May 6, 2020 | Advocacy, News, Publications
In a report published today, the ICJ called on the police and prosecutorial authorities in Myanmar to re-open the investigation into the death of journalist Ko Par Gyi in military custody in September 2014.
The report documented the many barriers that have prevented justice from being served in this case, as well as other cases of gross human rights violations in Myanmar.
The ICJ called on the Union Parliament to repeal or amend the 1959 Defence Services Act and other legislation that effectively provides immunity to military personnel accused of serious crimes. These and other barriers have been described at length in the ICJ’s 2018 report on Achieving Justice for Gross Human Rights Violations.
“More than three years ago, the police abruptly ended their formal inquiry into the killing of Ko Par Gyi, without providing any justifiable legal rationale for its closure,” said Frederick Rawski, ICJ Asia Pacific Director. “In the intervening years, we have seen what happens when this culture of military impunity goes unaddressed.”
In the report, An unlawful killing: How Ko Par Gyi’s death highlights barriers to justice in Myanmar, the ICJ evaluated the various investigations into the death and identified three key obstacles to justice in the case:
- the existence and operation of national laws like the 1959 Defence Services Act that shield security forces from public criminal prosecutions, serving to deny victims and their families the right to truth about violations;
- sub-standard investigative practices that are vulnerable to political pressure and lacked independence, and simultaneous, separate and uncoordinated investigations that resulted in an unsystematic and ineffective approach to investigating the case; and
- a lack of transparency that denied the family their right to access information concerning the violations and accountability processes.
Ko Par Gyi was detained by police in Mon State and transferred to military detention on 30 September 2014. He died four days later in military custody. A deeply flawed inquiry carried out in military courts, pursuant to the 1959 Defence Services Act, resulted in the acquittal of the soldiers allegedly involved. Those same provisions are commonly used to transfer cases involving military personnel from civilian to military court. Under international standards, military courts should not be used to try military personnel or others for gross human rights violations and crimes under international law.
“It is no surprise that an international investigative mechanism has been established to look into alleged serious human rights violations in Rakhine and elsewhere in Myanmar,” said Rawski. “Myanmar’s legal framework does not provide adequate safeguards to ensure independent investigation into and prosecution of serious human rights violations. What happened to Ko Par Gyi’s case illustrates that all too clearly.”
The UN Human Rights Council has established an Independent Investigative Mechanism for Myanmar (IIMM) to collect evidence and prepare files for criminal prosecution of the most serious international crimes and violations of international law committed in Myanmar since 2011.
Key recommendations in the report include:
- To the Executive and the Union Parliament: amend the 1959 Defense Services Act to align it with democratic principles, the constitutional guarantee of equal legal protection, and the State’s international law obligation to protect the right to life, including by prosecuting serious violations.
- To the Tatmadaw: apply standards and procedures in military courts that conform to international law, ensure all crimes perpetrated against civilians are tried in the civilian judicial system, and reform rules of engagement to explicitly instruct soldiers to protect life, consistent with international law.
- To the Myanmar Police Force and the Union Attorney General’s Office: align investigative procedures and practices with international law and standards.
- To the Myanmar National Human Rights Commission: take an active and broad interpretation of the MNHRC mandate to address serious human rights violations including those which have gone before courts.
- To UN Member States and international organizations: ensure any organizational support to security forces is contingent on and enables demonstrable commitments to prevent and punish violations by its members.
This report was produced as part of the ICJ’s Global Accountability Initiative, which aims at combatting impunity and promoting redress for gross human rights violations around the world through the entrenchment of the rule of law
Download
An unlawful killing: How Ko Par Gyi’s death highlights barriers to justice in Myanmar in English and Burmese.
Press statement with additional background information on Ko Par Gyi in English and Burmese.
Contact:
Frederick Rawski, ICJ Asia Pacific Regional Director, (Bangkok), t:+66 64 4781121, e: frederick.rawski@icj.org
Kingsley Abbott, Coordinator of the ICJ’s Global Accountability Initiative, t: +66 94 470 1345; e: kingsley.abbott(a)icj.org
Mar 10, 2020 | Advocacy, Non-legal submissions
The ICJ today spoke in the final interactive dialogue with the current UN Special Rapporteur on human rights in Myanmar, at the Human Rights Council in Geneva.
The statement read as follows:
“The ICJ salutes what the current Special Rapporteur has achieved in the mandate despite withdrawal of cooperation by the Government, and shares the concerns expressed in this final report (A/HRC/43/59), particularly the urgent need to establish peace and security in Rakhine State without compromising human rights law and international criminal accountability for gross human rights violations.
The ICJ recalls the obligations of Myanmar under international human rights law. The Government must ensure that human rights are not violated in the context of conflict with the Arakan Army. The longstanding internet shutdown in Rakhine and Chin States must be ended. Due process rights of persons arrested must be respected.
The ICJ also welcomes the Order of provisional measures in the case brought by The Gambia at the International Court of Justice. Myanmar must comply and prevent further acts of genocide.
The Myanmar Government must also ensure accountability for mass atrocities. In a briefing paper last year, the ICJ proposed Constitutional, legislative and institutional reform of Myanmar’s National Human Rights Commission to enable it to independently and effectively investigate allegations of human rights violations. The Myanmar Government should also cooperate with the Independent Investigative Mechanism for Myanmar and the International Criminal Court.
The ICJ would like to ask: based on your experience in the mandate, how can States best strengthen support for the mandate and the various international accountability initiatives underway?”
Mar 9, 2020 | Advocacy, Non-legal submissions
The ICJ today urged the UN to more effectively protect and promote human rights in Myanmar, and the Human Rights Council to monitor implementation of the Rosenthal Inquiry recommendations to this end.
The statement, delivered in a discussion of the Secretary-General’s oral update on the involvement of the United Nations in Myanmar, read as follows:
“The ICJ welcomes the report of Mr. Gert Rosenthal entitled, ‘A Brief and Independent Inquiry into the Involvement of the United Nations in Myanmar from 2010 to 2018.’
The ICJ concurs with the conclusions, including that the UN suffered from ‘systemic and structural failures’ that effectively prevented it from stopping or mitigating the atrocities in Rakhine State in 2016 and 2017.
We welcome the initiative to brief the Council on the report, which the ICJ and other non-governmental organizations recommended to the Secretary-General in a letter last year.
The ICJ further urges that concrete steps be taken to:
1) improve coordination at all levels of the UN, including the adoption of a common strategy and agenda among agencies at the country level to promote accountability for human rights violations, which would also advance the Call to Action by the Secretary General;
2) hold UN officials responsible for failures to mitigate or prevent acts of violence constituting crimes under international law; and
3) publish annual progress reports until the recommendations are fully implemented.
The need for a concerted and system-wide commitment to promote and protect human rights in Myanmar is as urgent as ever given the intensification of armed conflict in Rakhine State and the potential for conflict as national elections approach.
We urge the Council to monitor implementation of the reforms identified in the Rosenthal report.”
Feb 27, 2020 | Advocacy, Non-legal submissions
The ICJ today urged law reforms to address discrimination against minorities in Myanmar, during an interactive dialogue with the UN High Commissioner on Human Rights on her report on Rohingya and other minorities in Myanmar, at the Human Rights Council in Geneva.
The statement read as follows:
“The ICJ welcomes the report of the High Commissioner,[1] delivered against the background of continuing ethnic armed conflict in Myanmar.
With over 50 years’ experience monitoring and documenting Myanmar’s human rights situation, the ICJ concurs with the High Commissioner’s conclusions and recommendations.
While the root causes of violations and abuses against the Rohingya and other persecuted minorities in Myanmar may be complex, as the Fact-Finding Mission already reported to the Council in September 2018, the steps required to address them are by now “well known”.[2]
One essential step is comprehensive legal and justice sector reform within the country.
In a briefing paper last year, the ICJ recommended three immediately achievable, concrete areas of law reform available to the Government: 1) legislative reform, including most urgently of the 1982 Citizenship Law; 2) Constitutional reform, to protect the right of citizens to full political participation; and 3) interim measures to address discrimination on the basis of race or ethnicity.
At the same time, it is imperative the international community continues to support the various international accountability efforts underway, including the work of the International Criminal Court and Independent Investigative Mechanism for Myanmar.
The ICJ would like to ask: what role do you see for States and civil society in relation to monitoring and implementation of your recommendations, particularly with respect to law and justice sector reform?”
[1] UN Doc A/HRC/43/18
[2] UN Doc A/HRC/39/64 (12 September 2018), para 102.
Feb 27, 2020 | Advocacy, News
In January and February 2020, the ICJ supported community dialogue events on international and national law and standards relating to freedom of thought, conscience, religion and belief.
The events were organized by the Young Men’s Christian Association (YMCA) for around 50 youths and human rights defenders from Chin State and Bago Region in Myanmar.
The program sought to improve the capacity of local youths and human rights defenders from Chin State and Bago Region to understand how freedom of religion or belief (FoRB) is protected by the international and national legal frameworks and apply this understanding to their activities.
The ICJ’s national legal researcher, Ja Seng Ing, introduced the concept of freedom of religion or belief (FoRB) u, and applicable international standards on FoRB for Myanmar including how FoRB interacts with other human rights such as freedom of expression. She presented an overview of the domestic legal framework on FoRB and highlighted the State’s obligation to implement such laws and policies to respect and protect the equality, non-discrimination and other rights of individuals and to particularly address violations of their rights to FoRB.
The participants raised the need to improve the quality of public discussion on FoRB and related human rights, and shared this experiences in advocating for the protection of FoRB – including the limitation and challenges that they have faced.
The activities are part of the ICJ’s ongoing effort to convene civil society actors and lawyers in Myanmar with a view to advancing FoRB in the country, and builds on the ICJ’s previous work on this theme.
Contact
Ja Seng Ing, ICJ Legal Researcher, e: jaseng.ing(a)icj.org
Related material
Primer on international human rights law and standards on the right to freedom of thought, conscience, religion or belief, January 2019
New report examines right to freedom of religion or belief in Malaysia, March 2019
Feb 10, 2020 | Advocacy, News
The ICJ conducted a workshop for journalists on fair trial rights and due process on 9 February 2020 in Yangon to help them respond to situations of arrest and prosecution
Some 25 journalists across Myanmar participated in the event, including media representatives from ethnic communities in Shan and Kachin states. Members of nationwide journalism networks, the Myanmar Media Lawyers Network, and the Myanmar Press Council also participated.
The workshop apprised journalists of the guarantees and rights of persons arrested and prosecuted under international human rights law, and the limited protections available under Myanmar law in comparison. It provided a space for participants to collectively identify gaps in journalistic protection. It also intended to foster greater collaboration between journalists and lawyers in safeguarding a free press in Myanmar.
The workshop opened with remarks from Linda van der Horst, head of the political section of the Embassy of the Kingdom of the Netherlands in Myanmar, and Ross Clarke, Team Leader at the ICJ. Both stressed the role of the media in ensuring a robust democracy that adheres to the rule of law, especially in light of the upcoming 2020 national elections. Linda Van der Horst noted that the workshop could also help journalists more deeply understand legal concepts useful for their reporting.
ICJ Associate Legal Adviser Jenny Domino addressed the rights of arrested persons and fair trial guarantees in criminal proceedings under international law. She highlighted the unlawfulness of arresting a journalist as punishment for his work in ensuring that individuals receive information in a free and democratic society. In a comparative context, she discussed the various writs available under Philippine law to protect journalists from unlawful arrests, extralegal killings and enforced disappearances.
ICJ Legal Adviser Hnin Win Aung then discussed Myanmar criminal procedure and the pre-trial rights of criminal defendants. She introduced the writ of habeas corpus remedy under the 2014 Law on the Application for Writs for contesting arbitrary detention. She explained the limitations of this remedy and the practical challenges of litigating in the Myanmar courts.
The presentations were followed by a panel discussion on fair trial rights challenges in Myanmar. The panel was composed of U Myint Kyaw of the Myanmar Press Council, U Brang Mai of Myitkyina Journal, U Myo Aung of Dawei Watch and U Than Zaw Aung of Myanmar Media Lawyers’ Network. The speakers agreed that there is no equality before the law and pushed for greater advocacy on judicial independence and impartiality.
To conclude the workshop, the participants shared their thoughts on how lawyers and the ICJ could help local media moving forward. The participants suggested a human rights analysis of how fair trial rights are undermined in practice by various actors in Myanmar’s criminal justice system. They also expressed their interest to work more closely with lawyers towards better reporting of current events.
The workshop marks the ICJ’s effort to support journalists and empower persons from minority groups towards greater participation in Myanmar’s democratic transition.
Contact
Jenny Domino, ICJ Associate Legal Adviser, e: jenny.domino(a)icj.org
Hnin Win Aung, ICJ Legal Adviser, e: hninwin.aung(a)icj.org
Related material
Strategic Litigation Handbook for Myanmar
Briefing Paper, Citizenship Law and Human Rights in Myanmar
Event, ICJ hosts workshop with civil society on freedom of religion or belief
