Impact
Protecting rights in the digital space through mainstreaming international human rights law
Most people in Asia have unprecedented access to the internet and it facilitates freedom of expression and participation in public life. At the same time, however, the spread of hate speech, incitement to violence, disinformation or propaganda and risks of cyber-attacks pose threats to the rights to freedom of expression, but also to privacy, religious freedom and beliefs and public participation, among other rights.
In Southeast Asia, legislation and regulatory action introduced by States, ostensibly to address these challenges, has instead been used to suppress speech and target critics in violation of human rights law obligations. For example, governments in Southeast Asia introduced and enforced severe measures to control information online on the Covid-19 pandemic. This raised concerns about the potential for State over-reach given historical censorship in violation of international law.
The ICJ’s work since 2019, has involved expanding and strengthening collaboration with tech specialists, digital rights advocates, private sector, CSOs, academics and human rights advocates focusing on technology and human rights in Southeast Asia. We work together to identify key rights violations in the online sphere and to strategize legal and policy recommendations in response. We have highlighted how provisions of the law in Singapore have far reaching limitations on the rights to expression and information; analysed restrictions by States in Southeast Asia on content and speech online that limit freedom of expression; and provided resources to inform advocacy, litigation, policy formulation as well as law reform efforts in the region. We continue to carry out advocacy through statements, legal memoranda, and briefing papers, urging governments to ensure freedom of expression and information.
Developing a Standing Independent Investigative Mechanism (SIIM)
Around the world, combating impunity for serious human rights violations and abuses which are crimes under international law remains a significant challenge. Victims of armed conflict and repression are particularly vulnerable, with no access to justice and redress. There is a need for an innovative mechanism whose functions go beyond human rights monitoring and documentation to include criminal accountability, such as the identification of perpetrators and the collection of evidence for use in future legal proceedings. Examples include the International Independent Investigative Mechanism for Syria (IIIM) (2016) and the Independent Investigative Mechanism for Myanmar (IIMM) (2018). While the creation of these mechanisms are a welcome advance, the ICJ questions whether the accrual of numerous ad hoc accountability mechanisms is the most effective and feasible means of addressing the enforcement gap. Since 2018, the ICJ has been advocating for the creation of a Standing Independent Investigative Mechanism (SIIM) to better-serve victims of serious human rights violations and abuses. A SIIM would counter the prevalence of “double standards” in international justice, whereby the response of the international community to atrocity situations is often asymmetrical, with some situations (and victim groups) receiving greater attention and more resources than others, irrespective of the magnitude of the situation. In April 2019, the ICJ presented its provisional analysis, following consultations with human rights defenders and others advocating for new mechanisms.
From 2020 to 2022, with the support of the Netherlands and Germany, the ICJ carried out numerous stakeholder consultations and developed a series of 20 recommendations for a SIIM.
Recommendation five is: States should support the development of and, where appropriate, the adoption of, innovative means of advancing the accountability mechanism framework to ensure it progresses in a logical and principled basis that best serves justice and the interests of victims.’ In 2022, it presented Options for the establishment of a Standing Independent Investigative Mechanism (SIIM) outlining the options for a Standing Independent Investigative Mechanism for serious human rights violations to the G7 States. Since then, the ICJ and the University of Oxford have met and held bilateral meetings with more than 20 State representatives in Geneva and at the UNGA in New York to discuss the idea of a SIIM and present the report to them. The ICJ has also met with NGOs and independent experts to discuss the report.
The ICJ is continuing to work with a range of partners to further develop the idea of a SIIM, including the Global Centre for the Responsibility to Protect, the Global Justice Centre, and the International Service for Human Rights. Consultations continue with stakeholders, including victims, human rights defenders, civil society and lawyers in the regions, in Asia, Africa and Latin America. In 2024, a larger coalition of cross-regional and representative victim groups and CSOs will form to provide input into the idea of a SIIM and advocate for its adoption. While there is not yet general consensus that a SIIM should be created, there is broad agreement that the current practice of creating accountability mechanisms on a mostly ad hoc basis with all the attendant weaknesses and inefficiencies needs to be modified. As a result, the ICJ continues to work collaboratively to refine the SIIM proposal and advocate for its adoption.
Transformative support to women’s access to justice in Asia
Women in Asia face significant barriers in accessing justice, often exacerbated by entrenched gender biases and discriminatory legal practices. The ICJ’s commitment to addressing these challenges has led to the creation of the Bangkok General Guidance for Judges in Applying a Gender Perspective (BGG). The guidelines have been instrumental in addressing gender biases and advancing women’s legal rights in the Asia Pacific region.
Over a five year period, we engaged with over 600 judges and 800 other judicial actors across Asia to develop and implement the guidelines, establishing them as an exemplary tool to help judges identify gender stereotypes and render decisions grounded in the principles of equality and non-discrimination.
Judges from across Asia have integrated the BGG into their judicial training and decision-making processes. This has led to significant advancements in gender equality within the legal systems of countries including Indonesia, Nepal, the Philippines, Sri Lanka, and India.
The Indonesian judiciary formally integrated the BGG into its domestic practice through Supreme Court Regulation No. 3 of 2017. The Maldivian Supreme Court plans to issue the Guidelines as a practice direction to all the courts, while the Nepalese Judiciary, having included the BGG in the judiciary’s strategic plan, is working on a manual for the domestic adoption of the Guidance.
India’s National Judicial Academy has incorporated in its curriculum the Aparna Bhat Judgment, which explicitly refers to the BGG, and the 26 State Judicial Academies will follow suit.
We continue to focus on cross-cutting thematic issues in relation to gender discrimination and women’s access to justice in South and Southeast Asia. This includes the impact of religion on women’s rights; gender and climate justice; the gender dimensions of transitional justice; online gender-based violence; and the protection of women in the context of the use of technology.
Working to put human rights at the forefront of criminal law related to homelessness, poverty, consensual sex, reproductive rights and personal drug use
The ICJ developed the 8 March Principles for a Human Rights-Based Approach to Criminal Law Proscribing Conduct Associated with Sex, Reproduction, Drug Use, HIV, Homelessness and Poverty over a five-year consultative process, following an initial expert meeting of jurists convened in 2018, during which the ICJ team,together with the Joint UN Programme on HIV/AIDS (UNAIDS) and the Office of the High Commissioner for Human Rights (OHCHR), discussed the role of jurists in addressing the detrimental human rights impact of certain criminal laws. The ICJ team then worked with expert jurists, academics, legal practitioners, human rights defenders and various civil society organisations from diverse legal traditions to produce the principles. They provide a clear, accessible and operational legal framework and practical legal guidance – based on general principles of criminal law and international human rights law and standards – on the application of the criminal law to conduct associated with:
Sexual and reproductive health and rights, including abortion
Consensual sexual activities, including in such contexts as sex outside marriage, same-sex sexual relations, adolescent sexual activity and sex work
Gender identity and gender expression
HIV non-disclosure, exposure or transmission
Drug use and the possession of drugs for personal use
Homelessness and poverty
Sexual and reproductive health and rights, including abortion
Consensual sexual activities, including in such contexts as sex outside marriage, same-sex sexual relations, adolescent sexual activity and sex work
Gender identity and gender expression
HIV non-disclosure, exposure or transmission
Drug use and the possession of drugs for personal use
Homelessness and poverty
Strengthening and supporting the Council of Europe to protect human rights and rule of law
In 2022 the ICJ-EI co-founded the CURE Network – a new NGO initiative to support and strengthen the Council of Europe (CoE) in the protection of Human Rights and the Rule of Law. The network, and ICJ-EI have made submissions to the High-Level Reflection Group on the future of the CoE and in meetings with CoE institutions in Strasbourg, to press for renewed focus on national implementation and execution of judgments, and for the European Court of Human Rights (ECtHR) to continue to decide cases against Russia, for as long as it retains jurisdiction.
The ICJ-EI is very active in standard setting, participating in the Committee of Experts on the Protection of Lawyers (CJ-AV) and contributing to a draft treaty on the profession of lawyers. Working closely with environmental and human rights NGOs, ICJ-EI is participating in the sessions of the Committee on Human Rights and the Environment (CDDH-ENV)and contributing to a draft of a new legal instrument on human rights and the environment. ICJ-EI is also on the Committee on Artificial Intelligence (CAI) and contributing to a draft treaty development.
The ICJ-EI has also been involved in the EU accession process to the CoE for the past twelve years, working with the AIRE Centre and Amnesty International to rekindle the process after the Court of Justice of the European Union (CJEU) rejected the accession agreement. The ICJ-EI continues to contribute to and monitor the process closely.
Updates
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