9/11 attacks.
The UN Working Group on Arbitrary Detention found that his right to liberty and to a fair trial had been violated and that the US has a duty to release him and provide him with compensation.
Several UN Special Rapporteurs raised serious concerns at the denial of medical treatment for Mr al Hawsawi, leading to a deterioration in his health, and the inhumane detention conditions.
The full intervention can be downloaded here: Al-Hawsawi-submission-2019-ENG
Jun 7, 2019
The ICJ has presented its response to a European Commission consultation on how to strengthen protection of the rule of law in EU Member States through promotion, prevention mechanisms and measures to hold States accountable for rule of law violations.
In its response to the European Commission consultation , the ICJ highlights the declarations of ICJ Congresses from the Act of Athens in 1955 to the Tunis Declaration of 2019, which have helped to define and explain the rule of law. The ICJ’s long experience of working to advance the rule of law around the world has shown the need both for institutional and procedural safeguards for the rule of law, and for developing strong national rule of law cultures. The EU has an important role to play in supporting these protections in EU Member States, but it does not act alone in this field. The EU’s work on rule of law should be carefully positioned to take account of UN and Council of Europe standards and mechanisms, in the interests of the most effective possible strategies to protect the rule of law in Europe. Furthermore, for the EU to be credible in the action it takes to protect and promote the rule of law, the EU institutions themselves met be above reproach in their compliance with Rule of Law principles.
As regards the promotion of the rule of law, the ICJ underlines the importance of a shared understanding and commitment to the rule of law amongst legal and political communities, and the general public. The EU can make a significant contribution to supporting such understanding, through support and funding for civil society in its defence and promotion of the rule of law, through building the capacity of legal professionals including judges, prosecutors and lawyers to uphold the rule of law, and through support for building the engagement of national parliaments on rule of law issues.
In order to prevent threats to the rule of law, the ICJ supports the development of regular, uniform rule of law reviews by which EU Member States’ laws and practices are measured against objective standards by independent experts. Such assessments should be removed from political influence and should be conducted through an open and transparent process, and should be co-ordinated with existing initiatives of the EU and mechanisms of the UN and Council of Europe. The reviews could be conducted by a new independent, specialised Agency on the rule of law, or in co-operation with the Venice Commission of the Council of Europe.
It is vital that there are effective EU mechanisms to respond to violations of the rule of law in EU Member States. Both the European Court of Human Rights and the Court of Justice of the EU are essential to this response. The EU should therefore do all in its power to support the European Court of Human Rights and the implementation of its judgments. Infringement proceedings before the CJEU should be initiated regularly and promptly where the Commission identifies rule of law problems that violate EU law or affect the application of EU legislation. Institution of Article 7 TEU proceedings in appropriate cases is also vital to uphold the credibility of any rule of law assessment mechanism, and in the long term, consideration should be given to amending the treaties to strengthen this mechanism.
The full ICJ submission can be read here.
Jun 3, 2019
Today, the ICJ and IBAHRI filed their submission to the UN Human Rights Committee on the compliance by Tajikistan with its obligations under the International Covenant on Civil and Political Rights.
During its 126th session, from 1 to 26 July 2019, the Human Rights Committee will examine the Republic of Tajikistan’s implementation of the provisions of the International Covenant on Civil and Political Rights, including in light of the State Party’s third periodic report.
In the context of this review, the International Bar Association Human Rights Institute (IBAHRI) and the International Commission of Jurists (ICJ) bring to the Committee’s attention some issues of concern pertaining to Tajikistan’s implementation of the ICCPR. Their submission highlights a number of concerns relating to the lack of independence of the legal profession in Tajikistan, and its consequences for the protection of certain Covenant rights. In particular, the submission addresses:
(a) the legal profession’ lack of independence;
(b) the authorities’ interference with lawyers’ legitimate activities;
(c) restrictions placed on lawyers’ access to their clients and the rights of the defence; as well as
(d) specific cases of concern.
These concerns are relevant for the Committee’s evaluation of the Republic of Tajikistan’s implementation of the right to a fair trial under article 14 ICCPR, as well as other Covenant rights, including for example the State’s obligations under articles 2, 7, 9, and 10 of the ICCPR.
See the submission here: ICCPR report_Tajikistan_IBAHRI_ICJ_2019_eng.
Jan 23, 2019
The ICJ and Amnesty International–Canada, have intervened in appeal proceedings before the Supreme Court of Canada in the Case Araya et al versus Nevsun Resources Ltd on appeal from the British Columbia Court of Appeal.
This case concerns a civil suit by Eritrean refugees against Nevsun for its involvement in the commission of forced labour, slavery, torture and other serious breaches of international law against them and many other victim. It is being heard today (23 January).
The joint intervention sets out the basis of the right to an effective remedy under international law and the importance of giving effect to that right in the proceedings of the case and in the development of common law in Canada.
The proceedings before the Supreme Court originate in an appeal by the defendant company Nevsun Resources Ltd against the British Columbia Court of Appeal’s judgment of 2017 which upheld the rights of claimants to sue in Canada.
The company argues that the “act of State” doctrine precludes Canadian courts from sitting to judge the lawfulness or validity of sovereign acts of foreign states, in this case the implementation of Eritrean National Service Programme, within the territory of that state.
The alleged forced labour, slavery and torture had been committed in this context. The company also contends that the claimants’ suit is based on allegations of breach of customary international law rules applicable only to States and which are not recognized under Canadian tort law as applicable to companies.
The ICJ and AI-Canada argue that the development of common law doctrines of judicial abstention and causes of action should be consistent with the right to an effective remedy for human rights violations as protected by international law and the Canadian Charter of Rights and Freedoms. In this line, the company’s grounds of appeal should be rejected or, if accepted, should be made consistent with the full respect to the right of the claimants to an effective remedy.
The claim filed in 2015 argues that Nevsun Resources was involved in various ways in the practice of forced labour, slavery, torture, cruel, inhuman or degrading treatment, and crimes against humanity at the Bisha mine against hundreds of Eritreans who were conscripted into the Eritrean National Service Programe and forced to working in the mine operated jointly by Nevsun and Eritrean State companies.
The claimants, Gize Yebeyo Araya, Kesete Tekle Fshazion and Mihretab Yemane Tekle, three of those who were forced to work in the Bisha mine and fled the country to find refuge in Canada, sued Nevsun alleging private law torts and breaches of peremptory principles of international law (forced labour, slavery, torture, inhuman or degrading treatment, and crimes against humanity).
Contact:
Carlos Lopez, ICJ Senior Legal Adviser, t: +41 22 979 38 16 ; e: carlos.lopez(a)icj.org
Canada-Nevsun AB-Advocacy-Legal submissions-2019-ENG (full text of appeal, in PDF)
