May 22, 2020 | News
In order to comply substantially with the International Court of Justice’s provisional measures Order in the case of The Gambia v. Myanmar, Myanmar should carry out legal reforms and cooperate with international accountability processes, said the ICJ today.
The Gambia has accused Myanmar of violations of the 1948 Genocide Convention in respect of its treatment of Rohingya population, characterized by acts of widespread killing and displacement of the population.
The call comes as Myanmar is scheduled to report on “all measures taken” to give effect to the provisional measures Order (Order) issued by the Court on 23 January 2020.
“Myanmar has not taken ‘all measures within its power’ to prevent acts of genocide until it implements comprehensive legal and constitutional reforms,” said Sam Zarifi, Secretary General of the International Commission of Jurists. “Accountability lies at the heart of prevention, and so long as the Tatmadaw remains unaccountable to the civilian authorities the cycle of impunity for criminal atrocities within the country will continue.”
Since the Order, Myanmar has taken a limited number of steps linked to its compliance with the Order, including issuing three Presidential Directives encouraging anti-hate speech activities, and ordering compliance with the Genocide Convention and the preservation of evidence of human rights and related violations in Rakhine.
Myanmar has also asserted that the findings of the Government-commissioned Independent Commission of Inquiry (ICOE), which made selective admissions including that war crimes may have been committed during the 2017 “clearance operations” in Rakhine, have been transmitted to the Attorney General and the Commander-in-Chief of the Tatmadaw and that action would be taken “in conformity with military justice procedures if there is credible evidence of any commission of offence by members of the Tatmadaw.”
However, the Government has yet to amend or repeal key laws that facilitate discrimination against the Rohingya, including the 1982 Citizenship Law, 2015 Race and Religion Protection Laws and 2014 Myanmar National Human Rights Commission Law. On 6 May 2020, the International Commission of Jurists published a report on the killing of a journalist, Ko Par Gyi, in September 2014, which condemned the fundamentally flawed “military justice procedures” used to address allegations of serious human rights violations. The report highlighted the many deficiencies in ensuring to accountability for serious human rights violations in Myanmar under its prevailing legal framework, including:
- that several provisions of national laws facilitate impunity for serious human rights violations by soldiers against civilians, shield security forces from public criminal prosecutions and deny victims and their families of the right to truth about violations;
- investigations into unlawful killings routinely lack the independence, impartiality and effectiveness necessary to establish the truth and to provide accountability and redress; and
- the rights of victims and their families are rarely respected, including the right to access information concerning the violations and accountability processes, and the right to remedies and reparations.
The UN Human Rights Council has established an Independent Investigative Mechanism to look at allegations of genocide, crimes against humanity and other atrocities in Myanmar, but the government has failed to extend its cooperation with the mechanism.
“Myanmar’s inability to prevent serious human rights violations under the existing legal framework underscores the need for it to cooperate with international justice processes, including the UN’s Independent Investigative Mechanism for Myanmar – and for the UN Security Council to refer the situation to the International Criminal Court,” added Zarifi.
Download the statement with detailed background information here.
Contact
Sam Zarifi, Secretary General of the International Commission of Jurists, t: +41 79 726 4415; e: sam.zarifi(a)icj.org
Kingsley Abbott, Coordinator of the ICJ’s Global Accountability Initiative, t: +66 94 470 1345; e: kingsley.abbott(a)icj.org
Related work
Report: Remove barriers to justice for killing of journalist Ko Par Gyi
Statement: Why law reform is urgent and possible
Statement: Implement International Court of Justice provisional measures Order without delay
Briefing Paper: Four immediate reforms to strengthen the Myanmar National Human Rights Commission
Briefing Paper: Myanmar’s discriminatory citizenship laws can and must be reformed
May 15, 2020 | Agendas, Events, News
Kazakhstan National University (KazNU) Human Rights Institute in cooperation with the ICJ, the European Association of Lawyers and other partners will hold an online international conference “Law and human rights during the pandemic”.
The event will assemble leading legal experts and practitioners from Central Asia and other countries who will discuss the most pertinent issues for ensuring human rights and access to justice in times of pandemic.
The topics will include sections on human rights during quarantine and emergency situations, and administration of justice during the pandemic.
The event is open for participation upon online registration.
The working language of the event is Russian. The conference will start at 11.00 Nur-Sultan time (GMT +5).
Links
Website of the conference
Agenda in Russian
Agenda in English
May 8, 2020 | News
The ICJ today denounced the decision on 5 May 2020 by the Philippines’ National Telecommunications Commission (NTC) to issue an order to ABS CBN Corporation, one of the leading media outlets in the country, to cease its on-air operations.
The ICJ asserted that the action against ABS CBN violates the right to freedom of opinion and expression, which includes the rights of the media to operate without censorship or restraint and the public’s right to access information. This right is guaranteed under Article 19 of the International Covenant on Civil and Poliitical Rights (ICCPR). The Philippines is a State Party to the ICCPR.
“A free and unhindered media is essential in any society to ensure freedom of opinion and expression and other human rights. It is one of the cornerstones of a democratic society,” said Emerlynne Gil, ICJ’s Senior International Legal Adviser.
The NTC’s basis for issuing the order is that ABS CBN’s legislative franchise has expired on 4 May 2020 and action has yet to be taken on its renewal by the House of Representatives. The ICJ fears that the reasons for this delay may be politically motivated.
Given the stakes for freedom of expression, the ICJ urges NTC to follow its own precedents whereby it has allowed broadcast and telecommunications companies to operate beyond their franchise expiry dates, pending the renewal.
“Limitations imposed on the right to freedom of opinion and expression have to pass the general tests, including that of necessity and proportionality, which do not appear to have been met here,” Gil added.
The action taken against ABS CBN is part of a pattern of harassment of independent media by governmental authorities in the Philippines. President Rodrigo Duterte has, in the past, expressed resentment towards ABS CBN for allegedly refusing to air his political ads when he ran for office in 2016. The network is also known to have aired views critical of his administration’s murderous ‘war on drugs’.
In December 2019, President Duterte said that he would make sure that ABS CBN’s franchise would not be renewed. This is not the first time that he has sought to silence a media outlet critical of his administration.
There are at least 11 bills seeking the renewal of the franchise currently pending at the House of Representatives, with the earliest filed in July 2019.
“It is taking the House of Representatives an inordinately long period of time to approve the renewal of ABS CBN’s franchise,” said Gil. “It appears that the allies of this administration in the House are holding the franchise renewal like a sword over ABS CBN’s head to chill it from airing critical views about the government.”
The UN Human Rights Committee, the ICCPR’s supervisory body, has said that States must avoid imposing onerous licensing conditions on broadcast media, and that the criteria for the application of these conditions should be reasonable, objective, clear, transparent, and non-discriminatory.
This action against ABS CBN comes in the middle of the state of public health emergency in the Philippines when access to information is vital in the country’s response to the COVID-19 crisis. The ICJ had earlier raised its concerns on abuses occurring during the lockdown in the Philippines.
The ICJ calls on the Philippine government to uphold and respect freedom of opinion and expression, and ensure that a free press can operate without censorship or restraint.
The ICJ also reminds the government that the public’s access to information is vital to ensure public health and safety during the COVID-19 crisis.
Contact
Emerlynne Gil, Senior International Legal Adviser, t: +662 619 8477 (ext. 206) or e: emerlynne.gil(a)icj.org
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
May 1, 2020 | Advocacy, News
The ICJ today condemned the recent decisions of the governments of the Republic of Benin and Côte d’Ivoire to withdraw their respective declarations that gave individuals and nongovernmental organizations the right to directly bring cases of human rights violations against those States, before the African Court on Human and Peoples Rights.
The ICJ called on the authorities of both States to reconsider and rescind these decisions.
Coming after a similar withdrawal by Tanzania in November 2019, these withdrawal decisions serve to deprive the inhabitants of these countries access to a judicial remedy at the regional level for human rights violations, and undermine the effective of the African regional human rights system.
The ICJ stressed that withdrawal decisions serve to undermine Aspiration 3 of the African Union’s AGENDA 2063, by which the AU aims at “[a]n Africa of good governance, democracy, respect for human rights, justice and the rule of law.”
Both States have offered vague and unsubstantiated rationales for their decisions, but their actions follow their dissatisfaction with the outcomes of particular cases against them. Responses of this kind are effectively an attack on the independence of the Court and can serve to undermine the integrity of the Court itself.
The ICJ recalls that in February 2020, the Executive Council of the African Union called on African States to accede to the Protocol Establishing the African Court and to make the declaration required under article 34(6) of the Protocol. These decisions of the governments of Benin and Côte d’Ivoire to withdraw their article 34(6) declarations fly in the face of this call by the Executive Council of the African Union and greatly threaten the progress that has been made towards protection of human rights in Africa.
Background
Article 34(6) of the Protocol to the African Charter on Human and Peoples’ Rights establishing the African Court on Human and Peoples’ Rights requires that State Parties to the Protocol make a separate declaration in order to allow direct access to individuals and non-governmental organizations to bring cases against them before the African Human Rights Court. Benin which deposited its declaration on 8 February 2016 announced its withdrawal of the declaration on 23 April 2020. Benin claimed that its decision is based ‘dysfunctions and slip-ups’ it has increasingly observed in the work of the African Human Rights Court, allegedly resulting in the Court’s increasing departure from its mandate and core area of competence. Benin cited the earlier withdrawals of Rwanda and Tanzania as further justification for its decision.
Côte d’Ivoire, which deposited its declaration on 23 July 2013 and announced its withdrawal on 29 April 2020, says that its decision was based on what it considers to be ‘the serious and intolerable actions that the African Court has allowed itself’ and which ‘not only undermines the sovereignty of the state of Côte d’Ivoire … but are also likely to cause serious disruption to the internal legal order of states’.
Contact:
Arnold Tsunga, ICJ Africa Director, C: +27716405926, or +254 746 608 859 E: arnold.tsunga@icj.org
Solomon Ebobrah, Senior Legal Advisor, ICJ Africa, C: +234 8034927549; E: Solomon.ebobrah@icj.org
Full text, in PDF: Ivory-Coast-Statement-Advocacy-ENG-2020
May 1, 2020 | News
The decision by Nepal’s Supreme Court to reject a petition by the government asking that it review its 2015 ruling against amnesties for grave conflict-era crimes is an important step in securing truth, justice and reparations for the thousands of victims of the country’s decade-long conflict, the ICJ and other groups said today.
The armed conflict between Maoist and government forces ended in 2006, but victims of serious abuses by both sides are still awaiting justice, accountability and reparations.
The ICJ, Amnesty International, TRIAL International, and Human Rights Watch called upon the Government to revise the 2014 Transitional Justice Act and ensure its implementation in accordance with the Supreme Court’s judgments, so as to assure access to justice for the victims of conflict-era abuses.
Nepal’s transitional justice law, which was passed by Parliament in April 2014, established a Truth and Reconciliation Commission and a Commission of Investigation on Enforced Disappeared Persons.
However, it contained provisions that could allow for amnesties even for crimes such as torture, including rape and other sexual violence and ill-treatment and enforced disappearance.
On 26 February 2015, the Supreme Court struck down the amnesty provisions and ordered the act to be amended accordingly. However, the government immediately petitioned to overturn the ruling. That petition was rejected by the court on April 27, 2020.
“With the Supreme Court’s decision, there can be no further excuse for government backsliding on ensuring truth, justice, reparations and guarantees of non-recurrence. The government should immediately amend the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act, 2014 in line with the Supreme Court’s orders and its own international obligations,” said Biraj Patnaik, South Asia Director at Amnesty International.
With its latest ruling the Supreme Court has upheld the principle that there can be no amnesties for those suspected of criminal responsibility for crimes under international law and human rights violations. More than 13 years since the Comprehensive Peace Agreement of November 2006 promised justice to the victims, no one has been made accountable for any conflict era crimes.
“The request filed by the Nepal Government to review the decision of the Supreme Court was another attempt to evade the real issue: accountability for mass human rights violations. We are delighted that the Supreme Court held its ground and reaffirmed the importance of fair and efficient transitional justice mechanisms,” said Cristina Cariello, the Head of Nepal Program at TRIAL International.
Amnesty International, the ICJ, Human Rights Watch and TRIAL International have repeatedly expressed concerns about the faltering transitional justice process. Besides the failure to amend the law to uphold basic principles of justice, there have been long delays and repeated political interference in appointments to the two transitional justice commissions.
“Over the past decade, the Supreme Court of Nepal has produced some of the most human rights compliant jurisprudence in South Asia. This petition cynically sought to have the Court undermine its own judgement, so that the government could sidestep its responsibility to provide accountability for conflict-related human rights violations,” said Frederick Rawski, ICJ Asia Pacific Director. “The government has no excuse for not immediately amending the transitional justice legal framework so that it is consistent with the Court’s jurisprudence and Nepal’s international legal obligations.”
An effective transitional justice system requires strong legal foundations consistent with international law and standards, and the political will to address the demands of victims of the conflict, the organizations said.
“When Nepal stood for election to the United Nations Human Rights Council the government promised to uphold its human rights obligations, but 3 years later, as it seeks re-election, there has been nothing but impunity and evasion on transitional justice,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “These are crimes under international law, subject to universal jurisdiction, and if justice is denied at home victims may take their cases abroad.”
Contact
Frederick Rawski, ICJ Asia-Pacific Director, frederick.rawski(a)icj.org, +66644781121
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