2nd Two-Day Workshop on Minnesota Protocol For Public Prosecutors in Nepal

2nd Two-Day Workshop on Minnesota Protocol For Public Prosecutors in Nepal

From 29 to 30 September 2018, the ICJ convened a 2nd two-day workshop on application of international law and standards, remarkably focusing on the Minnesota protocol, with special reference to investigation of alleged unlawful killings and enforced disappearances for public prosecutors of Nepal.

The workshop was organized by the ICJ South Asia office and took place as part of the ICJ’s Global Redress and Accountability Initiative, “increasing the knowledge and capacity of lawyers, prosecutors and investigators to deal with challenges of impunity and access to redress.”

The participants of the workshop included 18 public prosecutors working in District Government Office in Kathmandu, Lalitpur, Bhaktapur and Kavrepalanchok, Nepal.

The event started with opening remarks by the Attorney General of Nepal and former minister of Law and Justice, Agni Kharel.

In the opening remarks, Agni Kharel highlighted both commitments made and efforts by the Nepal government in order to protect and promote human rights as well as justice for victims of human rights violations.

Expressing pleasure on the theme of the workshop, he also said the public prosecutors will be benefited as well as be competent to use the knowledge and learning from the workshop in their works.

Senior Legal Consultant of the ICJ Nepal – Govinda Bandi, one of the experts of the workshop and speaker of the opening ceremony, highlighted the objectives of the workshop.

Kingsley Abbott, Senior International Legal Adviser at the ICJ, presented an overview of the relevant international human rights legal framework that applies to the investigation of alleged killing and enforced disappearances.

He further presented an introduction and overview of the revised Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016) and ICJ practitioners Guide no. 9.  Both instruments were core materials used at the workshop.

Other speakers included Govinda Bandi, Senior Legal Consultant at the ICJ, who presented on the relevance of the Minnesota protocol in investigating on alleged unlawful killing and enforced disappearances.

Prof. Dr. Hariwar Wasti, Medico-legal expert at the IOM Department of Forensic Medicine of Government of Nepal, presented a power point presentation on the role of forensics in the investigation of gross human rights violations with reference to the Minnesota Protocol.

The workshop focused on investigation techniques of alleged unlawful killings highlighting the significance of public prosecutors in Nepal.

It was also focused on collection and preserving the security of evidences and potential use of the evidences for victims’ right to justice and reparation.

The workshop also covered medico-legal documentation techniques of crime scene and dead wearing tie body, collection of DNA evidence, and drafting of autopsy reports and crime file management.

It was also discussed and outlined some approaches of using the Minnesota protocol in Nepal in the final session of the workshop.

This workshop followed the national workshop the ICJ hosted between 13 to 14 July 2018 in Dhulikhel, Nepal on the investigation of alleged unlawful deaths and enforced disappearances for more than 20 human rights lawyers from diverse regions of Nepal.

Myanmar: creation of UN mechanism a step toward accountability

Myanmar: creation of UN mechanism a step toward accountability

Today’s decision by the UN Human Rights Council to create an ‘independent mechanism’ to collect evidence of crimes in Myanmar, is a significant step toward accountability for gross human rights violations, the ICJ said.

“The creation of this evidence-gathering mechanism is a welcome concrete step towards justice,” said Matt Pollard, Senior Legal Adviser for the ICJ.

“But this is a stopgap measure, effectively creating a prosecutor without a court, that only underscores the urgent need for the Security Council to refer the entire situation to the International Criminal Court, which was created for precisely such circumstances,” he added.

The Council’s decision follows on conclusions and recommendations by the Independent International Fact-Finding Mission on Myanmar (FFM).

The FFM’s 444-page full report described large-scale patterns of grave human rights violations against minority groups in the country, particularly in Rakhine, Kachin and Shan States.

It also highlighted the need for criminal investigations and prosecutions for crimes under international law, something the FFM concluded that national courts and commissions within Myanmar could not deliver.

“National justice institutions within Myanmar lack the independence, capacity and often also the will to hold perpetrators of human rights violations to account, particularly when members of security forces are involved. The latest government-established inquiry in Rakhine State also seems designed to deter and delay justice,” Pollard said.

The Human Rights Council resolution did not create a new international court or tribunal.

Evidence held by the independent mechanism could be made available to international or national proceedings, whether at the International Criminal Court (ICC) or another ad hoc international tribunal, or to national prosecutors asserting jurisdiction over the crimes under universal jurisdiction or other grounds.

While there is no realistic prospect of effective national prosecutions within Myanmar in the near future, evidence held by the mechanism could also be available in future should national institutions eventually become sufficiently impartial, independent, competent, and capable to do so.

A preliminary examination of the situation of Rohingyas, being conducted by the ICC, may also lead to criminal proceedings but will likely be limited to those crimes that have partially occurred within Bangladesh, such as the crime against humanity of deportation.

Bangladesh is a State Party to the Rome Statute of the ICC whilst Myanmar is not.

The Security Council also has authority to refer the entire situation to the International Criminal Court.

“The Myanmar government should stop denying the truth and should work with the international community, and particularly the United Nations, to improve the horrific conditions facing the Rohingya and other ethnic minorities whose rights have been violated so brutally by the security forces, as documented by the Fact Finding Mission,” Pollard said.

“Myanmar’s international partners, including neighbours like India, China, and members of the Association of Southeast Asian Nations (ASEAN), should exercise their influence to help ensure that Myanmar addresses this serious threat to the stability of the country and the region, by ensuring respect, protection and fulfillment of the full range of civil, cultural, economic, political and social rights of the affected minorities,” he added.

The Council resolution makes several other substantive recommendations, including a call on the Government of Myanmar to review the 1982 Citizenship Law, and a recommendation for the United Nations to conduct an inquiry into its involvement in Myanmar since 2011.

Contact:

Matt Pollard, ICJ Senior Legal Adviser (Geneva), e: matt.pollard@icj.org, +41 79 246 54 75.

Frederick Rawski, ICJ Asia Pacific Regional Director (Bangkok), e: frederick.rawski@icj.org

Read also:

Why an IIIM and Security Council referral are needed despite the ICC ruling relating to Bangladesh (13 September 2018)

Government’s Commission of Inquiry cannot deliver justice or accountability (7 September 2018)

ICJ releases Q & A on crime of genocide (27 August 2018)

Myanmar: reverse laws and practices that perpetuate military impunity (16 January 2018)

Summary report of the Fact Finding Mission (12 September 2018)

Full report of the Fact Finding Mission (published 18 September 2018)

Text of the Resolution (unofficial version tabled in advance of the vote)

Myanmar-IIIM statement-Advocacy-2018-BUR (Full story in Burmese)

ICJ Commissioner Reed Brody: “Twenty years later, Pinochet’s arrest remains an inspiration”

ICJ Commissioner Reed Brody: “Twenty years later, Pinochet’s arrest remains an inspiration”

On October 16, 1998, the former dictator of Chile Augusto Pinochet was arrested in London on a warrant from a Spanish judge. Reed Brody participated in the subsequent legal case.

Reed Brody went on to apply the “Pinochet precedent” in the landmark prosecution of the former dictator of Chad, Hissène Habré, who was convicted of crimes against humanity in Senegal in 2016.

He now works with victims of the former dictator of Gambia, Yahya Jammeh. The ICJ interviewed Brody about the Pinochet case and its legacy.

What was your role in the Pinochet case?

My role started when Pinochet was arrested in London. The case began long before that, of course, in the early years of Pinochet’s dictatorship when brave human rights activists documented each case of murder, and “disappearance.”

The ICJ worked with those advocates to produce a seminal 1974 report on those crimes, just six months after Pinochet’s coup. Shut out of Chile’s courts, even after the democratic transition of 1990, victims and their lawyers pursued a case against Pinochet in Spain under its “universal jurisdiction” law and when Pinochet traveled to London, Spanish Judge Baltasar Garzón requested and obtained his detention.

When Pinochet challenged his arrest in court claiming immunity as a former head of state, I went to London for Human Rights Watch, and we and Amnesty International were granted the right to intervene with teams of lawyers in the proceedings at the judicial committee of the House of Lords, then Britain’s highest court.

The Lords cited our research in rejecting Pinochet’s immunity.

You famously described the Lords’ Pinochet decision as a “wake-up call” to tyrants everywhere. Looking back, do you think it was?

Actually no, I think one would be hard pressed to discern a change in the behavior of dictators. Mugabe didn’t quake in his boots, Saddam didn’t clean up his act.

The more important and more lasting effect of the case was to give hope to other victims and activists. When the Lords ruled that Pinochet could be arrested anywhere in the world despite his status as a former head of state, the movement was in effervescence.

As a human rights lawyer, I was used to being legally and morally right, but still losing. In the Pinochet case, not only did we win, but we upheld the detention of one of the world’s most iconic dictators.

The Pinochet case inspired victims of abuse in country after country, particularly in Latin America, to challenge the transitional arrangements of the 1980s and 1990s, which allowed the perpetrators of atrocities to go unpunished and, often, to remain in power.

These temporary accommodations with the ancien régime didn’t extinguish the victims’ thirst to bring their former tormentors to justice.

How did you go from Pinochet to Habré?

With Pinochet, we saw that universal jurisdiction could be used as an instrument to bring to book people who seemed out of the reach of justice.

Together with groups like Amnesty, the FIDH, and the ICJ (which wrote an important report on the Pinochet case and its lessons), we had meetings on who could be the “next Pinochet.”

That’s when Delphine Djiraibe of the Chadian Association for Human Rights asked us to help Habre’s victims bring him to justice in his Senegalese exile.

I was excited at the prospect of persuading a country in the Global South, Senegal, to exercise universal jurisdiction, because there was a developing paradigm of European courts prosecuting defendants from formerly colonized countries.

It took us 17 years, but Habré became the first prosecution ever of a former head of state using universal jurisdiction, and indeed the first universal jurisdiction trial in Africa.

1998 was a high water mark for international justice with the adoption of the ICC Rome Statute and Pinochet’s arrest. Neither the ICC nor universal jurisdiction have quite lived up to their expectations. Why?

International justice doesn’t operate in a vacuum, it’s conditioned by the global power structure. Each case, whether at the ICC level or the transnational level, is a product of the political forces which must be mobilized, or fended off, to allow a prosecution to proceed.

Those forces, particularly since September 11, 2001, have been hostile to human rights enforcement in general and to justice in particular. Universal jurisdiction has been subject to the same double standards as the ICC.

The Belgian and Spanish universal jurisdiction laws, which were the broadest in the world, were both repealed when they were used to investigate superpower actions.

But many of the most successful cases have been those in which the victims and their activist supporters have been the driving forces, have compiled the evidence themselves, built an advocacy coalition which placed the victims and their stories at the center of the justice struggle and helped create the political will in the forum state.

I’m thinking not just of Habré, but the genocide prosecution in Guatemala of the former dictator Efraín Ríos Montt, the case in Haiti of “President for Life,” Jean-Claude “Baby Doc” Duvalier, the Liberian cases brought around the world by Civitas Maxima and its partners, the Swiss cases initiated by TRIAL International, and the Syria litigation by ECCHR and others.

These cases were brought before domestic courts either of the country in which the atrocities took place (Guatemala, Haiti) or of foreign countries based on universal jurisdiction, rather than before international courts.

Most of these cases took advantage of legal regimes which allowed victims directly to participate in the prosecutions as “parties civiles,” or “acusación particular” rather than play passive or secondary roles in cases prosecuted solely by state or international officials.

How do victim-driven prosecutions look different than institutional cases?

When it’s the victims and their allies who get the cases before a court, who gather the evidence, and who have formal standing as parties, the trials are more likely to live up to their expectations.

In the Rios Montt case, for instance, the Asociación Para la Justicia y Reconciliacion (AJR) and the Centro Para la Acción Legal en Derechos Humanos (CALDH) mobilized the victims, developed the evidence, defined the narrative and, essentially, determined the outlines of the case and chose the witnesses who would testify for the prosecution.

In the Habré case, we spent 13 years building the dossier, interviewing hundreds of victims and former officials and uncovering regime police files. The victims’ coalition always insisted that any trial include crimes committed against each of Chad’s victimized ethnic groups, and that is exactly was happened.

In contrast, a distant prosecutor, disconnected from national narratives and inherently not accountable to the victims or civil society, can be tempted to narrowly tailor prosecutions in the hopes of securing a conviction or avoiding political resistance.

This was the case with the ICC in the Democratic Republic of the Congo, for instance, where, as Pascal Kambale has persuasively argued, it betrayed the victims’ hopes.

Millions of civilians died in the DRC and Luis Moreno Ocampo only went after two local warlords. I think the current prosecutor is paying more attention to local realities.

The inspiration from victim-driven cases is also greater, and they are to some degree replicable. As Naomi Roht-Arriaza has written, these cases “stirred imaginations and opened possibilities precisely because they seemed decentralized, less controllable by state interests, more, if you will, acts of imagination.”

When I showed Chadian victims video clips of the Ríos Montt trial, they saw in those images exactly what they were trying to do.

Just as the Chadians came to us in the Habré case seeking to do what Pinochet’s victims had done, our hope in getting the Habré case to trial was that other survivors would be inspired by what Habre’s victims had done and say, “you see these people, they fought for justice and never gave up. We can do that too.”

And indeed, Liberian victims and Gambian victims have patterned their campaigns for justice on what Habre’s victims did. So, the Pinochet case continues to be an inspiration.

 

Turkey: ICJ alerts European Commissioner for Human Rights to protest ban against mothers of disappeared persons

Turkey: ICJ alerts European Commissioner for Human Rights to protest ban against mothers of disappeared persons

The ICJ wrote today to the Council of Europe’s Commissioner for Human Rights, Dunja Mijatović, to request action against the decision by Turkish authorities to ban entrance to Galatasaray square in Istanbul (Turkey) to a collective of mothers of disappeared persons called “Saturday Mothers”.

On 25 August 2018 , the Sub-Governorship of Beyoğlu District of İstanbul announced the prohibition of gatherings for assembly of any type of demonstrations in Galatasaray Square in Istanbul, the square where the Saturday Mothers have gathered every Saturday since 1995 to 1998 and since 2009 until 2018.

On the 700th week of their peaceful protests, the Saturday Mothers and their supporters congregated in Galatasaray Square at midday to once again raise awareness of the need for those responsible to be held accountable for the extrajudicial killings and enforced disappearances following their time in State custody in the 1990s. The police used tear gas to stop the protest and arrested 47 people. All were released by Saturday evening.

Senior officers of the Turkish authorities have even issued statements accusing the Saturday Mothers of being abused by or in collusion with terrorist organisations.

The ICJ wrote to the European Commissioner for Human Rights, that it “considers this situation to be at odds with Turkey’s obligations under international human rights law, in particular of the right to peaceful assembly under article 11 of the European Convention on Human Rights and article 21 of the International Covenant on Civil and Political Rights.”

The ICJ further added that “given the consistent record and presence of the Saturday Mothers in Galatasaray Square throughout the years, it is hard to see how the restriction on their right to peaceful assembly could in any way be necessary and proportionate to a legitimate purpose. It is clear that no prior warning for the gathering was needed for security reasons in light of its regular occurrence at least since its resumption in 2009, i.e. nine years ago. Furthermore, the demonstration took place on a pedestrian area where cars are not allowed.”

ICJ-Letter-SaturdayMothers-CoEComm-Turkey-2018-ENG (download the letter)

Bitter Sugar in Dominican Republic: The Sugar Industry and Human Rights (UN side event)

Bitter Sugar in Dominican Republic: The Sugar Industry and Human Rights (UN side event)

The ICJ will host the side event, “Bitter Sugar in Dominican Republic: The Sugar Industry and Human Rights” on Monday, 24 September 2018 from 15:00-16:00, Room XXVII, at the Palais de Nations in Geneva.

Together with tourism, sugar production is one of the major industries and one of the biggest sources of employment in the Dominican Republic.

This small Caribbean State remains one of the world’s top sugar suppliers to the USA.

While sugar production and export in the Dominican Republic is a major source of income for the country, the adverse impacts of its production are various.

Destruction of the environment, reduced access to land for local communities, forced evictions and precarious working conditions in sugarcane plantations are unfortunately a reality in many regions of this Caribbean State.

Whilst the Dominican Republic has shown in past years a preparedness to abide by and implement international standards on matters related to business and human rights, the country continues to face many challenges and evidence of human rights violations on the ground still portrays a complicated reality.

Two recent examples involving the sugar cane industry illustrate ongoing concern about human rights abuses in the Dominican Republic.

In 2016, armed agents of one of the largest sugar producers in the country, Central Romana Corporation, forcibly evicted from their homes more than 60 families during the night.

No alternative accommodation or reparations have been provided to the victims to redress the destruction of their homes and the trauma caused by the violence of the evictions.

In 2017, the Vicini Group, the second main sugar producing company in the country, used the pesticide Glyphosate in such a way that many were in danger of death and that it destroyed the crops of peasant farmers and workers.

To date, the human rights violations in both cases continue to be unpunished.

There is a growing international concern that the sugar cane industry in the Dominican Republic is somehow able to act with impunity when it comes to human rights violations.

Bearing in mind the upcoming Universal Periodic Review of Dominican Republic, in which all UN Member States will examine the human rights situation in the country, this side event is aimed at informing and shedding light on this little known reality in the Dominican Republic as well as to brief State delegations about the importance of addressing this issue in their review of the Dominican Republic.

The event will also provide a space for constructive dialogue among various actors, including the Government of the Dominican Republic.

Panelists:

Carlos Lopez, Senior Legal Adviser, International Commission of Jurists

Fr. Damián Calvo Martin OP, Director, Centro de Teología Santo Domingo de Guzman

–  María Magdalena Álvarez Gálvez, victim of forced evictions by Central Romana Corp.

Moderator: Rory Gogarty, High Court of England and Wales

Interpretation: Will be provided from English to Spanish and Spanish to English

Dominican Republic Sugar Industry Side Event Flyer 24 Sept. (flyer of the event in pdf)

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