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.
Sep 3, 2018 | News
The Yangon District Court’s decision today to sentence Reuters journalists Wa Lone and Kyaw Soe Oo to seven years’ imprisonment for violating the Official Secrets Act deals a massive blow to human rights and the rule of law in Myanmar, said the ICJ.
“The Court’s decision effectively punishes these two courageous journalists for exposing human rights violations, following a grossly unfair trial,” said Frederick Rawski, Asia Pacific Director for the ICJ.
“The decision is a miscarriage of justice that inflicts needless suffering on them and their families, threatens freedom of expression, damages Myanmar’s global standing, and undermines its justice institutions all at once,” he added.
The ICJ has monitored the case since the journalists’ initial detention in December 2017.
As previously noted by the ICJ, the detention and trial has violated numerous basic fair trial guarantees.
The prosecutors had a duty to drop charges and the judge should have dismissed the case given the lack of evidence and the unlawfulness of detention because of fair trail rights violations.
“The case is emblematic of how the justice system ends up reinforcing rather than challenging military impunity,” said Rawski.
“The result undermines government claims that it can deliver accountability for human rights violations on its own, and does nothing to build trust that justice system can act independently and impartially after emerging from decades of military rule,” he added.
Members of security forces generally enjoy impunity for the perpetration of human rights violations, including for crimes under international law.
The ICJ has previously reported that victims and their families, as well as journalists, often face retaliation for publicizing human rights violations by the military.
Wa Lone and Kyaw Soe Oo were arrested in December 2017, and held incommunicado for nearly two weeks, before being charged under the colonial-era Official Secrets Act for allegedly possessing documents related to the operations of security forces in northern Rakhine State, during “clearance operations.”
The two reporters had been reporting on human rights violations in Rakhine State, including the killing of Rohingya by the military in Inn Dinn Village.
In a report issued just last week, the UN Independent International Fact Finding Mission found that security forces had perpetrated crimes under international law during these operations, including crimes against humanity and possibly the crime of genocide.
The detention and prosecution of anyone, including journalists, based solely on the collection and publication of evidence relevant to serious human rights violations, is a violation of international law and standards on freedom of expression, the right to participation in public affairs and on the role of human rights defenders.
Legal options remaining for the journalists include appealing of today’s decision, and requesting a Presidential amnesty.
