Apr 20, 2017 | News
Nepali authorities should immediately take effective steps to enforce the landmark Kavre district court murder verdict for the 2004 torture and killing of teenage Maina Sunuwar, the ICJ, Amnesty International, and Human Rights Watch said today.
On 16 April 2017, the Kavre district court sentenced three army officers to life imprisonment for the murder of Maina Sunuwar, a 15-year-old girl (photo) who was tortured in army custody and died as a result in February 2004.
Maina’s killing took place during the decade-long armed conflict between the Maoists and government forces that ended in 2006.
A court martial in 2005 found that Maina had died in army custody, convicted the three officers of torture and murder, but only sentenced the three perpetrators to six months’ imprisonment for minor offences, and promptly released them on grounds that they had already served the six months while confined to army barracks during the period of investigation.
“These convictions are an important development in Nepal’s slow-paced justice system’s ability to deal with grave conflict-era human rights abuses,” said Sam Zarifi, the ICJ’s Secretary General.
“What we need now is for the government to demonstrate its commitment to the rule of law and enforce them,” he added.
The trial before the Kavre district court took place in the absence of any of the four accused, despite repeated court summonses, including an arrest warrant, to notify them of the charges and compel them to appear in court.
The three accused army officers who were convicted of Maina Sunuwar’s murder, Bobi Khatri, Amit Pun and Sunil Adhikari, are no longer in the army and are believed to have fled abroad after the court martial proceedings.
The fourth accused, who was acquitted, Major Niranjan Basnet, is still in the army and was repatriated to Nepal from a UN peacekeeping assignment in Chad in 2009 due to the indictment against him.
Maina Sunuwar’s case has become emblematic of the shortcomings in Nepal’s justice system that have repeatedly frustrated efforts of Nepali conflict victims to secure justice for wartime abuses.
Maina Sunuwar’s mother first filed a report with the police in November 2005.
Since then, there have been numerous procedural and political hurdles, and a lack of cooperation by the military as it sought to protect its own.
An arrest warrant issued in 2008 was never enforced by Nepali authorities, with the police telling the court they were unable to trace them.
“Maina Sunuwar’s case was a true test case for the Nepal criminal justice system, but the government has a habit of simply ignoring court orders,” said Brad Adams, Asia director of Human Rights Watch. “This is the first sign of hope for victims after more than ten years since the end of the conflict—and now we need to see all those convicted of murder behind bars.”
The human rights organizations expressed concern that the government might refuse to seek to take measures to enforce the Kavre court’s verdict given its prior record on this and thousands of other conflict-era cases.
In a disturbing example, the police have yet to implement a 13 April 2017 Supreme Court order to arrest Bal Krishna Dhungel, a Maoist politician convicted of a 1998 murder.
Dhungel has yet to serve out his life sentence handed down by the courts.
The court gave the police a week to execute its order and present Dhungel before it.
“The Kavre district court has done its job, reaffirming the independence of the judiciary from political and military pressure, and holding perpetrators of serious crimes committed during the conflict to account,” said Biraj Patnaik, Amnesty International South Asia Regional Office Director. “Now the authorities must do their job by breaking with the practice of successive past governments that ignore and undermine the courts’ decisions. We expect the government to promptly implement this week’s ruling.”
Contact
Nikhil Narayan, ICJ’s South Asia Senior International Legal Adviser, e: Nikhil.narayan@icj.org
Sam Zarifi, ICJ’s Secretery General, e: sam.zarifi@icj.org
Mar 28, 2017 | News
Legislation adopted today by the Pakistani Parliament allowing civilians to be tried by military tribunals in secret proceedings is a serious blow to human rights and rule of law in the country, the ICJ said.
“The nationwide concern at a number of recent attacks in the country seems to have once again been misdirected toward a seriously flawed counter terrorism strategy that weakens the rule of law and the struggle for justice,” said Sam Zarifi, ICJ’s Asia director.
“Pakistan must reject this counter productive strategy and instead strengthen its judicial process and law enforcement in line with its domestic law and international obligations,” he added.
The Pakistani Parliament voted to amend the 1973 Constitution and the Army Act, 1952, to again allow military tribunals to try civilians who allegedly belong to “a terrorist group or organization misusing the name of religion or a sect” and are suspected of committing a number of offences, including: abducting any person for ransom; raising arms of waging war against Pakistan; causing any person injury of death; using or designing vehicles for terrorist attacks; creating terror or insecurity in Pakistan; and attempting, aiding or abetting any of these acts.
The use of military courts to try civilians is inconsistent with international standards.
The ICJ has also documented serious fair trials violations in the operation of military courts from January 2015 to January 2017, including: denial of the right to counsel of choice; failure to disclose the charges against the accused; denial of a public hearing; failure to give convicts copies of a judgment with evidence and reasons for the verdict; and a very high number of convictions based on “confessions” without adequate safeguards against torture and ill treatment.
“Militarizing the judicial process will not lead to justice and it will not effectively counter terrorism; this is the lesson from around the world,” Zarifi said. “It has not proven to do so in Pakistan in the past, and there is nothing to indicate that it will do so now.”
“Instead, secret military trials of civilians that flout even basic fair trial guarantees will further erode the rule of law and weaken the government’s role in providing justice and protecting the rights of people in Pakistan,” he added.
Contact
Sam Zarifi, ICJ Asia Pacific Regional Director (Bangkok), t: +66 807819002; e: sam.zarifi(a)icj.org
Reema Omer, ICJ International Legal Adviser for Pakistan (London), t: +447889565691; e: reema.omer(a)icj.org
Background
Military courts constituted under the 21st Amendment convicted 274 people in the two years during which they were in operation, from 7 January 2015 to 6 January 2017.
Of those 274 convictions, 161 people were sentenced to death and 113 people were given prison sentences. At least 21 people given death sentences have been executed by hanging.
The enabling legislation for these courts lapsed on 6 January 2017 pursuant to a two-year sunset clause.
The ICJ opposes the use of the death penalty under any circumstances as a violation of the right to life and freedom from cruel, inhuman or degrading treatment.
Mar 14, 2017 | News
The ICJ urged the Pakistan government to withdraw its proposal to reinstate and widen the scope of military trials for civilians.
“Bringing back military courts is an attempt to deflect attention from the real issue: the Government’s failure to enact reforms to strengthen the criminal justice system during the two years the 2015-2017 military courts were in operation,” said Sam Zarifi, ICJ’s Asia Director.
Bills to amend the Constitution of Pakistan and the Army Act, 1952, to extend the jurisdiction of military courts to try a wide variety of terrorism-related offences, were introduced before the National Assembly (lower house of parliament) on Friday, 10 March.
The “terrorism-related” offences include, among others: abducting any person for ransom; raising arms of waging war against Pakistan; causing any person injury of death; using or designing vehicles for terrorist attacks; creating terror or insecurity in Pakistan; and attempting, aiding or abetting any of these acts.
The new amendments are also applicable in all cases where the accused commit “grave and violent acts against the State”. The mandatory requirement to belong to a group that uses “the name of religion or sect”, as introduced by the 21st Amendment and corresponding amendments to the Army Act introduced in 2015, is no longer applicable.
“The expansion of military courts’ jurisdiction over all ‘grave and violent acts against the State’ creates the possibility that these courts could be used against a wide variety of people, including those who are legitimately exercising their rights to speech, association, and assembly,” added Zarifi.
According to the preambles of the bills, an “extraordinary situation” and a “grave and unprecedented threat to the integrity of Pakistan” still exist in the country, and military courts are being revived because they “yielded positive results in combatting terrorism” in the two years they were in operation.
“The military courts have not had any positive results in combating terrorism, given the country’s ongoing problem with acts of terrorism and armed insurgents,” said Zarifi. “Instead, military trials of civilians have further eroded the rule of law and weakened the government’s legitimacy in providing justice and defending the rights of people in Pakistan.”
Background
Military courts constituted under the 21st Amendment convicted 274 people in the two years during which they were in operation, from 7 January 2015 to 6 January 2017. Of those 274 convictions, 161 people were sentenced to death and 113 people were given prison sentences. At least 17 people given death sentences have been executed by hanging. The enabling legislation for these courts lapsed on 6 January 2017 pursuant to a two-year sunset clause.
The ICJ recalled that the use of military courts to try civilians is inconsistent with international standards.
The ICJ has documented serious fair trials violations in the operation of military courts including: denial of the right to counsel of choice; failure to disclose the charges against the accused; denial of a public hearing; failure to give convicts copies of a judgment with evidence and reasons for the verdict; and a very high number of convictions based on “confessions” without adequate safeguards against torture and ill treatment.
Contacts
Sam Zarifi, ICJ Asia Pacific Regional Director (Bangkok), t: +66 807819002; e: sam.zarifi(a)icj.org
Reema Omer, ICJ International Legal Adviser for Pakistan (London), t: +447889565691; e: reema.omer(a)icj.org
Mar 13, 2017 | Events, News
The ICJ and the Human Rights Commission of Pakistan are convening a side event at the UN Human Rights Council, entitled “Rights vs Security? Protecting human rights while countering terrorism in South Asia”.
The event takes place 15 March 2017, 12:00-13:00, Palais des Nations, Room XXI
Many States in South Asia are responding to security risks posed by terrorism in a manner that erodes respect for the rule of law and human rights—and, as demonstrated around the world, can actually weaken the ability to counter terrorism. ICJ’s panel discussion featuring prominent activists and lawyers from the region takes stock of recent developments and considers a regional way toward countering terrorism while strengthening justice.
Panelists:
Mr I. A. Rehman: Human Rights Commission of Pakistan (Pakistan)
Mr Adilur Rahman Khan: Odhikar (Bangladesh)
Mr Gehan Gunatilleke: Lawyer and researcher (Sri Lanka)
Ms Sanhita Ambast: Human rights lawyer (India)
Moderator:
Mr Massimo Frigo: International Commission of Jurists
A flyer may be downloaded here.
Mar 12, 2017 | Events, News
A side event at the UN Human Rights Council, 13 March 2017.
13 March, 13:30-15:00
Palais des Nations, Room XXVII
As spaces for human rights defenders shrink because of new laws, policies and intimidation tactics, senior rights activists from Pakistan talk about the challenges they face in their work to promote and protect human rights in the country.
Panelists:
Mr I. A. Rehman: Human Rights Commission of Pakistan
Ms Asma Jahangir: AGHS Legal Aid Cell
Mr Mohammad Tahseen: South Asia Partnership Pakistan
Mr Peter Jacob: Center for Social Justice
Moderator:
Ms Reema Omer: International Commission of Jurists
Flyer available here.
Feb 24, 2017 | News, Publications, Reports, Thematic reports
The Indian authorities must end discrimination against people based on sexual orientation and gender identity in the formal justice system, the ICJ said in a report released today.
The 60-paged report “Unnatural Offences”: Obstacles to Justice in India Based on Sexual Orientation and Gender Identity documents the challenges queer persons in India face while trying to access justice, starting from the impact of laws that criminalize people for their real or imputed sexual orientation and gender identity; to police harassment, violence and abuse; and to discrimination and other hurdles within the justice system.
Based on 150 interviews across nine cities in India, including with people who identified as lesbian, gay, bisexual, and transgender, the report uses the term “queer” to refer to any individual who identifies with a non-normative sexuality or gender identity.
It includes individuals who identify as lesbian, gay, bisexual, transgender, intersex and gender-queer, and also encompasses persons who may not fit into any of these identity categories.
“Criminalization, police violence, and the prejudiced attitudes of officials in the courts’ system have a profoundly detrimental impact on the ability and willingness of queer persons to resort to legal avenues to obtain justice,” said Sam Zarifi, ICJ’s Asia Director.
“The systemic discrimination and violence faced by queer persons in India, and the challenges they face accessing justice, are clearly contrary to India’s international human rights law obligations and the Indian Constitution,” he added.
The report also draws on responses from various government departments to ICJ’s requests under the Right to Information Act, both on the enforcement of the law against queer individuals and on gauging how legal entitlements have operated.
It describes how:
- Laws like Section 377 of the IPC and some other broad and vaguely formulated laws, such as those that criminalize sex work and begging, are used by the police to persecute people based on their real or imputed sexual orientation and gender identity, and inhibit queer persons from accessing justice.
- Even where the law purportedly provides legal entitlements and protections, queer persons continue to face a range of difficulties in accessing them.
- Police violence, abuse and harassment are one of the biggest barriers to queer persons’ access to the justice system in India.
- The challenges that lawyers who argue cases involving the human rights of queer persons combine with the biases of officials in the formal justice system compounding the difficulties queer persons face in obtaining justice.
“The inspiring work of activists and human rights lawyers in India has led to positive judicial decisions showing the potential of the law to affirm human rights and ensure justice for all persons, irrespective of their sexual orientation or gender identity,” Zarifi said.
“Indian authorities should build on this momentum and take immediate steps to end the discrimination and violence queer persons face,” he added.
The ICJ report makes a number of recommendations to Indian authorities, which include:
- Ensure that police officers promptly register and investigate any complaint regarding violence or any other criminal act filed by a queer person and/or on their behalf;
- Provide legal and sensitization training relating to sexual orientation and gender identity to lawyers and judges under the State and District Legal Services Authority along with outreach programmes to facilitate queer individuals’ access to the justice system;
- Repeal section 377 of the Indian Penal Code and vaguely worded criminal laws that invite discriminatory application, or substantially revise them to ensure there is no scope for abuse in their enforcement;
- Withdraw the Transgender Persons (Protection of Rights) Bill 2016 as currently drafted, engage in meaningful and substantial public consultation with members of the transgender community; and ensure that any process introduced for the legal recognition of gender identity is consistent with international human rights law and the NALSA.
Contact
Sam Zarifi (Bangkok), ICJ Asia Pacific Regional Director, t: +66 807819002; e: sam.zarifi(a)icj.org
Ajita Banerjie, ICJ Consultant in Delhi, t: +91 9920995526 ; e: ajita.banerjie@icj.org
Additional information
The Indian authorities have an obligation to respect, protect and fulfill the rights to equality before the law, equal protection of the law and freedom from discrimination; the rights to privacy, liberty and security of the person, including the right not to be subjected to arbitrary arrest and detention; the right to life, to freedom from torture and other ill-treatment; and the right to access justice and to an effective remedy, for all persons, including queer people, without discrimination as to their real or imputed sexual orientation and gender identity.
As the Supreme Court of India has reaffirmed, the Indian Constitution also guarantees several of these rights.
For example, in the seminal case of NALSA v UOI, the Court affirmed transgender persons’ right to their self-identified gender identity, based on the rights to equality, non-discrimination, freedom of expression and dignity.
India-SOGI report-Publications-Reports-Thematic report-2017-ENG (full report in PDF)
