Feb 13, 2019 | Advocacy, Non-legal submissions
The ICJ has opened a call for written submissions on the misuse of criminal law in the areas of sexuality, reproduction, drug use and HIV.
In 2016 the UN Secretary General called for the removal of punitive laws, policies and practices that violate human rights, stating that the misuse of criminal law often negatively impacts on health and human rights, particularly in areas of sexuality, reproduction, sex work, drug use and HIV.
Recognizing a need for greater guidance to achieve such law reform, ICJ is seeking inputs for the development of principles to address the detrimental impact on health, equality and human rights of criminalization with a focus on sexuality, reproduction, drug use and HIV.
This is an important opportunity for civil society, academics, law makers, human rights experts, community groups and persons affected by the relevant criminal laws, to provide input, including on the effect of such criminal laws, when and how criminal law should be used, what reforms are needed and what role criminal law should play in the relevant areas.
A background paper providing further information is annexed to the call for written submissions.
The deadline for submissions is the 31st of March 2019.
These submissions will feed into the development of a set of principles to address the detrimental impact on health, equality and human rights of criminalization with a focus on select conduct in the areas of sexuality, reproduction, drug use and HIV.
Please send your submissions, as well as any questions or clarifications, to decrimconsultation@icj.org
CallforSubmission-DecriminalizationProject-ICJ-2019-2-eng (download the call in English)
CallforSubmission-DecriminalizationProject-ICJ-2019-2-fra (download the call in French)
CallforSubmission-DecriminalizationProject-ICJ-2019-2-esp (download the call in Spanish)
CallforSubmission-DecriminalizationProject-ICJ-2019-2-rus (download the call in Russian)
Dec 19, 2018 | News
The Transgender Persons (Protection of Rights) Bill, 2018 fails to protect the human rights of transgender people as guaranteed under the Indian constitution and international law and standards and must not be passed in its present form by the Rajya Sabha.
The Bill was passed by the Lok Sabha (Lower House of Indian Parliament) on 17 December, 2018. The next step in order for the Bill to progress is for the Rajya Sabha (Upper House of Indian Parliament) to pass it.
The ICJ considers this Bill to be a missed opportunity to address the serious problem of discrimination against transgender people in India. The ICJ calls for the rejection of its problematic parts by the Rajya Sabha and for the elaboration of a revised Bill in line with rights upheld by the Indian Supreme Court and India’s obligations under international law.
The 2018 Bill, if adopted, would effectively deny to most transgender people their right to self-identification, by providing an overly complex bureaucratic procedure requiring an individual’s application for a transgender certificate to be approved by two different sets of authorities, despite earlier widespread condemnation of this process by the transgender community.
“As the ICJ reported in 2017, the transgender community is continually harassed, stigmatized, and abused by the police, judges, their family and society. This Bill, if it becomes law would further serve to facilitate and compound human rights violations against people from a marginalized community”, said Ian Seiderman, Legal and Policy Director at the ICJ.
The Bill has also introduced mandatory sex reassignment surgery for those transgender people who seek to identify their gender within the binary (male/female) framework. This requirement would be in contravention of the Supreme Court’s judgment in NALSA v. UOI, which guarantees the right to self-identification without the need for medical intervention.
Further, the Bill would collapse all offences against transgender people into one provision which includes offences ranging from “sexual abuse” and “physical abuse”, to “compel[ing] or entice[ing] a transgender person to indulge in the act of begging” among others. These crimes have not been defined in the Bill.
It also would provide for the same six-month to two-year sentence for all offences against transgender people. In some cases, this could be a significantly lighter sentence than when the same crime is committed against others, including discriminated groups such as cis-gendered women, under the general criminal law. In addition, the identification of “beggary” as an offence under the Bill is problematic since for many transgender people in the country, it remains one of the limited livelihood opportunities.
Further, the Bill does not address the question of reservations in employment and education despite specific directions by the Supreme Court in NALSA v. UOI.
Lastly, while the proposed law guarantees the right to non-discrimination to transgender people against persons, state and private sector bodies, it does not provide a definition of discrimination, nor does it provide an enforcement mechanism for ensuring transgender people’s right to non-discrimination.
The ICJ calls on the Rajya Sabha to substantially revise the problematic provisions of the Bill before resubmitting it for parliamentary consideration.
Background
The provisions identified above do not accord with protection of the rights of transgender people to equality, non-discrimination, equal protection of the law, enshrined in the Constitution and international law, including the International Covenant on Civil and Political Rights, which India ratified in 1979. Further, they are incompatible with international standards such as the Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity.
The ICJ, as part of SAATHII Vistaara Coalition, earlier this year drafted a Briefing Paper on India: Legal and Jurisprudential Developments on Transgender Rights, SAATHII Vistaara Coalition. The paper analyses in detail the domestic judicial developments on transgender rights as well as the legislative process undertaken until the Transgender Persons (Protection of Rights) Bill, 2018 was passed on 17 December 2018.
Additional Reading Material
- ICJ Briefing Paper on The Transgender Persons (Protection of Rights) Bill, 2016, analyzes the 2016 Bill, its shortcomings, and India’s international obligations, as it is the basis of the 2018 Bill.
- ICJ Briefing Paper on Implementation of NALSA Judgment discusses the 2014 April NALSA decision that affirmed that transgender people have the right to decide their self-identified gender. The paper analyses the responsibilities placed on Indian authorities, gaps in implementation, and India’s relevant international law obligations.
Contact
Maitreyi Gupta (Delhi), ICJ International Legal Advisor for India
e: maitreyi.gupta(a)icj.org, t: +91 7756028369
Dec 2, 2018 | Events, News
On 1-2 December 2018, the International Commission of Jurists (ICJ) held its 2018 Southeast Asia Regional Judicial Dialogue on enhancing access to justice for women in the region.
Participants included judges from Cambodia, Indonesia, Nepal, Pakistan, Philippines, Sri Lanka and Thailand.
The discussions, held in Bangkok, were focused around resources important for judges to aid in enhancing the capacity of their peers in eliminating gender discriminatory attitudes and behaviours towards women in their work. These resources include a training manual on the use of the Bangkok General Guidance for Judges in Applying a Gender Perspective, and a draft reference manual on women’s human rights and the right to a clean, healthy, safe and sustainable environment.
Frederick Rawski, ICJ’s Director of the Asia and the Pacific Programme, opened the dialogue by emphasizing how important it is for judges to be gender sensitive in their delivery of justice. This could only be done by applying a framework that gives primary attention on ensuring recognition of the applicable human rights, institutional support for the promotion of these rights, and accountability mechanisms for their implementation.
Roberta Clarke, Commissioner of the ICJ and Chair of the organization’s Executive Committee, noted that this judicial dialogue demonstrates the ICJ’s commitment to have a sustainable contribution to the implementation of international human rights standards at the domestic level. She hoped that the judges could contextualize the resources presented and bring these back to their countries for trainings of their peers.
This judicial dialogue is part of a joint project on access to justice for women that ICJ is implementing with UN Women.
Anna Karin Jatfors, UN Women-Asia Pacific’s Interim Regional Director shared that gender stereotypes and social norms which discriminate women are not unique in each country. She pointed out the importance of the ICJ and UN Women collaborating in this project to deconstruct this image to bring better access to justice to women in the region.
Overall, the dialogue was rich and substantive, with the full and active participation from all participating judges who shared their views and experiences on countering gender discrimination in cases before them. At the end of the judicial dialogue, the participating judges expressed strong interest to use the resources for capacity building initiatives of their peers in their own countries.
Contact
Emerlynne Gil, Senior International Legal Adviser, t: +662 619 8477 (ext. 206), email: Emelynne.gil(a)icj.org
Nov 20, 2018 | News
On the Transgender Day of Remembrance, the ICJ calls on all South Asian States to fulfill their international obligations to respect, protect and ensure the right to life of all transgender persons, including by investigating alleged violations of their right to life promptly, thoroughly and effectively.
While there has been some progress in protecting the human rights of transgender individuals through legislation and judicial decisions, in South Asia rampant violence from both state and non-state actors continues to place their lives at risk.
Most governments do not collect data on violence against transgender persons.
Trans Murder Monitoring, which records cases of murder of transgender persons based on accounts from individuals and civil society organizations, reports 2609 unnatural deaths of trans and gender-diverse persons across 71 countries between January 2008 and September 2018.
In South Asia, between 2008 and 2016, 58 transgender persons were reported murdered in India, 37 in Pakistan, 2 in Nepal, and 2 in Bangladesh.
“It is laudable that Pakistan, India and Nepal have taken measures to end discrimination against transgender persons, and have recognized their right to self-identify,” said Frederick Rawski, ICJ Asia-Pacific Director.
“However, violence, harassment, extortion, rape and murder of transgender persons continue to be committed. Police frequently refuse to file complaints, and are often themselves complicit in violence against transgender persons,” he added.
The judiciary has played an important role in protecting transgender rights in India, Nepal and Pakistan.
The Supreme Courts in all three countries have issued decisions recognizing transgender persons’ rights, including the right to self-identity one’s gender.
These decisions have acknowledged that transgender persons are particularly targeted with violence by state and non-state actors, and that police have largely failed to protect them from violence.
In some cases, the courts have ordered that new remedies be created under the law, and sought the enforcement of existing laws protecting transgender rights.
However, many of these decisions remain unimplemented, and violence against transgender people remains rampant in South Asia.
“The ICJ calls on all governments in the region to ensure that laws, policies and practices affecting transgender persons comply with international human rights law and standards,” Rawski said.
“All human rights abuses against transgender persons must be investigated, and the perpetrators brought to justice, including law enforcement officials who harass or abuse persons based on their gender identity,” he added.
Contact
Frederick Rawski, ICJ Asia Pacific Director, t: +66 644781121 ; e: Frederick.rawski(a)icj.org
Background
In India, in 2014, the Supreme Court in NALSA v. UOI recognized the right of transgender persons to self-identify their gender.
The Court has further acknowledged the existence of human rights violations against transgender persons at the hands of the police and private individuals and recommended that state and central government take steps to create public awareness about transgender persons’ rights.
Per a 2015 survey by the Kerala Government, “52% of the TGs [transgender people] are facing harassment from the police and “96% do not raise complaints against violence because of their gender identity”.
In Nepal, in 2007, the Supreme Court in Sunil Babu Pant v. Government of Nepal recognized the right of individuals to identify as male, female or “third gender”.
However, transgender persons continue to face arbitrary harassment and detention by security forces under laws like Public Offences Act, 1970, which allow for arrests without due process for up to 25 days.
This resulted in the Supreme Court of Nepal ordering law enforcement officials to desist from arresting persons based on their “personal interest or appearance,” though the decision remains largely unimplemented.
In Pakistan, in 2009, the Supreme Court directed the Government to recognize the human rights of transgender persons and subsequently, in 2018, the Parliament passed a law prohibiting discrimination against transgender persons.
The Transgender Persons (Protection of Rights) Act, 2018 of Pakistan prohibits harassment of transgender persons, including sexual, physical, mental and psychological harassment, and creates new remedies for complainants in addition to those available under the criminal justice system.
The effectiveness of the law remains to be seen, as police are often complicit in violence against transgender persons, particularly in extorting money from transgender women sex workers.
Read also
ICJ Practitioners’ Guide No. 4: Sexual Orientation, Gender Identity and International Human Rights Law, which provides legal practitioners, activists and policy-makers with detailed and practical references on international standards on sexual orientation, gender identity, gender expression, and sexual characteristics.
ICJ Comparative Law Casebook: Sexual Orientation, Gender Identity, and Justice, which provides legal practitioners, activists and policy-makers with a compilation of legal cases on sexual orientation, gender identity, gender expression and sex characteristics.
ICJ India 2017 Report: “Unnatural Offences” Obstacles to Justice in India Based on Sexual Orientation and Gender Identity, which provides a legal analysis of the discrimination and abuse faced by the LGBTI community in India based on over 100 interviews with LGBTI persons.
Sep 17, 2018 | Events, Multimedia items, News, Video clips
This panel discussion was held today at the Palais des Nations in Geneva.
The event addressed barriers for women accessing justice and look at ways to implement a women-centred approach to address these issues, considering ways to ensure that gender issues are robustly integrated into human rights investigations and judicial mechanisms and are properly implemented by the actors operating within these areas.
Discriminatory legislation can prevent women from accessing the justice mechanisms that should be available to them particularly where these same mechanisms may then be used against them, for example a woman afraid to report rape if she may be prosecuted for adultery.
In addition, mechanisms that are not inherently discriminatory may become so in the way they are interpreted and applied. Prejudices of judicial actors can constitute a major obstacle to women’s access to justice and undermine even the most protective of laws.
Moderator:
Saman Zia-Zarifi, Secretary General of the International Commission of Jurists
Panellists:
• Lisa Gormley, Research Officer, Centre for Women, Peace and Security, London School of Economics and Political Science
• H.E. Athaliah Lesiba Molokomme, Ambassador and Permanent Representative to the United Nations and other International Organizations in Geneva, Botswana
• Justice Sanji Monageng, Former Justice and Vice President of the International Criminal Court and ICJ Commissioner
Event organized by the ICJ in co-ordination with the Permanent Mission of Germany to the UN, and UN Women.
Watch the video:
https://www.facebook.com/ridhglobal/videos/565112000574216/
Side event ICJ WHR (flyer in PDF)
