Mar 8, 2018 | News
The Sri Lankan government must act swiftly and in line with human rights to prosecute those responsible for recent communal violence.
Particularly for attacks against the minority Muslim community in Kandy district, while avoiding the abusive practices of the past, said the ICJ today.
Sri Lanka’s President, Maithripala Sirisena, proclaimed an island-wide state of emergency on 6th March 2018, following a curfew imposed in several areas since Monday.
The action came following a spate of attacks against members of the Muslim community that was spreading in the Kandy district, following attacks in Ampara last week, in Gintota in 2016, and Aluthgama in 2014.
“The government must show that it will bring to account those who have incited communal violence, particularly notorious figures who have been emboldened by the pervading impunity to preach hatred openly and publicly. The arrest of key suspects yesterday is a start and convictions must follow,” said Frederick Rawski, ICJ’s Asia director.
“But the government must ensure that its investigation is impartial and effective and follows due process of the law,” he added.
The ICJ called upon the government of Sri Lanka to swiftly prosecute those responsible for inciting and carrying out the communal violence using existing legal provisions in the Penal Code and the ICCPR Act, the latter of which prohibits advocating “national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.”
The ICJ is concerned that the Emergency Regulations issued by the President through powers under the Public Security Ordinance, confer excessively broad powers on the army and the police to search, arrest and investigate.
“Given Sri Lanka’s experience of Emergency Regulations, the government should ensure that these regulations are time-bound and comply with Sri Lanka’s international human rights obligations, including under the International Covenant on Civil and Political Rights,” said Rawski.
The government has further restricted access to selected instant messaging applications and social media platforms “as an extraordinary but temporary response to limit the increasing spread of hate speech and violence through social media websites and phone messaging applications.”
“Blocking social media and other communication channels, even with the best of intentions, typically has the negative effect of restricting affected persons from seeking assistance, journalists from reporting around the situation and may actually undermine efforts to counter violence and hate speech. Any such measures should be narrowly targeted and limited in time,” said Rawski.
“A better approach would be for the Sri Lankan government to aggressively push back against these hateful narratives by demonstrating in actions as well as its rhetoric that Sri Lanka is a diverse country in which all of its citizens’ rights are respected and protected equally,” he added.
Background
Chapter XVIII of the Constitution and the Public Security Ordinance of Sri Lanka empowers the President to make emergency regulations in the interest of ‘public security and the preservation of public order or for the maintenance of supplies and services essential to the life of the community.’ Sri Lanka has a history of governance using emergency powers, which in the past has posed a challenge for democratic governance and human rights, providing law enforcement with wide powers, circumventing ordinary checks and balances.
The President, while justifying circumstances that led to his proclamation of a state of emergency, has stated that he “has given special instructions the Police and the tri-forces to take action in terms of these regulations, in a lawful manner in good faith while ensuring minimum disturbance to the life and well-being of people, in conformity with Fundamental Human Rights of people.”
Mar 5, 2018 | Advocacy, Non-legal submissions
The ICJ today delivered an oral statement to the UN Human Rights Council, on transitional justice, prevention and impunity, highlighting the continuing problem of impunity in Nepal.
The statement, which was made during a clustered interactive dialogue with the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence and the Special Adviser of the Secretary-General on the Prevention of Genocide, read as follows:
“The International Commission of Jurists (ICJ) remains deeply concerned by continuing impunity for gross human rights violations in many parts of the world, which undermines the potential for transitional justice to contribute to prevention as outlined in the Joint Study (A/HRC/37/65).
For example, in Nepal, more than ten years after the civil war, political expediency has trumped calls for justice and accountability. There has been near absolute impunity for those responsible for serious crimes under international law.
Transitional justice mechanisms – the Truth and Reconciliation Commission (TRC) and Commission on Investigation of Disappeared Persons (CoID) – have fallen short of international standards, both in their constitution and their operation, despite repeated orders by the Supreme Court of Nepal to enforce the standards.
The Commissions’ deeply flawed mandates, among other problems, allow them to recommend amnesties for gross human rights violations. In addition, their non-consultative, uncoordinated and opaque approach to their work has also created distrust with all major stakeholders, including conflict victims and members of civil society.
The Government continues to flout its obligation, both pursuant to the Supreme Court’s orders and under international law, to enact domestic legislation to criminalize serious crimes in accordance with international standards.
As highlighted by in the Joint study, turning a blind eye on past atrocities signals that some perpetrators are above the law, which further discredits State institutions and “breeds a (long-standing) culture of impunity in which atrocities may become ‘normalized’, rendering prevention significantly more difficult.” (para 43)
That, indeed, is the experience in Nepal: continuing impunity for gross human rights violations perpetrated during the conflict 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 the country. Ending impunity is essential to preventing further violations.”
Video of the statement is available here:
The delegation of Nepal exercised its right to reply later in the day. Its reply is here:
The ICJ oral statement complements a related written statement by the ICJ at the session.
Mar 1, 2018 | Advocacy, Non-legal submissions
The ICJ today delivered an oral statement to the UN Human Rights Council, on attacks on lawyers and the legal profession in Turkey, Azerbaijan, Kazakhstan and China.
The statement, which was made during an interactive dialogue with the UN Special Rapporteur on human rights defenders and the UN Special Rapporteur on Torture, read as follows:
Our organizations welcome that the main report (A/HRC/37/51, para 13) and communications report (A/HRC/37/51/Add.1, e.g. paras 278-297, 431, 508-510) of the Special Rapporteur on Human Rights Defenders recognizes the role of lawyers as human rights defenders. In this regard, we would highlight the global problem of continued attacks on lawyers and threats to the independence of their profession, including for example as is well known in China (A/HRC/37/51/Add.1, paras 278-297), but also in Azerbaijan, Kazakhstan and Turkey.
In Azerbaijan, lawyers face criminal prosecution, suspension or disbarment for statements clearly constituting protected freedom of expression. The lack of independence of the Bar Association is a serious concern, even more so now that new legislation prohibits lawyers from representing clients before courts unless they become a member.
In Kazakhstan, a proposed new law threatens the independence of lawyers by providing for representatives of the executive to be included on disciplinary bodies of the legal profession, contrary to international standards.
Finally, the situation of lawyers in Turkey under the current state of emergency is of particular concern. In particular, echoing the recent statement of five UN special procedures mandate holders for his release, we expresses concern at the current detention of Taner Kılıç, lawyer and president of Amnesty International Turkey.
These arrests, trial and disbarments as well problematic legislative changes have a chilling effect on the work of lawyers. They undermine access to effective and independent legal assistance to protect human rights, in contravention of the rights of both the lawyers and their clients, including as mentioned in the report of the visit to Turkey by the Special Rapporteur on Torture (A/HRC/37/50/Add.1, paras 24, 26, 41, 63-66, 71, 101(d)(e)(h), 106(c)).
Our organizations urge the Council to address these worrying developments threatening the rule of law.
The following organizations joined the statement, in addition to the ICJ:
- International Bar Association’s Human Rights Institute (IBAHRI)
- Union Internationale des Avocats (UIA)
- Lawyers for Lawyers (L4L)
- the Law Society of England and Wales
- Lawyer’s Rights Watch Canada (LRWC), and
- the Bar Human Rights Committee of England and Wales (BHRC).
The statement can be downloaded in PDF format here: UN-HRC37-JointOralStatement-LawyersHRDsTorture-2018
Feb 27, 2018 | Events, News
The ICJ, in collaboration with the UN High Commissioner for Human Rights Regional Office for South-East Asia (OHCHR), and the Centre for Civil and Political Rights, organised a workshop for lawyers from southeast Asia, on engaging with UN human rights mechanisms.
The two-day workshop provided some thirty lawyers from Thailand, Cambodia, Vietnam, and Lao PDR with knowledge, practical skills and expert advice about UN human rights mechanisms, with the participants themselves sharing their own experiences and expertise.
In addition to explaining what the UN mechanisms are and how they work, the workshop discussed how lawyers can use the outputs of UN human rights mechanisms in their professional activities, as well as how to communicate with and participate in UN human rights mechanisms in order to ensure good cooperation and to best serve the interests of their clients.
Sessions were introduced by presentations by the ICJ’s Main Representative to the United Nations in Geneva and OHCHR officials, followed by discussions and practical exercises in which all participants were encouraged to contribute questions and their own observations.
A special discussion of effective engagement of lawyers with Treaty Bodies was led by Professor Yuval Shany, a member of the Human Rights Committee established to interpret and apply the International Covenant on Civil and Political Rights (ICCPR).
The workshop also aimed to encourage the building of relationships and networks between the lawyers from across the region.
The workshop forms part of a broader project of awareness-raising and capacity-building for lawyers from the region, about UN mechanisms.
A similar workshop was held in January 2017 for lawyers from Myanmar.
The project has also published (unofficial) translations of key UN publications into relevant languages, and is hosting lawyers in a mentorship programme in Geneva.
More details are available by contacting UN Representative Matt Pollard (matt.pollard(a)icj.org) or by clicking here: https://www.icj.org/accesstojusticeunmechanisms/
Feb 23, 2018 | News
As the assault on the rule of law and human rights under the state of emergency in the Maldives continues, the ICJ expressed concerned about government reprisals taken against lawyers for performing their legitimate professional functions.
The ICJ urged the Maldivian authorities to stop obstructing the work of lawyers and respect the independence of the legal profession.
The ICJ called on the government to immediately lift the state of emergency, revoke the “suspension” of human rights protections, release judges of the Supreme Court and persons detained for political reasons, and ensure the independence of the judiciary.
On 22 February, the Department of Judicial Administration, the administrative arm of the Maldivian judiciary, suspended lawyer Hussain Shameem for an indefinite period of time, citing an ongoing investigation against him.
“No lawyer should be subject to persecution for carrying out their professional duties. Lawyers like Hussain Shameem are indispensable in ensuring human rights protection and upholding the rule of law in the Maldives, especially during a state of emergency,” said Frederick Rawski, ICJ’s Asia-Pacific Director.
The decision to suspend Shameem came only days after the Maldivian police launched an investigation against him for “obstruction of justice” and “obstruction of the administration of law and other government function”.
Hussain Shameem is representing members of the political opposition who are in detention, including former President Maumoon Abdul Gayoom and parliamentarian Faris Maumoon.
Before his suspension, Hussain Shameem had made public statements asserting that the declaration emergency declared by the Government on 5 February 2018 was unconstitutional.
He had also highlighted the poor conditions of detention of his clients.
The ICJ has learned that the police confiscated the mobile phones of another two lawyers, Mahfooz Saeed and Moosa Siraj.
Like Shameem, they were representing individuals arrested and detained during the state of emergency, including Justice Ali Hameed, who was part of the Supreme Court bench that recently issued a judgment directing the release of members of the opposition.
The police have also informed lawyers taking up cases during the state of emergency that they can only meet their clients for 30 minutes, which is an arbitrary and unlawful restriction on the fair trial rights of accused persons.
Under international standards, including the UN Basic Principles on the Role of Lawyers, governments must ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference.
International standards also provide that lawyers shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.
“The government’s actions against these lawyers, who are just doing their job of protecting their clients’ rights, has a chilling effect on other lawyers in the country as it sends a message that any exercise of their professional responsibilities perceived as contrary to wishes of the governments will not be tolerated,” added Rawski.
Contact:
Frederick Rawski, ICJ Asia Pacific Regional Director, t: +66 64 478 1121, e: frederick.rawski(a)icj.org
Reema Omer, ICJ International Legal Adviser for Pakistan (London), t: +447889565691; e: reema.omer(a)icj.org
Additional information: the state of emergency
On 5 February, the Government of the Maldives had declared a 15-day state of emergency under Article 253 of the Constitution, suspending a range of human rights protections. The declaration of emergency followed a Supreme Court judgment on 1 February that ordered the release of at least nine members of opposition parties, who were in detention on a number of charges.
On 20 February, the Parliament extended the state of emergency for another thirty days, citing the ongoing constitutional crisis. The extension appears to have been taken in violation of Maldivian law and the Constitution as the number of parliamentarians required for such an extension was not present during the vote.
The constitutionally and internationally protected rights that have been suspended in part or in full during the state of emergency include, among others, the right to liberty; the right to freedom of assembly; and the right to privacy. Basic safeguards surrounding arrest, detention, search and seizures – including the criminal procedure code – have also been suspended.
The International Covenant on Civil and Political Rights (ICCPR), to which the Maldives is a State Party, allows for States only to derogate from full protection of only a limited number of human rights during declared “public emergency which threatens the life of the nation.” No rights can be entirely suspended. Measures of derogation may only be taken to the extent strictly necessary to meet a specific threat to the life of the nation.
