Jul 18, 2018 | News, Publications, Reports
The ICJ welcomed today the lapse of Turkey’s nearly two-year state of emergency, which is expected to be effective as of midnight, but said that the authorities needed now to take a range of measures to repair the rupture to the rule of law in the country.
The ICJ’s comments came as it released its report Justice Suspended – Access to Justice and State of Emergency in Turkey, outlining how measures undertaken pursuant to a state of emergency, including the mass dismissal of judges and arbitrary arrests and prosecutions of lawyers and human rights defenders had eroded the justice institutions and mechanisms in the country.
The report recommends a number of measures including the repeal of measures enacted under the state of emergency, the restoral of the independence of the judiciary and the reform of the country’s anti-terrorism legislation.
“With the end of the state of emergency we call for the immediate withdrawal of the notifications of derogations to the European Convention on Human Rights and the International Covenant on Civil and Political Rights,” said Massimo Frigo, ICJ Senior Legal Adviser for the Europe and Central Asia Programme.
“We remain concerned that many of the emergency measures have been given permanent effect in Turkish law and will have pernicious and lasting consequences for the enjoyment of human rights and for the rule of law in Turkey,” he added.
These measures include the dismissals of hundred of thousands of people from their job, including judges and prosecutors.
Constitutional amendments, introduced during the state of emergency, permanently enshrine executive and legislative control of the governing institutions of the judiciary, contrary to international standards on judicial independence, the ICJ says.
Many of those charged with vaguely-defined offences under the state of emergency face trial before courts that are not independent and cannot guarantee the right to a fair trial, the Geneva-based organization adds.
Crucially, most of the people affected by emergency measures, including summary dismissals, have not yet had the opportunity to obtain a remedy before an effective and independent court or tribunal.
The ICJ report illustrates how the mechanisms which should address and remedy human rights violations in Turkey lack effectiveness and independence and that these deficiencies extend both to the courts and the state of emergency complaints commission.
It further finds that the ordinary functions of lawyers and activities civil society, key actors in ensuring access to justice, have been considerably curtailed.
“The Turkish Government says that they want their actions to respect the rule of law. Effective and independent remedies and reparations for human rights violations must be available to all if this principle is to have any reality in practice,” said Massimo Frigo.
Contact
Massimo Frigo, ICJ Senior Legal Adviser for the Europe and Central Asia Programme, t: +41 22 979 3805, e: massimo.frigo@icj.org
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Full ICJ report in PDF in English: Turkey-Access to justice-Publications-Reports-2018-ENG
Full ICJ report in PDF in Turkish: Turkey-Access to justice-Publications-Reports-2018-TUR
May 24, 2018 | News, Publications, Reports, Thematic reports
The widespread occurrence of sexual and gender-based violence (SGBV) in Swaziland requires prompt action to enact the Sexual Offences and Domestic Violence Bill, says the ICJ in a report released today.
The ICJ’s report found that discriminatory practices based on customary laws and traditional beliefs undermine equality between men and women and contribute to an environment in which SGBV is at crisis point in the country.
“As the Senate of Swaziland deliberates over the Sexual Offences and Domestic Violence Bill, it must recall that enactment of the Bill is an essential step in complying with recommendations of the UN Human Rights Committee and CEDAW Committee and as a means of discharging the commitments made by His Majesty’s Government during the 2016 Universal Periodic Review,” said Arnold Tsunga, Director of the ICJ Africa Regional Programme.
In earlier submissions to the Senate of Swaziland, the ICJ noted that enactment of the Bill is a matter required of the Kingdom of Swaziland pursuant to its international human rights law obligations, including those arising from the Africa region, to criminalize and sanction the perpetrators of SGBV.
His Majesty’s Vision 2022, the aims and targets of the Deputy Prime Minister’s Office and Swaziland’s consensus in the adoption of the 2030 Agenda for Sustainable Development reinforce compliance with those obligations.
The Sexual Offences and Domestic Violence Bill 2015, first drafted over ten years ago, has still not been passed into law, including because there is a perception that some of its provisions will infringe Swazi law and custom.
“Legislative and policy reform is needed as is the enhanced technical capacity and commitment of justice actors and policy makers to combat domestic and sexual violence,” Tsunga added.
Contact
Arnold Tsunga, Director, ICJ Africa Regional Programme, t: +27.73.131.8411; e: arnold.tsunga(a)icj.org
Alex Conte, ICJ Global Redress and Accountability Initiative, t: +41.79.957.2733; e: alex.conte(a)icj.org
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Swaziland-GRABaselineStudy-Publications-Reports-Thematic reports-2018-ENG (full report in PDF)
Jan 16, 2018 | News, Publications, Reports, Thematic reports
Myanmar’s government must take concrete action to counteract decades of military impunity for human rights violations, the ICJ concluded in a report published today.
The report Achieving Justice for Gross Human Rights Violations in Myanmar finds that gross human rights violations in Myanmar rarely go punished, particularly in conflict areas.
Justice remains elusive for victims and their families as a result of laws, institutions and investigative practices that protect members of security forces from prosecution, the ICJ says.
“Decades of denial of justice for victims of gross human rights violations in Myanmar, and impunity for the perpetrators, particularly when involving the military, have severely eroded the rule of law,” said Sam Zarifi, the ICJ’s Secretary General.
“The Myanmar government must now take concrete steps to combat impunity, especially for the military,” he added.
The release of the ICJ’s report follows last week’s statement from the Office of the Commander in Chief of the Tatmadaw, Myanmar’s military, acknowledging that security forces had participated in the killing of ten Rohingya Muslims in Rakhine State’s Inn Dinn Village.
It is the Tatmadaw’s first admission of serious crimes perpetrated by security forces during its ‘clearance operations’, which have resulted in mass displacement and human rights violations, following attacks on police posts by the Arakan Rohingya Salvation Army on 25 August 2017.
Military and security personnel in Myanmar seldom face justice for human rights violations, because they are protected by legal provisions of the 2008 Constitution, the 1959 Defence Services Act and the 1995 Police Force Maintenance of Discipline Law, which include immunities and special courts that shield soldiers, police and officials from public criminal prosecutions for serious crimes, the ICJ notes.
The ICJ’s report finds that investigations into allegations of rights violations rarely result in effective prosecutions or redress.
Eight case studies – from Kachin, Karen, Mon and Rakhine states – illustrate how victims and their families, as well as journalists and human rights defenders, lack access to justice and are even harassed for seeking it.
“Admission of culpability for this one incident is an important first step and must be followed by a full and proper investigation, and justice for the victims and their families,” said Zarifi.
“The dire human rights situation in northern Rakhine State, and in conflict areas such as in Shan and Kachin states, necessitates credible, independent and impartial investigations with a view to publicly prosecute those responsible for unlawful acts and their commissioning.”
“Options available to the parliament and to the executive include addressing barriers to accountability, by reforming laws that protect security forces involved in serious crimes, and by aligning investigative procedures with international standards,” he added.
Contact
Alex Conte, ICJ Global Accountability Coordinator (Geneva), t: +41 79 957 2733; e: alex.conte(a)icj.org
Frederick Rawski, ICJ Asia Pacific Regional Director (Bangkok), t: +66 6 4478 1121 ; e: frederick.rawski(a)icj.org
Background
Special inquiries commissioned by the Government of Myanmar into allegations of human rights violations generally fail the test of independence and impartiality, or are severely undermined by inadequate resources and or restricted mandates.
These inquiries rarely result in effective prosecutions or access to remedies and reparation.
Members of security forces, when prosecuted, usually appear in military or special police courts, which generally impose low or meaningless sanctions that are wholly inconsistent with penalties applicable in Myanmar’s Penal Code.
Laws governing military and police acts are inadequate for the victims of human rights violations because they do not contemplate the provision of remedies and reparation.
There is very limited precedent or established practice for the provision of effective remedies or reparation for victims of criminal acts in Myanmar, particularly when such crimes involve human rights violations by State actors.
Wittingly or unwittingly, relevant authorities routinely violate national laws that prescribe procedures for the conduct of criminal investigations and prosecutions, particularly in politically sensitive cases involving human rights violations.
Violations of basic fair trial rights, included in national laws, are commonplace.
State authorities continue to exert improper influence on politically-sensitive court cases including those involving allegations of gross human rights violations.
Courts tend to not intervene where human rights violations are occurring nor do they guarantee non-repetition where they have occurred.
Prosecutors rarely, if ever, accept petitions from victims of gross human rights violations to initiate criminal proceedings.
The judicial harassment of victims of human rights violations is commonplace in Myanmar when victims, their families or lawyers seek remedies or reparation through the courts or other mechanisms.
Defamation and unlawful association are among the criminal charges commonly instituted by authorities, including against journalists investigating human rights violations or working in conflict areas.
Overall, Myanmar’s prosecutors lack the independence to effectively prosecute acts involving human rights violations.
Interference with and intimidation of lawyers, particularly in politically sensitive cases involving human rights violations, undermines their to effectively represent clients and to pursue effective remedies and reparations.
Download
Myanmar-GRA Baseline Study-Publications-Reports-Thematic reports-2018-ENG (full report in English)
Myanmar-GRA-Baseline Study-Publications-Reports-Thematic-reports-2018-BUR (full report in Burmese)
Myanmar-Accountability Baseline report-News-Press releases-2018-BUR (Burmese translation)
Read also
Questions & Answers on Human Rights Law in Rakhine State
Reuters journalists detained in Myanmar: respect their rights, end their incommunicado detention
Nov 1, 2017 | News, Publications, Reports, Thematic reports
The arrest of absconding murder convict Bal Krishna Dhungel, a senior Maoist leader, highlights the weaknesses, as well as the promises, for victims seeking accountability through Nepal’s judicial system, said the ICJ as it released a report on accountability mechanisms in the country.
The ICJ’s report Achieving Justice for Gross Human Rights Violations in Nepal concludes that impunity for gross human rights violations is one of the major obstacles to the creation of a stable and legitimate democratic government and lies at the heart of the rule of law crisis in Nepal.
It found that a lack of commitment by Nepal’s political leadership to address past and ongoing human rights violations continues to allow perpetrators to escape justice and undermines victims’ right to effective remedies and reparation.
“In the past, the promise to shield perpetrators for human rights violations has been used as a bargaining chip to garner political support and build political alliances,” said Frederick Rawski, Director of the ICJ’s Asia Pacific Regional Programme.
“It is imperative that accountability for human rights violations remains a priority for Nepal’s political leadership after Parliamentary elections, and that alliances between political parties are not once again used as an excuse to undermine Nepal’s human rights obligations,” added Rawski.
Attempts to thwart justice have also included the cynical manipulation of justice sector actors, from the police to the Attorney General’s office, in a way that threatens the independence and credibility of the institutions responsible for safeguarding human rights and the rule of law in Nepal, the report highlights.
This pattern of impunity persists despite demands for accountability by civil society and victims’ organizations, as well as the National Human Rights Commission and Nepal’s Supreme Court.
“In many ways, the Supreme Court of Nepal has emerged as a beacon of hope for victims of human rights violations,” said Rawski.
“The Court has given domestic effect to Nepal’s obligations under international law and has set high standards for accountability, remedy and reparations,” he added.
However, the Government’s disregard of key judgments has limited the impact of the Supreme Court’s jurisprudence, the report says.
Attacks on the independence of the judiciary, as demonstrated by the impeachment motion against former Chief Justice Sushila Karki, also indicate a worrying trend.
The ICJ’s report found that the mandate and operation of transitional justice mechanisms fall short of international standards despite the repeated reinforcement of such standards by the Supreme Court.
Though ostensibly formed to provide a measure of public accountability, the practice of forming ad hoc commissions of inquiry to investigate rights violations has promoted impunity by diverting investigations from the criminal justice process – where they belong – into parallel mechanisms that are established by means that make them vulnerable to political interference and manipulation.
The ICJ’s report also concludes that gross human rights violations in Nepal are not a thing of the past, but are ongoing.
Notably in the Terai region, the State has responded to the Madhesh movement with excessive use of force, extrajudicial killings, and torture and other ill-treatment.
Political expediency has trumped calls for justice and accountability and the Government continues to use State machinery to shield perpetrators rather than serve the interests of justice.
“In a seemingly perpetual cycle, the weak rule of law in the country contributes to impunity for human rights violations, and this culture of impunity further erodes the rule of law,” said Rawski.
“The search for truth and justice in Nepal will not be realized unless this cycle is ended,” he added.
Additional information
Dhungel had been absconding since the Supreme Court upheld his conviction for murder in 2010. The arrest comes after a contempt of court petition was filed before the Supreme Court against the Inspector General of Police for failing to implement multiple Supreme Court orders directing Dhungel’s arrest.
Contact
Frederick Rawski, ICJ Asia Pacific Regional Director, t: +66 64 478 1121, e: frederick.rawski@icj.org
Alex Conte, ICJ Global Redress and Accountability Initiative, t: +41.79.957.2733; e: alex.conte@icj.org
Download
Nepal-GRA Baseline Study-Publications-Reports-Thematic reports-2017-ENG (full report in PDF)
Read also
ICJ Discussion Paper Nepal’s Transitional Justice Process: Challenges and Future Strategy (August 2017)
ICJ Report Authority without Accountability: The struggle for justice in Nepal (October 2013)
Oct 31, 2017 | News, Publications, Reports, Thematic reports
Effective measures to end impunity for crimes of torture in detention are needed to tackle the systematic recourse to torture and other ill-treatment of detainees in Tajikistan, the ICJ concluded in a report released today.
The ICJ report, Achieving Justice for Gross Human Rights Violations in Tajikistan, finds that although Tajikistan’s criminal procedure law is often in line with international law, including fair trial and other relevant guarantees, in practice it does not lead to effective protection of human rights.
The system is in practice unable to remedy or establish accountability for the serious human rights violations that occur systematically in detention, the report says.
Even where complaints of torture are made, it appears that very few lead to investigation, prosecution or conviction.
“The systematic recourse to torture and ill-treatment in detention undermines the integrity of the criminal justice system in Tajikistan, as well as notions of fairness and justice and the operation of the rule of law in the country,” said Temur Shakirov, Senior Legal Adviser at the ICJ’s Europe Regional Programme.
“Torture must always be treated as one of the most serious crimes. International human rights law requires that allegations of torture must be independently, promptly and thoroughly investigated and, where those responsible are identified, they must be brought to justice,” added Shakirov.
An effective system of prevention of torture and other ill-treatment in detention and for the provision of effective remedies and reparation for such violations is needed to tackle the systematic recourse to their use, the report finds.
The ICJ’s report identifies numerous factors that foster the widespread use of torture and other ill-treatment in Tajikistan, including:
- the lack of independence of the judiciary;
- the judges’ failure to uphold equality of arms between the defence and prosecution;
- the frequent failure by courts to inquire into allegations of torture or other ill-treatment raised by the defence;
- the tendency of courts to accept prosecution denials of such treatment without question; and
- courts’ regular failure to exclude evidence obtained by torture.
With heavy reliance by judges on self-incriminating statements made by suspects in the first hours of detention, the presumption of innocence remains to a large extent illusory, the report adds.
The report also demonstrates that a lack of guarantees for confidential lawyer-detainee meetings prevents detainees from effectively exercising their right to qualified legal assistance and to complain about ill-treatment if necessary.
“Systemic torture cannot be effectively eradicated unless lawyers are both individually and institutionally independent of the executive, are protected in carrying out their duties, and have unimpeded access to their clients in the first hours of detention, as required by international law and standards”, Shakirov said.
The report provides a comprehensive list of recommendations following a detailed analysis of applicable laws and practices in Tajikistan, including based on the findings and recommendations of different bodies of the United Nations human rights system.
Contact
Temur Shakirov, Senior Legal Adviser, Europe Programme, t: +41.22.979.3832; e: temur.shakirov(a)icj.org
Alex Conte, ICJ Global Redress and Accountability Initiative, t: +41.79.957.2733; e: alex.conte(a)icj.org
Tajikistan-GRA Baseline Study-News-Press-Release-2017-RUS (Press Release, Russian PDF)
Download
Tajikistan-GRA Baseline Study-Publications-Reports-Thematic reports-2017-ENG (full report in PDF, English)
Read also
ICJ Report ICJ Recommendations on the Independence of the Legal Profession in the Republic of Tajikistan (February 2016)
ICJ legal submission Alternative Report to the UN Human Rights Committee on the Second Periodic Report of Tajikistan under the International Covenant on Civil and Political Rights (June 2013)
Oct 18, 2017 | News, Publications, Reports, Thematic reports
Cambodia is “weaponizing” the law and relying on judges and prosecutors who lack independence to silence dissent and dismantle democracy, says the ICJ in a report released today.
The release of the report Achieving Justice for Gross Human Rights Violations in Cambodia follows Monday’s unanimous decision of the National Assembly, attended only by law-makers from the ruling Cambodian People’s Party (CPP), to amend four election laws which would redistribute parliamentary seats held by the opposition Cambodia National Rescue Party (CNRP) to several minor parties in the event of the CNRP’s dissolution.
A Senior Cambodian CPP law-maker, Cheam Yeap, was reported as saying that the amendments were made “especially for the treasonous acts of the president of the CNRP, Kem Sokha, who committed treason in a red-handed crime.”
“These amendments are the latest in a long line of instances where the Government has shamelessly passed or amended laws with the specific purpose of legally harassing perceived opponents or weakening representative democracy within the country,” said Kingsley Abbott, Senior International Legal Adviser at the ICJ’s regional office in Bangkok.
Also of concern is that the Government is increasingly defending its actions by claiming it is merely applying the rule of law.
In a statement released by the Permanent Mission of Cambodia to the United Nations in Geneva on Monday, the Government claimed that “Prosecuting and punishing offenders by legitimate authorities, for the interest of justice, should not be read as a menace to democracy and human rights, but rather as an enforcement of the rules of law…upholding the rules of law means holding perpetrators accountable for their conducts”.
“The ‘rule of law’ is not only about passing and implementing laws, but rather ensuring they are drafted and applied in accordance with international human rights law and without discrimination, including discrimination based on political or other opinion,” added Abbott.
The ICJ’s report, which is being released against the backdrop of a rapidly deteriorating human rights situation, records that the “single largest problem facing the Cambodian justice system is the lack of independent and impartial judges and prosecutors,” which includes “an endemic system of political interference in high-profile cases and an equally entrenched system of corruption in all others”.
Contact
Kingsley Abbott, Senior International Legal Adviser, ICJ Asia Pacific Regional Office, t: +66 94 470 1345, e: kingsley.abbott(a)icj.org
Alex Conte, ICJ Global Redress and Accountability Initiative, t: +41 79 957 2733; e: alex.conte(a)icj.org
Background
On 3 September 2017, the leader of the CNRP, Kem Sokha, was arrested in a raid at his home and taken away by more than 100 policemen.
On 5 September 2017, the Phnom Penh Municipal Court formally charged Kem Sokha under Article 443 of the Cambodian Penal Code for alleged ‘collusion’ with foreign actors to “cause chaos” in Cambodia, otherwise known as treason.
On 6 October 2017, the Ministry of Interior filed a request to the Supreme Court to seek the dissolution of the CNRP pursuant to the Law on Political Parties, which was amended twice in 2017, and allows for the Supreme Court to dissolve political parties in certain circumstances including if one of the leadership is convicted of a crime.
The amendments to the four election laws would also mean that at the district and commune levels, in places where the CPP received the next highest number of votes, vacant seats would be redistributed to the CPP.
Download
Cambodia-GRA Baseline Study-Publications-Reports-Thematic reports-2017-ENG (full report in PDF)
Live Media Event
Watch the media event on the Human rights and democracy crisis in Cambodia live from the Foreign Correspondents’ Club of Thailand in Bangkok on FORUM-ASIA’s Facebook page
It starts at 10.00 Bangkok time (05:00 CET and 03:00 GMT).
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Cambodia and the Rule of Law: UN Statement
Cambodia: UN Human Rights Council urged to address unfolding human rights crisis
