litigation
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INDIA: ‘Civil society organisations are at the forefront of the fight against gender-based violence’
CIVICUS discusses the recent wave of protests against gender-based violence (GBV) in India with Dr Kavitha Ravi, a member of the Indian Medical Association (IMA).Protests erupted across India after a 31-year-old female medical trainee was raped and murdered in a Kolkata hospital on 9 August. The IMA called a strike, with protests held in major cities including Kolkata and Mumbai. While the official strike has ended, many doctors, particularly junior doctors, remain on strike and protests continue to demand justice, accountability and safer working conditions for women.
What triggered the recent protests against GBV in India?
Protests erupted after the tragic rape and murder of a young female doctor at the R G Kar Medical College in Kolkata on 9 August. This horrific incident shocked the nation and sparked widespread outrage. In response, a coalition of doctors, medical associations such as the IMA and various resident and faculty associations joined together in a nationwide strike to demand justice for the victim and better safety measures for health workers, particularly women who face significant risks in the workplace.
Protesters are calling for major reforms, including the adoption of a Hospital Protection Act, which would designate hospitals as safe zones and introduce measures to create a safer environment for health workers. Their demands are part of a larger movement to comprehensively address GBV, prevent similar tragedies in the future and create a safer and more supportive working environment for everyone in the health sector.
What steps have been taken so far to ensure justice and the safety of female health workers?
The judicial system has acted swiftly by transferring the case to a higher authority to ensure a thorough investigation after concerns were raised about the police’s initial inquiry, which was not accepted by the students or the victim’s family. They were sceptical, believing the police might be favouring the college authorities and supporting the accused.
This decision aims to ensure a detailed investigation so justice can be done. The Supreme Court of India is also overseeing the case to monitor its progress, address any issues that may arise and ensure all necessary steps are taken to uphold justice.
In parallel, several initiatives are underway to improve the safety of female health workers. The Ministry of Health has proposed establishing a committee to review and improve safety protocols in health facilities. There are also plans to increase security in hospitals and establish a new national taskforce dedicated to improving safety through better infrastructure, advanced technology and additional security measures. However, despite these efforts, more needs to be done to combat GBV and ensure that these measures effectively protect female health workers.
How have the authorities responded to the protests?
The authorities have taken a mixed approach to the nationwide strike, combining concessions with new measures to address immediate concerns. The Health Ministry has drawn up a detailed plan to increase security in central government hospitals. This includes installing high-resolution CCTV cameras, monitoring access points with identification badges, deploying trained security personnel for constant patrolling and securing duty rooms for female staff. Hospitals are also encouraged to develop and regularly update emergency response plans and conduct mock drills.
In response to these measures, the IMA suspended its strike. However, other doctors’ associations have continued to protest for more substantial reforms. Many people remain dissatisfied, particularly after recent incidents of police violence. While the Supreme Court’s intervention may have temporarily eased the tensions, protesters remain concerned about the new measures’ effectiveness and full implementation.
Why is GBV so prevalent in India, and what’s being done about it?
Deep-rooted cultural, social, economic and legal factors account for the high prevalence of GBV in India. This is a patriarchal country where traditional gender roles and the subjugation of women are deeply entrenched. Women tend to be economically dependent on men, which traps them in abusive relationships that make it difficult for them to seek help or escape. Intergenerational cycles of violence perpetuate the problem, as children who witness or experience abuse may come to see such behaviour as normal.
Low literacy rates, particularly in rural areas, further limit women’s understanding of their rights and the available support. When they do seek justice, the system often fails to protect the victims or hold perpetrators accountable. Systemic failures in law enforcement and justice help perpetuate GBV.
Many initiatives and campaigns have helped highlight and address this issue. But it has not been easy. A lack of consistent political will and weak implementation of policies have hindered substantial change. Feminist and social justice movements often face resistance from conservative parts of society, making it difficult to change these deeply entrenched cultural norms.
To combat GBV effectively, we need a comprehensive approach that includes better education, legal reform, economic empowerment and cultural change. Civil society organisations are at the forefront of this fight, actively advocating for stronger laws, better enforcement and increased public awareness. Continued and robust efforts are essential to address this widespread problem and ensure meaningful change.
Civic space in India is rated ‘repressed’ by theCIVICUS Monitor.
Get in touch with the Indian Medical Association through itswebsite orFacebook page, and follow@IMAIndiaOrg on Twitter.
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MAURITIUS: ‘LGBTQI+ people no longer need to live with the constant fear of being criminalised’
CIVICUS speaks with Najeeb Ahmad Fokeerbux, founder of the Young Queer Alliance (YQA), about the recent ruling by the Mauritius Supreme Court that declared the criminalisation of same-sex relations unconstitutional.The YQA is a non-governmental, youth-led and apolitical organisation registered in Mauritius that seeks to empower LGBTQI+ people and organisations, promote equality and lead change.
What is the situation of LGBTQI+ rights in Mauritius?
The human rights of LGBTQI+ people in Mauritius have progressed for one and a half decades now. The issue of healthcare for LGBTQI+ people was raised in the National Assembly as early as 1995 with regard to HIV/AIDS prevention, care and treatment. Since then, we’ve seen strides with HIV interventions targeted at LGBTQI+ people with change accelerating since 2008. The Employment Rights Act was passed in 2008, and would later become the 2019 Workers’ Rights Act. The Equal Opportunities Act was promulgated in 2012 and the Civil Status Act was amended in 2021, allowing for the registration of sex at birth of intersex persons as ‘undetermined’.
Yet local organisations, including the YQA, have faced a deadlock in addressing some pressing needs and aspirations of LGBTQI+ people such as the decriminalisation of homosexuality, the recognition of trans people and marriage equality, and it didn’t seem that legislative change would occur anytime soon.
What was the process leading to the decriminalisation of same-sex relations?
Conversations around litigation to challenge section 250(1) of the 1838 Criminal Code, which criminalised homosexuality, started as early as 2014. Numerous community consultations were held, but no queer people were ready yet to take on the challenge. It was a David versus Goliath situation.
Since YQA was founded in 2014, advocacy efforts started making progress with policymakers. Conversations gained new momentum in 2018 with the queer community winning support from international allied organisations. India decriminalised homosexuality in 2018, and with around 65 per cent of Mauritians being of Indian descent, this had a lot of impact. There didn’t seem to be a reason for Mauritius not to follow suit.
In September 2019, with the support of two law firms based in Mauritius and France, three friends and fellow activists and I approached the Supreme Court to seek constitutional redress on the basis that section 250 (1) of the Criminal Code violated our fundamental rights and freedoms and was therefore unconstitutional. Two additional cases followed: one by renowned gay artist Henry Coombes and another one by a young queer activist, Ridwaan Ah-Seek.
But change wasn’t going to happen if we only sought it in court. We had to accompany the legal process with efforts to change the hearts and minds of people. In other words, we had to fight two battles – one in court and another in society – at the same time, while ensuring that plaintiffs remained safe and didn’t lose the courage to continue a legal battle that would take years.
The YQA mobilised the community and funding from donors for this strategic and planned effort. In addition to our lawyers, we got support from the Canada Fund for Local Initiatives, the Equal Rights in Action Fund of the National Democratic Institute, the European Union delegation in Mauritius, Planet Romeo Foundation and The Other Foundation. They supported a range of projects to empower LGBTQI+ ambassadors, provide media training, engage with both the public and private sectors and undertake research. We submitted the results of a research project we conducted in 2021 to the courts as evidence.
The four plaintiffs – two Hindus, one Christian and one Muslim – brought to court our stories as queer people from all parts of Mauritian society. Three of us being public officers, we were able to show the challenges we faced due to this abhorrent law being on the books. We played our part and our skilled lawyers played theirs. One thing led to another, and four years later, on 4 October 2023, LGBTQI+ people in Mauritius no longer needed to live with the constant fear of being criminalised.
What made Mauritius not follow the regressive path taken insome other African countries?
The Supreme Court showed independence, impartiality and sensitivity to human rights. The principle of separation of powers was upheld. Mauritius is seen as a respected political and economic player in the region. We hope we will be an example for other Commonwealth and African Union member states to follow.
However, we recognise that unfortunately, many African countries are plagued by dangerous imported extremist doctrines that are erasing the core meaning of being African. The situation is worse than that when the colonial masters enslaved us, for it is our own kin, people with our same skin colour and the same African roots, who are dehumanising and un-Africanising us, while it is them who are bringing in an imported ideology – homophobia.
What’s next on the LGBTQI+ agenda in Mauritius?
Two issues that need to be tackled are the recognition of trans people and marriage equality. By preparing ourselves and providing there are adequate resources, the YQA will be able to help us overcome these two injustices.
This ruling paved the way for greater inclusion of LGBTQI+ people in Mauritius. But although same-sex private sexual relationships among consenting adults have been decriminalised, it remains crucial to educate queer people and people in general about the ruling and its implications for human freedom, equality, dignity and rights.
What international support do you receive, and what further support do you need?
The YQA works in networks with LGBTQI+ activists and organisations in the region and beyond. This is what makes our queer movement a global one. And it contributes to learning, sharing and lifting each other’s spirits.
Achieving the recognition of trans people and marriage equality will require institutional support, strengthened allyship, the participation of the private sector and sustained funding. At the same time, Mauritius is set on the path to becoming an upper-middle-income or high-income economy, making organisations such as the YQA ineligible for donor aid. Donors have to understand that the overall economic situation does not benefit LGBTQI+ people equally and should therefore continue providing targeted support, capacity development and funding to LGBTQI+-led organisations to continue our work.
Civic space in Mauritius is rated ‘narrowed’ by theCIVICUS Monitor.
Get in touch with the Young Queer Alliance through itswebpage orFacebook page.
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MEXICO: ‘Civil society is a retaining wall against government malpractice’
CIVICUS speaks with Carlos G Guerrero Orozco, a Mexican lawyer and co-founder and president of Human Rights and Strategic Litigation-Mexico (DLM Mexico), about a recent victory of Mexican civil society in defence of civic space.DLM Mexico is a civil society organisation (CSO) that promotes human rights and the strengthening of the rule of law in Mexico by providing strategic litigation advice and promoting accountability.
What constraints does civil society experience in Mexico, and how is it working to preserve civic space?
Historically, Mexican civil society has been a retaining wall against government malpractice. For playing this role, which the authorities can find uncomfortable, it has been subjected to restrictions, particularly denial of legal recognition of organisations and their functions.
The state has reacted to the work of civil society by limiting its ability to act as a monitor, watchdog and check on power. In the legal area, it has sought to limit its capacity to undertake legal processes and generate accountability. One way of doing this is by disregarding the legal standing that allows CSOs to initiate appeals for protection and other proceedings to protect rights.
Under Mexican law, CSOs whose mission is to defend the human rights of groups such as children, Indigenous people, survivors of gender-based violence, victims of corruption or public mismanagement and people deprived of their liberty can claim legal standing by virtue of these groups’ special situation with the legal system.
DLM Mexico provides advice to CSOs, collectives, citizen groups, citizen participation committees and human rights defenders involved in strategic litigation cases, providing them with tools to strengthen their capacities in court and overcome obstacles they may face in proving their legal standing in the case.
Another way of constraining civil society is to target CSO authorities and hold them criminally liable for actions taken in the course of their work. This is what happened with a recent reform of the Mexico City Penal Code. The reformed code’s article 256 equated CSO leaders with public officials and specified that public servants – and therefore also CSO leaders – could be liable for corruption offences. By including CSO directors and managers in the definition of ‘public servants’, it extended to them the criminal liability public servants are under.
A particular concern was about the broad and imprecise wording of the definition of the crime of corruption as the conduct of anyone who ‘performs or fails to perform what the law requires them to perform or refrains from performing what the law forbids, in order to obtain an undue advantage of any nature, including financial, for themselves or for a third party’. This undoubtedly opened the door to arbitrary treatment.
The publication of the reformed Penal Code brought concern from various quarters, but particularly civil society, which issued a joint communiqué expressing its alarm.
DLM Mexico filed a request with the Mexico City Human Rights Commission to exercise its power to challenge laws deemed unconstitutional. Days later, the Human Rights Commission filed an action of unconstitutionality before the Mexican Supreme Court.
How was the case resolved, and what do you think its impact will be?
This month the Supreme Court discussed and resolved the case, declaring article 256 unconstitutional and void.
The Court established that, according to article 108 of the Constitution, it is not permissible to extend the definition of public servant to people who do not hold a position within the structure of the state. It also considered that the classification of CSO directors and managers as public officials was potentially prejudicial to their rights and freedoms because it created undue criminal consequences for private individuals. It clarified that the fact they receive public funds does not justify extending the penalties applicable to public servants to private individuals who manage CSOs.
This decision safeguards the rights of CSO leaders and ensures they can continue their work without fear of unfair criminal repercussions.
Although the case focused on Mexico City’s legislation, the ruling put a brake on other states’ intentions to include in their legislation sanctions against CSO staff for their activities, used to silence the voices of civil society. This is particularly relevant in a country where the judiciary is neither robust nor independent.
The Court’s decision is testament to the power of civil society advocacy and the importance of protecting civic space. It is a reminder of our collective ability to challenge and overturn laws that threaten our democratic freedoms.
What other issues are on civil society’s agenda when it comes to the rule of law and democratic freedoms?
Unfortunately, under the current administration there have been several issues that both civil society and the private sector have had to address. The president and members of his party use aggressive discourse towards civil society that is openly restrictive of civic space and hostile to judicial independence and autonomous bodies. The government has restricted access to public information, de-emphasised the protection of personal data, undermined the National Anti-Corruption System and downplayed Mexico’s crisis of enforced disappearances at the hands of organised crime.
DLM Mexico’s agenda has focused on strengthening the National Anti-Corruption System by addressing the problem of underreporting of corruption, calling for registration and transparency of beneficial ownership of companies and training officials to better investigate acts of corruption in civil and administrative matters.
Civil society’s reaction to defend against institutional erosion and the deterioration of the separation of powers was recently seen on the streets when many people mobilised in Mexico City and other cities across the country in the ‘March for Democracy’. A few weeks before the start of the June presidential election campaign, people mobilised against the government’s attacks on the National Electoral Institute, in defence of the independence of the judiciary and autonomous bodies and against the president’s undue influence on the electoral competition and his polarising attitudes.
Although there was no shortage of opposition politicians who tried to exploit it for political gain, the mobilisation was basically a defensive reaction by civil society to government abuses. Before marching, protesters presented a list of demands. However, far from providing any response, the government has hardened its positions even further.
Fortunately, Mexico still has strong institutions, as well as strong private and social sectors that take an interest in public issues. This tempers the risks to our democracy regardless of which party’s candidate wins the presidential election.
Civic space in Mexico is rated ‘repressed’ by theCIVICUS Monitor.
Get in touch with DLM Mexico through itswebsite and follow@DLM_Mx on Twitter and@dlmx on LinkedIn.
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MEXICO: ‘The problem of insecurity is paramount, but it cannot be solved with militarisation’
CIVICUS speaks about the militarisation of security in Mexico and its implications for civil society with Sofía de Robina, a lawyer with Centro de Derechos Humanos Miguel Agustín pro Juárez-Centro Prodh.
Centro Prodh is a Mexican civil society organisation (CSO) founded in 1988 by the Society of Jesus with the aim of defending victims of serious human rights violations and promoting structural changes to allow all people in Mexico to enjoy and exercise the full range of their human rights equally. Its work focuses specifically on Indigenous peoples and groups, women, migrants and victims of repression.
What trends do you see in the militarisation of public security in Mexico?
At Centro Prodh we have seen that starting in 2006, with the deployment of the armed forces in the fight against drug trafficking, there has been an increased focus on the use of force by elements of the military sector instead of on strengthening the civilian police with a focus on prevention and prioritising access to justice and the fight against the corruption of authorities linked to organised crime. Consequently, rather than decreasing, violence increased, as did human rights violations.
The presence of the army and its responsibility for human rights violations dates a long way back – it was involved in the so-called ‘dirty war’ of the 1960s and 1970s. However, this trend deepened under the administration of President Felipe Calderón of the National Action Party, continued under President Enrique Peña Nieto of the Institutional Revolutionary Party and further intensified under the current government of MORENA’s President Andrés Manuel López Obrador.
Over 80 per cent of the current members of the National Guard – created in 2019 through a constitutional reform and initially under the civilian command of the Ministry of Public Security – come from the military. According to the National Guard Law, the institution performs tasks of migration review and supervision, surveillance and investigation. This is extremely worrying as it is becoming a military body. Practically all of its commanders, both administrative and operational, come from the Ministry of National Defence (SEDENA), which means the National Guard is increasingly subordinate to the army.
Congress recently approved an executive initiative to reform the National Guard Law, transferring its operational and territorial command to SEDENA. This is contrary to the constitution, which establishes that public security should be the responsibility of civilian institutions, as ratified by the Supreme Court.
In addition, in 2020 it was established that the armed forces could continue to carry out tasks related to public security, without making clear how they would comply with the principles of exceptional, extraordinary, subsidiary, complementary and supervised intervention. Initially it was agreed that they would do so until 2024, but Congress has just approved a reform to extend the deadline until 2028, without providing any justification.
All these decisions are evidence of the government’s commitment to militarised security instead of strengthening civilian police forces and state and federal prosecutors’ offices, which we believe would be more appropriate if the objective is to investigate crimes and human rights violations.
Moreover, military presence has been strengthened not only in the area of public security, but also in other areas of public administration, such as customs and ports, as well as in the construction of public works. The armed forces have one of the largest budgets in the public administration and are not subject to adequate controls, even though they have historically been characterised by a lack of transparency and accountability.
The National Human Rights Commission has shown no signs of true autonomy when it comes to military oversight. This is evidenced by the small number of recommendations it has issued despite the abundance of complaints involving the National Guard, as well as its refusal to challenge the unconstitutional legal changes.
The attorney general’s office has also failed to carry out relevant investigations into the matter, perpetuating impunity. Oversight bodies are clearly not a sufficient counterweight to SEDENA’s growing power.
Why has this trend developed?
It is undeniable that the current context is one of unprecedented violence and that organised crime carries great weight in Mexico. It is responsible for many human rights violations, often in collusion or at least with the acquiescence of authorities at all levels. In some places, removing the armed forces overnight would not be the most appropriate measure to take.
It is understandable that both the government and society are concerned about security: it is one of the problems that most affects Mexicans. However, the government has opted for militarisation, indicating that there are no other options available. Meanwhile, it has not taken any steps to strengthen adequate investigations to dismantle corruption and organised crime networks.
The militarisation of security has not yielded good results. It has failed to reduce violence and has perpetuated human rights violations. For this reason, international organisations promote a ‘programmatic’ or gradual withdrawal of armed forces, while civilian forces and access to justice are strengthened. However, these recommendations are not being heeded and the role of the armed forces continues to be increased.
We can’t emphasise enough that action must be taken to tackle insecurity. But it is important to discuss what measures should be employed. We believe it should be done by strengthening the civilian police and improving access to justice, and not by means of militarisation.
How is Centro Prodh working on the impacts of militarisation?
Centro Prodh defends and supports people who have been victims of serious human rights violations, mostly enforced disappearances, torture and extrajudicial executions. We work from a comprehensive defence perspective that includes legal defence, organisational and educational support for communities and organisations, international litigation, campaigns and public policy advocacy.
Militarisation is one of the main focuses of our work because it has a great impact on human rights, especially for people in vulnerable situations and historically excluded people who are at the centre of our attention: poor people, migrants, Indigenous people and women.
Although militarisation has deepened in recent years, Centro Prodh has long worked on cases of serious rights violations due to military involvement in public security. These types of abuses have always occurred, and we do not foresee them stopping any time soon.
It is common that, as in the Tlatlaya case – where it’s alleged senior army officers ordered soldiers to kill suspected members of criminal gangs and survivors were tortured, and which remains unpunished – the armed forces carry out detentions making a disproportionate use of force and resort to torture to fabricate evidence, without being held accountable for it.
We have worked on cases that have reached the Inter-American Court of Human Rights (IACtHR), such as the case of the Campesinos Ecologistas (‘environmental peasants’), two peasants who were defending their land and were arbitrarily detained and tortured by military forces. In 2010, the IACtHR ordered the Mexican state to redress the violations suffered by the two activists and implement structural changes to eradicate the causes of the abuses: to maintain an updated register of detainees with accessible information and control mechanisms, investigate allegations of torture and reform the Code of Military Justice to ensure that military jurisdiction does not apply to cases of human rights violations.
We have also worked domestically on case of torture committed the armed forces – and specifically by SEDENA and the navy – which have often included sexual violence against women, including cases brought by Claudia Medina and Korina Utrera, Denis Blanco and Charly Hernández.
In working with the families of the 43 students who were disappeared in Ayotzinapa in 2014, we have also observed the resistance of the armed forces to hand over information and be held accountable.
In short, our concern about the militarisation of public security stems from our work to document and support action on cases of serious human rights violations committed by the armed forces.
How is civil society responding to militarisation?
Civil society has mobilised against militarisation for many years, and not just under the current government. This has been a longstanding and ongoing concern.
Organisations working on the ground throughout Mexico have documented the impacts of militarisation. The Women’s Human Rights Centre in Chihuahua has done crucial work documenting violations, particularly disappearances perpetrated by the armed forces, and obtained a recent IACtHR ruling in the case of Alvarado v. Mexico, which established that ‘the intervention of the armed forces in public security activities must be based on criteria of strict proportionality, exceptionality and due diligence to safeguard the guarantees established in the Convention, because the fundamental role of the military forces cannot be conciliated with the essential functions of the civil authorities’.
Organisations such as Tlachinollan have highlighted the repercussions of the presence of the armed forces in Indigenous and poor territories. They have worked on cases such as that of Inés Fernández and Valentina Rosendo, two Indigenous women who survived sexual torture by the armed forces, which led to a ruling by the IACtHR.
Many local organisations, such as Fray Matías de Córdova Human Rights Centre in the south of Mexico and Casa del Migrante de Saltillo in the north, have expressed concern about the militarisation of the borders and the National Guard’s conduct in migration-related tasks .
International human rights organisations have expressed similar concerns. The Inter-American Commission on Human Rights has been vocal on the issue since its first visit to Mexico in 1996. It has issued constant recommendations to successive governments ever since.
So have various United Nations’ (UN) human right experts, such as the Working Group on Arbitrary Detention, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment and the Special Rapporteur on extrajudicial, summary or arbitrary executions. The Committee on Enforced Disappearances recently visited Mexico and referred to militarisation as one of the main reasons why we currently have more than 105,000 disappeared people.
The Office of the UN High Commissioner for Human Rights has also consistently and emphatically expressed its concern about the military presence and resulting human rights violations.
What alternatives is civil society proposing?
Civil society stands in line with the recommendations made by international organisations, which are very clear: a programmatic withdrawal of the armed forces should be undertaken and civilian institutions should be strengthened – by means of training, funding and a public security strategy that addresses the root causes of the problem – alongside investigative institutions to ensure access to justice.
Unfortunately, instead of following these recommendations, the government has deepened militarisation not only de facto but also de jure, through the creation of a dense legal and institutional framework. This indicates that the trend will be difficult to reverse and will have long-term consequences. SEDENA has always resisted controls and will not voluntarily give back the power it has gained, and it will not be easy for future governments to take it away from it. The possible erosion of the military’s subordination to civilian power opens up a question mark over the future of democracy.
What kind of support could the international community provide?
It is very important for the international community to keep an eye on what is happening in Mexico, monitor the decisions being made, defend civil society in the face of a government that has repeatedly restricted its work and that of independent journalists, and offer support to victims. We need their help so that human rights are placed at the centre of our politicians’ decisions.
Our criticisms are not personal or partisan attacks. Over the years we have looked at the faces of people who have suffered the consequences of militarisation first-hand. The work we do is indispensable in any democracy.
Civic space in Mexico is rated ‘repressed’ by theCIVICUS Monitor.
Contact Centro Prodh through itswebsite orFacebook page, and follow@SofiadeRo and@CentroProdh on Twitter.
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NETHERLANDS: ‘No government should allow transfers of weapons to a state committing war crimes’
CIVICUS speaks with Frank Slijper, Arms Trade project lead at PAX, about a recent court victory in a case brought jointly with Oxfam Novib and the Rights Forum against the Dutch government for exporting arms to Israel that are being used in the assault on Gaza.PAX is the largest peace organisation in the Netherlands. It works to protect civilians against acts of war, end armed violence and build inclusive peace.
Why did you bring a lawsuit against the Dutch government?
We brought this lawsuit to stop our government exporting military equipment to Israel. PAX does research into the arms trade in countries that violate human rights and approaches those who finance it by appealing to their social responsibility. Oxfam and the Rights Forum share our values, so we decided to sue the government together. We had previously called on it to stop giving Israel free rein in Gaza but the government had not acted on our calls, choosing instead to continue supplying Israel with F-35 fighter jet parts despite the rapidly deteriorating situation.
No government should allow transfers of weapons to a state committing war crimes. If there was ever a clear case of why this is so, this is it.
Given the urgency of the situation we had to act quickly, and so we did, Merely four weeks after we learned about these exports to Israel, through a government leak posted by the NRC newspaper, we were in court making our case.
What did the court decide?
On 12 February, the Court of Appeal in The Hague ordered the Dutch government to stop all transfers of F-35 fighter jet parts to Israel within seven days, given the clear risk of violations of international humanitarian law by Israel. The court ruled that after 7 October 2023 the minister of Foreign Affairs was obliged to reassess the licence for the export and transit of F-35 parts to Israel and that this assessment should conclude that further export and transit must no longer be permitted. In addition, the court stated that such an assessment cannot be ‘weighed’ against other interests such as potential damage to diplomatic relations or economic interests. It also made clear that any ‘general’ arms transfer licence for an indefinite period must include a reassessment trigger in case the situation changes drastically, because otherwise the very idea of arms export controls would be undermined.
The court also made clear that violations of international humanitarian law don’t need to be proved and that a ‘clear risk’ of such violations suffices. It found it ‘sufficiently plausible’ that F-35 fighter jets were involved in violations of international humanitarian law while also pointing out that there’s no requirement to prove a direct link between a specific weapons transfer and the alleged violations of international humanitarian law.
Importantly, the court rejected claims by the government that information provided by human rights organisations such as Amnesty International and by United Nations (UN) special rapporteurs could not be credibly verified. Instead, it said that such sources must be taken ‘extremely seriously’.
It also reaffirmed the very important role of civil society organisations in monitoring and ensuring the implementation of state obligations under the Arms Trade Treaty (ATT).
The government had a week to comply with the court ruling and said it would do so. Sadly, however, it didn’t agree with the Appeals Court verdict and announced it would take the case to the Supreme Court for a final decision.
Are you taking any further steps in relation with the Dutch government’s approach to the Israel-Palestine conflict?
The Dutch government claims it is taking a balanced approach, speaking to both sides, when in fact it has refused to clearly condemn Israel, voted alongside the USA against UN resolutions that condemn Israel and demand an immediate ceasefire, and has refused to stop supplying weapons to Israel. Yes, it has enabled airdrops of medical supplies, but that is nothing more than a basic humanitarian obligation.
In all the years our government has taken this supposedly balanced approach, not much has been achieved and a solution has not come any closer. More Palestinians have been forcibly displaced and illegal Israeli settlements have grown. We keep advocating for practical steps and measures to stop these violations and for an end to military cooperation between the Netherlands and Israel.
For now, we are awaiting the last part of the legal process, and we have no choice other than keep defending our case, as we have successfully done so far.
Do you expect this court ruling to have any international repercussions?
The Appeals Court’s broad analysis of states’ obligations under the ATT and the European Union Common Position on Arms Exports makes this ruling an important source for any other organisation considering litigation. This case has been incredibly important for the future of arms export control, because it is the first time Dutch judges have set out so clearly and in such detail the government’s obligations to implement export controls. Governments that export arms must ensure that their exports comply with obligations under the ATT.
Civic space in the Netherlands is rated ‘open’ by theCIVICUS Monitor.
Get in touch with PAX through itswebsite orFacebook page, and follow it onTwitter andInstagram.
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SOUTH AFRICA: ‘We were denied the right to give or refuse our consent, so we took Shell to court – and won’
CIVICUS speaks about civil society’s recent court victory against Shell in South Africa with Sinegugu Zukulu, programme manager of Sustaining the Wild Coast (SWC). SWC is a South African civil society organisation that works with coastal communities of Eastern Mpondoland, South Africa, to protect their land, livelihoods and culture. What inspired you to become an environmental activist?
My personal story made me become an environmental activist. I grew up on communal land, where people shared everything and people could depend on each other. People in my community had little education. I was one of the few lucky ones who were able to attend university. However, people were good at sharing. They practised ubuntu, a concept that refers to our shared humanity and the way we see our humanity reflected in each other. Among us everything is shared, from the water we drink to the land where we grow our crops.
The fact that I grew up in a community where we all took care of each other and shared everything made me who I am. As I got an education while most didn’t, I found I could use it to give back to my community. Because people in communities like mine were so poorly educated, governments could do whatever they wanted. So I decided to step up for my people and help them understand their rights and protect themselves.
It was only natural for me to focus on environmental rights, as I got my degree in environmental studies. When the government started a project to build a highway cutting through my community, I brought a case to the High Court. Unfortunately, this was not successful and we are now renegotiating to have the road rerouted.
Why is it important to protect South Africa’s Wild Coast?
All our coastal communities rely on the Wild Coast for their livelihoods. For most coastal communities, the Wild Coast is also their source of income: they sustainably profit from the environment, for instance by catching fish and selling it in villages and to tourists. The tourism industry employs many people, so this is another way in which people depend on the coastline.
Additionally, the Wild Coast holds spiritual meaning. People training to become traditional healers go to the coast to get in contact with their ancestors. We believe the ocean is our final resting place, so our ancestors lay there. Saltwater is used in most healing practices.
Due to the number and diversity of its marine species, the Wild Coast is also a marine protected area. The extraction of fossil fuel has the potential to destroy it, on top of contributing to climate change when it’s burned. So we should also protect the Wild Coast from extraction for the sake of the Earth.
What challenges did you face when campaigning against Shell?
Just like any other government, South Africa’s wants to attract investment, particularly by multinational corporations such as Shell, with which it has a great relationship. That’s why our court case set us not just against Shell but also against our government.
A big challenge was the government’s delegitimising narrative. The Ministry of Mineral Resources and Energy labelled us as ‘anti-development’. The government refused to listen to us and to have an open dialogue about Shell’s potentially negative impact on coastal communities.
We wanted to have Shell’s exploration permit revoked because we saw it as a threat to our livelihood and to a safe environment. You just need to google what happened with Shell in Ogoniland in Nigeria and you will understand our concerns. We don’t want an oil spill on our coasts.
South Africa has good environmental legislation, but much of it is lacking in implementation, so that is what the environmental movement focuses on. The law is very clear; our constitution says we have the right to a safe and healthy environment. If someone wants to do something on our land, we should be consulted, and we weren’t. We were denied the right to give or refuse our consent, so we took Shell to court – and won.
South African civil society enjoys the freedoms needed to challenge the government in court. But financial resources were critical. We had no money to travel to communities and mobilise them, so we did all our mobilisation work through social media, where we provided information, published press releases and shared videos. We had to look for a law firm that was able and willing to take this matter to court, and that would agree to take the risk even if there were not enough financial resources. Fortunately, we were able to find several legal firms that were willing to come to our rescue. These are firms that prioritise human rights issues and support litigation by Indigenous communities, and fortunately the judges required Shell and our government to pay our litigation costs.
What does this victory mean for South Africa and the environmental movement?
This victory means a lot in terms of our right to self-determination as guaranteed by the United Nations, as it made it clear that free, prior and informed consent must always be sought. It also ratified our constitutional right to a safe and healthy environment.
It is a victory not just for us but also for future generations. We are working so that their right to a safe and healthy environment will also be protected.
We are now working on a documentary about our struggle, which we plan to launch at the upcoming conference of the parties to the United Nations Framework Convention on Climate Change (COP27) in Egypt, although we lack the resources to travel there. We would love to inspire Indigenous communities elsewhere to also rise up and defend their territories. By doing so we will be ensuring life on this planet continues to be possible.
What kind of support do South African environmental activists need from the international community?
The most important thing we need right now are financial resources to continue doing our work.
We also need international partners and support. Shell is a British company, but the UK government has no problem with it going around the world searching for more fossil fuels, in the middle of a climate crisis. These first-world multinational companies are going to third-world countries to extract ever more profit at the cost of compromising our livelihoods and worsening climate change. As always, the real victims are the poorest people.
This has got to stop. Organisations from the countries where these companies come from should work with us and pressure them to stop. Corporations should move to safer energy sources; fossil fuels are not the answer anymore.
Civic space in South Africa is rated ‘obstructed’ by the CIVICUS Monitor.
Get in touch with Sustaining the Wild Coast through its website or Facebook page.
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TURKS AND CAICOS ISLANDS: ‘Advancing LGBTQI+ rights requires advocacy, awareness-raising and a concerted effort to foster a culture of inclusion’
CIVICUS speaks with Tim Prudhoe, a lawyer with Stanbrook Prudhoe, about a legal challenge brought against discriminatory legislation against LGBTQI+ people and the struggle for equal rights of same-sex married partners in Turks and Caicos Islands (TCI).
Stanbrook Prudhoe is a law firm specialising in complex and cross-border cases in the Caribbean region.
What legal action are you involved in?
Since 2021 we have been representing Tim Haymon, a US citizen, and Richard Sankar, a Turks and Caicos Islander, in legal proceedings against the TCI government. The case is now up on appeal after findings of breaches of rights protected under the TCI constitution. The couple married in Florida in 2020, but Tim has been denied an exemption from the need to obtain a work permit, although that exemption is available to the spouse of a Turks and Caicos Islander. There is no definition of ‘spouse’ under the relevant immigration legislation and the definition used in the letter of refusal referenced the marriage legislation. The Marriage Ordinance treats same-sex marriages as void.
The refusal of the spousal exemption was by the Director of Immigration. Tim and Richard brought proceedings against him alleging breaches of the protected rights of equality before the Law, the right to family and private life and freedom from discrimination on the basis of sexual orientation.
The trial took place in November 2022 and the decision was delivered in March 2024. The TCI Supreme Court upheld two of our three claims, finding violations of the constitutional rights to private and family life and to protection against discrimination on the basis of sexual orientation. However, the court did not uphold the claim of equality before the law. That is the subject of an appeal that will be heard on 23 and 24 October.
The government has also appealed. Although it relied on no evidence during the trial, it now disputes any findings of constitutional breach. The government’s legal team remains headed by Ivan Hare KC of Blackstone Chambers in London, UK. Colours Caribbean, an LGBTQI+ rights organisation, successfully applied to join the appeal as an interested party.
Before the claims were first started, Tim and Richard offered to abandon their legal action if the government enacted civil partnership legislation giving same-sex couples the same rights and benefits as opposite-sex couples. Unfortunately, this offer was ignored. Our appeal document itself repeats that offer. When we first made that offer, we even provided the government with a copy of the Cayman Islands legislation recognising civil partnerships as a precedent they could work from. But, again, no response.
The Supreme Court’s decision was a significant step forward for LGBTQI+ rights in TCI. Former TCI Premier Michael Misick criticised it publicly, calling for Richard to have his Turks and Caicos Islander status revoked. If successful, the government’s appeal would be a major setback for equality. Either way, the outcome will have broader implications for LGBTQI+ rights across the Caribbean.
What’s the status of LGBTQI+ rights in TCI, and what difference have recent Privy Council rulings made?
The status of LGBTQI+ rights in TCI has a long way to go still. The government’s reliance on traditional moral standards and recent rulings on marriage issues by the UK Privy Council, the final court of appeal for TCI and other British Overseas Territories, are significant barriers to the advancement of LGBTQI+ rights.
Recent Privy Council rulings on same-sex marriage in Bermuda and the Cayman Islands have significantly influenced the discourse on LGBTQI+ rights in TCI. The combined appeal on the right to marry in the Ferguson case in Bermuda and the Bodden Bush case in the Cayman Islands is particularly noteworthy.
In Bermuda, same-sex couples had the right to marry for a period before the law was changed. Marriages already performed remained valid, but no new marriages could be celebrated – a situation that led to a case being taken to the European Court of Human Rights on the grounds that those left out were in practical effect facing discrimination. The Privy Council ruled that marriage was a unique legal institution and those jurisdictions could decide the scope of marriage without violating their constitutions.
This gave us an insight into the Privy Council’s position. However, we distinguished our case in TCI by focusing on recognition of equivalent legal rights rather than the establishment of a right to marry. The government argued we were trying to introduce the right to marry via the back door, because of the attempt to invoke the spousal exemption from immigration restrictions.
The Privy Council’s decision, which confirmed that jurisdictions can define marriage, wasn’t that surprising. TCI’s constitution, like Cayman’s, includes a preamble about TCI being a God-fearing nation. The government’s arguments in TCI appeal rely heavily on this. This is pretty odd, in light of the fact that it failed to present any actual evidence at trial.
Despite these challenges, the LGBTQI+ community and its advocates continue to press for equality and recognition, reflecting a wider struggle in many small jurisdictions.
What are the challenges for LGBTQI+ activism in TCI?
A major challenge is stigma, which is keenly felt in a place as small as TCI. Despite the presence of people who identify as LGBTQI+, there isn’t a well-developed community infrastructure such as gay pubs or clubs. There’s been a slight improvement in visibility following recent decisions, but it hasn’t yet become a significant movement. For example, there’s now anticipation for an upcoming gay pride event, a notable first for the TCI, albeit modest, as a boat trip during Gay Pride Week in June.
Living as an LGBTQI+ person in TCI often means necessarily leading a discreet life. While there are both locals and expatriates in same-sex relationships, such partnerships are not flaunted or embraced as a popular lifestyle choice. Rather, they tend to remain private, perhaps implicitly acknowledged by the community but not openly discussed.
There’s a complex interplay between legal processes and government responses. Despite government appeals against decisions concerning LGBTQI+ rights, such actions are influenced by political dynamics, particularly when elections are approaching. The electorate consists solely of Turks and Caicos Islanders and has strong opinions on issues such as same-sex marriage, which politicians must navigate with caution.
Constitutional protections theoretically guard against discrimination, but practical enforcement is uncertain. While legal recourse exists in principle, instances of intimidation and hostility, such as aggressive media commentary or social media harassment, deter people from pursuing anti-discrimination cases.
In essence, while there is a legal framework to combat discrimination, the challenges of social stigma, political sensitivities and intimidation hinder progress towards full LGBTQI+ equality in TCI.
What role has civil society played in the case?
We’ve worked with the Pride group that’s recently emerged. Although not gay myself, I was pleased to attend their meeting to have a chance to explain relevant parts of the legal challenge. I have been a friend of Richard for many years, and more recently Tim as well.
The only outside group involved was Colours Caribbean, whose involvement in the Cayman case I had been aware of for some time. When they heard of our legal victory, despite ongoing appeals from both sides, they approached us to join the proceedings. We don’t control their involvement, but the fact that we haven’t objected to it apparently influenced the court’s decision to give them a speaking role in the October appeal.
What are your expectations?
I expect that Tim and Richard will win their appeal on the failure by the judge to deal with the equality before the law claim. Whatever the outcome of the government’s appeal, I expect that the British government will have to exercise its power of override, as it did in the Cayman Islands context, to introduce civil partnership recognition legislation. In TCI, the Governor, a British-appointed official, has a constitutional power to legislate in the best interests of the jurisdiction. For example, previous governors have forced through legislation decriminalising same-sex sexual activity – a move still resisted in other parts of the Caribbean.
I think our success will primarily relate to the anti-discrimination aspect of the lower court judge’s decision. Right now, we are in a perplexing situation: the judge has agreed with our argument that Richard and Tim’s constitutionally protected rights are being violated but he stopped short of implementing the necessary remedial measures.
This creates a glaring inconsistency: existing violations are acknowledged but no remedy is provided. So if another same-sex couple were to seek spouse treatment, they would be denied the exemption, even though the Court has recognised this as a breach of constitutional rights. It is unlikely that the Court of Appeal will accept this situation. We argue that the judge made a fundamental mistake in finding breaches but not proposing remedies. Moreover, the judge’s criticism of our approach fails to recognise alternative ways of remedying the situation, such as amending immigration laws to include same-sex couples in the eligibility criteria for spousal exemptions.
The delay in the judge’s decision, despite mounting pressure, suggests a rushed outcome in the end. It appears that in his haste, the judge failed to thoroughly explore possible solutions to the violations identified. I therefore anticipate that the Court of Appeal will scrutinise the lower court’s handling of the case and consider remedies in line with constitutional obligations.
What are the next steps?
The trajectory of progress depends heavily on the outcome of the Court of Appeal hearing. It’s unlikely a decision will be made immediately after the hearing, given the complexity and scale of the case. As we have argued that the lower court judge erred in his decision, the matter could be escalated to the Privy Council for constitutional review.
However, in terms of broader progress and the continued advancement of LGBTQI+ rights, increased visibility and public awareness are paramount. The greater the exposure and discussion surrounding the case, particularly at the appellate level, the more likely it is that attitudes will evolve positively. Increased awareness fosters confidence within the LGBTQI+ community, encouraging people to live more openly and authentically.
Historically, many people who identify as LGBTQI+ have felt compelled to leave TCI and seek more accepting environments abroad, primarily in cities in the UK or the USA. This trend underscores the prevailing reluctance to accept LGBTQI+ identities in the local context. It will undoubtedly take time to overcome this suspicion and foster a culture of acceptance, but progress is evident and ongoing.
It is my hope as a legal practitioner that church groups engage in this discussion in a constructive and inclusive way, avoiding regressive interpretations of religious doctrine. Such interpretations, rooted in outdated beliefs, only serve to hinder progress. It’s worth noting that TCI, essentially a tourist destination, relies heavily on its reputation as a progressive and welcoming place. Failure to address LGBTQI+ rights risks tarnishing this image, with negative implications for tourism and therefore for economic prospects.
Advancing LGBTQI+ rights in the TCI requires ongoing advocacy, awareness-raising and a concerted effort to foster a culture of inclusion and acceptance within the local community and wider society.
Get in touch with Stanbrook Prudhoe through itswebsite and connect with Tim Prudhoe onLinkedin.