Feb 11, 2021 | News
The ICJ today condemned the unlawful repression of peaceful protests and urged the Indian authorities to respect the right to freedom of assembly of Indian farmers who have been demonstrating in Delhi since November 26, 2020 against newly promulgated agricultural laws.
Since early February 2021, police have used metal barricades, cement walls and iron nails to block the roads leading to Tikri, Singhu, Ghazipur, the three main borders where the farmers have assembled. They have done so to prevent any vehicles from these areas entering Delhi. The barricades have also served to deny male and female farmers and their families, including children, consistent access to water and sanitation facilities. The protests at these sites over the past two months are reported to have been peaceful.
Thousands of farmers from all over India, and most heavily from Punjab, Haryana and Uttar Pradesh, have demanded the repeal of a new set of agricultural laws, fearing that these will serve to eliminate government protections for crop prices and thereby impact their livelihoods.
Two journalists were detained and assaulted for reporting from the ground, while nine senior journalists have been threatened with criminal charges including sedition charges by the Indian Government. More than 125 persons, including farmers and also bystanders have reportedly been arrested largely in response to a violent clash that occurred on 26 January 2021. At least 21 farmers are reported to be currently missing.
“Rather than protecting the right to peaceful protest as required by law, the Indian authorities have cracked down on farmers in an arbitrary and aggressive manner, using unlawful force and preventing free movement as well as access to essential facilities”, said Ian Seiderman, ICJ’s Legal and Policy Director.
The Indian Supreme Court on 17 December 2020, upheld the right to protest of farmers calling it “part of a fundamental right” which can be exercised “subject to public order”. The Court has further said that “[t]here can certainly be no impediment in the exercise of such rights as long as it is non-violent and does not result in damage to the life and properties of other citizens and is in accordance with law.”
“The suppression of the right to peaceful assembly has become a pattern in India, as we saw in December 2019 and January 2020 with the mass arrests of students and human rights defenders who were protesting against the Citizenship Amendment Act,” said Seiderman.
The ICJ called on the responsible authorities to remove barricades around protest sites, enable access to water and sanitation facilities and to desist from further arbitrary arrests.
Background
The three contentious farm laws being the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020, Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 and Essential Commodities (Amendment) Act, 2020 were brought in through executive ordinance without legislative consultation and adequate scrutiny and received presidential assent on 27 September 2020.
Farmer unions from Punjab, Haryana and Uttar Pradesh began to set up protest sites on the borders of Delhi on 26 November 2020. There have been a series of unsuccessful negotiations between the Ministry of Agriculture and Farmers Welfare and the farmer representatives. In response to the protests, the Indian Supreme Court on 12 January ordered the suspension of the “implementation of the three farm laws until further orders”. The Court set up a four-person expert committee to negotiate between farmers and the Government. However the committee’s efforts have become stalled.
On 26 January, India’s Republic Day, some tens of thousands of farmers drove into Delhi in tractors, with some protestors deviating from the sanctioned routes permitted by the Delhi Police. There were clashes with the police where one protestor was killed in the violence, and nearly 400 policemen were injured. Some protestors also entered the Red Fort, an historical monument, and hoisted the Sikh religious flag on a flagpole.
On 29 January, police and at least some private forces tried to forcibly disperse the protests on Ghazipur, Singhu and Tikri borders through stone pelting and baton charging. Farmer protestors allege that the some of those working with the police were associated with Rashtriya Swayamsevak Sangathan (RSS), the ideological outfit associated with the ruling party Bhartiya Janata Party.
On 6 February there was a three-hour blockade on state and national highways placed by farmers throughout large parts of India in protest against the agricultural laws, the government’s measures against the protestors and the reduction of budgetary allocation for farmers.
Freedom of assembly is protected under the International Covenant on Civil and Political Rights, to which India is a party.
Contact
Maitreyi Gupta, ICJ India Legal Adviser, t: +91 77 560 28369 e: maitreyi.gupta(a)icj.org
Feb 8, 2021 | News
The Myanmar military’s coup d’etat of 1 February is unconstitutional and fails to comply with basic rule of law principles, said the ICJ today.
“The Myanmar military’s actions violate even the flawed Constitution that the military itself imposed in 2008,” said Sam Zarifi, ICJ’s Secretary General. “The irregularities alleged by the military in the recent elections do not justify declaring a state of emergency and shattering the already weak rule of law in the country.”
The coup d’etat does not comply with the Constitution of the Republic of the Union of Myanmar 2008, which suffers from multiple shortcomings in basic respect for the rule of law and international human rights standards.
Article 417 of the Constitution requires the President to declare a state of emergency when there is a risk to the sovereignty of the country.
Article 418 requires the President to hand over all power to the Commander-in-Chief of the Army. Contrary to this provision, the state of emergency was declared by the Vice-President, after the military detained President Win Myint.
“The accountability of the military to the civilian authorities is a core rule of law principle”, said Sam Zarifi “Myanmar’s military leaders have turned this principle on its head by usurping total authority again.”
The ICJ is concerned that Myanmar’s Constitution provides for the possibility of suspending protections for a number of human rights, such as freedom of expression and association and the right to habeas corpus. Under international human rights law, derogations from certain rights are permissible only when strictly necessary to meet a specific threat to the life of the nation, conditions not met under the current emergency.
The right to habeas corpus is among those rights that may never be suspended. The writ of habeas corpus allows any person detained by any State agent, including during emergencies, to challenge the lawfulness of the detention.
“The right to test the lawfulness of any detention needs to be restored and the judiciary must be able to independently examine the legality of any arrests and detentions and order to release of those it finds are detained illegally” said Sam Zarifi.
Of particular concern to the ICJ is the near-total impunity provided to the military after the declaration of the State of Emergency, and the proliferation of arbitrary detention without recourse to legal review.
Article 432 of the Constitution effectively shields the military and security forces from any review of ’legitimate measures’ pursuant to the declaration of a state of emergency, which the ICJ notes also flies in the face of the rule of law.
“After the shock of the coup d’etat, we are now seeing brave lawyers and civil society activists trying to use peaceful means at their disposal to demand their rights,” Zarifi said. “This movement is not focused around an icon or even one party, but on the notion that the people of Myanmar should be able to government themselves and decide their future.”
Contact
Sam Zarifi, ICJ’s Secretary General, sam.zarifi(a)icj.org
Feb 3, 2021 | News
The Pakistani authorities must end their ongoing persecution of the Ahmadiyya religious minority, which is now extending across borders, said Amnesty International, Human Rights Watch and the ICJ, following an attempt by the Pakistan Telecommunications Authority (PTA) to shut down the website of the Ahmadis’ US-based community.
On 24 December 2020, the PTA sent a legal notice to the administrators of trueislam.com, stating that the site was in violation of Pakistan’s Constitution, and warning they could be charged with blasphemy – a charge potentially carrying the death penalty – for referring to themselves as Muslims. The site’s administrators have also been threatened with a fine of 500 million PKR (US$3.1 million) if they fail to take the website down.
The trueislam.com website provides general information about Ahmadi history and beliefs, details the work carried out by the Ahmadi community in the US, including blood drives and veterans’ support, and features interviews with prominent community members such as the actor Mahershala Ali.
“Ahmadis in Pakistan have long been the target of systematic attacks, and successive Pakistani governments have failed to respect, protect and promote their human rights, forcing many to flee to other countries. The PTA’s efforts to close down their US website shows that even then, a life free from discrimination can be out of reach,” said Samira Hamidi, Deputy Regional Director at Amnesty International.
“Digitally policing Ahmadis on what they can or can’t preach, no matter where they are, is a flagrant violation of Pakistan’s legal obligations under the International Covenant on Civil and Political Rights to which the country is a state party. We urge the PTA to desist from its targeted campaign against Ahmadis and to ensure that everyone in Pakistan is able to express themselves and profess their religion freely, without fear of reprisals or discrimination.”
According to a PTA press release on 22 January 2021, access to trueislam.com has now been blocked in Pakistan. Amnesty International has been shown an email sent by the head of the PTA on 27 December 2020 to various servers in the country, instructing them to remove access to the website, along with three others related to the Ahmadi community.
“Pakistan has an obligation to protect the rights to freedom of expression and religion online every bit as much as in places of worship or in public spaces. Far from facilitating such protection, the PTA is extending its long arm to violate the rights of persons well beyond Pakistan’s own borders,” said Ian Seiderman, ICJ Legal and Policy Director.
The administrators of the website told Amnesty International that prior to receiving the notice, they received emails from various sources filled with hate speech.
“I was suddenly inundated with hate-filled messages from extremists on my email. And then a few days later, on December 24, the PTA emailed me a notice threatening criminal prosecution and fines for blasphemy and giving 24 hours to remove the trueislam.com website,” said Amjad Mahmood Khan, a US-based Ahmadi lawyer who was targeted.
“It’s obvious the PTA seeks to prosecute US citizens operating a US-based website. This is an unprecedented act to extend the reach of Pakistan’s abominable blasphemy laws to US citizens, and it’s a new frontier in persecution for Ahmadis worldwide,” Khan said.
The legal notice to trueislam.com is part of a broader pattern of state overreach by the PTA in recent months, which has included issuing notices to Google and Wikipedia to remove “sacrilegious content”.
“The attempt to extend Pakistan’s persecution of Ahmadis to other jurisdictions is a dangerous escalation. The Pakistani government should end its policing of Ahmadi speech outside the country and focus on providing an enabling environment for free speech, expression, and freedom of religion inside Pakistan,” said Brad Adams, Asia director at Human Rights Watch.
Background
The Pakistani penal code explicitly discriminates against religious minorities and targets Ahmadis by prohibiting them from “indirectly or directly posing as a Muslim.” Ahmadis are banned from declaring or propagating their faith publicly, building mosques, or making the Muslim call for prayer. For more information on the persecution of the Ahmadiyya community in Pakistan, see here.
On 25 December 2020, the Pakistan Telecommunications Authority issued a press release saying that Google and Wikipedia had been issued notices. On 28 December 2020, the Lahore High Court Chief Justice Qasim Khan ordered the Federal Investigative Agency to issue notices to Google, stating that shutting down websites was not enough.
For more information about the law on blasphemy in Pakistan, see here.
Contact
Reema Omer, ICJ’s Senior International Legal Advisor (South Asia), reema.omer(a)icj.org
Feb 2, 2021 | News
The ICJ today denounced the decision by Pakistani authorities to conduct the trial of Idrees Khattak, a leading human rights defender, in a military court.
Idrees Khattak is charged with “spying” among other offenses, related to his monitoring of violations by military forces in 2009. He was forcibly disappeared by the Pakistani Military Intelligence in November 2019. His whereabouts remained unknown until June 2020, when military authorities informed the Commission of Inquiry on Enforced Disappearances that he was being tried under the Official Secrets Act, 1923.
The Peshawar High Court yesterday dismissed a petition challenging the jurisdiction of the military courts in this case. Under international standards, including the International Covenant on Civil and Political Rights to which Pakistan is a party, civilians such as Idrees Khattak must not be subject to the jurisdiction of military tribunals.
“Idrees Khattak was subjected to the serious crime of enforced disappearance and instead of bringing the perpetrators of this violation to account, the Pakistani military has kept him arbitrarily detained and is now violating his rights further by subjecting him to a military court,” said Sam Zarifi, ICJ’s Secretary General.
“The Pakistan government must immediately release Idrees Khattak. If there is real and credible evidence implicating him in a cognizable crime, he should be tried by a civilian court and his right to a fair trial should be fully respected,” said Zarifi
The ICJ has found proceedings before Pakistani military courts fall well short of national and international laws requiring fair trials before independent and impartial courts:
- Judges are part of the executive branch of the State and continue to be subjected to military command;
- The right to appeal to civilian courts is not available;
- The right to a public hearing is not guaranteed;
- A duly reasoned, written judgment, including the essential findings, evidence and legal reasoning, is denied; and
- The death penalty may be implemented after unfair trials.
Idrees Khattak has been charged on multiple counts related to spying and other conduct “prejudicial to the safety or the interests of the State” under Section 3 of the Official Secrets Act as well as section 59 of the Pakistan Army Act, 1952. The Pakistan Army Act gives military courts jurisdiction to try civilians for certain offences under the Official Secrets Act.
The alleged conduct for which Idrees Khattak has been charged dates back to July 2009 – ten years before his enforced disappearance.
A group of 10 independent experts appointed by the UN Human Rights Council have characterized Idreek Khattak’s case as “emblematic of a series of documented enforced disappearances in Pakistan, where many human rights defenders are similarly silenced for their legitimate work of monitoring, documenting and advocating against a range of human rights violations and attacks against minorities.”
The ICJ calls on Pakistani authorities to immediately release Idrees Khattak.
The ICJ also calls on Pakistani authorities to ensure military courts only have jurisdiction to try military personnel for military offences and to bring procedures of military courts in conformity with international standards.
Contact
Sam Zarifi, ICJ’s Secretary General, sam.zarifi(a)icj.org
Reema Omer, ICJ’s Senior International Legal Advisor (South Asia), reema.omer(a)icj.org
Additional information
In July 2017, in its Concluding Observations after Pakistan’s first periodic review under the International Covenant on Civil and Political Rights (ICCPR), the UN Human Rights Committee stated that it was concerned by the jurisdiction of military courts over civilians and allegations of fair trial violations in military courts’ proceedings.
The Human Rights Committee recommended that Pakistan “review the legislation relating to the military courts with a view to abrogating their jurisdiction over civilians and their authority to impose the death penalty” and “reform the military courts to bring their proceedings into full conformity with articles 14 and 15 of the Covenant in order to ensure a fair trial.”
Jan 23, 2021 | News
The ICJ stated today that a newly appointed Commission of Inquiry tasked to review reports on past human rights and humanitarian law violations was unlikely to bring justice to victims of conflict era atrocities.
On 21 January 2021, Sri Lankan President Gotabaya Rajapaksa appointed a three-member Commission of Inquiry (CoI), headed by sitting Supreme Court Judge A.H.M. Nawaz to assess the findings and recommendations of preceding CoIs and Committees on human rights violations, serious violations of international humanitarian law and other such serious offences.
“Sri Lanka has an appalling track record on accountability in relation to toothless inquiry mechanisms.” said Ian Seiderman, ICJ’s Legal and Policy Director. “the tendency to set up these kinds of processes just ahead of sessions the UN Human Rights Council raises the suspicion that the announcement is targeted to deflect robust action by the Council beginning next month”
Sri Lanka is due to be taken up at the 46th session of the UN Human Rights Council on 24 February 2021, where the UN High Commissioner for Human Rights will present her report on Sri Lanka’s implementation of Council Resolution 30/1.
The decision to set up this COI was first announced in February 2020, by the Minister of Foreign Affairs at the 43rd Session of the UN Human Rights Council when he declared the Government’s withdrawal of support for the process under Resolutions 30/1, 34/1 and 40/1.
The Commission is tasked with the responsibility of identifying the “manner in which the recommendations have been implemented so far in terms of the existing law and what steps need to be taken to implement those recommendations further in line with the present Government policy.” It has been given a six-month mandate.
COIs and similar bodies established by successive Sri Lankan governments have been ineffective and deeply deficient in terms of their mandate, functions and independence. As the ICJ has previously documented, such mechanisms have largely been partisan mechanisms for punishing political opponents or for shielding perpetrators and institutions from responsibility.
The ICJ called upon the UN High Commissioner for Human Rights and the Member States to acknowledge the Sri Lankan Government’s categorical inability and unwillingness to ensure accountability domestically and urges the Council to explore viable international alternatives to ensure justice for victims of gross human rights violations.
Contact
For questions and clarifications, please contact Osama Motiwala, Communications Officer – osama.motiwala(a)icj.org
