Nov 12, 2020
India’s Foreign Contribution (Regulation) Act, 2010, (FCRA) is unlawfully obstructing the critical work of non-governmental organizations in India, the ICJ said in a briefing paper released today.
The ICJ called for immediate action to repeal or revise the offending provisions in the law.
The briefing paper identifies the FCRA as “a tool to silence Indian Civil Society Organizations”. It shows how the FCRA – by its own terms and as applied by the authorities – fails to comply with India’s international legal obligations to respect and protect the rights to freedom of association, expression, peaceful assembly, and the right to take part in the conduct of public affairs.
The FCRA regulates access to foreign funds and prohibits their receipt for any activities purportedly “detrimental to the national interest”.
The ICJ underscores the imprecise and overbroad language of the FCRA, which has left it open to abusive and arbitrary application by the Indian authorities. Civil Society Organizations (CSOs) may be prevented from accessing foreign contributions when the groups or their activities are characterized as of a “political nature” or acting against “public interest”, or against “strategic, scientific or economic interest” or “security”.
“By restricting NGO access to foreign funds meant for the NGO sector, the Indian Government is using the FCRA selectively to silence critical voices,” said Ian Seiderman, ICJ’s Legal and Policy Director.
“As recognized by the UN Charter, international cooperation, including through financial assistance, is fundamental to the protection of human rights, and CSOs should be encouraged rather than prevented from engaging in such cooperation to facilitate their critical work,” said Ian Seiderman.
On 20 October 2020, UN High Commissioner for Human Rights, Michelle Bachelet, expressed concern that the FCRA was being used to “deter or punish NGOs for human rights reporting and advocacy”.
Since 2014, the Indian Government has cancelled the FCRA licenses of more than 19,000 NGOs, including high profile organizations such as the Lawyers Collective, Greenpeace India, People’s Watch, Compassion International, and Public Health Foundation of India. The grounds for these cancellations include “non-compliance with reporting requirements” and activities deemed “political” or against “national interest” and “economic security”. On 10 September 2020, India froze the accounts of Amnesty International India on the allegation that it had circumvented the FCRA. The action forced Amnesty International India to halt its India operations.
“We see the authorities continuing their clampdown on Indian human rights defenders through arbitrary arrests, restrictions on travel and other forms of harassment. We urge the Indian Government to protect rather than repress human rights defenders in India, whose work is vital to the rule of law in the country,” Seiderman said.
Contact
Osama Motiwala, ICJ Asia-Pacific Communications Officer, e: osama.motiwala(a)icj.org
Background
In the briefing paper, entitled “India’s Foreign Contribution Regulation Act: A Tool to Silence Indian Civil Society Organizations”, the ICJ answers the following questions:
- What is the Foreign Contribution Regulation Act? How does it affect NGOs?
- Which prohibitions in the FCRA are of concern to NGOs?
- What do the Indian Courts say about the overbroad restrictions on the receipt of foreign funds for NGOs in the FCRA?
- Is the FCRA compliant with India’s obligations under international human rights law?
- How have civil society organizations been targeted or adversely impacted by the FCRA?
- Is there a pattern of Indian Government targeting NGOs, lawyers and human rights defenders?
- How does the Government apply the prohibition on organizations of a political nature receiving foreign funding to political parties?
Further Reading
Download
India-FCRA-Briefing-Paper-2020-ENG (PDF)
Nov 11, 2020 | Advocacy, News
The ICJ, human rights advocates and other experts emphasized the State obligation to protect that right to health of all persons without discrimination at a public seminar held on 10 November 2020.
The ICJ sponsored the event on “Human Rights, Right to Health, and the Coronavirus Disease (COVID-19) Pandemic” in collaboration with the Delegation of the European Union to Thailand, Thammasat University’s Faculty of Law, and the Ministry of Justice’s Department of Rights and Liberties Protection Department.
Participants in the event included interested members of the public, students, human rights academics, and members of civil society organizations.
Welcome remarks were delivered by Giuseppe Busini, Deputy Head of the European Union Delegation to Thailand and Professor Jaturon Tirawat, Director of Thammasat University’s Public International Law Centre.
Dr. Seree Nonthasoot, Member of the UN Committee on Economic, Social and Cultural Rights in an opening address recalled the obligations of Thailand under International Covenant on Economic, Social and Cultural Rights to protect the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. This includes ensuring the right of access to health facilities, goods and services on a non-discriminatory basis. Among these elements are access to housing and sanitation, potable water and essential drugs. He also highlighted the need to implement a national public health strategy and plan of action to make COVID-19 vaccine a global common good.
ICJ Legal Adviser Timothy Fish Hodgson provided a briefing about human rights effects wrought by the COVID-19 pandemic, as exposed in the ICJ report – Living Like People Who Die Slowly: The Need for Right to Health Compliant COVID-19 Responses. He emphasized the particularly acute and discriminatory impact of the pandemic on already marginalized people around the world, particularly on non-citizens, older persons, women and girls, LGBT persons, persons deprived of their liberty, persons with disabilities, sex workers and healthcare workers.
A panel discussion regarding the economic social and cultural rights during and post COVID-19 pandemic, moderated by Chonlathan Supphaiboonlerd, Associate National Legal Advisor of the ICJ, addressed the measures taken by the Thai government to control the spread of COVID-19 and to mitigate social and economic impacts of the pandemic, especially their human rights effects on persons with disabilities, refugees, asylum seekers, persons deprived of their liberty, indigenous peoples and migrant workers in Thailand.
The panel included Nareeluc Paichaiyapoom, Director of International Human Rights Law Division, Department of Rights and Liberties Protection, Ministry of Justice; Dr. Lalin Kovudhikulrungsri, Faculty of Law, Thammasart University; Naiyana Thanawattho, Executive Director, Asylum Access Thailand; Dr. Siwanoot Soitong, Bangkok Legal Clinic, Faculty of Law, Thammasat University; Nattaya Petcharat, Stella Maris Seafarer’ Center Songkhla; and Suebsakun Kidnukorn, Researcher, Area Based-Social Innovation Research Center (Ab-SIRC), Mae Fah Luang University.
Watch the recording of the seminar here.
Further reading
Thailand: The ICJ and other human rights groups make supplementary submission to the UN Human Rights Committee
Nov 3, 2020 | News
The government of Nepal should act without delay to carry out the National Human Rights Commission’s recommendations, particularly those concerning Nepal’s obligation to investigate and, where justified by the evidence, prosecute those accused of serious abuses, Human Rights Watch and the ICJ said today.
On October 15, 2020, the National Human Rights Commission (NHRC) published 20 years of data, naming 286 people, mostly police officials, military personnel, and former Maoist insurgents, as suspects in serious crimes. In particular, the information relates to cases where its investigators concluded there is evidence warranting investigation and prosecution for abuses including torture, enforced disappearance, and extrajudicial killing.
In addition to domestic use, the data should provide important guidance to the United Nations in vetting Nepali security forces for peacekeeping missions, and to other countries for efforts to ensure international justice, including in their obligations to prosecute or extradite individuals suspected of responsibility for crimes under international law. They will also be of use to the United States in carrying out vetting requirements under the “Leahy laws” that prohibit military assistance to military and security forces implicated in serious human rights abuses.
“The National Human Rights Commission has taken an important step in publishing this information, which will be an essential tool for the UN and foreign governments in their engagement with Nepali security forces,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “The report highlights just how little progress there has been to establish meaningful human rights protections to address conflict era violations and ongoing abuses.”
The culture of impunity in Nepal is contributing to ongoing serious human rights abuses, the groups said. There have been numerous credible allegations of extrajudicial executions, torture, and ill-treatment, sometimes resulting in custodial deaths, and deaths resulting from the unlawful and excessive use of force in policing demonstrations in recent years. In many such cases, the authorities have refused even to register complaints, much less carry out effective investigations or prosecutions.
International and foreign authorities, including prosecutors and judicial authorities, should be aware of the commission’s data when considering targeted sanctions for people accused of serious violations, or preparing criminal cases under the principal of universal jurisdiction against those allegedly responsible for crimes such as torture and enforced disappearances, Human Rights Watch and the International Commission of Jurists said.
Particularly serious violations and abuses were committed between 1996 and 2006 during an armed conflict between government security forces and Maoist rebel forces. The former Maoist party in now part of the government. Since the conflict ended, the former enemies have effectively joined ranks to successfully shield their supporters from accountability, fostering a culture of impunity that continues to protect those responsible for ongoing extrajudicial killings and deaths in custody allegedly resulting from torture.
The NHRC said in its report that the government had mostly failed to act against suspects, despite being informed of the commission’s findings. Human Rights Watch and the International Commission of Jurists have not independently investigated all the cases documented, but the Nepal government is under an obligation to thoroughly and impartially investigate the allegations in the report with a view to bringing those responsible for these crimes to justice. Altogether the NHRC has recommended action against 98 police officers, 85 soldiers, and 65 members of the former Communist Party of Nepal (Maoist).
The NHRC presented and analyzed its findings and recommendations spanning two decades, since its establishment in 2000. It has registered 12,825 complaints and reached conclusions in 6,617 cases, making 1,195 recommendations to the government. The recommendations have been carried out fully in only 13 percent of cases, partially carried out in 37 percent, and not carried out at all in the remaining 50 percent. The government has often carried out recommendations to make payments to victims or their families but has very rarely investigated or prosecuted abuses.
In a March 6, 2013 ruling, the Supreme Court decided that the NHRC has the authority to refer these cases to the attorney general and prosecutors for investigation and prosecution, yet the NHRC has been unwilling to use that authority. The NHRC has also chosen not to use its prerogative to name those allegedly responsible for the abuses until now, waiting until the last days of the outgoing commissioners’ terms to publish the report.
“While releasing this report is an important step toward addressing entrenched impunity in Nepal, it has exposed the fact that the commission has struggled with a lack of investigative capacity, failing in many cases to summon alleged perpetrators or demand documentation,” said Mandira Sharma, senior international legal advisor at the International Commission of Jurists. “Had the NHRC used its authority to request prosecution from the attorney general where it has gathered sufficient evidence, it would have made a real contribution in tackling impunity and in addressing police failures in investigating ongoing cases of rights violations.”
The NHRC has long been dogged by political interference in the appointment of commissioners, and a widely perceived reluctance to confront the government or other powerful institutions, such as the army and political parties, that oppose accountability for rights abuses. In 2019 the government proposed amendments to the 2012 National Human Rights Commission Act that would further undermine its independence.
To download the full statement with additional information, click here. (PDF)
Contact
For International Commission of Jurists, in Nepal, Mandira Sharma (Nepali, English): +977-9851048475 (mobile); or mandira.sharma@icj.org.
Nov 2, 2020 | News
Today, the ICJ and 56 civil society organizations called for an end to attacks on independent media by the Royal Government of Cambodia (“RGC”).
Amidst an increasingly repressive landscape, the organizations called on the RGC to:
- End harassment of journalists and media outlets;
- Immediately drop apparently politically motivated charges against journalists and unconditionally release those held in detention for exercising their rights to freedom of expression and information;
- Repeal or significantly amend repressive laws that unjustifiably impede media freedom and freedom of expression, including media freedom, so as to allow for a vibrant and free media landscape in line with its international human rights obligations;
- Immediately reverse revocations of media licenses to facilitate media freedom and the right to freedom of expression and information; and refrain from similar revocations of media licenses in the future.
Download the joint statement in English and Khmer.
Contact
Kingsley Abbott, Senior Legal Adviser, ICJ Global Accountability Initiative e: kingsley.abbott(a)icj.org
See also
ICJ, ‘Cambodia: authorities must end increasing crackdown on human rights defenders’, 11 September 2020
ICJ, ‘Cambodia: ICJ and 64 organizations call for immediate withdrawal of Draft Law on Public Order’, 13 August 2020
ICJ, ‘ICJ and 31 organizations jointly urge Governments to call for respect of human rights in Cambodia’, 22 July 2020
ICJ, ‘Cambodia: State of Emergency bill violates the rule of law’, 8 April 2020
Oct 27, 2020
An opinion piece by Boram Jang, Legal Adviser at the ICJ Asia & the Pacific Programme
On 15 October 2020, the Sri Lankan authorities imposed a curfew in parts of Katunayake Free Trade Zone (KFTZ) after hundreds of workers at the Brandix Fashion Ware factory in Minuwangoda tested positive for COVID-19. More than 1500 people connected to the garment factory have been infected with COVID-19 since October 9, and four factories, Chiefway Katunayake, Next Manufacturing, Naigai and Okaya Lanka, shut down.
Many KFTZ workers migrate from rural areas in Sri Lanka, and live in overcrowded boarding houses with minimum facilities. Some of these also accommodate pregnant women and mothers with their children. In an attempt to control the spread of Covid-19, the military was called in on 11 October to round-up workers, late at night and early in the morning, to forcibly take them to makeshift quarantine centers.
According to the media and civil society reports, soldiers raided the workers’ boarding rooms, telling them they had five to ten minutes to pack their bags. The workers boarded crowded buses and headed for quarantine centers which were not established according to procedures established by law.
Trade unions and human rights activists spoke out that during this course of action by military, the workers were not informed where the center was located nor provided with protective masks. They weren’t allowed to speak at all and children were separated from their mothers.
When the workers arrived at the center, they were given some food, which many workers found inedible. The facility itself had not been cleaned, toilets were flooded and unsanitary, and no polymerase chain reaction (PCR) tests had been conducted on any of the workers upon their admission to the center. In short, the military-led response to the threat of infection ended up subjecting the workers to greater threat of contagion as well as numerous indignities.
A more sensible way forward is to ensure that responses to the pandemic comply with human rights principles, especially as we hear of more accounts of inappropriate or heavy-handed military behavior in reaction to this public health crisis.
The manner in which the Sri Lankan government and the military have handled the recent outbreak among the workers has been deeply troubling. The lack of clear information provided to the workers, unsafe transportation, unsanitary quarantine facilities established without a legal basis, and failing to conduct tests prior to loading workers onto buses and upon admission to the center, and absence of judicial oversight is in clear violation of basic COVID-19 regulations adhered by the government.
At the heart of all these problems, a heavily militarized and politicized COVID-19 response lies.
In March, Sri Lanka’s first case of COVID-19 was reported. The government set up the National Operation Centre for Prevention of COVID-19 Outbreak (NOCPCO) to prevent the spread of the disease. However, instead of putting a medical professional or civil officer in charge of the Centre, the Rajapaksa government picked Lieutenant General Shavendra Silva, an alleged war criminal, to head the NOCPCO.
Silva was the commander of the 58th Division of the Sri Lankan Army, which was identified by multiple UN investigatory bodies as having been involved in the commission of serious crimes and human rights violations during the last stages of Sri Lanka’s decades-long armed conflict which ended in 2009.
President Rajapaksa has also appointed retired and currently serving military officials to other key public sector positions including the Secretary of the Ministry of Health, the Director General of the Disaster Management Centre, and the Director General of the Customs Department.
After delaying for several weeks, a countrywide curfew was suddenly declared on March 20 without adequate steps to supply essentials goods and medicines to the people. The President also gave full powers to the police to arrest people for violating curfew.
More than Over 60,000 people have been arrested for alleged curfew violations and although most them had been released on bail, the police stated that they will be prosecuted on the advice of the Attorney General’s Department when the normal court proceedings begin once the COVID-19 epidemic is over.
The violators can be prosecuted in magistrate court and if convicted, can be imprisoned up to six months and fined up to Rs. 2000. Lawmakers argued about the curfew’s legality, but it continued to be enforced in several regions, as part of the state’s coronavirus containment strategy.
The military may have to conduct law enforcement functions during a state of emergency such as public health crisis. As the UN human rights guidance provided, the military may only be deployed in a law enforcement context for limited periods and specifically defined circumstances.
When the military conducts law enforcement functions, they should be subordinate to civilian authority and accountable under civilian law, and are subject to standards applied to law enforcement officials under international human rights law.
However, in Sri Lanka now, there is no public discussion or transparency about the actions and decisions of the military during the Covid-19 response. All decisions related to the public health crisis are being made by the NOCPCO with Silva at the helm, without any judicial or Parliamentary oversight, nor any public institutional processes informing those decisions and holding him accountable to them.
Vulnerable ethnic and religious groups are acutely affected by the militarization of the public health response. Tamil organizations and politicians have continuously called for the demilitarization of the North-East. Having the military to oversee the public health policy and to act as the State’s first responders also normalize military occupation, exacerbate the existing ethnic divides, and further deteriorate human rights in Sri Lanka.
Most of the quarantine facilities are located in the North and East of the country, which still remain occupied by the Sri Lankan military.
Despite local concerns about locating quarantine centers in areas already subject to ethnic and political tensions, the government ignored the local concerns and turned schools and educational establishments in the Northern and Eastern Provinces into the quarantine centers.
Furthermore, Muslims in Sri Lanka, have also complained about inappropriate State policies and violations of their freedom to worship. The government mandated compulsory cremations for Muslims who had died after contracting the virus, going against Islamic burial practices and World Health Organisation (WHO) guidelines.
While certain limitations on human rights may be undertaken to confront the public health crisis, such limitations, in keeping with the Siracusa Principles, must be for a specific public health purpose, established by law, non-discriminatory and necessary and proportionate to addressing public health.
Sri Lanka’s involvement of the military at every level, with limited parliamentary and civilian oversight raises serious human rights and rule of law concerns. Public health officials have expressed disagreements with medical authorities in terms of statistics and strategy for managing the outbreak.
The government will only be able to implement successful public health measures and maintain public support and confidence when its policies in response to the pandemic are evidence-based, human rights compliant, and transparent.
Download the Op-Ed in Tamil and Sinhala.
Homepage photo credit: Shehan Gunasekara
First published in Daily FT on 27 October: http://www.ft.lk/opinion/Sri-Lanka-Vulnerable-groups-pay-the-price-for-militarisation-of-COVID-19-response/14-708073
