Feb 13, 2017 | News
The workshop, held from 11-12 February in Sittwe, brought lawyers and civil society together to discuss of experiences of strategic litigation elsewhere in Myanmar and the region, and consider potential public purpose litigation cases in Rakhine State.
Dr Daniel Aguirre, the ICJ’s International Legal Adviser in Myanmar, provided an introduction to strategic litigation as a method for promoting accountability in a time of transition in governance.
He noted the critical role of independent lawyers in protecting human rights, by representing clients from all communities in Rakhine State.
And he emphasized the importance of strategic litigation as a means to prevent violations and abuses of human rights, or to seek reparations where violations and abuses have occurred.
Kingsley Abbot and Jintana Sakulborirak, from the ICJ’s Asia Regional Office in Thailand, discussed strategic litigation cases from the region, including in northern Thailand where community members have launched an action to appeal the legality of land acquisition for a planned SEZ in Tak Province.
The cases highlighted how media engagement is a critical part of strategic litigation, to raise public attention on human rights issues and demands for accountability in the implementation of investment projects.
Daw Aye Mon Thu, advocate from Dawei Pro Bono Lawyers Network presented the experiences of Heinda Mine cases from Dawei Region, Southern Myanmar, emphasizing the importance of trust-building and cooperation with local community as stake-holder. Such a strategic litigation cases are extremely rare in Myanmar.
Discussions followed about potential cases for strategic litigation from Kyauk Phyu and Sittwe, including issues related to land acquisition for railways construction and an SEZ appear to have been carried out unlawfully in violation of human rights.
Participants discussed the principle of undertaking litigation for broader advocacy objectives rather than solely focusing on actually winning the case in the court.
They also reflected on the challenges and limitations for Myanmar lawyers to undertake strategic litigation.
Highlighting the vital role of lawyers, speakers encouraged participants to consider strategic litigation as a means to challenge unlawful acts that violate or abuse human rights, particularly accompanying business enterprises.
Rakhine State is among Myanmar’s poorest and most isolated provinces, where lawyers and CSOs have had limited exposure to concepts of human rights and international laws.
This workshop, the first of its kind to be held in Rakhine State, is part of efforts to address this gap by building legal literacy on international human rights law and lawyers to consider litigation as a strategy to protect human rights.
Feb 10, 2017 | News
Extending the mandate of the Truth and Reconciliation Commission (TRC) and Commission on Investigation of Disappeared Persons (COID) without accompanying legal amendments to the TRC Act, 2014, in line with Nepal’s international legal obligations, will be meaningless, the ICJ said today.
It will fail to empower the commissions to address the root causes of the conflict and provide justice to victims, the ICJ added.
On 9 February 2017, the Government of Nepal formally extended the mandate of the TRC and COID for another year.
The TRC and COID were established on 10 February 2015 through the Commission on Investigation of Disappeared Persons, Truth and Reconciliation Act, 2014 (TRC Act), with the mandate to investigate alleged human rights abuses committed by both sides of Nepal’s decade-long armed conflict between the Government of Nepal and Communist Party of Nepal-Maoist (CPN-M) rebels.
However, due to a flawed legal mandate, resource and capacity limitations, and lack of political will, the commissions have been unable to carry out their work effectively.
“Unless the government of Nepal is prepared to amend the TRC Act in line with the Nepal Supreme Court’s rulings and international law, and to take other concrete steps to address the persistent challenges that have plagued the commissions’ ability to complete their work over the past two years, the extension of their mandate will be meaningless,” said Sam Zarifi, the ICJ’s Asia-Pacific Director.
In two separate rulings, the Nepal Supreme Court has previously ruled that the TRC Act and its predecessor TRC Ordinance were in violation of Nepal’s international legal obligations, as they allowed for amnesties for gross human rights abuses and serious violations of international humanitarian law amounting to crimes under international law.
Despite repeated calls by the ICJ, as well as other human rights and victims groups, to ensure a credible transitional justice process by amending the TRC Act in line with Nepal’s Supreme Court order and international standards, and by providing adequate resources to enable the commissions to carry out their work effectively and independently, the Government of Nepal has thus far failed to take any steps to implement the Supreme Court’s orders.
Nevertheless, the commissions finally commenced their work in February 2016, one year into their two-year mandate, and despite a severe lack of public faith in the commitment of the government and the ability of the commissions to deliver justice, victims came forward to submit more than 60,000 complaints to the two commissions combined.
“The government of Nepal must demonstrate its commitment to deliver justice to victims of Nepal’s armed conflict,” said Zarifi. “Victims have already waited more than a decade to receive justice and are losing hope in the transitional justice process.”
“The Nepal government and political parties must not once again betray the trust of victims by perpetuating a fundamentally flawed transitional justice process without concomitant reforms that will address victims’ rights to truth, justice and reparation,” he added.
While extending the mandate of the TRC and COID, the Government of Nepal must immediately establish a credible transitional justice process that ensures victims’ rights to truth, justice and reparation by: amending the TRC Act in line with the Supreme Court rulings and international law; empowering the TRC and COID with adequate resources to function independently, transparently and in a victim-centred manner; and, adopting necessary legislation to criminalize serious international crimes, including enforced disappearance, torture and other ill-treatment, and rape and other sexual violence, with retroactive effect and without any limitations period for conflict-era cases.
Feb 9, 2017 | News
The ICJ today condemned the arbitrary arrests and incommunicado detention of lawyer Felix Agbor-Balla and Dr. Fontem Aforteka’a Neba. They have been charged with a number of offences involving terrorism; rebellion against the State; incitement of civil unrest and breach of the Constitution.
Felix Agbor-Balla (photo) and Fontem Aforteka’a Neba, respectively President and Secretary General of the Cameroon Anglophone Civil Society Consortium (CACSC), were arrested on 17 January 2017, after the Minister of Territorial Administration banned all activities, meetings and demonstrations of the CACSC and the Southern Cameroon National Council (SCNC).
Since late October 2016, Cameroon has faced a number of demonstrations in several cities in the English-speaking regions of the country.
The protesters have been calling for an end of the use of the French language in courts and schools, among other demands, and the government has accused the two organizations, CACSC and SCNC, of supporting these activities.
The protests began after an indefinite strike by school teachers in the city of Bamenda, by youth protesting against alleged neglect of the Anglophone regions of Cameroon.
Felix Agbor-Balla and Fontem Aforteka’a Neba are currently detained incommunicado at the Yaounde Central Prison in Kondegui, which is far from where family members live. Their trial which had been set for 1 February 2017 was postponed without notice or due cause to 13 February 2017.
The charges they face require evidence establishing that they incited or carried out acts of violence or, that they were the instigators of the protests and demonstrations.
The two were arrested on the same day where they had signed a statement calling for protest activities to be carried out without violence.
If convicted of the charges, the two may face the death penalty.
The ICJ is concerned that the two men are being held incommunicado, in contravention of international standards, where they are vulnerable to ill-treatment.
The ICJ is also concerned at allegations that their charges stem from exercise of their internationally protected human rights, including rights to freedom of expression, association and assembly.
“Detaining the two incommunicado and prolonged detention without access to a judge violates their right to liberty and to a fair trial, which is protected under both international law and the law of Cameroon,” said Arnold Tsunga ICJ Africa Director.
The ICJ considers that Felix Agbor-Balla and Dr. Fontem Aforteka’a Neba should be immediately released.
If there should be reliable and admissible evidence to charge them with a cognizable crime for conduct not protected under human rights law, they should be immediately brought before a judicial authority to determine whether there is a lawful basis for trial and to determine whether they may be released.
In any event they should be removed from incommunicado detention and be granted full access to a lawyer, doctor if necessary, and family members.
Under no circumstances should they be subjected to the possibility of the death penalty.
ICJ further calls on the authorities in Cameroon to comply with their obligations under the treaties to which it is party, including as the African Charter on Human and People’s Rights, International Covenant on Civil and Political Rights.
These treaties guarantee the rights to a fair trial, liberty and freedom of expression, association and assembly, among other rights.
The ICJ opposes the use of the death penalty in all circumstances, as a violation the right to life and freedom from cruel, inhuman or degrading punishment.
The ICJ calls on Cameroon to impose a moratorium on the death penalty, with a view to abolition, in line with repeated calls by the UN General Assembly.
Contact
Arnold Tsunga, ICJ Regional Director for Africa, t: +27 716405926 or +263 777 283 249: e: arnold.tsunga(a)icj.org
Mary Pais Da Silva, Associate Legal Adviser, t: +268 7603 0078, e: mary.paisdasilva(a)icj.org
Feb 9, 2017 | Advocacy, News
The ICJ today welcomed the indefinite suspension of the hearings on the death penalty bills by the Philippine Senate’s Committee on Justice and Human Rights.
The Committee’s Chairman, Senator Richard Gordon, indicated the suspension was needed until the Department of Justice is able to submit its opinion on the Philippines’ obligations under the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR).
That instrument requires the Philippines to maintain its abolition.
“Abolitionist States may not return to the use of the death penalty generally under the ICCPR, and States that become party to the Second Optional Protocol assume very specific obligations to that effect,” said Emerlynne Gil, ICJ’s Senior International Legal Adviser for Southeast Asia. “There really is no inconsistency between the Second Optional Protocol and the Philippine Constitution.”
“As a general rule, the Philippine Constitution prohibits the death penalty except for compelling reasons involving heinous crimes. But in no way does it mandate that the death penalty be put into effect,” she added.
By ratifying the Second Optional Protocol, the Philippines has voluntarily chosen to be bound by an international obligation not to impose the death penalty – which it might otherwise have had the option to do under the Constitution.
As the ICJ explains in a memorandum on this issue, this is the very essence of treaty making.
“To announce long after ratification that a treaty is inconsistent with the Constitution and so not to be treated as binding, would call into question virtually every treaty to which Philippines is a party,” Gil said.
“This would contradict the most basic foundations of the international legal system and would lead other countries to view the Philippines as virtually incapable of making a reliable international legal agreement,” she added.
The ICJ emphasized that if the Philippines brings back the death penalty into its domestic laws, it would also be in violation of its obligations under the ICCPR, which effectively prohibits States from bringing back the death penalty once it has been abolished in domestic laws.
The Philippines cannot withdraw from Second Optional Protocol, which has no denunciation or withdrawal clause, the ICJ says.
The UN Human Rights Committee has explained that a denunciation clause was deliberately omitted because once the people are accorded the protection of the rights under the Second Optional Protocol, they shall not be deprived of such protection.
Background
On 7 February 2017, the Senate Committee on Justice and Human Rights held its first hearing on the proposed measure reintroducing the death penalty for illegal drugs and other crimes.
A similar bill to restore the death penalty is also currently being debated in plenary at the House of Representatives.
At the Senate hearing, senators opposing the proposed measure recalled that the Philippines is a State Party to the Second Optional Protocol, and thus, it is obliged not to execute any person within its jurisdiction.
Senator Richard Gordon, who chairs the Committee, thereafter, called for the indefinite suspension of the hearings on this matter until there could be clarity on the ramifications on the Philippines if it breaches its obligations under the Second Optional Protocol.
Contact
Emerlynne Gil, ICJ’s Senior International Legal Adviser, t +66 840923575 ; e: emerlynne.gil(a)icj.org
Philippines-Memo OP2 and Const-Advocacy-2017-ENG (Memo in English, PDF)
Feb 7, 2017 | News
Cambodian authorities should immediately drop the politically motivated criminal investigation of human rights defenders Am Sam-at and Chan Puthisak, the ICJ, Amnesty International and Human Rights Watch said today.
Cambodian officials have accused Sam-at, a respected human rights monitor at the Cambodian League for the Promotion and Defense of Human Rights (LICADHO) for nearly 20 years, and Puthisak, a land rights activist from Boeung Kak Lake and former prisoner of conscience, of instigating violence at a 10 October 2016 demonstration.
Para-police forces, who are regularly used to suppress demonstrations, violently dispersed what had been a peaceful protest in Phnom Penh.
When Puthisak attempted to prevent para-police from confiscating a drum that was being used by a demonstrator, four or five para-police attacked him, repeatedly beating him on the head with their fists, according to a video of the incident.
When Sam-at tried to stop the assault, the para-police attacked him, also beating him on the head. Both men sustained injuries that needed medical attention.
“The investigation of Sam-at and Puthisak by the Cambodian authorities is a typically absurd and undisguised case of judicial harassment,” said Champa Patel, Southeast Asia and Pacific Director at Amnesty International.
“As usual, unnecessary and excessive use of force by the para-police goes unpunished, and those who work to promote and protect human rights find themselves subject to criminal proceedings.”
On 4 November, two members of the para-police filed a complaint with the Phnom Penh Court of First Instance, alleging that they were injured during the dispersal of the demonstration.
The authorities are investigating Sam-at and Puthisak for instigating intentional violence, under Articles 27 and 217 of Cambodia’s Criminal Code, which carry penalties of up to three years in prison.
Both men are due for questioning on 8 February by Phnom Penh Court of First Instance Deputy Prosecutor Ngin Pich.
There has been no indication that complaints filed against para-police by Sam-at and Puthisak after the incident on 10 October 2016 are being investigated.
The 10 October demonstration involved approximately 150 participants peacefully calling for respect for housing and land rights in Freedom Park, an area designated for demonstrations.
The protestors were marching on a street adjacent to the park when the incident took place.
Videos of the incident establish that the demonstration was peaceful and that Sam-at was wearing a blue human rights monitor vest when the para-police attacked him.
The case investigation of the two falls within a wider pattern of judicial intimidation in Cambodia.
There are currently as many as 26 human rights and political activists in prison on charges which have all the hallmarks of being politically motivated.
This includes 14 political activists who were jailed following a demonstration in July 2014, when para-police violently clashed with participants.
No efforts have been reported of the authorities’ efforts to bring to justice the para-police responsible for the unlawful use of force.
“The case against Sam-at and Puthisak is part of an extensive effort by the Cambodian authorities to discredit the legitimate work of human rights organisations and to make clear the threat of prison for everyone working to promote and protect rights in the country,” said, Phil Robertson, Asia Deputy Director at Human Rights Watch.
“This campaign of intimidation against rights advocates has to stop now.”
Para-police, often referred to as “district security guards,” are auxiliary security forces that are regularly used to violently suppress demonstrations in Cambodia.
No single legal document sets out the rules governing their functions and powers. Rather, their legal basis and the rules governing their activities are set out in a confusing combination of government statements and policies, and by instructions from the Ministry of Interior.
They work in tandem with police, under the authority of district governors.
“The Cambodian government should be commending people like Sam-at and Puthisak for their work to promote and protect human rights rather than trying to intimidate them,” said Kingsley Abbott, Senior International Legal Advisor at the ICJ.
“The case should be immediately and formally closed and a genuine investigation initiated into wrongful use of force by the para-police.”
Feb 5, 2017 | E-bulletin on counter-terrorism & human rights, News
Read the 108th issue of ICJ’s monthly newsletter on proposed and actual changes in counter-terrorism laws, policies and practices and their impact on human rights at the national, regional and international levels. The E-Bulletin on Counter-Terrorism and Human...
