Sep 17, 2019 | Advocacy
The ICJ welcomes the final report of the FFM (Independent International Fact Finding Mission).
Having monitored justice and human rights in Myanmar for over 50 years, the ICJ has an established presence in the country, and supports justice sector actors to implement reforms necessary to protect human rights through the rule of law.
With this experience, the ICJ concurs with conclusions of the FFM and the Special Rapporteur: particularly those highlighting the pervasive damage of unchecked military power and impunity on human rights, the rule of law, and development of an inclusive democratic society.
Myanmar’s Government has failed to fulfill international law obligations to investigate, prosecute and punish perpetrators of rights violations. In this context, the launch of an IIMM (Independent Investigative Mechanism for Myanmar) is necessary, and welcome. Myanmar should cooperate with the Mechanism, whose files may enable future prosecutions of individual criminals.
But this Mechanism is not a court: all States, particularly Myanmar, must work toward holding criminal trials, in competent jurisdictions, inline with international standards – noting that prosecutions target criminals, not the country.
Other immediate opportunities for Myanmar to protect human rights include: amending the National Human Rights Commission Law to expand its mandate and independence; amending laws that facilitate impunity such as the 1959 Defence Services Act; enacting an anti-discrimination law; and reviewing the 1982 Citizenship Law. These legislative reforms are urgent and possible steps that are necessary to demonstrate if the Government is genuine about its international law obligations. Any constitutional reform must also expand rights protections.
As the FFM’s mandate is ending, the ICJ would like to ask the experts: how can States best monitor and implement your recommendations, particularly related to international criminal accountability?
See also:
ICJ, Achieving Justice for Gross Human Rights Violations in Myanmar, January 2018
Terms of Reference for the UN Independent International Mechanism for Myanmar (unofficial Burmese translation), 16 January 2019, available here.
Statement to the Human Rights Council by Mr. Nicholas Koumjian, Head of the Independent Investigative Mechanism for Myanmar (unofficial Burmese translation with accompanying English text), 9 September, available here.
Sep 16, 2019 | Advocacy, Non-legal submissions
The ICJ today put the spotlight the increase and “normalisation” of enforce disappearances and abductions worldwide, with examples about Turkey, Egypt and Saudi Arabia, speaking at the UN Human Rights Council in Geneva.
The statement, made during the general debate, reads as follows:
The International Commission of Jurists (ICJ) shares concerns highlighted by the Working Group on Enforced and Involuntary Disappearances in its report (UN doc. A/HRC/42/40) at the “increasing use of extraterritorial abductions” and at the “normalization of these practices” globally. ICJ previously documented such practices in our 2017 report, Transnational Injustices.
The killing of Jamal Khashoggi by Saudi Arabia is an example of particular concern, as is the reported abduction, by Turkish authorities, of persons they claim to be linked to “terrorist organisations.” Several of these people, who later reappeared in Turkish prisons, are currently facing serious challenges in mounting a proper legal defence. Complaints of the families have not been properly investigated.
In Egypt, the National Security Agency (NSA) has been abducting and forcibly disappearing hundreds as a technique to suppress dissent. This year, the ICJ and Adalah reported on the disappearance of 138 detainees for between 10 to 219 days, many of whom were subjected to torture.
The ICJ urges the Council to address these worrying developments and calls on all countries:
- to stop all practices of enforced disappearance, abduction or informal international transfer;
- to ratify the International Convention for the Protection of All Persons from Enforced Disappearance, and
- to provide to the victims of enforced disappearance and their families full access to their rights, including an effective remedy.
Sep 4, 2019 | News
The announcement that the remains of Pholachi “Billy” Rakchongcharoen, a Karen rights activist, have been located, brings a sad end to years of uncertainty for his family, said the ICJ and Amnesty International today.
This development should lead to a renewed focus on identifying the perpetrator(s) of his apparent enforced disappearance and bringing them to justice.
On 3 September 2019, the Thai Ministry of Justice’s Department of Special Investigations (DSI) announced it had located bone fragments, which they had identified as likely belonging to Billy inside an oil tank submerged in water near a suspension bridge inside Kaeng Krachan National Park in Phetchaburi province.
“The DSI should redouble its efforts to identify the perpetrator(s) of Billy’s killing and bring them to justice,” said Frederick Rawski, Asia Regional Director of the ICJ. “If, based on an assessment of the evidence, it is found that Billy was the victim of enforced disappearance, then the perpetrators, including those with command responsibility, should be charged with the appropriate, serious offences in accordance with Thailand’s obligations under international law – not only with lesser crimes that do not reflect the gravity of the offense.”
Billy was last seen on 17 April 2014 in the custody of Kaeng Krachan National Park officials.
“This case highlights the serious risks activists and human rights defenders face in Thailand, including assaults, enforced disappearance and killings,” said Nicholas Bequelin, Amnesty International’s interim Regional Director of Southeast Asia and the Pacific. “It underscores the long-overdue need for the Thai government to make enforced disappearance a crime under national law. A failure to do so results in the lack of an independent, impartial and effective mechanism to investigate the cases, exacerbating the current climate of impunity.”
The DSI stated that the recovered bones contain DNA inherited from Billy’s mother, which suggests they belong to a person who was related to her. However, the DSI declined to disclose the name of any suspect(s) and requested more time to investigate the case and examine the remains.
Background
Thailand is a state party to the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Freedom from enforced disappearance is protected under both these treaties, as enforced disappearance will always constitute violations of some or more of the following rights: the right to life; freedom from torture and other cruel, inhuman, or degrading treatment or punishment; the right to liberty; and the right to recognition as a person under the law. These are in addition to violations of the rights of members of the disappeared person’s family through suffering deliberately inflicted on them through the imposition on them of uncertainty about their love one’s fate and whereabouts.
Thailand has also signed, but not yet ratified, the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED). The ICPPED affirms the absolute right not to be subject to enforced disappearance and places an obligation on states to investigate acts of enforced disappearance, to make it a criminal offence punishable by appropriate penalties that take into account its “extreme seriousness” and to take necessary measures to bring those responsible to justice.
The Government has stated it will not ratify the Convention until its provisions are incorporated in domestic law. However, efforts to pass the Draft Prevention and Suppression of Torture and Enforced Disappearance Act (draft Act) stalled after it was dropped by the National Legislative Assembly (NLA) prior to the 2019 national election. The draft Act is currently pending the consideration of the President of the National Assembly. Under international law of treaties, as signatory to the ICPPED, still is bound to desist from any acts which would defeat its object and purpose.
Thailand has a binding obligation under international law to conduct prompt, effective and thorough, independent and impartial, and transparent investigations into all suspected cases of unlawful death and enforced disappearance.
According to the ICPPED and the revised Minnesota Protocol (2016), which contains the international standards on the conduct of investigations into unlawful death and enforced disappearance – and which Thailand launched in May 2017 – records that investigations “must seek to identify not only direct perpetrators but also all others who were responsible for the death, including, for example, officials in the chain of command who were complicit in the death.” (para 26)
Download
Thailand-Discovery of Billy remains-news-webstory-2019-THA (full story in PDF)
Further reading
Thailand: special investigation into apparent enforced disappearance of “Billy” welcome, but much more is needed
Thailand: ICJ submits recommendations on draft law on torture and enforced disappearance amendments
Justice for Billy: Time for Thailand to Account for Activist’s Disappearance
Contact
For ICJ: Frederick Rawski, ICJ Asia-Pacific Director, t: +66 64 478 1121; e: frederick.rawski(a)icj.org
Aug 30, 2019 | News
On the occasion of the International Day of the Victims of Enforced Disappearances, Advocacy Forum-Nepal, the Terai Human Rights Defenders Alliance (THRD), and the ICJ voiced their concern about the Government’s failure to provide justice for the victims of the country’s decade-long armed conflict, including victims of enforced disappearance.
The organizations also remembered the victims of enforced disappearances in Nepal and recognized the unceasing efforts of victims and their families and others advocating and campaigning for truth and justice for serious human rights violations in Nepal for over a decade.
Nepal faced a protracted internal armed conflict from 1996 to 2006. In the decade-long conflict, serious human rights violations and abuses were committed by both sides: the Government, including the Royal Nepal Army; and the Communist Party of Nepal (Maoist). Approximately 1,300 people were “disappeared” during the conflict. The fate of many of “disappeared” is yet to be known.
The Comprehensive Peace Agreement (CPA) put an end to the conflict on 21 November 2006, with both sides agreeing to hold perpetrators of human rights violations and abuses accountable and provide access to effective remedies and reparation to victims, including a commitment to publicize the fate or whereabouts of “disappeared”. However, nearly 13 years after the signing of the Comprehensive Peace Agreement in November 2006, these promises remain unfulfilled.
The Truth and Reconciliation Commission and Commission on Investigation of Disappeared Persons, both established in February 2015, have failed to resolve the many thousands of complaints brought to them by victims and their families, and have yet to publicize their findings. Furthermore, in 2015, the Supreme Court ruled the 2014 Act creating the legal framework for the Commissions to be unconstitutional, due in part to the inclusion of provisions that could be used to grant amnesty to perpetrators. In February 2019, the tenure of the commissions was extended to 2020, but the terms of the commissioners expired on 13 April 2019. As of August 2019, no formal replacements had been announced, though a committee to recommend appointments has been established. The ICJ and other organizations have called for a suspension of the current appointment process until amendments to the legal framework are made, and a more consultative and transparent process is initiated.
Nepal has also enacted a new Penal Code, with effect from August 2018. For the first time, the Penal Code recognized enforced disappearance as a distinct crime. While the intent behind this measure is commendable, the law does not meet Nepal’s obligations concerning crimes under international law. In particular, the definition of enforced disappearance falls short of international standards; the crime of enforced disappearance is not absolutely prohibited; provisions related to superior and command responsibility are inadequate; and the penalties for enforced disappearance are inconsistent with international standards. The provisions will apply retroactively to the more than 1,300 conflict era cases.
The organizations urged the Government of Nepal to:
- Amend the 2014 Transitional Justice Act to ensure it is consistent with international human rights standards and Supreme Court rulings, including removing amnesty for perpetrators;
- Revise the criminal code to bring it in line with international standards. At the minimum, this should include:
- amending the definition of enforced disappearances to bring it in line with Nepal’s international obligations and the Convention on the Protection of All Persons from Enforced Disappearance (CED)
- revising the penalty provisions in the Criminal Code Bill to comply with relevant provisions of the CED and other international law and standards
- removing the statute of limitations for enforced disappearance cases
- Ratify International Convention for the Protection of All Persons from Enforced Disappearances;
- Publicize the findings of the CIEDP; and
- Ensure that in Nepal’s legal system, the victims of enforced disappearance, including family members of “disappeared” persons, have the right to obtain reparation and prompt, fair and adequate compensation; and they can effectively exercise that right in practice.
Contact:
For the ICJ: Frederick Rawski, ICJ Asia-Pacific Director, t: +66 64 478 1121; e: frederick.rawski(a)icj.org
Background:
The International Day of the Victims of Enforced Disappearances falls on 30 August every year. Nepal is bound by international legal obligations under the International Covenant on Civil and Political Rights (ICCPR) and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) – both of which it has acceded to – to investigate, prosecute, punish and provide remedies and reparation for the crimes of torture, other acts of ill-treatment, and enforced disappearance.
Nepal-International Day Enforced Disappearances-Press releases-2019-NEP (Story in Nepali)
Aug 27, 2019 | News
The ICJ welcomes yesterday’s ratification by Uzbekistan of the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters 2002, also called the Chisinau Convention. The law on ratification was signed by President Shavkat Mirziyoyev.
The ICJ calls on the Uzbek authorities to take measures to make the Convention’s protective guarantees effective.
“This is a major step forward by Uzbekistan to get its extradition system up to standard with the rest of the world”, said Massimo Frigo, ICJ Senior Legal Adviser. “. “Its ratification of this treaty considerably steps up human rights guarantees in extradition.”
The Chisinau Convention enshrines several human rights guarantees to protect against extraditions that may breach the human rights of the transferred person, including the prohibition to transfer persons where they risk the death penalty or torture or cruel, inhuman and degrading treatment.
“The ratification of the Convention is a very important first step. An effective implementation of these guarantees in the legal and law enforcement systems is necessary now.” said Dmitry Nurumov, ICJ Central Asia Legal Consultant.
Background
Last May, the ICJ held, together with the General Prosecutor’s Office of Uzbekistan, UNODC Regional Office for Central Asia and the Regional Office for Central Asia of OHCHR, a regional and a national seminar on comparative practices in extradition in the CIS and European legal systems, including with regard to human rights guarantees in these procedures.
In 2017, the ICJ issued a report documenting the shortcomings in the Russian Federation, Central Asia and European countries in their extradition systems and other transfer procedures.
The ratification by Uzbekistan of the Chisinau Convention meets part of the recommendations formulated by the ICJ in these occasions.
Contact:
Massimo Frigo, Senior Legal Adviser, e: massimo.frigo(a)icj.org , t: +41229793805
