Aug 6, 2020
In a report published today, the ICJ called on the Government of Nepal to undertake substantial reforms in order to ensure that the wide-ranging constitutional and political restructuring of recent years will allow the country to deliver on human rights accountability and access to justice for all Nepalis.
The Report on Human Rights and the Rule of Law in a Federal Nepal incorporates the findings of a High-Level Mission undertaken by the ICJ in December 2019.
The Report offers more than 50 recommendations, including that the Nepali authorities act to remove obstacles to access to justice for those seeking a remedy and reparation for human rights violations and abuses, both from the conflict era and contemporary times. The ICJ also called upon the authorities to end political interference in the enforcement of the law and administration of justice, including in respect to directives from the courts and the National Human Rights Commission.
“In the face of the challenges of federal decentralization, it is vital that all Nepalis are able to trust in their fair and equal treatment under the law,” said ICJ Commissioner and former Nepal Supreme Court Justice Kalyan Shrestha. “This report is a guide to how that public trust can be strengthened in Nepal.”
The ICJ Mission found that despite strides in the development of human rights law, policy and jurisprudence, many long-standing obstacles to accountability and access to justice persisted and remained largely unaddressed.
“Nepal remains caught in a cycle of impunity that threatens to undermine the rule of law, as evidenced by a stalled transitional justice process, compromised justice sector institutions, a fragmented civil society, and the persistence of systemic discrimination,” said ICJ Commissioner Dame Silvia Cartwright. “Despite notable efforts by provincial policymakers, a robust judiciary and the relentless advocacy of civil society, authorities representing the ‘new’ Nepal are in danger of repeating the mistakes of the past in failing to truly listen and respond to the demands of Nepalis for justice.”
The Report considers the human rights impacts of recent changes in the political and legal context, such as the implementation of provisions of the 2015 Constitution that operationalize elements of a new federal system of governance, long-awaited amendments to the Penal Code and other laws affecting the criminal justice system, and a lack of progress in the transitional justice process, as well as the de-stabilizing effects of recent political developments and COVID19.
The Mission was undertaken by ICJ Commissioners Justice Sanji Monageng (Botswana), Dame Silvia Cartwright (New Zealand) and Justice Kalyan Shrestha (Nepal), as well as ICJ Legal and Policy Director Ian Seiderman and ICJ Asia-Pacific Director Frederick Rawski.
The Report, building on a 2017 ICJ baseline study, offers findings in three main areas:
- Non-Implementation. Nepal has made notable strides in the progressive development of law and jurisprudence that incorporates significant elements of the international human rights law framework, such as the fundamental rights provisions of the 2015 Constitution. However, constitutional mandates, legislation and judicial decisions have in many cases gone unimplemented or been actively undermined at the expense of public trust in government, and access to justice for victims.
- Independent and Impartial Institutions. Nepal has made progress in establishing and building the capacity of justice institutions including police, prosecutors, the judiciary, transitional justice mechanisms and national human rights bodies. However, these institutions suffer from weaknesses in capacity and independence, and are vulnerable to political influence and manipulation.
- Accountability and Access to Justice. Despite improvements in the law and progress in institution-building, Nepalis still face the same barriers to accessing the justice system. Frontline institutions, particularly the police and prosecutors, lack the political will and capacity to effectively interface with communities. Individual Nepalis, especially those from ethnic minority communities or without proof of citizenship, typically face overwhelming obstacles when pursing a remedy in the courts.
Safeguarding the independence of the judiciary was a central theme of the Mission. The Mission found that the Supreme Court continues to effectively carry out its responsibilities under Nepal’s constitution and international law to protect human rights. However, it also concluded that persistent non-implementation of judicial decisions constituted a serious abdication of responsibility on the part of the executive authorities.
“The Mission was impressed by the role that the judiciary, and particularly the Supreme Court, has played in protecting human rights,” said ICJ Commissioner Justice Sanji Monageng. “However, we repeatedly heard concerns that officials routinely ignore judicial decisions – to such a degree that non-implementation threatens to diminish the credibility of the judiciary in the eyes of the public.”
The Mission found that the failure to respect judicial decisions was exacerbated by political interference in the appointment processes of key institutions, such as the Supreme Court, Nepal Police, National Human Rights Commission and transitional justice bodies. Among its recommendations, the report calls for the adoption of more fair and transparent appointment processes, and other measures to prevent political interference in the application of the law.
“Political interference in the appointments of high public officials erodes public trust, degrades the effectiveness of governance, and creates conditions for corruption,” added Justice Shrestha. “This includes the current system of judicial appointments, which is vulnerable to political influence, and must be reformed.”
Drawing on these findings and observations, the report offers extensive recommendations directed to the Office of the Prime Minister, federal and provincial legislatures, the Nepal Police, the Office of the Attorney General, the judiciary including the Supreme Court and National Judicial Academy, the National Human Rights Commission, civil society and the diplomatic community.
Download
Human Rights and the Rule of Law in a Federal Nepal: Recommendations from an ICJ High-Level Mission in English and Nepali.
Executive Summary and Recommendations in Nepali.
Story in English and Nepali
Contact
Frederick Rawski, ICJ Asia-Pacific Director, e: frederick.rawski(a)icj.org
Ian Seiderman: ICJ Legal and Policy Director, e: ian.seiderman(a)icj.org
Mandira Sharma: ICJ Senior Legal Adviser, e: mandira.sharma(a)icj.org
Aug 3, 2020
In a report published today, the ICJ called on the Thai government, legislature and regulatory agencies to take steps to address deficiencies in the legal and regulatory framework governing economic development in Special Economic Zones and the Eastern Economic Corridor to improve transparency, protect communities and labourers’ human rights, and implement safeguards to mitigate the adverse impact of such development on the environment and human rights.
The report, titled ‘The Human Rights Consequences of the Eastern Economic Corridor and Special Economic Zones in Thailand’ identifies gaps and weaknesses in the current law and policy governing investment in areas that have been designated for economic development in order to attract foreign investment. The report documents reported human rights violations and abuses of affected communities, as well as the adverse impact on the environment and working conditions for migrant labourers.
Drawing on international law and good practices, and the ICJ’s previous work in Myanmar, the report offers a detailed set of recommendations for how to improve the existing legal framework in order to prevent future human rights violations and abuses and provide reparation to victims of human rights violations perpetrated in and associated with SEZs.
“There is no reason for Thailand to repeat the mistakes made by governments elsewhere in the world that have rushed to dilute human rights and environmental legal protections in a misguided attempt to attract foreign investment,” said Frederick Rawski, ICJ Asia-Pacific Director.
“Safeguarding the well-being of local communities and the environment, ensuring decent conditions for migrant workers, and establishing transparent and inclusive decision-making processes are essential elements of a sustainable development that respects human rights,” he added.
As discussed in the report, the current laws and regulations governing SEZs do not contain adequate procedural safeguards and human rights protections, including for the rights to food, health, water, work and adequate housing.
While the law governing development of the EEC does contain a number of provisions that protect communities and the human rights of affected individuals, the report outlines concerns about the regulatory body governing the EEC’s broad discretionary powers and inadequate transparency in its work, as well as a lack of adequate preventive and remedial frameworks to ensure respect of human rights and environmental protections in areas designated for development under the law.
“The ICJ is encouraged by the fact that Thailand has adopted a stand-alone National Action Plan (NAP) on Business and Human Rights – the first country in Asia to do so. As part of the NAP, it has committed to reviewing and amending laws and regulations to ensure that they comply with human rights law and standards”, said Rawski.
“This report offers a set of concrete recommendations for law and policymakers to help them to fulfill this commitment as it pertains to the environmental and human rights consequences of SEZs, and the development of the EEC in particular,” he added.
The report was based on extensive legal research, as well as interviews with over 90 people, including individuals from affected communities in Chonburi, Chachong Sao, Rayong, Songkhla and Tak provinces, as well as human rights lawyers, academics and government officials at the provincial and central levels.
Key recommendations to the Government of Thailand
- Protect human rights by amending SEZ legal frameworks, EEC laws, laws governing land acquisition and environmental and labour protections, following meaningful public consultation in accordance with international standards, to ensure that:
- the government bodies responsible for developing and administering SEZs and the EEC be independent, and operate in a transparent and inclusive manner including by providing public participation in planning and decision-making processes;
- all persons have a minimum degree of security of tenure sufficient to protect them from forced eviction, harassment and other threats;
- standards be in place to protect the environment, and to mitigate the impact of environmental degradation on communities; and
- all workers enjoy equal rights protections based on the principles of non-discrimination and equality.
- Adopt an amended SEZ Act that contains provisions that are in compliance with Thailand’s international human rights obligations.
- Ensure that effective, prompt and accessible judicial and non-judicial remedies be provided to those affected by the implementation of SEZ and EEC policies; and
- Ensure that companies operating in SEZs and the EEC carry out business activities in line with the UN Guiding Principles on Business and Human Rights.
Download
The Human Rights Consequences of the Eastern Economic Corridor and Special Economic Zones in Thailand in English and Thai. (Updated in February 2021)
Story with additional background information in English and Thai.
Contact
Frederick Rawski, ICJ Asia Pacific Regional Director, e: frederick.rawski(a)icj.org
Further reading
Myanmar: amend Special Economic Zones Law to protect human rights – new ICJ report
Jul 17, 2020
La Guía para Profesionales No. 2 “El derecho a interponer recursos y a obtener reparación por violaciones graves de los derechos humanos”, en su versión actualizada, describe los estándares internacionales en materia del derecho a interponer recursos y a obtener reparación en los casos de violaciones graves a los derechos humanos.
La Guía está dirigida a profesionales que necesiten conocer los estándares internacionales relevantes en la materia para fortalecer su trabajo legal, de incidencia, social o de otro tipo.
Entre las novedades de la versión revisada de esta Guía, se destaca la actualización de las nociones de “víctimas colectivas”, “derechos colectivos” y los derechos de “grupos de individuos”. De igual forma, se incluyen referencias al trabajo del Comité para la Eliminación de la Discriminación contra la Mujer y del Comité de los Derechos del Niño. Igualmente, la Guía contiene información actualizada sobre el tema de violencia de género.
Esta Guía está compuesta por 9 capítulos. En el Capítulo 1 se analiza el deber general del Estado de respetar, proteger, garantizar y promover los derechos humanos, especialmente en lo relativo a las consecuencias generales derivadas de las violaciones graves a los derechos humanos. En el Capítulo 2 se expone el tema de quiénes tienen derecho a obtener reparación. Posteriormente, de los Capítulos 3 a 5, se abordan los asuntos legales relacionados con el derecho a un recurso efectivo, el derecho a la verdad, y el derecho a una investigación rápida, exhaustiva, independiente e imparcial.
Por su parte, el Capítulo 6, se ocupa de las consecuencias de las violaciones manifiestas de derechos humanos, es decir, el deber que tiene el Estado de poner fin a una violación que se esté produciendo, y garantizar que no se cometerán más violaciones. Además, el Capítulo 7 realiza un análisis sobre distintas modalidades de reparación: la restitución, la indemnización, la rehabilitación, la satisfacción. El Capítulo 8, aborda la obligación de investigar y sancionar. Y por último, el Capítulo 9 analiza factores frecuentes de impunidad, como los juicios ante los tribunales militares, las amnistías y la prescripción para crímenes bajo el derecho internacional.
Universal-PG 2 updated-Publications-Practitioners’ Guide Series-2020-SPA (la guía, en PDF)
Jul 9, 2020
In a briefing paper published today, the ICJ called on the Libyan authorities to act to amend the country’s transitional justice law in order to allow it to serve its purpose in facilitating accountability, truth and reparation for past and ongoing gross human rights violations committed in the country.
To date, transitional justice in Libya has not been implemented due to the entrenched political instability and ongoing armed conflict.
International support for the transitional justice process has recently been expressed in the Berlin Conference Conclusions on 19 January 2020, endorsed by UN Security Council Resolution 2510 (2020).
“Reconciliation in the country won’t be achieved unless accountability for gross human rights violations and justice to victims are guaranteed,” said Said Benarbia, the ICJ’s MENA Programme Director.
“To achieve these objectives, the transitional justice framework must be fully reviewed to conform to Libya’s obligations under international law.”
This framework, particularly Law No. 29 of 2013, fails to provide for jurisdiction over crimes under international law, including enforced disappearance, rape and other forms of sexual violence, war crimes and crimes against humanity. It also fails to ensure that legal measures historically used by States to foster impunity – such as amnesties, immunities and statutory limitations – cannot apply to prosecutions for these crimes.
The independence, impartiality and competence of the Fact-Finding and Reconciliation Commission, established under the Law to conduct fact-finding into gross human rights violations and award reparations to victims, is not adequately guaranteed. The scope of its mandate is not sufficiently clear and its investigative powers are too weak to serve its purpose.
Law No. 29 of 2013 does not also adequately ensure the right to truth or lay the foundations for the public participation in, and the transparency of, the transitional justice process.
The Law also fails to provide for access to effective remedies and full and adequate reparations to victims of gross human rights violations or abuses, and their next of kin.
“Transitional justice in Libya must live up to the expectations of victims and their families,” said Kate Vigneswaran, the ICJ’s MENA Programme Senior Legal Adviser.
“Libyans have the right to know the complete truth regarding all gross human rights violations perpetrated in Libya, and victims must be guaranteed full redress for the harm suffered.”
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
Download
Libya-Transitional justice-Publications-Reports-thematic report-2020-ENG (full report, in PDF)
Libya-Transitional justice-Publications-Reports-thematic report-2020-ARA (full report in Arabic, PDF)
Jun 30, 2020
The ICJ has today published a report on customary and informal justice systems, and alternative dispute resolution processes, in the East, Southern and Horn of Africa.
The report is based on discussions at the 10th ICJ “Geneva” Forum of Judges & Lawyers which took place in Nairobi, Kenya, in March 2020.
The ICJ’s Geneva-based Centre for the Independence of Judges and Lawyers, and its Africa Regional Programme, collaborated with the International Development Law Organization (IDLO) to organize the regional Forum, which was convened under the auspices of the Judiciary of Kenya and in cooperation with the ICJ’s national section ICJ Kenya.
The Forum brought together senior judges, lawyers, and other legal experts and practitioners from around the region, from both formal State justice systems and indigenous and other traditional or customary systems, as well as other alternative dispute resolution processes.
Participants exchanged experience and expertise regarding the opportunities for improving access to justice, and methods for mitigating risks that could arise, through constructive engagement with indigenous and other traditional or customary justice systems in the East, Southern and Horn of Africa. The relevance of UN Sustainable Development Goal 16 and global and regional human rights and rule-of-law standards was also highlighted.
The report summarizing discussions at the regional Forum should be read in conjunction with the separately published and periodically updated ICJ publication Indigenous and other Traditional and Customary Justice Systems: Selected International Sources, which compiles relevant treaty provisions, standards, conclusions and recommendations of UN and other expert bodies, as well as the Report of the 8th ICJ Geneva Forum held in 2017 and the Report of the 9th ICJ Geneva Forum held in 2018. Building on her participation in the 2018 Forum, the UN Special Rapporteur on the Rights of Indigenous Peoples devoted her 2019 report to the UN Human Rights Council to the topic of indigenous justice systems.
The Geneva Forum global and regional consultations, the Special Rapporteur’s report and recommendations, and the ICJ’s own research, global experience and expertise, provide a foundation for the development by the ICJ of further legal, policy and practical guidance to be discussed at a conclusory global ICJ “Geneva” Forum on the topic in late 2020, and published before March 2021.
The Geneva Forum is an annual global meeting of senior judges, lawyers, prosecutors and other legal and United Nations experts, convened by the ICJ through its Geneva-based Centre for the Independence of Judges and Lawyers, with the support of the Canton and Republic of Geneva (Switzerland) and other partners.
Each year, participants and the ICJ discuss an issue relevant to the independence and role of judges, lawyers and prosecutors, with a view to developing and disseminating practical guidance for practitioners.
Contact
matt.pollard(a)icj.org
Download
Africa-GvaForum Kenya-Publications-Reports-Seminar or conference reports-2020-ENG
