Posts Tagged ‘jurisprudence’

Ray of Hope (2): Guatemala and impunity

May 25, 2018

On 24 May 2018, the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, welcomed the ruling issued unanimously by the High Risk “C” Tribunal in Guatemala yesterday against four high-ranking former military officials for crimes against humanity, aggravated sexual violence and enforced disappearance. “This is a milestone judgement for Guatemala and beyond with regards to the investigation, prosecution and punishment of serious human rights violations committed by senior military officers during an internal armed conflict,” High Commissioner Zeid said. The judgment, citing international human rights standards, found that the practice of sexual violence, torture and enforced disappearance formed part of the military strategy during the internal armed conflict in Guatemala. It also held that past crimes involving serious human rights violations are not subject to time limits for prosecution and cannot be subject to amnesty.

The High Commissioner said that this ruling, together with the jurisprudential precedents established in other transitional justice cases, such as Sepur Zarco, Dos Erres, Plan de Sánchez and Myrna Mack, sends a clear message that it is possible for Guatemala to advance in the fight against impunity of the past, which in turn, strengthens the fight against the impunity of the present and the consolidation of the rule of law. On 4 May 2004, the Inter-American Court of Human Rights had already held the State of Guatemala responsible for the enforced disappearance of Marco Antonio.“

I pay tribute to the Molina Theissen family for their courage and perseverance to fight for over three decades for their right to justice and the truth,” Zeid said. Emma Guadalupe Molina Theissen was detained at a military checkpoint on 27 September 1981 and transferred to the “Manuel Lisandro Barillas” Military Brigade in Quetzaltenango, where she was held captive, interrogated, subjected to torture and other cruel, inhuman or degrading treatment, as well as sexual violence. She escaped on 5 October 1981. The following day, her 14-year-old brother Marco Antonio was taken by force from the family’s home in Guatemala City, put into a nylon sack and taken to an unknown destination in a vehicle with an official Government license plate. He has never been found.

See also: https://humanrightsdefenders.blog/2018/05/23/ray-of-hope-lesotho-court-takes-stand-against-defamation-of-hrds/

https://reliefweb.int/report/guatemala/milestone-judgement-guatemala-un-human-rights-chief

 

Academics want UN Treaty Bodies to become ‘fit for purpose’

May 9, 2018

The Geneva Academy’s new publication Optimizing the UN Treaty Body System outlines a series of recommendations related to the functioning of United Nations Treaty Bodies (UN TBs) to prepare for the upcoming review of UN TBs by the UN General Assembly in 2020. ‘While the last words will remain with states and TBs members, this report can provide a basis for negotiations and the blueprint for future changes’ underlines Felix Kirchmeier, co-coordinator of the Academic Platform on Treaty Body Review 2020.

This work is the outcome of a three-year consultative process to collect academic inputs and ideas via the creation of an academic network of independent researchers, a call for papers, a series of regional consultations, annual and expert conferences, as well as ongoing interactions with key stakeholders: states, treaty bodies, national human rights institutions, civil society organizations and the Office of the UN High Commissioner for Human Rights and other parts of the UN. ‘The issue of TBs’ reform is almost as old as the system itself: many proposals that are on the table today were already formulated before. Our academic contribution takes these proposals out of their political context by analysing them, their relevance, their likelihood to be implemented and the possible need for updates’ adds Felix Kirchmeier.

The final objective of the publication and of the entire process is to make the TB system ‘fit for purpose’ by outlining measures to optimize its functioning, effectiveness and efficiency while safeguarding its key protection role and maintaining the existing legal framework.

‘While the publication provides several detailed recommendations, it notably call for a consolidated state report and a single review, or a semi-consolidated state report and two clustered reviews; the implementation of incremental changes in the TBs working methods; and a consolidation of TBs’ structure in terms of membership, as well as financial and substantial support’ underlines Kamelia Kemileva, Executive Manager at the Geneva Academy and co-coordinator of the Academic Platform on Treaty Body Review 2020.

The 45-page study contains many interesting ideas and I copy here only one of particular interest which is to improve the system’s accessibility and visibility:

To meet its purpose, TB output must be accessible and visible. Many contributors expressed concern on this account. Modern technology offers easy solutions, some of which have been implemented but could be taken further.

Contributors unanimously welcomed the webcasting of country examinations and consider it an important improvement. However, they recommended that webcasts should be broadcast and archived in all working languages, as well as the language in which the review is held – the only one that is available at the moment. They also suggested that webcasts should be easier to access via links on the OHCHR home page in each country and via each committee’s session web page.

Many contributors also called for a readily accessible, up-to-date, comprehensive database of TB jurisprudence. It was noted that information on TB findings is currently hard to find (when available), that the database is incomplete, and that decisions are not always available in all UN official languages. Accessing and understanding TB jurisprudence remains a challenge for all stakeholders – whether they are victims of human rights violations, TB members, states, national and regional human rights mechanisms, civil society organizations, or scholars.

Contributors recommended that more user-friendly fact sheets and jurisprudence summaries should be prepared to disseminate TB findings and other important developments.

To increase visibility, contributors proposed maintaining dedicated pages on social media platforms. This would bring TBs’ work to the attention of larger audiences, assist Committees to update information on their activities, and create followers. More generally, the system’s achievements and impact on rights-holders should be better documented and publicized.

(my earlier posts on TBs include: https://humanrightsdefenders.blog/2014/05/06/the-outcome-of-the-treaty-body-strengthening-process-workshop-on-9-may-2014-in-geneva/ and https://humanrightsdefenders.blog/2016/10/18/on-24-october-there-is-a-side-event-in-ny-on-the-implementation-of-human-rights-treaty-body-recommendations/ as well as https://humanrightsdefenders.blog/2015/02/17/treaty-bodies-case-law-database-saved-and-resurrected-by-un/)

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https://www.geneva-academy.ch/news/detail/121-optimizing-the-un-treaty-bodies-system

Treaty bodies case law database saved and resurrected by UN

February 17, 2015

For someone who 25 years ago (!!) started the development of legal databases on human rights (specifically the legal protection of refugees) and wrote articles about it (e.g Int J Refugee Law (1989) (1):89-100.doi: 10.1093/ijrl/1.1.89Pp. 89-100, see ABSTRACT below), the news that the UN has now published, on-line, a database of case law on human rights is exciting and it should be for all practitioners.

The new site http://juris.ohchr.org/ contains all case law issued by the UN human rights expert committees, the Treaty Bodies.

The database was developed using data from the Netherlands Institute of Human Rights (SIM) of Utrecht University School of Law (of which I had the honor to be the first Director). Since the mid-1990s, SIM had developed a comprehensive record on the jurisprudence stemming from the decisions by four Treaty Bodies on complaints brought by individuals.  Over 20 years, academics compiled and indexed Treaty Bodies’ case law, making the SIM database the most authoritative online resource on this. Due to budget restrictions, SIM stopped updating the database  from 1 January 2014 and took it offline on 1 January 2015. However, SIM offered its data free of charge to the UN Human Rights Office.

This allowed us to build our own database, with an expanded remit and search capability, and we aim to continue developing it. It is an important part of our efforts to make the work of the Treaty Bodies more visible and accessible, and we hope it will benefit a range of users all over the world,” said Mr. Ibrahim Salama Director of the UN Human Rights Treaties Division. .

There are 10 Treaty Bodies that review and monitor how States that have ratified a particular treaty are implementing the rights contained in it. Eight (listed below) can also consider complaints by individuals who believe their rights have been violated and who have exhausted all the legal steps in their own country.

The site http://juris.ohchr.org contains case law indexed by various categories, including State, date, subject and keywords, which can all be used as search criteria. Users can submit their comments on the functioning of the database as part of ongoing efforts to improve it.

The Committees that can receive and consider individual complaints are:

  • Human Rights Committee (CCPR)
  • Committee against Torture (CAT)
  • Committee on the Elimination of Discrimination against Women (CEDAW)
  • Committee on the Elimination of Racial Discrimination (CERD)
  • Committee on the Rights of Persons with Disabilities (CRPD)
  • Committee on Enforced Disappearances (CED)
  • Committee on Economic, Social and Cultural Rights (CESCR)
  • Committee on the Rights of the Child (CRC)

Abstract of 1989 article on the development of legal databases: “Today’s information technology can be used to improve the legal protection of refugees, by providing information relevant to the asylum procedure, and laying the foundation for progressive development at the international level. The positive potential of legal databases is only now beginning to be realised, thanks to pioneering efforts within human rights and related documentation centre networks. UNHCR is helping to set up a case law database, in co-operation with non-governmental organizations. A database on national legislation is also planned, as is a full text database of international legal instruments database. Legal literature continues to be covered by the database REFLIT (REFugee LITerature) of UNHCR’s Centre for Documentation on Refugees (CDR/UNHCR). This article examines two basic kinds of information-retrieval systems, ‘free text’, and ‘indexed’, and considers their different structures, uses and search procedures, with reference to work on a forthcoming refugee thesaurus. The author calls attention to the need for standard formats, such as those of HURIDOCS, and to problems of scope and coverage. He suggests that information and documentation are areas in which practical co-operation between the UN, governments and non-governmental organizations could be implemented to advantage.”

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Homegrown African decision promotes press freedom and protects human rights defenders

February 5, 2015

A court has ruled that criminal defamation laws cannot include custodial sentences or sanctions that are disproportionate, such as excessive fines. (Gallo)

Simon Delaney, a media lawyer and advisor to the Decriminalisation of Expression Campaign, in The Guardian of 4 February reports on an important judgement by the African Court on Human and Peoples’ Rights on press freedom by ruling that criminal defamation laws cannot include custodial sentences or sanctions that are disproportionate, such as excessive fines.

[In 2012, Lohé Issa Konaté, the editor of a weekly newspaper in Burkina Faso, was found guilty of criminal defamation and sentenced to 12 months in prison after he published two articles accusing a public prosecutor of abusing his power. Konaté‘s paper was shut down for six months and he was ordered to pay an exorbitant fine, plus compensation and costs. Konaté argued that he was wrongfully punished for legitimate investigative journalism and his rights to freedom of expression were violated. A coalition of 18 media and human rights organisations added that criminal defamation laws undermine the democratic rights of the media and citizens to hold their governments to account. The court found that, although the Burkinabé law served the legitimate objective to protect the honour and reputation of public officials, the penalty of imprisonment was a disproportionate interference in the exercise of freedom of expression by Konaté and journalists in general. The court ordered Burkina Faso to change its criminal defamation laws and pay compensation to Konaté.]

The judgment is significant not so much because of the content of the decision (which is in line with international standards] but because it is homegrown ‘African’ decision.

The judgment, which is binding on African Union member states, gives impetus to the continent-wide campaign to decriminalise defamation. It also paves the way for the decriminalisation of ubiquitous laws prohibiting “the publication of matter with intent to bring the president into hatred, ridicule or contempt” and “the publication of false news with intent to cause fear and alarm to the public”.

Homegrown African decision promotes press freedom | Opinion | Analysis | Mail & Guardian.

HURIDOCS: bursting with new ideas for documenting human rights: case law in Africa and the Americas

February 25, 2013

The HURIDOCS network publishes a Newsletter with many items that are of importance to Human Rights Defenders. The latest issue carries e.g. interesting news on access to human rights case law from the Asian and American scene. In the future it should be possible to have on-line access to the case load of these regional systems which until now are very difficult to find. Connecting these two databases in the future will be possible, but only if they are built on common standards. Developing these is a core function of HURIDOCS as illustrated by an interview with Judith Dueck who has been involved in standard formats for almost 25 years (Judith Dueck looks back upon how it was done). One reason to refer to this article of course the youth picture of me (from 1988) they added!

To get the HURIDOCS newsletter free every 15 days subscribe via the homepage: http://www.huridocs.org/

HURIDOCS 2011