Oct 4, 2019 | News
Today, the ICJ and 36 other civil society organizations called on the Government of Cambodia to drop charges against former Radio Free Asia (RFA) journalists Yeang Sothearin and Uon Chhin, who are being tried on spurious charges for multiple offences in connection with carrying out their journalist functions.
This comes after the latest hearing in the case yesterday by the Phnom Penh Municipal Court, where it postponed delivery of its verdict for a second time. The Court has now ordered that the case be returned to a new investigating judge for a reinvestigation.
The case is emblematic of a pattern of instances where journalists, human rights defenders, community activists, members of the political opposition and others have been subjected to intimidation and harassment for exercising their fundamental freedoms through misuse of laws and the judicial system.
The ICJ and other organizations have called for a cessation of this practice and urged the government to comply with their obligations under international law to protect these freedoms.
The trial of the two journalists which concluded on 9 August, had initially been expected to result in a verdict on 30 August, before it was postponed until yesterday’s hearing, when it was again postponed.
“These charges should have never been brought against Yeang Sothearin or Uon Chhin – They were brought with the sole purpose of silencing their work as journalists and chilling other independent voices in the country from speaking,” said Frederick Rawski, ICJ’s Asia and Pacific Regional Director.
The ICJ has stressed that the case against journalists does not comply with Cambodia’s international legal obligations to respect the right to liberty and to a fair trial.
“Given the arbitrary legal bases upon which the journalists have been charged and tried, the prolonging of their case prolongs this harassment and additionally violates their right to be tried without undue delay,” said Rawski.
In November 2017, Yeang Sothearin and Uon Chhin were arrested and detained in Prey Sar prison before they were provisionally charged with “supplying a foreign state with information prejudicial to national defence” under Article 445 of Cambodia’s Criminal Code. In March 2018, they were further charged with alleged production of pornography under Articles 38 and 39 of the Law on the Suppression of Human Trafficking and Sexual Exploitation.
Both men face up to 16 years in prison. They are currently under judicial supervision, following their release on bail after being held in pre-trial detention for more than nine months.
The journalists were arrested following the shutdown of RFA’s Cambodia bureau in the midst of a sharp deterioration in the situation for human rights and the rule of law in Cambodia prior to the 2018 national elections.
In September 2017, in a statement to the UN Human Rights Council, the ICJ had highlighted that civil society, independent media and the political opposition were under sustained attack in a “carefully orchestrated effort to silence dissenting voices in the lead up to national elections” and that laws were “being weaponized to this end”.
In October 2017, the ICJ in a report on the human rights situation similarly warned that the government was “relying on judges and prosecutors who lack independence to silence dissent and dismantle democracy” through “an endemic system of political interference in high-profile cases and an equally entrenched system of corruption in all others”.
Following the national elections, this trend has only worsened.
In August and September 2019, the ICJ and other organizations highlighted the “ongoing human rights crisis” in Cambodia and called for strengthened scrutiny at the Human Rights Council of the human rights situation in the country.
Download
Cambodia-charges against journalist-news-webstory-2019-ENG (full story in PDF)
Link to Joint Statement available here.
Contact
Frederick Rawski, ICJ Asia and Pacific Regional Director, frederick.rawski(a)icj.org
Oct 4, 2019 | Advocacy, News
Reform of the 1959 Defence Services Act is a necessary step to address ongoing military impunity. The case of Ko Par Gyi’s killing should be reopened to satisfy the State’s international law obligations and deter repetition of serious crimes by soldiers.
Five years after the death of journalist Ko Par Gyi, the ICJ calls on the Government of Myanmar to reform the 1959 Defence Services Act, which was used to shield soldiers from accountability for involvement in his killing.
“The case is emblematic of the 1959 Defence Services Act being used to enable impunity for human rights violations by soldiers throughout Myanmar, by transferring to military courts the authority to investigate and prosecute serious crimes against civilians,” said Frederick Rawski, Asia Pacific Region Director for the ICJ.
“Impunity for Ko Par Gyi’s death is another example of this law being used to shield soldiers from accountability for serious crimes,” added Rawski. “Legislators should reform the 1959 law to enable the public criminal prosecution of soldiers for serious crimes in all circumstances, and take other steps to address the accountability gap.”
After being detained by police in Mon State and transferred into military detention on 30 September 2014, Ko Par Gyi died four days later in the custody of Tatmadaw soldiers. Unceremoniously buried in a shallow grave, Ko Par Gyi’s death was hidden from his family and the public for weeks. Nobody has been held accountable for his death and his family lacks access to redress, including their right to know the truth.
A deeply flawed inquiry carried out secretly in military courts, pursuant to the 1959 Act, resulted in the acquittal of the soldiers allegedly involved. This effectively ended other efforts to hold the perpetrators accountable, including through an inquest at the Kyaikmaraw Township Court in Mon State. It also flouted the Myanmar National Human Rights Commission’s recommendation for a police investigation and public criminal trial to be undertaken by civilian authorities.
“Five years on, Myanmar authorities must finally initiate a thorough, independent and impartial investigation into the killing of journalist Ko Par Gyi,” said Sean Bain, legal adviser for the ICJ. “The truth must be established and recognized, and those responsible for his apparently unlawful killing need to be brought to justice in fair trials,” he added.
Several provisions of the 1959 Act are used to facilitate a transfer of cases involving military personnel from civilian to military courts, including for serious crimes against civilians. This has been used as a tool to avoid accountability in cases throughout Myanmar, such as its use to justify the early release of soldiers who were convicted by a military court in the killing of ten Rohingya civilians in Rakhine State in 2017.
International legal standards prohibit the use of military courts to try military personnel for gross human rights violations and crimes under international law. The detention and prosecution of journalists, based solely on their lawful activities undertaken while doing their job, violates the right to freedom of expression, and the rights to seek, receive and impart information and to participate in public affairs.
Myanmar authorities have an obligation to reopen the case of Ko Par Gyi with a view to establishing the circumstances of his death, as with any potentially unlawful killing by either State or non-State actors.
“By empowering civilian courts to oversee such cases, the NLD Government would send a powerful message to all justice sector institutions, including police, prosecutors and judges, that they can and should review potential crimes involving the military with independence and impartiality, in line with the rule of law,” added Bain.
The National League for Democracy (NLD)-led Government has the legislative authority to immediately reform the 1959 Act to align it with international standards. The ICJ has called for reform of this law, including by allowing the prosecution of soldiers for serious crimes to be undertaken under the jurisdiction of civilian courts.
See also:
ICJ, “The investigation and prosecution of potentially unlawful death: ICJ Practitioners’ Guide no. 14,” 14 September 2019, available here.
ICJ, “Achieving Justice for Gross Human Rights Violations in Myanmar – a baseline study,” 16 January 2018, available here.
Contact
Sean Bain, ICJ legal adviser, e: sean.bain(a)icj.org
Full statement with additional information, in English: Myanmar-Ko Par Gyi killing-Press-Releases-2019-ENG (PDF)
Full statement, in Burmese: Myanmar-Ko Par Gyi killing-Press-Releases-2019-BUR (PDF)
Oct 3, 2019 | News
From 1 to 3 October, the ICJ and the Lesotho National Federation of Organizations of the Disabled (Lnfod), an umbrella body of organizations for persons with disabilities, held a judicial training in Lesotho on the rights and access just to persons with disabilities.
The workshop was attended by judges, magistrates, disability law and policy experts, Lnfod and ICJ legal advisers and ICJ Commissioner Justice Charles Mkandawire.
At the workshop, the ICJ Legal Adviser Associate Nokhukanya Farise discussed on the UN international legal framework on access to justice for persons with disabilities at both the universal and regional levels. In this regard, the ICJ highlighted provisions related to access to justice of the International Convention on the Rights of Persons with Disabilities (CRPD), as well as the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa.
These instruments provide for a substantive right to access to justice for persons with disabilities under article 13.
In addition, they expand on the rights to non-discrimination and equality of persons with disabilities, as well as their right to equality and access to the physical environment, facilities, services and infrastructure required under article 9 of the CRPD.
Justice Charles Mkandawire of the High Court of Malawi and ICJ Commissioner, who attended the workshop and facilitated a session on the role of the judiciary, said: “The judiciary should be functional independently of the executive and legislature, and the relationship between all three should be characterised by mutual respect. The judiciary should also be impartial and independent to prevent the abuse of power.”
Lnfod has been actively working to secure access to justice for persons with disabilities in the criminal justice system of Lesotho. In the workshop, independent law and policy expert Dianah Msipa discussed the case of Koali Moshoeshoe and Others v DPP and Others, where Lnfod successfully challenged the constitutionality of Section 219 of the Criminal Procedure & Evidence Act No.9 of 1981 in the High Court (Constitutional Division).
That provides that persons with intellectual/psychosocial disabilities are not competent witnesses, denying them equal access to justice.
Lnfod explained the Court’s ruling that the legal barrier violated the right to equality before the law and was discriminatory on the basis of disability. It also disproportionately affected women and girls with intellectual and psychosocial disabilities as this rendered them vulnerable sexual abuse.
Lnfod indicated it hoped that the Koali Moshoeshoe case would act as a reformative judicial precedent which will be disseminated and implemented by the courts of law across the country.
“The shift towards the realization of the right to legal capacity for persons with intellectual/psychosocial presents a remarkable opportunity towards overall enjoyment of all the rights provided for in the United Nations Convention on the Rights of Persons with Disabilities on an equal basis with others,” Lnfod said in a statement delivered before the workshop.
At the workshop, independent disability law and policy expert Dianah Msipa explored the issues of understanding disability, the rights of access to justice for persons with disabilities, barriers to effective participation in the criminal justice system, and the use of accommodations in access to justice.
“The training was well-received by all the delegates and I am encouraged by the word of the delegates who stated that they would start providing accommodations to persons with disabilities,” Dianah Msipa said.
Contact:
Khanyo Farise, e: Nokukhanya.Farise@icj.org
Oct 3, 2019 | News
Today, the ICJ, the Regional office of the UN High Commissioner for Human Rights (OHCHR) for Central Asia and the High School of Judges of the Republic of Uzbekistan (HSJ) are organizing a national training on “International law on economic, social and cultural (ESC) rights.”
This two-day training is one of series of similar trainings, held in 2019 and 2020, that will address international law on issues including rights to healthcare, education, housing and rights in the workplace.
The training sessions aim to build the capacity of judges, lawyers, prosecutors, legal academics and other representatives of the civil society on international standards on ESC rights, to share best practices on compliance by States with their international obligations, including through judicial practices related to ensuring access to justice for ESC rights.
The training sessions ensure diversity and networking opportunities between members of the judiciary and others legal practitioners.
Each training consists of four modules on (1) introduction to international law on ESC rights; (2) International obligations concerning access to justice and remedies for ESC rights in national courts; comparative examples of good practice; (3) Children’s ESC rights and (4) Women’s ESC rights.
Head of the EU Delegation in Uzbekistan Ambassador Eduards Stiprais pointed out, “Uzbekistan is taking serious international commitments to align its legislation with international norms and practices. Under Uzbekistan Constitution, these international commitments take precedence over the national law. They will reinforce the rights of Uzbekistan citizens and international investors. This will boost the economic and social development of the nation, but it will also put high demands to the judiciary system to ensure that its decisions fully comply with international norms and offer remedies against all breaches.”
Ryszard Komenda, OHCHR Regional Representative for Central Asia, noted that “Uzbekistan since 1995 has committed itself to ensure implementation of provisions of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
To date, Uzbekistan has already submitted three national periodic reports on implementation of the Covenant. The third national report was submitted in June 2019 and will be reviewed after 2020.
The UN Committee, tasked to oversee states’ compliance with their commitments under the ICESCR, has issued a number of recommendations for Uzbekistan.
Many of them highlight the instrumental role of training on economic, social and cultural rights as a means to build capacity of state actors to respect, protect and fulfil human rights.
Only through comprehensive understanding of the content of each right and realizing that all human rights are interrelated, indivisible and interdependent, it will be possible to guarantee holistic implementation of existing international human rights obligations of Uzbekistan”.
“These trainings are an important part of capacity building which is essential in ensuring the effectiveness of the reform of the judiciary,” said Róisín Pillay, Europe and Central Asia Programme Director of the ICJ.
“It is vital to build capacity of different actors of the justice system: members of the judiciary, law enforcement agencies, lawyers and civil society, to ensure a greater impact. Together with the OHCHR and the Supreme School of Judges and the great support of the EU Delegation in Uzbekistan, we could provide the space necessary for learning about international human rights law and, in particular, its various aspects related to economic, social and cultural rights,” she added.
The Director of the Higher School of Judges briefly spoke about the activities of the Supreme School of Judges (SSJ), and also noted the recent arrival of the UN Special Rapporteur on the independence of judges and lawyers, Mr. Diego Garcia Sayan, who paid special attention to the establishment of the SSJ, along with other judiciary reforms in Uzbekistan.
“The international seminar in which we have gathered today gives us the opportunity to establish networking with other organizations and bodies through promotion of economic, social and cultural rights. The exchange of ideas and experience in the necessity of the modern world, for the mutual development of the judiciary, education and the society as such,” said Khodji-Murod Isakov, the Director of the Higher School of Judges.
The national trainings are organized in the framework of project “Advancing Civil Society in Promoting ESCR Standards (ACCESS)” funded by EU through the European Instrument for Democracy and Human Rights (EIDHR).
There will be two more similar trainings in 2020 and all trainings materials at the end will be translated into Russian and Uzbek languages for further reference and use. Moreover, the trainings materials will be publicly available in 2020 for wider outreach and promotion of international law and ESC rights standards.
Contact
Dilfuza Kurolova, ICJ Legal consultant, t: +998 90 9050099 ; e: dilfuza.kurolova(a)icj.org
Download
Uzbekistan-National Training ESCR-News-2019-ENG (full story in PDF)
International law on economic, social and cultural (ESC) rights (4 training modules in Russian – PDF).
Oct 3, 2019 | News
Today, ICJ and the Defender Center for Human Rights (DCHR) filed a submission to the Human Rights Council’s Working Group on the Universal Periodic Review in advance of its review of Libya’s human rights record in May 2020.
Information provided in the submission was based on the ICJ report titled Accountability for Serious Crimes under International Law in Libya: an Assessment of the Criminal Justice System, published in July 2019.
In the submission, the ICJ and DCHR drew the attention of the Working Group on the UPR to the following concerns with respect to Libya:
- Impunity for crimes under international law committed by State and non-State actors;
- The insufficient penalization of crimes under international law;
- The lack or inadequacy of investigations and prosecutions of crimes under international law;
- The systemic failure to guarantee the right to liberty and fair trial rights at pre-trial and trial stages.
The ICJ and DCHR called on the Working Group and the Human Rights Council to urge the Libyan authorities to take the following actions:
With regard to insufficient penalization of crimes under international law:
- Enact laws criminalizing war crimes, crimes against humanity and arbitrary deprivations of life (in particular arbitrary and summary executions) in line with international law;
- Amend Law No. 10 of 2013 to bring the definition of torture in line with the Convention Against Torture and the definition of enforced disappearance in line with the International Convention for the Protection of All Persons from Enforced Disappearance, and criminalize other acts of cruel, inhuman or degrading treatment or punishment consistent with international law;
- Amend article 425 of the Penal Code to include a definition of the crime of slavery consistent with international law;
- Amend articles 407 and 408 of the Penal Code to criminalize rape in line with international law and standards; enact laws criminalizing all forms of sexual and gender-based violence; and repeal article 424 of the Penal Code which extinguishes a conviction for rape or indecent assault and grants a stay of execution of the penalty imposed against the perpetrator if they marry the victim; and
- Amend (or repeal) Law No. 35 of 2012, Law No. 38 of 2012 and Law No. 6 of 2015 to exclude all crimes under international law from the scope of amnesties.
With regard to the obligation to independently and impartially investigate crimes:
- Amend article 3 of the Code of Criminal Procedure (CCP) to remove the requirement that an investigation can only be commenced upon the receipt of a criminal complaint, extend the three-month deadline for victims to file a complaint and remove the deadline entirely for crimes under international law and for other serious crimes under domestic law;
- Amend article 7 of the CCP to grant victims’ family members the right to file a complaint with a view to ensuring the commencement of an investigation;
- Repeal article 224 of the Penal Code to remove the power of the Minister of Justice to control and direct investigations and prosecutions by the Prosecutor’s Office; and
- Repeal Decree 388 of 2011 granting the “Supreme Security Committee” investigative powers and article 2 of Law No. 38 of 2012 permitting the use of information and evidence collected by “revolutionaries” during investigations and at trial.
With regard to the systemic failure to guarantee the right to liberty and fair trial rights at pre-trial and trial stages, amend the CCP in order to:
- Exclude the possibility of detaining an accused on the sole ground that she or he does not have a fixed place of residence;
- Set a maximum duration of pre-trial detention, and specify that any such detention should be employed as last resort only when necessary, proportionate and reasonable according to the circumstances of the case;
- Ensure that detainees are brought before an independent and impartial judicial authority promptly following arrest, and no later than 48 hours in any event;
- Include a provision recognizing the right to habeas corpus, and the right to compensation and other reparations for unlawful detention;
- Provide for the right to legal counsel from the moment of arrest in all circumstances, and repeal the provision requiring a lawyer to seek authorization from the investigating judge to speak during the interrogation of the accused;
- Require the disclosure of all evidence to the accused and allow them to make copies of the case file before a case is referred to court for prosecution; and
- Grant individuals the right to appeal any conviction and sentence on alleged errors of law and fact and to reconsideration of a conviction upon discovery of a new fact.
Download
Libya-UNHCR submission final-advocay-non legal submission-2019-ENG (submission in PDF)
Oct 2, 2019 | News
This support comes as the ICJ documents failure of criminal justice system on human rights accountability with its report Accountability for Serious Crimes under International Law in Libya: An Assessment of the Criminal Justice System.
At today’s launch of the publication, the UN Support Mission in Libya (UNSMIL), the Delegation of the European Union to Libya (EUDEL) and the European Union Border Assistance Mission (EUBAM) supported calls for the establishment of a UN Commission of Inquiry for Libya.
The ICJ’s report examines the criminal justice framework in Libya and finds that investigations and prosecutions of crimes under international law have been limited to a handful of cases, and that future cases are unlikely meet international standards necessary to ensure fair and effective justice, in particular the rights to liberty and a fair trial and the prohibition on torture and ill-treatment.
The support by international actors echoes the ICJ’s call for the establishment of a Commission of Inquiry or similar mechanism to monitor, document and report on human rights violations in order to identify perpetrators, and gather and preserve evidence for future prosecutions, either national or international.
UNSMIL, the EU and a number of States expressed their support for the establishment of a Commission of Inquiry or similar mechanism at the 42nd session of the Human Rights Council.
The ICJ also advocated for such a mechanism in its statement to the Council on 25 September.
At the launch, ICJ Senior Legal Adviser Kate Vigneswaran said that “it’s time for States to stop working on the premise that the Libyan criminal justice system can effectively ensure accountability for crimes committed by State and non-State Actors and instead look at options for ensuring they don’t go unpunished.”
The ICJ’s report also calls on States and UN actors to ensure they adopt human rights-compliant terms in their engagement with Libya and to refrain from entering into or implementing agreements with Libyan authorities that could give rise to support for or complicity in violations of international law.
Kate Vigneswaran stated: “Human rights and accountability should underpin any agreements and engagement with Libyan actors entered into by States, rather than being sidelined in the interests of a political solution. Time has shown that the absence of human rights at the forefront of dialogue and engagement with stakeholders has failed to ensure the cessation of egregious human rights violations and abuses being perpetrated throughout the country.”
The launch, which was held in partnership with the Embassy of the Netherlands in Libya, was opened by the Netherlands’ Ambassador, H. E. Mr. Lars Tummers.
Kate Vigneswaran discussed the key findings and recommendations contained in the report. A panel comprised of ICJ Commissioner Marwan Tashani and representatives of EUDEL, EUBAM and UNSMIL responded to the report and provided insights into their work in Libya.
