Jul 3, 2020 | Advocacy, News
The ICJ published a legal memorandum concluding that the Ministry of Transport and Communications (MOTC) Order to block access to specific websites is not compliant with international human rights law.
The legal memorandum also sets out various remedial options under Myanmar law to question the lawfulness of the Order.
The ICJ focused its human rights analysis on the rights to freedom of expression and access to information and the right to health, which includes access to health information. These rights are well established under general and customary international law. The right to health is guaranteed under the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of the Child, to which Myanmar is a party.
The MOTC, presumably invoking Section 77 of the Telecommunications Law, ordered telecommunication service providers in March 2020 to take down 2,147 websites found by it to have disseminated “fake news,” adult content, and child sexual abuse content. It is not clear if any of the information under sanction relates to COVID-19, although the pandemic was mentioned elsewhere in one mobile service provider’s press release. Immediately after the release of the MOTC Order, it was discovered that the ban included ethnic news media websites, such as Rakhine-based Development Media Group and Narinjara News, thereby prompting speculation as to the true reasons behind the ban.
The ICJ emphasized the following in the legal memorandum:
- Blocking access to specific websites engages a wide range of human rights concerns, including but not limited to the person’s right to freedom of expression and right of access to information protected under Article 19 of the International Covenant on Civil and Political Rights and customary international law. While lack of transparency about the State rationale and evidence was an obstacle to a full analysis, the permissible conditions that would justify sweeping limitations on this right do not appear to have been met.
- In the context of the COVID-19 pandemic, the MOTC Order also undermines the right to health of all persons in Myanmar. The right to health guaranteed under the ICESCR is reserved to all persons without discrimination and includes access to health information. The MOTC Order effectively hinders access to health information by blocking legitimate sources of information.
- To challenge the MOTC Order, the following domestic legal remedies are available: (i) filing a complaint with the Myanmar National Human Rights Commission; (ii) filing an application for a constitutional writ before the Union Supreme Court and/or (iii) filing a declaration suit under the Specific Relief Act.
Download
Myanmar-Memo-on-MOTC-Order-Legal-Memorandum-2020-ENG (PDF)
Contact
Jenny Domino, ICJ Associate Legal Adviser, e: jenny.domino(a)icj.org
Hnin Win Aung, ICJ Legal Adviser, e: hninwin.aung(a)icj.org
Related work
Publication: Myanmar’s ongoing Internet shutdown and hostilities threaten right to health during COVID-19
Statement: Government must lift online restrictions in conflict-affected areas to ensure access to information during COVID-19 pandemic
Report: Curtailing the Right to Freedom of Expression and Information in Myanmar
Publication: Four Immediate Reforms to Strengthen the Myanmar National Human Rights Commission
Publication: Strategic Litigation Handbook for Myanmar
Jun 20, 2020 | News
As the general internet shutdown in Rakhine and Chin states reaches one year, the ICJ repeated its call for the Myanmar Government to end mobile internet restrictions and temporarily halt hostilities with the Arakan Army.
The ICJ also called for an amendment of Section 77 of the Telecommunications Act, pursuant to which the government can order telecommunications providers to suspend internet services.
“The internet shutdown in Rakhine and Chin states stifles freedom of expression, prevents information-sharing, and exacerbates the plight of affected communities by impeding humanitarian and health access during a global pandemic,” said Frederick Rawski, ICJ Asia-Pacific Director. “Such a drastic measure is disproportionate and unnecessary. The government should focus on fighting COVID-19, instead of waging a battle against its own population.
The shutdown was first imposed on 21 June 2019 by the Ministry of Transport and Communications (MOTC), purportedly to facilitate government objectives in the armed conflict with the Arakan Army.
Section 77 of the Telecommunications Law authorizes the the MOTC to “direct the licensee to suspend a Telecommunications Service, to intercept, not to operate any specific form of communication, to obtain necessary information and communications, and to temporarily control the Telecommunications Service and Telecommunications Equipments” in the event of an “emergency situation” for the “public interest.” However, the law does not define the scope of an “emergency situation.” The ICJ previously described Section 77 to be vague, and warned of abuse by authorities in the absence of independent judicial oversight by civilian courts.
In April, as Myanmar encountered its initial cases of COVID-19, the ICJ highlighted how arbitrary and unnecessary online media restrictions not only violate a person’s right to freedom of expression and information, but also deny access by affected communities to essential health information. Access to health information is a component of the right to health protected under the International Covenant on Economic, Social and Cultural Rights (ICESCR), to which Myanmar is a party.
“The internet shutdown effectively deprives large swathes of the population in ethnic minority states of the benefits of government services, and information about its COVID-19 response,” said Frederick Rawski. “Such a blanket internet shutdown is not necessary for reasons of national security, and undermines the government’s own public health efforts.”
The ICJ recalled that the ICESCR requires States to observe the principle of non-discrimination in enacting measures to protect the right to health. The internet shutdown clearly has a disproportionately adverse impact on the human rights of members of ethnic minorities.
Despite appeals from UN officials, rights groups, ethnic armed organizations, and ambassadors to Myanmar, the Myanmar Government still refuses to hold a ceasefire throughout the country, including areas of Rakhine and Chin states where the Arakan Army operates. The conflict has resulted in deaths, many from unlawful killings, as well as serious physical and emotional injury, and mass displacement of persons.
Download
Myanmar-Internet-Shutdown-Press-Release-2020-BUR (PDF)
Contact
Frederick Rawski, ICJ Asia-Pacific Regional Director, e: Frederick.rawski(a)icj.org
Related work
Publication: Myanmar’s ongoing Internet shutdown and hostilities threaten right to health during COVID-19
Statement: Government must lift online restrictions in conflict-affected areas to ensure access to information during COVID-19 pandemic
Report: Curtailing the Right to Freedom of Expression and Information in Myanmar
May 22, 2020 | News
In order to comply substantially with the International Court of Justice’s provisional measures Order in the case of The Gambia v. Myanmar, Myanmar should carry out legal reforms and cooperate with international accountability processes, said the ICJ today.
The Gambia has accused Myanmar of violations of the 1948 Genocide Convention in respect of its treatment of Rohingya population, characterized by acts of widespread killing and displacement of the population.
The call comes as Myanmar is scheduled to report on “all measures taken” to give effect to the provisional measures Order (Order) issued by the Court on 23 January 2020.
“Myanmar has not taken ‘all measures within its power’ to prevent acts of genocide until it implements comprehensive legal and constitutional reforms,” said Sam Zarifi, Secretary General of the International Commission of Jurists. “Accountability lies at the heart of prevention, and so long as the Tatmadaw remains unaccountable to the civilian authorities the cycle of impunity for criminal atrocities within the country will continue.”
Since the Order, Myanmar has taken a limited number of steps linked to its compliance with the Order, including issuing three Presidential Directives encouraging anti-hate speech activities, and ordering compliance with the Genocide Convention and the preservation of evidence of human rights and related violations in Rakhine.
Myanmar has also asserted that the findings of the Government-commissioned Independent Commission of Inquiry (ICOE), which made selective admissions including that war crimes may have been committed during the 2017 “clearance operations” in Rakhine, have been transmitted to the Attorney General and the Commander-in-Chief of the Tatmadaw and that action would be taken “in conformity with military justice procedures if there is credible evidence of any commission of offence by members of the Tatmadaw.”
However, the Government has yet to amend or repeal key laws that facilitate discrimination against the Rohingya, including the 1982 Citizenship Law, 2015 Race and Religion Protection Laws and 2014 Myanmar National Human Rights Commission Law. On 6 May 2020, the International Commission of Jurists published a report on the killing of a journalist, Ko Par Gyi, in September 2014, which condemned the fundamentally flawed “military justice procedures” used to address allegations of serious human rights violations. The report highlighted the many deficiencies in ensuring to accountability for serious human rights violations in Myanmar under its prevailing legal framework, including:
- that several provisions of national laws facilitate impunity for serious human rights violations by soldiers against civilians, shield security forces from public criminal prosecutions and deny victims and their families of the right to truth about violations;
- investigations into unlawful killings routinely lack the independence, impartiality and effectiveness necessary to establish the truth and to provide accountability and redress; and
- the rights of victims and their families are rarely respected, including the right to access information concerning the violations and accountability processes, and the right to remedies and reparations.
The UN Human Rights Council has established an Independent Investigative Mechanism to look at allegations of genocide, crimes against humanity and other atrocities in Myanmar, but the government has failed to extend its cooperation with the mechanism.
“Myanmar’s inability to prevent serious human rights violations under the existing legal framework underscores the need for it to cooperate with international justice processes, including the UN’s Independent Investigative Mechanism for Myanmar – and for the UN Security Council to refer the situation to the International Criminal Court,” added Zarifi.
Download the statement with detailed background information here.
Contact
Sam Zarifi, Secretary General of the International Commission of Jurists, t: +41 79 726 4415; e: sam.zarifi(a)icj.org
Kingsley Abbott, Coordinator of the ICJ’s Global Accountability Initiative, t: +66 94 470 1345; e: kingsley.abbott(a)icj.org
Related work
Report: Remove barriers to justice for killing of journalist Ko Par Gyi
Statement: Why law reform is urgent and possible
Statement: Implement International Court of Justice provisional measures Order without delay
Briefing Paper: Four immediate reforms to strengthen the Myanmar National Human Rights Commission
Briefing Paper: Myanmar’s discriminatory citizenship laws can and must be reformed
May 6, 2020 | Advocacy, News, Publications
In a report published today, the ICJ called on the police and prosecutorial authorities in Myanmar to re-open the investigation into the death of journalist Ko Par Gyi in military custody in September 2014.
The report documented the many barriers that have prevented justice from being served in this case, as well as other cases of gross human rights violations in Myanmar.
The ICJ called on the Union Parliament to repeal or amend the 1959 Defence Services Act and other legislation that effectively provides immunity to military personnel accused of serious crimes. These and other barriers have been described at length in the ICJ’s 2018 report on Achieving Justice for Gross Human Rights Violations.
“More than three years ago, the police abruptly ended their formal inquiry into the killing of Ko Par Gyi, without providing any justifiable legal rationale for its closure,” said Frederick Rawski, ICJ Asia Pacific Director. “In the intervening years, we have seen what happens when this culture of military impunity goes unaddressed.”
In the report, An unlawful killing: How Ko Par Gyi’s death highlights barriers to justice in Myanmar, the ICJ evaluated the various investigations into the death and identified three key obstacles to justice in the case:
- the existence and operation of national laws like the 1959 Defence Services Act that shield security forces from public criminal prosecutions, serving to deny victims and their families the right to truth about violations;
- sub-standard investigative practices that are vulnerable to political pressure and lacked independence, and simultaneous, separate and uncoordinated investigations that resulted in an unsystematic and ineffective approach to investigating the case; and
- a lack of transparency that denied the family their right to access information concerning the violations and accountability processes.
Ko Par Gyi was detained by police in Mon State and transferred to military detention on 30 September 2014. He died four days later in military custody. A deeply flawed inquiry carried out in military courts, pursuant to the 1959 Defence Services Act, resulted in the acquittal of the soldiers allegedly involved. Those same provisions are commonly used to transfer cases involving military personnel from civilian to military court. Under international standards, military courts should not be used to try military personnel or others for gross human rights violations and crimes under international law.
“It is no surprise that an international investigative mechanism has been established to look into alleged serious human rights violations in Rakhine and elsewhere in Myanmar,” said Rawski. “Myanmar’s legal framework does not provide adequate safeguards to ensure independent investigation into and prosecution of serious human rights violations. What happened to Ko Par Gyi’s case illustrates that all too clearly.”
The UN Human Rights Council has established an Independent Investigative Mechanism for Myanmar (IIMM) to collect evidence and prepare files for criminal prosecution of the most serious international crimes and violations of international law committed in Myanmar since 2011.
Key recommendations in the report include:
- To the Executive and the Union Parliament: amend the 1959 Defense Services Act to align it with democratic principles, the constitutional guarantee of equal legal protection, and the State’s international law obligation to protect the right to life, including by prosecuting serious violations.
- To the Tatmadaw: apply standards and procedures in military courts that conform to international law, ensure all crimes perpetrated against civilians are tried in the civilian judicial system, and reform rules of engagement to explicitly instruct soldiers to protect life, consistent with international law.
- To the Myanmar Police Force and the Union Attorney General’s Office: align investigative procedures and practices with international law and standards.
- To the Myanmar National Human Rights Commission: take an active and broad interpretation of the MNHRC mandate to address serious human rights violations including those which have gone before courts.
- To UN Member States and international organizations: ensure any organizational support to security forces is contingent on and enables demonstrable commitments to prevent and punish violations by its members.
This report was produced as part of the ICJ’s Global Accountability Initiative, which aims at combatting impunity and promoting redress for gross human rights violations around the world through the entrenchment of the rule of law
Download
An unlawful killing: How Ko Par Gyi’s death highlights barriers to justice in Myanmar in English and Burmese.
Press statement with additional background information on Ko Par Gyi in English and Burmese.
Contact:
Frederick Rawski, ICJ Asia Pacific Regional Director, (Bangkok), t:+66 64 4781121, e: frederick.rawski@icj.org
Kingsley Abbott, Coordinator of the ICJ’s Global Accountability Initiative, t: +66 94 470 1345; e: kingsley.abbott(a)icj.org
Apr 10, 2020 | News
The ICJ today called upon the Myanmar government to ensure that everyone in the country, particularly those from communities affected by conflict, has access to critical information about COVID-19. This call includes putting an immediate end to restrictions on internet access in Rakhine and Chin States.
The ICJ said that there must not be undue restrictions on the right of people to seek and impart such information, in line with international law and standards protecting the right to freedom of expression and information.
“Access to information is absolutely essential for the protection of communities, especially their right to health during the COVID-19 outbreak,” said Frederick Rawski, ICJ Director for Asia and the Pacific. “This is especially true in areas of Myanmar affected by conflict. The wholesale blocking of internet access in Rakhine and Chin States, including access to websites of popular ethnic media outlets, has no justifiable basis in international law and will only serve to undermine efforts to mitigate the spread of the virus.”
On 26 March 2020, the Minister of Transport and Communications stated in a media interview that despite the COVID-19 pandemic, the internet shutdown in Rakhine and Chin States would not be lifted until hate speech, misinformation and the conflict with the Arakan Army are addressed. The Minister’s statement appears to defy the UN Secretary-General’s appeal for a global ceasefire as well as the respective statements of members of Myanmar’s diplomatic community and of several ethnic armed organizations, including the Arakan Army, to cease hostilities in light of the COVID-19 pandemic. On 9 April 2020, the UN Special Rapporteur on Myanmar called for the same.
Instead, on 30 March 2020, pursuant to section 77 of the Telecommunications Law, the Ministry of Transport and Communications (MoTC) ordered major telecommunications networks to take down hundreds of websites on the dubious ground of containing misinformation. The MoTC did not disclose the full list of websites ordered to be blocked as well as the factual and legal basis that justified issuing the order. Under Section 77, the MoTC can direct a telecommunications provider to suspend services in the event of an “emergency situation.” It is not clear whether the misinformation relates to COVID-19 or if the pandemic is the pretext for the order.
As of 1 April 2020, media outlets of the Rakhine and Karen ethnic communities were among the websites to which access was blocked from major telecommunications providers. Access to Voice of Myanmar’s website, whose editor-in-chief had faced charges under Myanmar’s Counter-Terrorism Law until 9 April 2020 for publishing an interview with the Arakan Army, was also blocked.
The ICJ has previously expressed concern at the Myanmar Government’s use of the Telecommunications Act to justify an internet shutdown in the context of the conflict in Rakhine State. This practice does not comply with human rights law and standards. The Act itself is fundamentally flawed and must be amended. Among other defects, the Act does not define the scope of an “emergency situation.”
“Keeping these overbroad restrictions in place in the midst of the COVID-19 pandemic puts the government in violation of international law. It is also counterproductive to the goal of stopping the spread of the virus and minimizing its impact on the country’s most vulnerable populations,” said Rawski.
Download the statement in Burmese here.
Contact:
Frederick Rawski, ICJ Asia-Pacific Regional Director, e: Frederick.rawski(a)icj.org
Related work:
Event: ICJ hosts workshop on fair trial rights for Myanmar’s ethnic media
Report: Curtailing the Right to Freedom of Expression and Information in Myanmar
Statement: States must respect and protect rights in fighting COVID-19 misinformation
