Jul 10, 2020 | Advocacy, News, Non-legal submissions
Today, the ICJ submitted a report to the UN Human Rights Council Working Group on the Universal Periodic Review (UPR) ahead of the review of Myanmar’s human rights record in January-February 2021.
The ICJ stressed the lack of accountability and redress for victims – and the resulting continued culture of impunity – for widespread gross human rights violations constituting crimes under international law in Myanmar, particularly those involving members of Myanmar’s Defence Services.
Certain provisions under the 2008 Myanmar Constitution as well as national laws such as the 1959 Defence Services Act and 1995 Myanmar Police Force Maintenance of Discipline Law shield security forces from public criminal prosecutions in civilian courts. Closed court martial proceedings also deny victims and their families the right to truth about human rights violations.
The Myanmar National Human Rights Commission (MNHRC), Myanmar’s national human rights institution with the mandate to investigate allegations of human rights violations, has not initiated any substantive or credible investigation into allegations of widespread and systematic human rights violations perpetrated in recent years by soldiers against persons from ethnic minorities, despite being recorded in detail in the reports of the UN Independent International Fact-Finding Mission on Myanmar and the UN Special Rapporteur on the situation of human rights in Myanmar.
Rather than strengthen the role of civilian courts and the MNHRC, Myanmar has set up ad hoc commissions of inquiry to investigate such incidents. However, these inquiries have a recommendatory mandate and an unclear relationship with the judiciary. The full report of the findings of these commissions are generally not publicly disclosed. Against this backdrop, Myanmar has ceased cooperation with the UN Special Rapporteur for Myanmar and rejected other UN and international accountability mandates.
In light of this, the ICJ recommended the following actions, among others:
- For the MNHRC to investigate all allegations of gross human rights violations, especially including crimes under international law;
- For the Parliament to repeal or amend the 1959 Defence Services Act to bring it in line with international human rights law and standards and ensure that gross human rights violations and serious international humanitarian law violations perpetrated by soldiers can only be prosecuted in civilian courts;
- For the Union Government to publish the full report of the findings of ad hoc commissions of inquiry, such as that of the Independent Commission of Enquiry;
- For the Union Government to issue an open invitation to and cooperate with the Special Rapporteur on the situation of human rights in Myanmar, the Office of the High Commissioner for Human Rights as well as the UN Independent Investigative Mechanism on Myanmar; and
- For the Union Government to cooperate with the International Criminal Court.
The ICJ also called for Myanmar to become a party to key human rights treaties, such as the International Covenant on Civil and Political Rights, that the State committed – yet failed – to accede to in its previous UPR cycle.
Download
Myanmar-UPR-Submission-2020-ENG (PDF)
Contact
Jenny Domino, ICJ Associate Legal Adviser, e: jenny.domino@icj.org
Kingsley Abbott, Coordinator of the ICJ’s Global Accountability Initiative, e: kingsley.abbott(a)icj.org
Jul 9, 2020 | News
Today, in advance of the fourth anniversary of the killing of prominent political commentator and human rights defender Kem Ley, the ICJ and 29 other organizations called on Cambodian authorities to create an independent Commission of Inquiry to conduct an effective and impartial investigation that is long overdue into Kem Ley’s death.
The organizations further urged Cambodian authorities to cease intimidation and harassment of persons peacefully commemorating his passing.
On 10 July 2016, Kem Ley was shot and killed at a petrol station in central Phnom Penh. Without conducting a prompt, thorough, and independent investigation, and following a half-day trial which was widely criticized for failure to meet international fair trial standards, in March 2017, Oeuth Ang was found guilty of the murder of Kem Ley and sentenced to life imprisonment.
Since 2016, many international and domestic human rights organizations have consistently called on the Cambodian government to set up an independent Commission of Inquiry to conduct a prompt, impartial, and effective investigation into this killing, with emphasis on examining the potential criminal responsibility of persons other than the direct perpetrator, in line with international standards set out in the International Covenant on Civil and Political Rights (ICCPR).
The UN Principles on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions as well as the revised Minnesota Protocol on the Investigation of Potentially Unlawful Death reinforce the duty of governments to investigate unlawful deaths and to establish an independent commission of inquiry when states, like Cambodia, lack effective procedures to conduct such an investigation in accordance with international standards.
The Cambodian government, has to date, failed to take any steps towards the establishment of such an independent and impartial investigative body. Given the government’s unwillingness to conduct an independent investigation into Kem Ley’s killing, and civil society’s highly warranted lack of trust and confidence in Cambodia’s justice system which lacks the requisite levels of independence to adjudicate cases involving public officials, this body should be established under the auspices of the United Nations and composed of independent experts.
Following the killing of Kem Ley, the Cambodian authorities have continually monitored, harassed, and ultimately disrupted and prohibited planned anniversary memorials of his death. These actions constitute arbitrary restrictions on the rights to freedom of expression and peaceful assembly. The organizations condemned such attempts to stifle free speech and reiterated their call to the Cambodian government to stop such harassment.
The joint statement is available here.
Contact
Frederick Rawski, ICJ Asia and Pacific Regional Director, frederick.rawski(a)icj.org
See also
ICJ, ‘Cambodia: three years and still no effective investigation into Dr. Kem Ley’s killing’, 9 July 2019
ICJ, ‘Cambodia: Commission of Inquiry into killing of Kem Ley should be established without further delay’, 9 July 2018
ICJ, ‘Cambodia: request to create a commission of inquiry into the killing of Kem Ley’, 7 July 2017
ICJ, ‘Cambodia: Kem Ley’s killing demands immediate credible and impartial investigation’, 13 July 2016
Jul 3, 2020 | News
In the lead-up to general elections on 10 July, today, the ICJ, Asian Forum for Human Rights and Development (FORUM-ASIA) and CIVICUS: World Alliance for Citizen Participation (CIVICUS) urged all political parties and parliamentary candidates in Singapore to commit to respecting and protecting human rights and fundamental freedoms as part of their mandate.
The organizations noted the ongoing abuse of legal frameworks by the State to limit the rights to freedom of expression, information, association and peaceful assembly in Singapore. These included the use of civil defamation suits and criminal defamation charges; contempt of court provisions including under the Administration of Justice (Protection) Act; the Protection from Online Falsehoods and Manipulation Act; and the Public Order Act to penalize and harass individuals for mere exercise of their fundamental freedoms.
The organizations urged all political parties and parliamentary candidates to address concerns raised by these laws and ensure fundamental freedoms – including the rights to expression, information, association and peaceful assembly – remain at the forefront of the debate in Singapore.
The open letter is available here.
In a 2019 ICJ report on freedom of expression and information online across Southeast Asia, the ICJ highlighted how defamation provisions, the AJPA and POFMA had been wielded by the State to curtail free speech and access to information online by targeting critical dissent of the regime by human rights defenders, lawyers, independent media outlets and members of the political opposition. The report detailed problematic provisions in the laws and selected case studies detailing this trend.
Contact
Frederick Rawski, ICJ Asia and Pacific Regional Director, e: frederick.rawski(a)icj.org
See also
ICJ, ‘Dictating the Internet: Curtailing Free Expression, Opinion and Information Online in Southeast Asia’, December 2019
Jul 3, 2020 | Advocacy, News
The ICJ published a legal memorandum concluding that the Ministry of Transport and Communications (MOTC) Order to block access to specific websites is not compliant with international human rights law.
The legal memorandum also sets out various remedial options under Myanmar law to question the lawfulness of the Order.
The ICJ focused its human rights analysis on the rights to freedom of expression and access to information and the right to health, which includes access to health information. These rights are well established under general and customary international law. The right to health is guaranteed under the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of the Child, to which Myanmar is a party.
The MOTC, presumably invoking Section 77 of the Telecommunications Law, ordered telecommunication service providers in March 2020 to take down 2,147 websites found by it to have disseminated “fake news,” adult content, and child sexual abuse content. It is not clear if any of the information under sanction relates to COVID-19, although the pandemic was mentioned elsewhere in one mobile service provider’s press release. Immediately after the release of the MOTC Order, it was discovered that the ban included ethnic news media websites, such as Rakhine-based Development Media Group and Narinjara News, thereby prompting speculation as to the true reasons behind the ban.
The ICJ emphasized the following in the legal memorandum:
- Blocking access to specific websites engages a wide range of human rights concerns, including but not limited to the person’s right to freedom of expression and right of access to information protected under Article 19 of the International Covenant on Civil and Political Rights and customary international law. While lack of transparency about the State rationale and evidence was an obstacle to a full analysis, the permissible conditions that would justify sweeping limitations on this right do not appear to have been met.
- In the context of the COVID-19 pandemic, the MOTC Order also undermines the right to health of all persons in Myanmar. The right to health guaranteed under the ICESCR is reserved to all persons without discrimination and includes access to health information. The MOTC Order effectively hinders access to health information by blocking legitimate sources of information.
- To challenge the MOTC Order, the following domestic legal remedies are available: (i) filing a complaint with the Myanmar National Human Rights Commission; (ii) filing an application for a constitutional writ before the Union Supreme Court and/or (iii) filing a declaration suit under the Specific Relief Act.
Download
Myanmar-Memo-on-MOTC-Order-Legal-Memorandum-2020-ENG (PDF)
Contact
Jenny Domino, ICJ Associate Legal Adviser, e: jenny.domino(a)icj.org
Hnin Win Aung, ICJ Legal Adviser, e: hninwin.aung(a)icj.org
Related work
Publication: Myanmar’s ongoing Internet shutdown and hostilities threaten right to health during COVID-19
Statement: Government must lift online restrictions in conflict-affected areas to ensure access to information during COVID-19 pandemic
Report: Curtailing the Right to Freedom of Expression and Information in Myanmar
Publication: Four Immediate Reforms to Strengthen the Myanmar National Human Rights Commission
Publication: Strategic Litigation Handbook for Myanmar
Jul 1, 2020 | News
On 30 June, the ICJ and five other organizations sent open letters to the Prime Minister of Vietnam and the European Union (EU) calling for the immediate and unconditional release of human rights defenders, Dr. Phạm Chí Dũng, Nguyễn Tường Thụy and Lê Hữu Minh Tuấn.
The ICJ, Boat People SOS, Human Rights Watch, International Federation for Human Rights, VETO! Human Rights Defenders’ Network and Vietnam Committee on Human Rights in their address to the Prime Minister, urged the Vietnamese government to cease all harassment of other activists from the Independent Journalists Association of Vietnam (IJAVN).
In November 2019, Dr. Phạm Chí Dũng, founding member and Chairman of IJAVN, was arrested in Ho Chi Minh City for allegedly “making, storing, distributing or disseminating materials” that “oppose the State” in violation of article 117 of Vietnam’s Penal Code. He has since been held in incommunicado detention.
Following Phạm’s arrest, a number of persons were subjected to various forms of harassment up to and including arrest and prosecution in connection with their IJAVN membership. In May and June 2020, two IJAVN members, journalist Nguyễn Tường Thụy and law student Lê Hữu Minh Tuấn, were arrested in Hanoi and Quang Nam provinces on similar charges.
In their letters, the ICJ and other organizations raised concerns that Phạm had been targeted and arrested for his human rights advocacy. From 2013 till his arrest, Phạm wrote independently on key rights issues in Vietnam, including on freedom of expression, labour rights, detention of human rights defenders, and harassment of independent civil society. In July 2012, he was arbitrarily arrested under charges of “conducting propaganda against the State” and released in February 2013 after months in prison without trial. In 2014, he was prevented by Vietnamese authorities from travelling to Geneva to participate in a United Nations Human Rights Council side-event connected to the Universal Periodic Review of Vietnam, following which his passport was confiscated.
The organizations noted that the arrest and arbitrary detention of Phạm, Nguyễn Tường Thụy and Lê Hữu Minh Tuấn contravened article 19 of the International Covenant on Civil and Political Rights (ICCPR) which guarantees the right to freedom of expression, as they appeared to have been politically motivated to curtail the rights of the three individuals to freely express their opinions and share information relating to domestic affairs.
In a 2019 ICJ report on freedom of expression and information online across Southeast Asia, national security-related provisions in Vietnam’s Penal Code, including article 117, were shown to have often been abused to curtail free speech and access to information online.
The organizations further noted that the prolonged incommunicado detention of Phạm constituted a violation of the prohibition on torture and other ill-treatment, the right to liberty and the right to be treated with dignity under articles 7, 9 and 10 of the ICCPR.
They further called on Vietnam to protect and facilitate the work of human rights defenders in line with the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (Human Rights Defenders Declaration).
The letter to the Prime Minister of Vietnam by the ICJ, Human Rights Watch and VETO! Human Rights Defenders’ Network is available here.
The letter to the European Union by the ICJ, Boat People SOS, Human Rights Watch, International Federation for Human Rights, VETO! Human Rights Defenders’ Network and Vietnam Committee on Human Rights is available here.
Contact
Frederick Rawski, ICJ Asia and Pacific Regional Director, e: frederick.rawski(a)icj.org
See also
ICJ, ‘Dictating the Internet: Curtailing Free Expression, Opinion and Information Online in Southeast Asia’, December 2019
Jun 30, 2020 | Multimedia items, News, Video clips
In a wide-ranging interview recorded on June 4 2020, ICJ Commissioner and former Chief Justice of the High Court of Delhi, Ajit Prakash Shah, called on the Indian judiciary to exercise its responsibility to protect peoples’ human rights and “reprise its role as protector of Indian people” in the context of the Covid-19 epidemic.
In April and May 2020, the Indian Supreme Court dismissed several petitions and applications concerning the rights of internal migrant workers.
These included petitions demanding that migrant workers be moved to shelter homes and provided with basic needs and that payment of minimum wages be made to all migrant workers for the lockdown period.
The Court was also requested to direct the District Magistrates to identify those who are walking and ensure that they are provided with shelter and food and reach their destination, following the death of 16 internal migrant workers killed while sleeping on railway tracks while on their way back to their hometowns.
Finally, on 26 May 2020 the Court took suo moto cognizance of their predicament and, on 28 May 2020 ordered the Government to: register internal migrant workers; provide internal migrant workers free transportation home; and provide internal migrant workers with shelter, food, and water until they reach their homes.
This action was followed by another order on 9 June by which the Court ordered that: internal migrant workers are identified and sent to their hometowns within 15 days; and that all cases registered against those who had allegedly violated COVID-19 lockdown orders be considered for withdrawal.
In the interview, Justice Shah accented, in particular, the role of the Indian judiciary “as protector of Indian people” in respect of marginalized and disadvantaged people, including people living in poverty.
In addressing the question about internal migrant workers who were stranded during the recent COVID-19 lockdown, Justice Shah observed that for two months (March 24 2020 – May 28 2020) between the initiation of the lockdown and the rulings of the Supreme Court the Court appeared to have “remained skeptical” and in “denial” about petitions filed seeking redress for internal migrant workers.
Speaking in this context, Justice Shah reminded the Indian judiciary that Indian courts have historically been at “the forefront of giving effect to India’s international legal obligations,” including its economic, social, and cultural rights obligations encapsulated in International Covenant on Economic, Social and Cultural Rights.
They had done so in landmark cases such as PUCL v. UOI (in which it held that the right to life with dignity includes a right to food and a right to be free from hunger and starvation) and Chameli Singh v. UOI (in which it held that right to shelter includes adequate living space includes light, air, water, civil amenities, and sanitation).
While commending the Courts interventions in May 2020, Justice Shah pointed out that their lateness to react was damaging.
“Courts should have intervened earlier. They could have monitored the process of the return of the migrants to their home states and ensured basic wages were fixed and delivered.”
Justice Shah expressed hope that the 28 May 2020 order represented a turning point:
“Hopefully, going forward, the Court will act in the same spirit … to grant some reliefs to suffering migrant communities. In the future, the Court should take the lead and monitor these processes, serving as a guide to both the center and the state authorities and the bureaucracy for addressing these issues.”
Commenting on the role of lawyers during the COVID-19 crisis, Justice Shah expressed concern that law officers were castigating lawyers for approaching courts with petitions.
Watch the video
Additional Reading
- Briefing Papers
- India on the Brink of Hunger Crisis during COVID-19 Pandemic
- The Right to Water in India and the COVID 19 Crisis
- COVID-19 Pandemic Exposes India’s Housing Crisis
- Press Release: COVID-19: Indian authorities must act immediately to protect internal migrant workers stranded under intolerable conditions
Download (with additional information)
India-Justice-Shah-Interview-Web-Story-2020-ENG (PDF)
