Apr 30, 2015 | News
The ICJ welcomes yesterday’s adoption, by the UN Working Group on Arbitrary Detention, of the Working Group’s “Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of His or Her Liberty by Arrest or Detention to Bring Proceedings Before Court”.
Under its resolution 20/16 (2012), the UN Human Rights Council requested the Working Group to prepare draft basic principles and guidelines on habeas corpus. The Working Group set out a first draft set of principles and guidelines ahead of its global consultation on the subject in September 2014. From 2 to 5 February 2015, the Working Group met to continue its elaboration of the Basic Principles and Guidelines, resulting in the adoption of a second draft. The Working Group adopted its final iteration of the document at the conclusion of its session on 29 April 2015. The Basic Principles and Guidelines will be presented to the Human Rights Council during the Council’s 30th regular session, to be held from 14 September to 2 October 2015.
The ICJ welcomes the Basic Principles and Guidelines as a means of assisting States to enhance, in law and in practice, respect for the right to habeas corpus. It especially welcomes certain aspects of the document, including:
- Paragraph 68, in which applicable qualifications are set out to any derogating measures to accommodate constraints on the application of some procedural elements of the right to habeas corpus;
- Principle 6 and Guideline 4 which reaffirm that habeas corpus petitions must be heard by courts that bear all characteristics of competence, independence and impartiality (paras 27, 70 and 72(a)), that competence includes the power to order immediate release if detention is fund to be arbitrary or unlawful (para 27), that immediate implementation of such orders is required (para 71(c)) and that courts must give reasoned and particularized decisions (para 71(d));
- Guideline 7, in which it is provided that individuals are entitled to take proceedings multiple times (paras 81 and 82), that expediency is required, including in cases of subsequent challenges, and especially in cases alleging, among other things, torture or ill-treatment (para 83) and that authorities remain obliged to ensure regular review of the continuing need for detention (para 84);
- Principle 9 and Guideline 8 concerning legal representation and legal aid;
- The clarifications in Principle 10 and Guideline that persons able to bring proceedings include counsel, family members or other interested parties, whether or not they have proof of the consent of the detainee (paras 34 and 92) and that no restrictions may be imposed on a detainee’s ability to contact such persons (para 35);
- The express recognition in Guideline 12 that information obtained by torture or other forms of ill-treatment may not be used in evidence;
- Guideline 13 concerning disclosure and limitations applicable to any non-disclosure of information on security or other grounds;
- Guideline 14, reflecting authorities’ obligation to justify the need and proportionality of detention;
- Principle 15 and Guideline 16 (on remedies), reflecting the overarching right to remedies and reparation (paras 43), the need for authorities to give immediate effect to an order for release (para 44) and the right to compensation, restitution, rehabilitation, satisfaction and guarantees of non-repetition (paras 109-112); and
- Principle 16 concerning the application of Article 9(4) of the International Covenant on Civil and Political Rights (ICCPR) alongside international humanitarian law (paras 45 and 47), the application of Article 9(4) to civilians in an international armed conflict (para 47), the application of habeas principles to prisoners of war (para 48), and the question of administrative detention or internment in the context of a non-international armed conflict (para 49).
The ICJ has engaged in all stages of the Working Group’s elaboration and consultations. It made written submissions in November 2013, April 2014 and March 2015. Its staff, Matt Pollard and Alex Conte, gave panel presentations at the September 2014 global consultation.
Apr 9, 2015 | Advocacy, Non-legal submissions
The ICJ and other leading human rights NGOs today publish a checklist of qualifications for use in the ongoing selection of a new UN expert on the right to privacy.
The UN is accepting applications for the newly-created Special Rapporteur on the right to privacy, to be appointed at the June session of the Human Rights Council. The deadline for receipt of nominations is 30 April 2015.
The checklist was developed together with Access, the American Civil Liberties Union, Amnesty International, Article 19, the Association for Progressive Communications, Electronic Frontier Foundation, and Privacy International. These NGOs, with the support of dozens of other civil society organisations from around the world, advocated for and strongly supported the establishment of the Special Rapporteur mandate at the March session of the Human Rights Council.
This checklist is intended to support governments, NGOs, academics, relevant professional networks, national human rights institutions and others in the identification of and outreach to highly qualified and independent candidates.
The checklist can be downloaded in PDF format here: HRC29-CriteriaSRPrivacy-Advocacy-2015
The application and selection process is explained on the website of the Office of the High Commissioner for Human Rights, here.
Mar 26, 2015 | News
The UN Human Rights Council today adopted a landmark resolution on “the right to privacy in the digital age” that will establish for the first time a UN Special Rapporteur on the Right to Privacy.The resolution faced some challenges during negotiations, but was adopted without a vote (i.e. by consensus).
The Rapporteur will be appointed later this year. The Council has invited him or her to include in initial reports to the Council and UN General Assembly, a focus on the challenges to the right of privacy arising from developments in digital and communications technology in “the digital age”. However, the mandate is able to deal with all aspects of the right to privacy.
The initiative has been strongly supported by civil society organisations including the ICJ, including in the form of a joint open letter, and a joint oral statement on behalf of some 92 NGOs from around the world.
The draft resolution, as adopted, may be downloaded here: HRC28-Privacy-DraftRes-2015
Mar 25, 2015 | Advocacy, Open letters
The ICJ today joined other NGOs in an open letter urging States at the UN Human Rights Council not to support a draft resolution on the ‘Effects of Terrorism on the Enjoyment of Human Rights’ in its present form and without substantial amendment.
The letter explains why the draft resolution, presented jointly by Egypt, Jordan, Algeria, Morocco and Saudi Arabia, is significantly unbalanced and suffers from four key and inter-related deficiencies:
First, the draft resolution calls for strengthening of counter-terrorism measures without sufficiently recognising that such laws and measures must be in conformity with international human rights, refugee and humanitarian law and refugee law.
Second, the resolution fails to call on States to ensure that laws and measures on counter-terrorism and national security do not hinder the work and safety of human rights defenders and other civil society actors; and to ensure that such laws and measures clearly identify which offences qualify as terrorist acts by defining transparent and foreseeable criteria.
Third, the text fails to recognise that support for a vibrant and pluralistic civil society and respect for the fundamental rights of freedom of expression, association and assembly are essential to combat extremism, counter terrorism and provide protection, support and justice to victims.
Fourth, while the draft resolution has been presented by the core group as taking a ‘victim-centered’ approach, the text fails to respond to what victims of terrorism have themselves expressed to the Council is needed to respect and fulfill their human rights. To the contrary, the resolution appears to continue the regrettable practice of invoking the suffering victims of terrorism to justify measures that too often are abused to violate human rights, without delivering real justice, remedy, and support to the victims themselves.
In conclusion, the letter urges delegations not to support the draft text without very substantial amendments, and suggests that a preferable approach may be to consider the concerns sought to be addressed in the present text when the Council comes to negotiate its traditional bi-annual resolution on human rights and countering terrorism at its 31st session in March 2016.
The Open Letter is signed jointly by: African Centre for Democracy and Human Rights, Amnesty International, ARTICLE 19, Asian Legal Resource Centre, Cairo Institute for Human Rights Studies, Centro de Estudios Legales y Sociales (CELS), East and Horn of Africa Human Rights Defenders Project, Egyptian Initiative for Personal Rights, FORUM-ASIA, Human Rights House Foundation, Human Rights Watch, International Commission of Jurists, International Federation for Human Rights (FIDH) and International Service for Human Rights.
The full letter may be downloaded in PDF format here: Universal-HRC28-TerrorismHumanRights-Advocacy-OpenLetter-2015-ENG
The draft resolution may be downloaded here: HRC28 Draft Terrorism Human Rights Resolution
Update 26 March 2015: The resolution was adopted, with an oral amendment, by vote of the Council (25 in favour, 16 abstentions, 6 against): Terrorism 2015 vote
Mar 16, 2015 | Advocacy, Legal submissions
The ICJ has made further submissions to the UN Working Group on Arbitrary Detention on its elaboration of Draft Principles and Guidelines on habeas corpus.
In February 2015, the Working Group released for public input a revised set of ‘Draft Principles and Guidelines on remedies and procedures on the right of anyone deprived of his or her liberty by arrest or detention to bring proceedings before a court without delay, in order that the court may decide without delay on the lawfulness of his or her detention and order his or her release if the detention is not lawful’.
The ICJ’s submission welcomes the elaboration by the Working Group of the revised Draft Principles and Guidelines as a means of assisting States to enhance, in law and in practice, respect for the right to habeas corpus and especially welcomes certain aspects of the document. It suggests means of further improving the revised Draft Principles and Guidelines, concerning:
- The temporary nature of any derogating measures impacting upon the application of some procedural elements of the right to habeas corpus;
- The competence of courts to make orders for immediate release;
- The implementation of court orders for release;
- The public nature of judicial decisions following adjudication of habeas corpus petitions;
- Guarantees applicable to specialized tribunals;
- The right to legal aid and legal assistance;
- Confirming that the procedure must be available at all times and to all detained persons, including prisoners or war, as a remedy to protect non-derogable rights such as the prohibition against torture and ill-treatment; and
- The inadmissibility of evidence obtained by torture.
The Working Group will present its final draft to the Human Rights Council’s 30th regular session in September 2015.
Attachments
ICJ-WGAD-RevisedDraftPrinciplesAndGuidelines-3rdLegalSubmission-2015-EN (The ICJ’s latest submission in PDF)
WGAD-Habeas-RevisedDraftPrinciplesAndGuidelines-2015-EN (PDF)
Additional links for reference
The ICJ’s first written submissions to the Working Group in November 2013
The ICJ’s second written submissions to the Working Group in April 2014
Panel presentations at the September 2014 Global Consultation by ICJ staff Matt Pollard and Alex Conte
