Sep 18, 2018 | Advocacy, Non-legal submissions
The ICJ today urged the UN Human Rights Council to establish a mechanism to preserve evidence of crimes under international law occurring in Myanmar, with a view to eventual prosecution of those responsible.
The statement, delivered during an interactive dialogue with the UN International Fact Finding Mission, read as follows:
“The International Commission of Jurists (ICJ) has monitored justice and human rights in Myanmar for more than five decades. The ICJ has an established presence in the country supporting justice actors to protect human rights through the rule of law.
With this experience, the ICJ views the Independent International Fact Finding Mission’s conclusions as painting an authoritative picture of the general situation in Myanmar, particularly in its highlighting of the pervasive damage of military impunity upon human rights, rule of law and the nascent democratic process.
The rule of law cannot be established, let alone flourish, without accountability for perpetrators of human rights violations and redress for victims and their families.
The Fact Finding Mission’s findings of crimes under international law, including crimes against humanity in Rakhine, Kachin and Shan states, and the identification of alleged perpetrators, necessitate immediate action.
The Government of Myanmar is unwilling and unable to effectively and genuinely provide justice for crimes, particularly when perpetrated by security forces. International action must not be deterred or delayed by the latest government inquiry, which is incapable of providing accountability or redress and may promote impunity by undermining credible international justice mechanisms.
The ICJ calls for a unified Council resolution at this session to establish an International Impartial and Independent Mechanism. This is urgently required to preserve evidence before its further deterioration, and to demonstrate a commitment to justice. Failing to act now risks further denying justice for victims and emboldening perpetrators.
Violations against Rohingya constitute an egregious yet emblematic example of systematic persecution of minority groups that has persisted in Myanmar for decades.
The ICJ would like to ask the Fact-Finding Mission: how can the Council best ensure accountability for the full range of crimes under international law committed against minorities throughout Myanmar and prevent their continuation and recurrence?”
For more information see:
Myanmar: why an IIIM and Security Council referral are needed despite the ICC ruling relating to Bangladesh
Myanmar: Government’s Commission of Inquiry cannot deliver justice or accountability
Sep 17, 2018 | Advocacy, Non-legal submissions
Today at the UN Human Rights Council, the ICJ emphasised the importance of effective investigations capable of leading to truth and justice, highlighting recent developments in Manipur, India as an example.
The statement read as follows:
“Justice processes in situations of conflict or transition require fighting impunity and re-establishing public trust.[1] An example is the new prospects for justice in relation to 1528 alleged extrajudicial killings cases in Manipur, India, which would make an important contribution to a transition out of the long-standing conflict.
In July 2016, in response to a petition filed on behalf of the victims, the Indian Supreme Court stated that “there is no concept of absolute immunity from trial…”,[2] opening the door to ending impunity. As of August 2018, the Central Bureau of Investigation has registered 29 complaints against security forces.[3] Recent reports suggest that the Government is also considering amending the Armed Forces Special Powers Act (AFSPA) to remove or restrict existing overbroad authorizations for use of lethal force.[4]
These are welcome developments. However, concerns remain, as the investigation status of the majority of the cases is unknown. Two UN Special Rapporteurs in July 2018 also affirmed that justice must be done in all cases.[5]
The ICJ calls on India to ensure independent, impartial and thorough investigations into all cases in Manipur, amend AFSPA, and to uphold the right to truth of victims and society about acts committed and the identity of perpetrators, in line with its international and national legal obligations, including as a party to the International Covenant on Civil and Political Rights.”
[1] Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, A/HRC/39/53 (25 July, 2018), http://www.undocs.org/A/HRC/39/53.
[2] Para 163, Extra Judicial Execution Victim Families Association (EEVFAM) & Anr. v. Union of India & Anr. Writ Petition (Criminal) No. 129/2012.
[3] TNN, “Army Major named in FIR for killing 12-yr-old in fake Manipur encounter”, Times of India, August 3, 2018, https://timesofindia.indiatimes.com/city/imphal/army-major-named-in-fir-for-killing-12-yr-old-in-fake-manipur-encounter/articleshow/65252258.cms.
[4] “In AFSPA, Government Considering Crucial Changes”, NDTV, September 13, 2018, available at https://www.ndtv.com/india-news/in-afspa-government-considering-crucial-change-sources-1915706.
[5] Special Rapporteur on extrajudicial, summary or arbitrary executions and Special Rapporteur on the situation of human rights defenders, “India: UN experts call for urgent progress in investigation of hundreds of ‘fake encounter’ killings” (4 July 2018), https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23323&LangID=E .
Sep 10, 2018 | Events, News
The ICJ will host the side event “Gross human rights violations in Myanmar: options for international criminal accountability” at the Human Rights Council on Thursday 13 September 2018 from 12:00 – 13.00 in Room XXVII of the Palais des Nations.
It is organized by the ICJ, Amnesty International and Human Rights Watch in cooperation with ASEAN Parliamentarians for Human Rights (APHR), the International Federation for Human Rights (FIDH) and Physicians for Human Rights (PHR).
The issues of documenting violations, possible evidence-gathering mechanisms and the role of the International Criminal Court will be discussed.
Speakers:
- Justice Sanji Mmasenono Monageng, Commissioner of the ICJ and former judge of the International Criminal Court
- Param-Preet Singh, Associate Director of the International Justice Program, Human Rights Watch
- Laura Haigh, Myanmar Researchers, Amnesty International
Moderator:
Saman Zia-Zarifi, Secretary General, International Commission of Jurists
Myanmar side event 13 Sept flyer (flyer of the event in PDF)
Sep 6, 2018 | News
The ICJ welcomed the Supreme Court’s judgment in Navtej Singh Johar et al v. Union of India and others, which effectively ends the threat to a large segment of the Indian population that they will be held criminally liable for exercising their human rights.
The Court has issued a long-overdue ruling that the criminalization of consensual same-sex relationships under Section 377 violates the Indian Constitution, and is in breach of India’s obligations under international law. This long-awaited judgment testifies to the work of activists and lawyers in India, who have shown the potential of the law to affirm human rights and equality.
“This judgment will not only have an impact in India. Its influence should extend across the world. The ICJ hopes that it will provide an impetus for other countries, especially those of the Commonwealth of Nations, to revoke similar provisions that criminalize consensual sexual relations,” ICJ Asia Pacific Director Frederick Rawski stated.
The Court underscored that provisions of Section 377 contravened international law and standards on equality, privacy, non-discrimination and dignity guaranteed in international human rights treaties to which India is a party. These include the International Covenant Civil and Political Rights and International Covenant on Economic Social and Cultural Rights.
The Court also noted that the Yogyakarta Principles, which address sexual orientation and gender identity in international law, reinforce these protections. This is a vital jurisprudential recognition that LGBTI persons are entitled to full equality, and protection of their rights under India’s Constitutional and international human rights law.
In the judgement, which reverses the December 2013 Koushal decision, the Court held that discrimination based on sexual orientation is a violation of fundamental rights to autonomy, privacy, equality, dignity, and non-discrimination. It underscored that decriminalization of homosexuality is only the first step and that LGBTI persons are entitled to equal citizenship in all its manifestations. The Court also recommended that wide publicity be given to judgment to ensure de-stigmatization of identity through sensitization training on barriers to access to justice faced by LGBTI persons.
“Even a landmark decision by the Indian Supreme Court cannot alone end the discrimination against people based on their sexual orientation or gender identity. It is time for the Indian Parliament to conduct wide-ranging review of existing legal framework, repeal discriminatory laws, and address other gaps in the law that prevent LGBT persons from fully exercising their rights,” Rawski added.
Background
For background, see the ICJ’s July 2018 Briefing Paper on Navtej Singh Johar et al. v. Union of India and Others, and its February 2017 report, “Unnatural Offences”: Obstacles to Justice in India Based on Sexual Orientation and Gender Identity.
Contact
Maitreyi Gupta (Delhi), ICJ International Legal Advisor for India
e: maitreyi.gupta(a)icj.org, t: +91 7756028369
Sep 4, 2018 | News
The ICJ today condemned the public caning of two women, a punishment imposed upon them by the Terengganu High Court after conviction on charges of ‘attempting to have sexual intercourse’.
The ICJ called on the Government of Malaysia to immediately abolish the practice of caning as it constitutes a form of cruel, inhuman or degrading punishment prohibited under international human rights law and standards.
Furthermore, it also called on the Government to ensure that its laws, policies and practices at the local, state, and federal levels are in full compliance with its international legal obligations, including under the Convention on the Elimination of all forms of Discrimination against Women (CEDAW).
On 3 September 2018, two women, aged 23 and 33, were publicly caned in front of a hundred people in Terengganu, a coastal state of Malaysia, located northeast of Kuala Lumpur.
The two women were convicted under Section 30 of the Syariah Criminal Offences (Terengganu) Enactment 2001, for the crime of ‘Musahaqah’ (sexual relations between female persons).
“This punishment is a clear violation of Malaysia’s obligations to prevent, prohibit and prosecute all forms of torture and other cruel, inhuman or degrading treatment or punishment. The Government of Malaysia should immediately abolish the practice of corporal punishment, which has been condemned by international authorities such as the UN Human Rights Council’s Special Rapporteur on torture,” said Emerlynne Gil, ICJ’s Senior International Legal Adviser.
“It is equally deplorable that Malaysia continues to criminalize consensual same sex relations. The criminalization of private consensual sexual activities – whatever the sex, gender identity and sexual proclivities of those involved, and whatever the actual sexual practices – violates international human rights law. It also undermines women’s enjoyment of their rights to privacy, personal integrity, and equality,” she added.
The Human Rights Committee has said that criminalizing private sexual acts between consenting adults constitutes an arbitrary interference with privacy and cannot be justified.
It has also observed in a number of Concluding Observations that the criminalization of private consensual sexual activities between adults of the same sex violates the prohibition of discrimination, and the right of equality before the law.
The ICJ also notes that early this year, the CEDAW Committee recommended to Malaysia to “take effective measures to ensure that civil law and Syariah law are in full compliance with the provisions of the Convention at local, state, and federal levels” so as to guarantee the rights of all women throughout the country.
The ICJ calls on the Government of Malaysia to abide by its obligations under international law and follow through with its commitment to human rights, non-discrimination and equality by abolishing the sentence of caning and the criminalization of consensual same sex relations in the country.
Contact
Emerlynne Gil, ICJ Senior International Legal Adviser, t: +66 840923575, e: emerlynne.gil(a)icj.org
Background
On 8 April 2018, religious state authorities arrested the two women who were in a car and accused them of preparing to ‘commit sexual acts’, which is an offense in the State of Terengganu, under the Syariah Criminal Offences (Terengganu) Enactment 2001. The women pleaded guilty to the offence without being represented by a lawyer and did not appeal their case.
On 12 August 2018, the two women pleaded guilty and were sentenced by the Terengganu Shariah to a fine of RM3,300 ($800 USD) and six strokes of caning for attempting to have sexual intercourse.
This is the first case of caning of women for ‘Musahaqah’ (sexual relations between female persons) crime and its attempt in Malaysia and it marks a steady decline in Malaysia’s commitment to protect the rights of its sexual minorities and the members of the LGBTIQA community.
In Malaysia’s Criminal Procedure Code, under Federal law, it states that
“No sentence of whipping shall be executed by installments, and none of the following persons shall be punishable with whipping: (a) females;”
Malaysia’s Federal Constitution provides that Islamic law falls under the matters of State law, with the exception of the Federal States.
It is concerning that the Syariah legal system in Malaysia continues to carry out caning in a manner that is discriminatory against women, and women sexual minorities, as seen in the 2010 case, where three women were found guilty of ‘illicit sex’ by the Kuala Lumpur Syariah Court, as well as the continuing use of Syariah legal enactments to harass, intimidate and prosecute the transgender community in Malaysia.
