Dec 5, 2019 | Advocacy, Analysis briefs
Today, the International Commission of Jurists published a legal briefing on the hearing on provisional measures to be held at the International Court of Justice between 10-12 December 2019 in the case of The Gambia v Myanmar.
Questions answered include:
- What allegations does The Gambia make against Myanmar?
- What provisional measures has The Gambia requested?
- What are provisional measures?
- What is the process for requesting provisional measures?
- What factors are taken into account on a request for provisional measures?
- If the Court indicates provisional measures, are they binding on the parties?
- What is Daw Aung San Suu Kyi’s role in the proceedings?
Download:
Myanmar-Provisional Measures Briefing-Advocacy-Analysis Brief-2019-ENG (English)
Myanmar-Provisional Measures Briefing-Advocacy-Analysis Brief-2019-BUR (Burmese)
Contact:
Kingsley Abbott, Senior Legal Adviser and Coordinator of the ICJ’s Global Accountability Initiative, kingsley.abbott(a)icj.org
Jul 24, 2018 | Advocacy, Analysis briefs, News
In a briefing paper published today, the ICJ called on the parties to the conflict in Yemen to take immediate and effective measures to ensure the protection of the civilian population, including against human rights abuses and international humanitarian law violations.
Serious violations of international humanitarian law committed in Yemen include direct and indiscriminate attacks against civilians and the impediment of access to humanitarian relief of the civilian population.
Gross human rights violations and abuses include widespread instances of arbitrary arrest and detention, torture and ill-treatment, and enforced disappearances.
The ICJ has called for persons responsible for such violations to be held to account.
“All parties to the conflict in Yemen have acted in blatant disregard of the most basic rules of international humanitarian law and human rights law,” said Said Benarbia, ICJ MENA Director.
“The top priority is to end these violations and in particular to protect the civilian population,” he added.
In its briefing paper, the ICJ analyses international law violations committed in the conduct of hostilities and against persons deprived of their liberty.
The Saudi Arabia-led coalition and the Houthis are allegedly responsible for direct, indiscriminate or disproportionate attacks against civilians and civilian objects, including local markets, food storage sites, water installations and medical facilities.
The United Arab Emirates, the internationally recognized government of Yemen and the Houthis have allegedly engaged in arbitrary arrest and detention, torture and ill-treatment, and enforced disappearances.
The ICJ briefing paper also examines the potential legal implications of the blockade imposed by the Saudi Arabia-led coalition on Yemen and the sieges laid by the Houthis against several towns and localities, which impede the civilian population to access humanitarian relief.
The ICJ briefing paper further assesses the potential responsibility of third States for transferring arms to the parties to the conflict.
Under numerous instruments, including the Arms Trade Treaty, States are prohibited from selling arms to the parties to an armed conflict whenever a risk exists that the end-user could commit international law violations.
Arms transfers may even engage the exporting States’ international responsibility for aiding or assisting in the commission of such violations.
“Victims must have access to effective legal remedies and be provided with adequate reparation,” Benarbia said.
“The international community must state loud and clear that impunity is not an option. The Security Council should refer the situation in Yemen to the International Criminal Court and third States should consider, where feasible, the exercise of universal jurisdiction to prosecute relevant crimes under international law,” he added.
Contact
Vito Todeschini, Associate Legal Adviser, ICJ Middle East and North Africa Programme, t: +216-71-962-287; e: vito.todeschini(a)icj.org
Said Benarbia, Director of the ICJ Middle East and North Africa Programme, t: +41-22-979-3817; e: said.benarbia(a)icj.org
Yemen-War briefing-News-web story-2018-ENG (full story with background information, English, PDF)
Yemen-War impact on populations-Advocacy-Analysis Brief-2018-ENG (Analysis Brief in English, PDF)
Yemen-War briefing-News-web story-2018-ARA (full story with background information, Arabic, PDF)
Yemen-War impact on populations-Advocacy-Analysis Brief-2018-ARA (Analysis Brief in Arabic, PDF)
Jul 18, 2017 | Advocacy, Analysis briefs, News
The ICJ today called on the Tunisian authorities to adopt and apply procedures for the Specialized Criminal Chambers (SCC) that are clear and comply with international human rights law and standards.
The statement came following a high-level mission to Tunisia from 12 to 15 July 2017 in which the ICJ engaged with senior judicial officials, including the President of the Cassation Court, members of the High Judicial Council, SCC judges, and other stakeholders.
An ICJ analysis, Procedures of the Specialized Criminal Chambers in light of international standards, was published at the end of the mission.
“While the Specialized Criminal Chambers have the potential to contribute to addressing impunity and deliver justice for victims in Tunisia, ambiguity about the procedures to be followed by these Chambers risks undermining their effectiveness,” warned Said Benarbia, Director of the ICJ Middle East and North Africa Programme.
As detailed in the ICJ analysis, the lack of clarity comes in part from the 2013 transitional justice Law, which is seen by many stakeholders as setting up a special regime, separate from the existing criminal justice system.
There is fear that the SCC may decide not to apply the existing ordinary criminal procedures, while at the same time no detailed procedures specific to the SCC have yet been adopted.
The creation of such a gap would risk serious breaches of international standards of fairness and justice.
For example, the 2013 Law seems to give the Truth and Dignity Commission (Instance Vérité et Dignité, IVD) exclusive power to refer cases to the SCC.
However, no procedures specific to the SCC implement the rights of an accused to examine witnesses interviewed by the IVD or to access all documents and evidence collected by the IVD in order to prepare his or her defence, as required by international standards and the ordinary code of criminal procedure.
The 2013 Law also fails to clarify the role of prosecutors and investigating judges in addressing such cases, including by making their own determination in relation to charges, standard of proof, and whether these cases should be brought before the SCC.
“Clarifying the procedures to be applied by the Specialized Criminal Chambers and ensuring their full compliance with international standards, including those relating to fair trial, are a prerequisite to fully establish the truth about human rights violations, hold those responsible to account, and ensure that the proceedings are fair to the victims and accused,” added Benarbia.
The ICJ set out a list of recommendations with a view to assisting the Tunisian authorities in their efforts in achieving these objectives, including by:
- Amending article 42 of the 2013 Law and related provisions to clearly provide victims of gross human rights violations with direct access to the SCC, including when victims did not submit a file to the IVD;
- Amending provisions of the IVD Guides to ensure that the review process and the possibility to challenge IVD’s decisions will apply to decisions not to transfer a case to the SCC and that such review be based on objective criteria for considering gross human rights violations in line with international standards;
- Establishing specialized prosecution services, investigating judges, and judicial police in line with international standards and with adequate resources to work in coordination with the SCC;
- Clarifying the relationship between the SCC and other ordinary criminal chambers and civil and other courts;
- Amending the legal framework to clearly provide that cases investigated by the IVD are to be transferred to specialized prosecutors who are to carry out their functions as defined in the CCP and in line with international standards;
- Ensuring that the IVD’s investigative function complements the role of the specialized judicial institutions in charge of the investigation and prosecution; and
- Amending the CCP and ensuring that any related provision of any other procedures adopted for the SCC fully respect fair trial guarantees.
Contact
Theo Boutruche, Legal Adviser of the ICJ Middle East and North Africa Programme, tel: +33 642837354, e-mail: theo.boutruche(a)icj.org
Tunisia-Memo on SCC Procedures-Advocacy-Analysis Brief-2017-ENG (full memo in English, PDF)
Tunisia-SCC procedures memo-News-2017-ARA (full story in Arabic, PDF)
Tunisia-Memo on SCC Procedures-Advocacy-Analysis Brief-2017-ARA (full memo in Arabic, PDF)
Mar 8, 2017 | Advocacy, Analysis briefs, News
Today the ICJ submitted a brief opposing the current efforts by South Africa to withdraw from the Rome Statute of the International Court.
The brief was submitted in collaboration with a number of South Africa’s leading jurists to the South African Parliamentary Portfolio Committee on Justice and Correctional Services.
The brief was signed by Retired South African Constitutional Court Justices Laurie Ackermann; Richard Goldstone; Johann Kriegler; Yvonne Mokgoro, Kate O’Regan, Zak Yacoob. It was co-signed by Navi Pillay, former United Nations High Commissioner for Human Rights, former judge of the ICC and former President of the International Criminal Tribunal for Rwanda (ICTR). Wilder Tayler, Secretary General, signed on behalf of the ICJ
The ICJ and leading South Africa jurists call on South African Parliamentarians not to pass The Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill [B23-2016].
They also urge South Africa to remain a party to the Rome Statute of the ICC and engage, where appropriate with other African States, in actively pursuing appropriate reforms within the Assembly of State Parties, with a view to making the ICC more effective in advancing the objectives of international justice.
“South Africa should actively encourage other African states to put in place legislation required to empower domestic courts with the ability to try genocide, war crimes and crimes against humanity. South Africa should continue to work constructively with civil society on the advancement of international criminal justice,” the report stated.
“Pursuit of justice and pursuit of peace are complementary and mutually reinforcing objectives that South Africa will best achieve by remaining party to the Rome Statute of the ICC. Its not an either or situation. Protecting heads of States from justice whatever they do compromises peace too much,” said Retired Justice Zak Yacoob.
The report also underscored the danger of an impunity gap if South Africa pulls out of the ICC, as there would be no other effective regional or international forum in which to prosecute the most serious crimes under international law.
“Given the devastating impact of impunity on the rule of law, on development efforts and on society at large, it is vital that South Africa projects itself as a leader in anti-impunity efforts in the region. Pulling out of the Rome Statute of the ICC would crush the best chances that Africa has today to tackle the pervasive impunity that affects the region and would be a most unfortunate move for South Africa and the wider international community,” said Wilder Tayler, Secretary General of the ICJ.
Background
South Africa is one of the earliest parties to the Rome Statute of the ICC. It signed the Rome Statute on the day it was adopted, 17 July 1998, and ratified it on 27 November, 2000. Both during the negotiations preceding the Rome Conference that established the Court in 1998, and at the Conference itself, South Africa played a leading role.
However, the events of June 2015 surrounding the arrival of President Omar al Bashir of Sudan in South Africa appears to have engendered a shift in South Africa’s posture, leading many observers to call into question the country’s commitment to international justice.
The failure by South African authorities to arrest and surrender President al Bashir to the ICC, although he had been indicted by the ICC for war crimes, crimes against humanity and genocide, led to the Southern Africa Litigation Centre (SALC) taking the government to court to compel it to fulfil its obligations both under the Rome Statute and the Implementation of the International Criminal Court Act 27 of 2002 (Implementation Act).
On 19 October 2016, the Minister of International Relations and Co-operation gave notice of South Africa’s intention to withdraw from the Rome Statute.
The Portfolio Committee on Justice and Correctional Services put out a call for submissions to be made to the Parliamentary Portfolio Committee on Justice and Correctional Services on the Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill [B23-2016] to be made by 8th March 2017. The ICJ Brief was filed pursuant to that call.
Contact
Arnold Tsunga, Director of the ICJ Africa Programme, arnold.tsunga@icj.org and +277 164 059 26
RSA-ICC Withdrawal-Advocacy-Analysis Brief-2017 (Analysis brief in PDF)
Oct 20, 2016 | Advocacy, Analysis briefs, News
In a paper published today, the ICJ recommends a series of substantive elements that it considers as key to an effective treaty on business and human rights.
The ICJ is publishing this paper as the second session of the open ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (OEIWG) will be held next week (24-28 October).
On 26 June 2014, the United Nations Human Rights Council (HRC) adopted Resolution 26/9 establishing an “open ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights” (OEIWG) with the mandate to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises”.
The first session of the OEIWG took place from 6 to 10 July 2015.
The ICJ supports the objective of establishing an international legally binding instrument on transnational corporations and other business enterprises, with a focus on business accountability and access to effective remedies for human rights abuses by business enterprises.
There is a substantial international protection gap to be filled in this respect, on which the ICJ has previously commented extensively.
It is with a view to closing this gap and ensuring that international human rights law can optimally fulfil its protective function that the ICJ is engaging in the present treaty process.
The key elements in the ICJ paper are a contribution to the ongoing discussions about the future instrument, without being exhaustive as to such elements.
The ICJ has already published a paper focused on issues of scope of businesses to be addressed in the treaty, in particular the meaning or “transnational corporations (TNCs) and other business enterprises” a question which remains unresolved and is contentious in the OEIWG discussions.
The present paper will focus on the possible content of the prospective treaty.
universal-oewg-session-2-icj-submission-advocacy-analysis-brief-2016-eng (full text in PDF)
Nov 25, 2014 | Advocacy, Analysis briefs, News
Bangladesh must immediately launch a thorough investigation into alleged attacks on a prominent human rights lawyer, the ICJ said today. The government appears to have taken no real action in the year since the events.
Rabindra Ghosh (photo), advocate at the Supreme Court of Bangladesh and President of the non-governmental organization Bangladesh Minority Watch, has made credible allegations that he was subjected to acts of violence, intimidation and other interference with his functioning as a lawyer.
”The authorities in Bangladesh seem not to have taken Rabindra Ghosh’s allegations seriously, in breach of international standards,” said Matt Pollard, head of ICJ’s Centre for the Independence of Judges and Lawyers. “In addition to his complaints, our own letters to the authorities simply went unanswered.”
Rabindra Ghosh, among other incidents, alleges that he was physically attacked by six of his peers on 25 November 2013, while he was at work in the Gopalgonj District Court.
He further alleges that on 14 January 2014 he was subjected to physical violence, threats, and verbal abuse at the hands of police officers.
He reports that there has been no substantive investigation of his complaints and that he has received no response from the responsible authorities.
“Lawyers play an essential role in protecting human rights and the proper administration of justice,” Pollard added. “International standards require State authorities to prevent attacks and harassment of lawyers and to take effective measures to protect their security.”
The ICJ requested the Prime Minister, the Ministry of Law, Justice and Parliamentary Affairs, the Ministry of Home Affairs and the President of the Bar Association to provide further information and a response to these allegations, but has received no response.
In addition to its call on the authorities of Bangladesh to immediately launch a thorough and independent investigation of the allegations made by Rabindra Ghosh, the ICJ calls on the authorities to take concrete measures to ensure that he and other lawyers are able to discharge their professional duties without any interference or intimidation of any kind. If the investigation confirms the allegations, those responsible must be held accountable.
“The ICJ has observed a general erosion of the rule of law and respect for the ability of lawyers to carry out their duties in Bangladesh,” said Pollard. “Lawyers play a crucial role in ensuring that people whose rights have been violated can demand their right to a remedy. When lawyers themselves become victims simply for carrying out their work, it signals a serious problem for the legal system.”
Rabindra Ghosh’s allegations come against the backdrop of a series of recent attacks on human rights defenders in Bangladesh, including among others the harassment of human rights defenders including Adilur Rahman Khan, secretary of Odhikar; the promulgation of a constitutional amendment that empowers the Parliament to impeach Supreme Court judges; and the amendment of the Information and Communication Technology Act, which is being used to assault freedom of expression and freedom from arbitrary detention.
Contact:
Matt Pollard, ICJ Senior Legal Adviser, +41 22 979 3812, matt.pollard(a)icj.org
A brief background note on the case is available here in PDF:
Bangladesh-Ghosh backgrounder-Advocacy-2014-ENG
