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)
Sep 30, 2019 | Advocacy, News, Publications
The ICJ today published a “Strategic Litigation Handbook for Myanmar.” In this, the ICJ seeks to offer an accessible, concise and substantial overview of the conceptual basis and purpose of strategic litigation.
The Handbook shows the potential impacts of strategic litigation in Myanmar, by drawing on experiences from Myanmar and other countries, while recognizing the related challenges and opportunities, as expressed by legal professionals and civil society actors. It is intended to be useful to all legal practitioners and community activists in Myanmar.
While there is no universal definition or conception of ‘strategic litigation,’ the term is typically used to describe litigation whereby the interests may go beyond those of the primary litigants. The various adjudication processes it entails are sometimes referred to as ‘public interest litigation’, ‘impact litigation’, ‘test case litigation’, or ‘community lawyering’. What they all have in common is the idea that courts and the law can be used as part of a campaign to achieve broader change in relation to matters seen to be in the broader public interest.
Part one of the Handbook explores core aspects of strategic litigation, including its origins, key concepts, potential impacts, challenges and forums. In part two, areas of law are identified which offer potential options for strategic litigation actions, including procedures, legislation and constitutional writs. Practical steps for the planning and application of strategic litigation, such as media strategy and case selection, are outlined in part three. Finally, part four of the Handbook discusses related challenges in the Myanmar context, including a discussion of requisite reforms required in the justice sector more broadly.
The Handbook (first edition) is published in Burmese and English.
Sep 10, 2019 | News
ICJ expressed concern over the decision given on 27 August 2019 by the Malaysian High Court that a fatwa issued against the women’s organization, Sisters in Islam, should be referred to the Syariah Court.
The High Court used as a basis Article 121 (1A) of the Federal Constitution, which states that secular courts do not have jurisdiction over matters pertaining to Islam.
The ICJ called on the Malaysian authorities to ensure that custom, tradition, and religion should not be used as a justification to undermine human rights, including women’s human rights.
In 2014, the Selangor Fatwa Council issued a fatwa declaring the Sisters in Islam a “deviant organization.” For many years, Sisters in Islam has been promoting more egalitarian interpretations of Islamic laws with the aim of ending discrimination against women and achieving equality in the Muslim family.
“For women to fully exercise their religious freedom, they must be able to retain or adopt the religion of their choice, and they must be able to continue belonging to this religion without being discriminated against within the religion,” said Emerlynne Gil, ICJ’s Senior International Legal Adviser.
The ICJ stressed that under international law, States have an obligation to protect people who are prevented from exercising their religious freedom by private actors, such as their own religious communities.
“The Malaysian government, including the judiciary, has the obligation to protect groups like Sisters in Islam when they face persecution from within their religious communities for propounding alternative views about their religion,” said Emerlynne Gil.
Furthermore, the ICJ had previously underscored in a 2019 briefing paper on the challenges to Freedom of Religion or Belief in Malaysia, the tensions emerging from jurisdictional disputes between civil courts, which apply federal and state laws, and Syariah courts, which apply Islamic laws.
In 2018, the UN Committee on the Elimination of Discrimination against Women, in reviewing the performance of Malaysia, voiced its own concern over “the existence of a parallel legal system of civil law and multiple versions of Syariah law, which have not been harmonized in accordance with the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).” The CEDAW Committee concluded that this “leads to a gap in the protection of women against discrimination, including on the basis of their religion.
Contact:
Emerlynne Gil, Senior International Legal Advisor, ICJ, e: emerlynne.gil(a)icj.org
Sep 8, 2019 | News
At a training event for senior prosecutors hosted by the Union Attorney General’s Office (UAGO) on 7 September 2019 in Yangon, Nay Pyi Taw, the ICJ made presentations on the international standards and legal obligation on unlawful killings.
Representing each of Myanmar’s 14 states and regions, some 30 law officers attended the activity, which was a capacity-building training hosted by the UAGO. This is part of the ICJ’s ongoing engagement with authorities in Myanmar as well as in neighboring countries on the Minnesota Protocol on the investigation of potentially unlawful death (the Minnesota Protocol).
The Minnesota Protocol provides guidance on the State’s implementation of its duty under international law to investigate potentially unlawful killings, including when State actors may have been involved. It applies to deaths under custody, suspicious deaths, and enforced disappearances. Myanmar has experienced widespread incidents of such deaths, including in recent years those constituting serious crimes under international law.
ICJ Associate Legal Adviser, Jenny Domino, introduced salient points of the Minnesota Protocol and shared relevant examples from experience promoting and protecting human rights in the Philippines. She highlighted the significance of the State’s duty to investigate potentially unlawful killings in upholding the right to life under international human rights law.
ICJ Legal Researcher, Ja Seng Ing, shared the case of Laotian activist Sombath Somphone, who was subjected to enforced disappearance on 15 December 2012 with the apparent consent or acquiescence of State agents. To date, Laotian authorities have failed to conduct effective investigations with a view to revealing the fate or whereabouts of Somphone. ICJ has repeatedly called for accountability on the issue.
Participants discussed these cases in relation to the comparative remedies and practical challenges related to the conduct of investigations in Myanmar, where police and prosecutors both have roles to play in the conduct of investigations.
First published in 1991 and subsequently revised in 2016 under the auspices of the United Nations Office of the High Commissioner for Human Rights, the Minnesota Protocol includes guidelines on conducting investigations to ensure that they are prompt; effective and thorough; impartial and independent; and transparent.
Since December 2017, the ICJ has co-hosted several regional workshops in Asia focused on this topic, with lawyers, academics, and State authorities from Thailand, Cambodia, Nepal, India, and Myanmar attending the events.
See also:
https://www.icj.org/thailand-launch-of-the-revised-minnesota-protocol/
https://www.icj.org/myanmar-reverse-laws-and-practices-that-perpetuate-military-impunity-new-icj-report/
Sep 4, 2019 | News
From 2 to 3 September 2019, the ICJ co-hosted a workshop in Bangkok for justice sector authorities from Thailand on ‘Human Rights Compliant Criminal Investigation and Investigative Interviewing’. The event focused on international law and standards regarding investigative interviewing of victims, witnesses and suspects in criminal cases.
The workshop was co-hosted with Thailand’s Ministry of Justice and the Norwegian Centre of Human Rights, University of Oslo.
The participants included 50 criminal investigators, public prosecutors, representatives of the Ministry of Justice’s Department of Special Investigation (DSI), the Internal Security Operations Command, Ministry of Defense’s Judge Advocate General’s Office, the National Anti-Corruption Commission, the Office of the Narcotics Control Board and the Royal Police Cadet Academy.
A primary objective of the workshop was to promote and explain the principle that interviews which are conducted in compliance with human rights standards produce much more effective results without resort to torture, ill-treatment or coercion. The workshop also addressed the problem of a ‘confession culture’ and looked into how unlawful interrogations threatened the quality and legitimacy of justice sector officials and bodies in meting criminal justice. Participants also conducted discussions and participated in group activities on human memory, investigative management and the conducting of interviews grounded in fundamental principles of international human rights law.
Speakers at the Workshop included:
- Aim-orn Siangyai, Deputy Director General of Thailand’s Rights and Liberties Protection Department, Ministry of Justice;
- Frederick Rawski, Asia Pacific Regional Director, ICJ;
- Gisle Kvanvig, Programme Director for ASEAN/Vietnam, Norwegian Center for Human Rights;
- Asbjørn Rachlew and Dr. Ivar A. Fahsing, experienced investigators from the Norwegian Police Department;
- Lilian M. Stein, Professor at the Psychology Postgraduate Department, Pontifical Catholic University of Rio Grande do Sul; and
- Mary Schollum, a criminologist and lead drafter of the Universal Guidelines on Investigative Interviewing.
Background
This workshop is part of the ICJ’s ongoing efforts to ensure the domestic implementation of international law and standards in crime investigation.
Previous ICJ workshops on the above topic have included:
Regional Workshops
National Workshops
Sep 4, 2019 | News
The announcement that the remains of Pholachi “Billy” Rakchongcharoen, a Karen rights activist, have been located, brings a sad end to years of uncertainty for his family, said the ICJ and Amnesty International today.
This development should lead to a renewed focus on identifying the perpetrator(s) of his apparent enforced disappearance and bringing them to justice.
On 3 September 2019, the Thai Ministry of Justice’s Department of Special Investigations (DSI) announced it had located bone fragments, which they had identified as likely belonging to Billy inside an oil tank submerged in water near a suspension bridge inside Kaeng Krachan National Park in Phetchaburi province.
“The DSI should redouble its efforts to identify the perpetrator(s) of Billy’s killing and bring them to justice,” said Frederick Rawski, Asia Regional Director of the ICJ. “If, based on an assessment of the evidence, it is found that Billy was the victim of enforced disappearance, then the perpetrators, including those with command responsibility, should be charged with the appropriate, serious offences in accordance with Thailand’s obligations under international law – not only with lesser crimes that do not reflect the gravity of the offense.”
Billy was last seen on 17 April 2014 in the custody of Kaeng Krachan National Park officials.
“This case highlights the serious risks activists and human rights defenders face in Thailand, including assaults, enforced disappearance and killings,” said Nicholas Bequelin, Amnesty International’s interim Regional Director of Southeast Asia and the Pacific. “It underscores the long-overdue need for the Thai government to make enforced disappearance a crime under national law. A failure to do so results in the lack of an independent, impartial and effective mechanism to investigate the cases, exacerbating the current climate of impunity.”
The DSI stated that the recovered bones contain DNA inherited from Billy’s mother, which suggests they belong to a person who was related to her. However, the DSI declined to disclose the name of any suspect(s) and requested more time to investigate the case and examine the remains.
Background
Thailand is a state party to the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Freedom from enforced disappearance is protected under both these treaties, as enforced disappearance will always constitute violations of some or more of the following rights: the right to life; freedom from torture and other cruel, inhuman, or degrading treatment or punishment; the right to liberty; and the right to recognition as a person under the law. These are in addition to violations of the rights of members of the disappeared person’s family through suffering deliberately inflicted on them through the imposition on them of uncertainty about their love one’s fate and whereabouts.
Thailand has also signed, but not yet ratified, the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED). The ICPPED affirms the absolute right not to be subject to enforced disappearance and places an obligation on states to investigate acts of enforced disappearance, to make it a criminal offence punishable by appropriate penalties that take into account its “extreme seriousness” and to take necessary measures to bring those responsible to justice.
The Government has stated it will not ratify the Convention until its provisions are incorporated in domestic law. However, efforts to pass the Draft Prevention and Suppression of Torture and Enforced Disappearance Act (draft Act) stalled after it was dropped by the National Legislative Assembly (NLA) prior to the 2019 national election. The draft Act is currently pending the consideration of the President of the National Assembly. Under international law of treaties, as signatory to the ICPPED, still is bound to desist from any acts which would defeat its object and purpose.
Thailand has a binding obligation under international law to conduct prompt, effective and thorough, independent and impartial, and transparent investigations into all suspected cases of unlawful death and enforced disappearance.
According to the ICPPED and the revised Minnesota Protocol (2016), which contains the international standards on the conduct of investigations into unlawful death and enforced disappearance – and which Thailand launched in May 2017 – records that investigations “must seek to identify not only direct perpetrators but also all others who were responsible for the death, including, for example, officials in the chain of command who were complicit in the death.” (para 26)
Download
Thailand-Discovery of Billy remains-news-webstory-2019-THA (full story in PDF)
Further reading
Thailand: special investigation into apparent enforced disappearance of “Billy” welcome, but much more is needed
Thailand: ICJ submits recommendations on draft law on torture and enforced disappearance amendments
Justice for Billy: Time for Thailand to Account for Activist’s Disappearance
Contact
For ICJ: Frederick Rawski, ICJ Asia-Pacific Director, t: +66 64 478 1121; e: frederick.rawski(a)icj.org
