Jul 15, 2018 | News
On 14 July 2018, the ICJ co-organized a discussion on extrajudicial killings in Thailand, focusing on the cases of Chaiyaphum Pasae and Abe Saemu.
The discussion was held at the Student Christian Centre in Bangkok.
Chaiyaphum Pasae, a Lahu youth activist, was killed by a military officer in the Chiang Dao district of Thailand’s northern Chiang Mai province in March 2017. The killing took place during an attempt to arrest him as an alleged drug suspect. Officials claimed Chaiyaphum Pasae had resisted arrest and was subsequently shot in “an act of self-defence”.
Abe Saemu, from the Lisu hill tribe, was killed by a military officer in February 2017 in the Chiang Dao district of Chiang Mai province in an attempt to arrest him on allegations of drug coffences. Officials claimed Abe Saemu had resisted arrest and was killed in “self-defence”.
During the discussion, ICJ’s National Legal Adviser Sanhawan Srisod addressed the audience to set out the international law and standards that apply to investigating potentially unlawful deaths, including the rights of victims and family members, referring to the standards set out in the revised Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), which was launched in Thailand on 25 May 2017.
Participants in the event included members of the families of Chaiyaphum Pasae and Abe Saemu, the lawyers in both of their cases, interested members of the public, media representatives, students and academics.
The discussion opened with an art exhibition and Lahu dance show by the Save Lahu group. Human Rights Commissioner Angkhana Neelapaijit then made a presentation on challenges in seeking accountability for extrajudicial killings in Thailand.
A panel discussion on the latest updates in the cases of Chaiyaphum Pasae and Abe Saemu followed, moderated by Pranom Somwong from Protection International.
The panel included relatives of Chaiyaphum Pasae and Abe Saemu; Ratsada Manuratsada, a lawyer representing the families in both cases and Krissada Ngamsiljamras, a representative from the National Human Rights Commission of Thailand.
A second panel considered challenges on the administration of criminal justice in the context of unlawful deaths.
Moderated by Pratubjit Neelapaijit of UN Office of the High Commissioner for Human Rights, the panel included Malee Sittikreangkrai (Chiang Mai University); Sumitchai Hattasan (Human Rights Lawyers’ Association); Namtae Meeboonsalang (Provincial Chief Public Prosecutor, Office of the Attorney-General); Kritin Meewutsom (Forensic doctor, Ranong Hospital); and Sanhawan Srisod (ICJ).
The event was conducted in collaboration with Cross Cultural Foundation (CrCF); Protection International (PI); UN OHCHR; Human Rights Lawyers’ Association (HRLA); Thai Volunteer Services (TVS); Dinsorsee Creative Group; Center for Ethnic Studies and Development, Chiang Mai University (CESD); Legal Research and Development Center, Chiang Mai University (LRDC) and Network of Indigenous Peoples in Thailand (NIPT).
Contact
Kingsley Abbott, Senior Legal Adviser, ICJ Asia Pacific Regional Office, kingsley.abbott(a)icj.org
Jul 13, 2018 | News
The Sri Lankan Government should reconsider and reverse its decision to bring back the death penalty for drug related offences, the ICJ said today.
On 10 July, the Sri Lankan Cabinet unanimously approved an action plan to implement the death penalty for “drug smugglers”.
According to the spokesperson of the Cabinet, 19 people convicted for “large scale drug offences” who “are still involved in drug trafficking…from within prisons” would initially be those initially designated for execution.
Sri Lanka has had a moratorium on the death penalty for over four decades.
The last execution carried out in the country was in 1976.
“The resumption of executions of convicted drug offenders would constitute a violation of the right to life under international law,” said Ian Seiderman, ICJ’s Legal and Policy Director.
”And, based on experience around the globe, it will not in any way serve the purported objective of tackling the problems of drug-related crime in Sri Lanka,” he added.
Article 6 of the International Covenant on Civil and Political Rights (ICCPR), which Sri Lanka acceded to in 1980, guarantees the right to life and requires that states that have not yet abolished the death penalty must restrict capital punishment to only the “most serious crimes”.
The UN Human Rights Committee, the supervisory body for the ICCPR, considers that the death penalty may never be used for drug offences.
The extraordinarily retrograde measure of resuming executions following a 42-year moratorium would also constitute a violation of article 6, which contemplates at least progressive movement towards abolition.
The UN General Assembly has repeatedly adopted resolutions emphasizing that that the use of the death penalty undermines human dignity and calling on those countries that maintain the death penalty to establish a moratorium on its use with a view to its abolition.
In 2016, an overwhelming majority of 117 UN Member States – including Sri Lanka – voted in favor of a worldwide moratorium on executions as a step towards abolition of the death penalty.
“At least 150 countries have now either abolished the death penalty in law or practice,” added Seiderman.
The ICJ considers the death penalty to be a violation to the right to life and the right not to be subjected to cruel, inhuman or degrading punishment.
The ICJ urges Sri Lanka to reinstate its moratorium on executions and take steps towards taking all necessary measures to abolish the death penalty.
Contact:
Ian Seiderman, ICJ’s Legal and Policy Director, email: ian.seiderman(a)icj.org
Reema Omer, ICJ’s International Legal Advisor, South Asia, email: reema.omer(a)icj.org
Jul 10, 2018 | News
The SC is set to reconsider the criminalization of consensual same-sex relationships between adults, in response to a writ petition with significant ramifications for addressing the full range of human rights violations based on sexual orientation or gender identity in India said the ICJ.
The Indian Supreme Court commenced hearing the case, Navtej Singh Johar v. Union of India, which is joined with five connected cases, today, concerning the constitutional validity of the criminalization of consensual same-sex relations between adults under Section 377 of the Indian Penal Code in response to writ petitions filed by several LGBTI individuals.
Section 377 criminalizes “carnal intercourse against the order of nature”. Section 377 is a relic of the British colonial penal code and is replicated in several former British colonies even though it was it was finally repealed in Northern Ireland in 1982, following repeals in Scotland in 1980 and England and Wales in 1967.
“Hopefully, the Indian Supreme Court will follow and build upon the strong precedent set by the Delhi High Court in the Naz Foundation v. Govt. of NCT of Delhi that declared Section 377 and the criminalization of consensual same-sex relationships to be in violation of the Indian Constitution as well as international law in 2009,” said Sam Zarifi, ICJ’s Secretary General.
“There are real grounds for optimism as the Indian Supreme court as recently as August 2017 handed a landmark judgment in Justice K.S. Puttaswamy and Another v. Union of India and Others that declared the right to determine one’s sexual orientation and gender identity as core to the right of privacy,” he added
The ICJ has documented how section 377 has created a climate in which arbitrary arrest, extortion, harassment and blackmail of LGBTI persons in India thrives.
“The Indian judiciary’s decision to read down section 377 in Naz Foundation v. Govt. of NCT of Delhi, which was then overruled by the Supreme Court, has been used by several other jurisdictions, such as Trinidad and Tobago as support for putting an end to criminalization of same-sex relationships. So the outcome of this petition before the Indian Supreme Court is of significance not just to people in India, but to the fight against discrimination around the world,” Zarifi said.
“But even a good decision by the Indian Supreme Court will not end the discrimination against people on the basis of their sexual orientation or gender identity in India. It’s time for the Indian Parliament to repeal section 377 in its entirety and engage in a wide-ranging review to consider which gaps, if any, need to be filled, for example with respect to acts constituting rape or other sexual offences,” he added.
Contact:
Maitreyi Gupta (Delhi), International Legal Adviser for India, t: +91 7756028369 ; e: maitreyi.gupta(a)icj.org
India-Supreme Court and Section377-News-press release-2018-ENG (full story with additional information, in PDF)
Jul 9, 2018 | News
Today the ICJ called on Myanmar’s prosecutorial authorities to immediately end the prosecution of Reuters journalists Wa Lone and Kyaw Soe Oo.
The two have been subject to prosecution solely for doing their job as journalists and for exposing human rights violations in Rakhine State, including unlawful killings in Inn Dinn Village admitted to by the military.
In Yangon this morning a Northern District Court Judge accepted charges filed under the 1923 Official Secrets Act.
This decision permits ongoing prosecution of the journalists and extends their detention.
“The prosecution has failed to provide credible evidence of any wrongdoing throughout six months of hearings. It is therefore hard to imagine a valid legal rationale for allowing ongoing prosecution of the journalists,” said Mr Sean Bain, legal adviser for the ICJ in Yangon.
Section 253(1) of Myanmar’s Code of Criminal Procedure requires a judge to dismiss charges against accused persons if the evidence presented fails to warrant a conviction.
A motion for charges to be dismissed on this basis, submitted by defense lawyers, was effectively rejected by the decision today.
“Today’s decision raises real concerns about the independence and impartiality of the judiciary and prosecution when confronted with politically sensitive cases,” Bain said.
“The case significantly undermines the government’s stated commitments to reforming and building public confidence in judicial process,” he added.
ICJ legal advisers have monitored the case and were present in Court today. The journalists were first detained on 12 December 2017 and had no access to legal representation for almost two weeks.
“The case is also emblematic of the lack of adherence to fair trial rights in Myanmar,” Bain said.
“Their confinement remains unlawful given an initial period of incommunicado detention without access to lawyers, and other flagrant violations of the fair trial rights guaranteed in the Constitution, statues and international law.”
“Authorities should immediately end criminal proceedings against these men who appear to have been lawfully doing their job as investigative journalists,” he added.
The detention and prosecution of anyone, including journalists, based solely on the collection and publication of evidence relevant to serious human rights violations, is inconsistent with international law and standards on freedom of expression and on human rights defenders.
Article 14 of the 1990 UN Guidelines on the Role of Prosecutors states that prosecutors are obliged to discontinue prosecution when the investigation shows the charges to be unfounded.
Myanmar’s new Code of Ethics for Law Officers, launched in 2017, requires prosecutors to protect rights enshrined in the Constitution and to “provide a proper and fair administration of justice.”
The right to legal counsel is a bedrock rule of law principle that is set out in a range of international human rights laws and standards, including in article 11 of the Universal Declaration of Human Rights. Sections 19 and 375 of the Myanmar Constitution guarantee the right of legal defense, as does Myanmar’s Code of Criminal Procedure (section 340), Courts Manual (section 455(1)), the Police Manual (section 1198c) and the Prisons Act (section 40).
Fair trial rights, freedom of expression, and the right to liberty are also recognised by the Universal Declaration of Human Rights.
Also relevant are the UN Declaration on Human Rights Defenders, and the Global Principles on National Security and the Right to Information (The Tshwane Principles).
Contact:
Sean Bain, ICJ legal adviser, e: sean.bain(a)icj.org
Read also:
ICJ (May 2016), Handbook on Habeas Corpus in Myanmar – English and Burmese
ICJ (December 2017), Reuters Journalists in Myanmar: respect their rights, end their incommunicado detention – English and Burmese
Full text in Burmese (PDF): Myanmar-drop-charges-against-Reuters-journalists-News-Press-releases-2018-BUR
Jul 9, 2018 | News
Today, in advance of the second anniversary of the killing of political commentator and human rights defender, Kem Ley, the ICJ reiterates its call for the creation of a independent and impartial Commission of Inquiry to investigate his killing.
The ICJ remains deeply concerned at the apparent lack of progress in investigating the case, as well as the inadequacy of the investigation and prosecution of Oeuth Ang, the only person yet charged or convicted in relation to Kem Ley’s killing.
“The trial of Oeuth Ang left many unanswered questions about the investigation and the killing itself which Cambodia has an duty to resolve as part of the family and public’s right to know the truth,” said Kingsley Abbott, Senior Legal Adviser at the ICJ, who attended the trial.
“The fact that the killing occurred against the backdrop of escalating attacks against human rights defenders and the political opposition and in the context of a history of well-documented apparent extra-judicial killings makes the establishment of an independent and impartial Commission of Inquiry all the more pressing.”
On 7 July 2017, ahead of the one-year anniversary of Kem Ley’s killing, the ICJ and other organizations released a joint letter highlighting crucial concerns about the lack of progress in the investigation of his case, and calling on the Cambodian Government to establish a Commission of Inquiry to carry out an independent, impartial, effective and transparent investigation in line with international law and standards.
These include the International Covenant on Civil and Political Rights and the revised Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016).
Background
At approximately 08:30 on 10 July 2016, Kem Ley, a prominent political commentator and human rights defender, was shot and killed at a petrol station on Monivong Boulevard in Phnom Penh.
Soon afterwards, Cambodian police arrested a suspect approximately two kilometers from the crime scene. The suspect identified himself as “Chuob Samlab”, from Banteay Meanchey province. “Chuob Samlab” means “Meet to Kill” in Khmer.
In a leaked video, “Chuob Samlab” reportedly “confessed” to shooting Kem Ley over a debt the political commentator allegedly owed him – a fact reportedly disputed by Kem Ley’s widow and “Chuob Samlab”’s own wife.
“Chuob Samlab” was later identified as Oeuth Ang from Siam Reap province, according to identity records.
On 23 March 2017, the Phnom Penh Municipal Court found Oeuth Ang guilty of the premeditated murder of Kem Ley on 10 July 2016 and sentenced him to life imprisonment.
The ICJ observed the trial which took place on 1 March 2017, following which it identified eight significant gaps in the investigation which had not been adequately addressed at trial.
Following the verdict, Oeuth Ang’s lawyer told journalists the court had created a new case-file to investigate two men named Pou Lis and Chak who may be relevant to the killing of Kem Ley.
Very little information has been revealed publicly about these possible new case-files.
Oeuth Ang appealed his sentence and, on 4 May 2018, the Court of Appeal reportedly heard the appeal.
There are no reports yet of a judgment being delivered.
Pursuant to international law binding on Cambodia, including the International Covenant on Civil and Political Rights (ICCPR) to which Cambodia is a State Party, Cambodia has a duty to promptly, independently, impartially, and effectively investigate all deaths suspected of being unlawful.
Investigations must seek to identify not only direct perpetrators but also all others who may have been responsible for criminal conduct in connection with the death.
Principle 11 of the UN Principles on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions calls for the establishment of a Commission of Inquiry when ‘the established investigative procedures are inadequate because of lack of expertise or impartiality, because of the importance of the matter or because of the apparent existence of a pattern of abuse, and in cases where there are complaints from the family of the victim about these inadequacies.’
Read also
ICJ et al, ‘Cambodia: request to create a commission of inquiry into the killing of Kem Ley’
ICJ, HRW, Amnesty International, ‘Cambodia: Significant Questions Remain After Guilty Verdict in Kem Ley Trial’
ICJ, ‘Cambodia: Kem Ley’s killing demands immediate credible and impartial investigation’
Contact
Kingsley Abbott, ICJ Senior Legal Adviser, e: kingsley.abbott(a)icj.org
Jul 8, 2018 | News
As the government begins a process of consultations around proposed amendments to the transitional justice mechanisms, the ICJ and Human Rights Watch have called on authorities to ensure the amendments comply with international human rights standards.
The government must also take into account concerns of all stakeholders, the organizations said.
The current draft law fails to address the many gaps in Nepali law that make it difficult to prosecute, especially at senior levels, for international crimes such as torture and crimes against humanity.
The Nepal government has ensured an extension of its two transitional justice commissions while also committing to future amendments to comply with international standards and Supreme Court rulings, the groups said.
The government is holding consultations around a proposed Commission on the Investigation of Enforced Disappeared Persons (CEIDP) and the Truth and Reconciliation Commission (TRC) (Amendment) Bill.
“While Nepal has engaged in a transitional justice process over the last few years, with official commissions collecting complaints, holding meetings and generic consultations throughout the country, this is still without any tangible result, and victims say it has left them confused,” said Brad Adams, Asia Director at Human Rights Watch.
“For a successful, internationally accepted process, the authorities in Nepal should focus on providing justice to victims, and not engage in trying to get perpetrators off the hook,” he added.
Human Rights Watch and the ICJ issued the statement after the Nepal government shared a draft bill purportedly to amend flaws in the laws of the CEIDP and TRC Acts.
Ahead of submitting further analysis and recommendations in the consultative process, the organizations said that Nepal authorities should take into account concerns of all stakeholders, including the groups representing victims of serious crimes by all sides during the civil war, other civil society organizations, the National Human Rights Commission (NHRC) and the United Nations Office of the High Commissioner for Human Rights (OHCHR).
Nepal’s new government under Prime Minister Khadga Prasad Oli of the Nepal Communist Party promised that the Nepali law on transitional justice would be brought into conformity with international law and standards as had been directed several times by the Supreme Court.
After years of previous governments failing to comply with the Supreme Court rulings, the new attorney general had announced that reforms to the law were underway, which victims’ groups said gave new hope, and as explicitly requested by the United Nations Human Rights Council (UNHRC) and human rights organizations.
While positive changes are noticeable including in relation to reparations, the proposed law authorizes the two transitional justice commissions to authorize prosecutions without strengthening the commissions themselves, proposes a special court without clear guidelines on impartial investigations, and includes a section permitting non-custodial sentences for the most serious crimes.
These raise concerns that the proposed draft may not meet international standards of justice and accountability.
The two commissions, which experts say require crucial bolstering, have conducted country-wide hearings and gathered nearly 60,000 cases between them.
Victim groups complain that the process has been arbitrary and confusing.
The organizations also noted a number of continuing obstacles to justice, which the bill has not addressed.
These include the continued failure to incorporate specific crimes into Nepali law that are serious crimes under international law, including torture, enforced disappearance, war crimes, and crimes against humanity.
In addition, the bill provides for the wholly inadequate sanction of short-term community service as an alternative punishment for those convicted of serious crimes, which may constitute effective impunity.
Nor does the bill address the question of command and superior responsibility for such crimes, leaving doubt as to whether those at the highest levels of authority will be held accountable for these crimes.
The international organizations were invited to a meeting with the attorney general and other stakeholders on June 21 but did not have a translated draft available ahead of the discussion.
However, during the consultation, the groups stressed the need for meaningful consultations on the bill.
The organizations noted also that universal jurisdiction, which allows for any state to prosecute those believed to have engaged in torture, enforced disappearance, or other serious crimes under international law, will remain an available option for victims to seek justice in cases of serious abuses during the civil war.
“Without a justice process that meets international standards for prosecuting the most serious crimes, such as torture and enforced disappearances, anyone suspected of such crimes in Nepal risks arrest, extradition, and prosecution in the many countries that are committed to prosecuting such crimes,” said Ian Seiderman, ICJ Legal and Policy Director.
“It is very welcome that the Nepal government is finally looking to address longstanding demands of war victims and should use this opportunity to abide by its obligations, draw up security sector reforms, and pave the way to end impunity,” he added.
Full text in English (PDF): Nepal-ICJ-HRW-Transnational-justice-reform-News-Press-releases-2018-ENG
