Nov 23, 2017 | Events, News
The 8th Geneva Forum brought together judges, lawyers, and other legal experts from around the world, and relevant UN representatives, to discuss the relationship between traditional and customary justice systems and international human rights, access to justice, and the rule of law.
The potential for improving access to justice
In many countries the majority of legal disputes, especially in rural areas, are resolved by traditional and customary justice systems that are not necessarily recognised by national law as a part of the official court system. The role of traditional and customary justice systems is therefore a key question for realization of “access to justice for all” and “effective, accountable and inclusive institutions” under Sustainable Development Goal 16.
Traditional and customary justice systems are often more practically and culturally accessible to local populations than is the official court system, and may be seen by local people as having greater legitimacy as well. Indeed, official recognition of the existence of traditional and customary courts in a country can be a positive reflection of the international human rights of ethnic, religious or linguistic minorities, or the particular rights of indigenous peoples, or cultural rights more generally.
For marginalized and disadvantaged rural populations in developing countries, traditional and customary courts may in practical terms be the only form of access they have to any kind of justice. Development agencies have increased their engagement with informal justice systems, and are considering much greater investment in capacity-building of such systems, noting their potential to reach large portions of the population who face significant obstacles to realizing access to justice in the official justice system.
The risks for human rights, particularly of women and children
At the same time, the composition, procedures, and outcomes of traditional and customary justice system mechanisms and processes can conflict with the human rights protections contained in international law and standards on human rights and the rule of law.
One key concern is in relation to the rights of women and children. Traditional and customary justice systems may be rooted in patriarchal systems and, as such, can reinforce harmful gender stereotypes and cultural assumptions that are inherently likely to discriminate against women and children and therefore negatively impact upon their rights.
Other concerns include consistency with the right to a competent, independent and impartial tribunal established by law; respect for fundamental guarantees of fairness comprising the right to fair trial; accountability of judicial decision-makers in relation to corruption and other misconduct; and non-discrimination and equality before the law more generally.
Aims of the 2017 Geneva Forum
The discussions at the 2017 Geneva Forum (22-23 November 2017), together with ICJ’s broader global experience and expertise, will provide a foundation for the development by ICJ of legal, policy and practical guidance, including conclusions and recommendations on the role of traditional and customary courts in relation to access to justice, human rights and the rule of law.
The ICJ guidance will take into account the many variations and differences between different traditional and customary courts that exist around the world, while seeking to articulate conclusions and recommendations sufficiently universal to be applicable across the widest possible range of contexts. The focus of the Geneva Forum and the ICJ guidance is intended to be on traditional and customary courts of an informal character and, as such, the ICJ does not intend directly to address formal religious courts or the application of customary law by ordinary formal courts.
Available for download in PDF format:
Compilation of selected international sources on indigenous and other traditional or customary justice sytems, available here.
Final report of the 2017 Geneva Forum on traditional and customary justice systems, available here:
Universal-Trad Custom Justice Gva Forum-Publications-Thematic reports-2018-ENG
Several video interviews with participants are available to view by clicking here.
Information about the subsequent 2018 Geneva Forum on indigenous and other traditional or customary justice systems in Asia, is available here.
For more information, please contact matt.pollard(a)icj.org.
The 2017 Geneva Forum of Judges & Lawyers was made possible with the support of the Republic and Canton of Geneva, Switzerland.
- Photo: “Traditional leaders preside over a case in B-Court, Nyang Payam, Torit County, South Sudan”
- Photo Credit: UNDP South Sudan2016Angelique Reid ©2016 United Nations
Nov 17, 2017 | News
Today, the International Bar Association’s Human Rights Institute (IBAHRI) and the ICJ held a side event in the framework of the OSCE’s Supplementary Human Dimension Meeting (SHDM) on Access to Justice in Vienna.
The event aimed to give an overview of current challenges and key organizational and procedural barriers faced by lawyers in Kazakhstan, in the light of international standards on the independence and role of lawyers.
At the event, lawyers from Kazakhstan as well as international experts discussed what guarantees should be ensured in the planned reform of the legal profession to guarantee professional autonomy and to strengthen the independence of lawyers.
Any undue interference with the independence of the current Bar Association in Kazakhstan would be contrary to international law and standards and would have a significant negative effect not only for Kazakhstan’s justice system but also for the wider Central Asia region.
Nov 7, 2017 | Advocacy, News
The ICJ today called for the African Commission on Human and Peoples’ Rights (“African Commission”) to establish a special mechanism for the protection and promotion of the independence of judges and lawyers in Africa.
The ICJ made the call in a statement during the public session of the 61st Ordinary Session of the African Commission in Banjul.
The call comes amidst growing threats to the independence of justice in Africa.
In African Union (AU) Member states across the continent, judicial officers and legal practitioners have been targeted for violence and intimidation, or unjustified interference or sanctions.
Recent cases include Burundi, Botswana, Egypt, Lesotho, Libya, Kenya, Swaziland, Zambia, the DRC, Cameroon and Zimbabwe.
The frequency and seriousness of such incidents prompted the ICJ working with the Africa Judges and Jurists Forum to convene a round table meeting in Harare in 2016 to discuss practical steps that could be adopted to minimize the plight of jurists in distress.
The Harare meeting identified the need for a special mechanism for the protection and promotion of judicial independence in Africa, similar to the existing United Nations’ Special Rapporteur on the Independence of Judges and Lawyers.
“It is chilling when a judge is shot in Lubumbashi in the DRC, or a deputy chief justice’s security personnel and driver is shot in Nairobi, Kenya ahead of an important case, or the offices of the Law Association are besieged by militias in Lusaka, Zambia. These are real cases,” said Arnold Tsunga ICJ’s Africa Regional Director.
“An independent, impartial, competent and accountable judiciary and independent and free legal profession are pre-requisites for effective protection of human rights and entrenchment of the rule of law in Africa,” he added.
The ICJ noted that the African Commission have already set out an excellent framework of standards to guarantee independence of the judiciary and access to justice in Africa in the 2003 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa.
What is needed now is to put in place machinery for their implementation.
The Commission must now to take steps towards establishing a special mechanism for the protection and promotion of judicial independence, including the appointment of a Special Rapporteur on the Independence of Judges and Lawyers, and establishing a Working Group on the Independence of Judges and Lawyers.
Contact
Arnold Tsunga, Director of ICJ’s Africa Regional Programme, t: +27716405926, e: arnold.tsunga(a)icj.org
Banjul- Independence Judges and Lawyers-Advocacy-2017-ENG (Statement in English, pdf)
Nov 2, 2017 | News
The ICJ notes that a number of threats and intimidating statements aimed at members of the judiciary, including the Supreme Court, were made during the election campaign period in Kenya.
Now that the elections ordered by the Supreme Court after nullification of the initial elections in Kenya have been concluded, it is important for Kenyan authorities to reaffirm commitment to separation of powers and guarantee the security of judges and the independence of the judiciary in the country, the ICJ says.
On Monday, 30 October 2017, the Indepedent Electoral Boundaries Commission (IEBC) in Kenya declared President Uhuru Kenyatta as the winner of the October 26 repeat polls.
President Uhuru Kenyatta is widely reported to have been heavily critical of the Supreme Court for annulling the 8 August 2017 presidential election on a “technicality”.
It is also reported that he promised to “fix” the bench if re-elected.
The President is also reported to have said he would deal with Chief Justice Maraga, but did not however define the form of action he would take.
Similar sentiments have been attributed to Deputy President William Ruto. It’s unclear at this stage whether these statements should be dismissed as political rhetoric on the campaign trail or warrant further consideration.
However such utterances and threats on the judiciary by senior government officials may be inferred as an attempt to intimidate or unduly influence the bench.
“These threats coming from the highest authorities hinder the ability of the courts to perform their duties, which are indispensable for the rule of law and fair administration of justice in the country,” said Arnold Tsunga, ICJ’s Africa Regional Programme Director.
“Judges must be able to exercise their duties freely, independently and impartially, or else the rule of law in the country will be eroded, and with it, effective protection of the human rights of the Kenyan people,” he added.
The ICJ recalls that the UN Basic Principles on the Independence of the Judiciary provide that judges must be able to perform their professional duties “without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason” and that governments have a responsibility to secure this guarantee.
Article 26 of the African Charter on Human and Peoples Rights also imposes an obligation on Kenya to establish an independent judiciary.
Contact
Arnold Tsunga, Director of ICJ’s Africa Regional Programme, t: +27716405926, e: arnold.tsunga(a)icj.org
Oct 31, 2017 | News, Publications, Reports, Thematic reports
Effective measures to end impunity for crimes of torture in detention are needed to tackle the systematic recourse to torture and other ill-treatment of detainees in Tajikistan, the ICJ concluded in a report released today.
The ICJ report, Achieving Justice for Gross Human Rights Violations in Tajikistan, finds that although Tajikistan’s criminal procedure law is often in line with international law, including fair trial and other relevant guarantees, in practice it does not lead to effective protection of human rights.
The system is in practice unable to remedy or establish accountability for the serious human rights violations that occur systematically in detention, the report says.
Even where complaints of torture are made, it appears that very few lead to investigation, prosecution or conviction.
“The systematic recourse to torture and ill-treatment in detention undermines the integrity of the criminal justice system in Tajikistan, as well as notions of fairness and justice and the operation of the rule of law in the country,” said Temur Shakirov, Senior Legal Adviser at the ICJ’s Europe Regional Programme.
“Torture must always be treated as one of the most serious crimes. International human rights law requires that allegations of torture must be independently, promptly and thoroughly investigated and, where those responsible are identified, they must be brought to justice,” added Shakirov.
An effective system of prevention of torture and other ill-treatment in detention and for the provision of effective remedies and reparation for such violations is needed to tackle the systematic recourse to their use, the report finds.
The ICJ’s report identifies numerous factors that foster the widespread use of torture and other ill-treatment in Tajikistan, including:
- the lack of independence of the judiciary;
- the judges’ failure to uphold equality of arms between the defence and prosecution;
- the frequent failure by courts to inquire into allegations of torture or other ill-treatment raised by the defence;
- the tendency of courts to accept prosecution denials of such treatment without question; and
- courts’ regular failure to exclude evidence obtained by torture.
With heavy reliance by judges on self-incriminating statements made by suspects in the first hours of detention, the presumption of innocence remains to a large extent illusory, the report adds.
The report also demonstrates that a lack of guarantees for confidential lawyer-detainee meetings prevents detainees from effectively exercising their right to qualified legal assistance and to complain about ill-treatment if necessary.
“Systemic torture cannot be effectively eradicated unless lawyers are both individually and institutionally independent of the executive, are protected in carrying out their duties, and have unimpeded access to their clients in the first hours of detention, as required by international law and standards”, Shakirov said.
The report provides a comprehensive list of recommendations following a detailed analysis of applicable laws and practices in Tajikistan, including based on the findings and recommendations of different bodies of the United Nations human rights system.
Contact
Temur Shakirov, Senior Legal Adviser, Europe Programme, t: +41.22.979.3832; e: temur.shakirov(a)icj.org
Alex Conte, ICJ Global Redress and Accountability Initiative, t: +41.79.957.2733; e: alex.conte(a)icj.org
Tajikistan-GRA Baseline Study-News-Press-Release-2017-RUS (Press Release, Russian PDF)
Download
Tajikistan-GRA Baseline Study-Publications-Reports-Thematic reports-2017-ENG (full report in PDF, English)
Read also
ICJ Report ICJ Recommendations on the Independence of the Legal Profession in the Republic of Tajikistan (February 2016)
ICJ legal submission Alternative Report to the UN Human Rights Committee on the Second Periodic Report of Tajikistan under the International Covenant on Civil and Political Rights (June 2013)
