Sep 27, 2019 | Advocacy, Non-legal submissions
Today, at the close of the 42nd regular session of the UN Human Rights Council in Geneva, the ICJ and other NGOs highlighted key acheivements and failures.
The joint civil society statement, delivered by International Service for Human Rights (ISHR) on behalf of the group, read as follows (not all text could be read aloud due to time limits):
“The Council reaffirmed that reprisals can never be justified. Council members rejected attempts to weaken the text including attempts to delete the references to the roles of the Assistant Secretary-General and the Human Rights Council Presidents. The resolution listed key trends such as the patterns of reprisals, increasing self-censorship, the use of national security arguments and counter-terrorism strategies by States as justification for blocking access to the UN, acknowledged the specific risks to individuals in vulnerable situations or belonging to marginalized groups, and called on the UN to implement gender-responsive policies to end reprisals. The Council called on States to combat impunity and to report back to it on how they are preventing reprisals, both online and offline. The Bahamas and the Maldives responded to this call during the interactive dialogue and we encourage more States to follow their good practice. We also encourage States to follow the good practice of Germany and Costa Rica in raising specific cases of reprisals. The Council also welcomed the role of the Assistant Secretary-General and invited the General Assembly to step up its efforts to address reprisals and ensure a coherent system-wide response.
We welcome the creation of a Fact-Finding Mission (FFM) on Venezuela as an important step towards accountability for the grave human rights violations documented by the High Commissioner. We urge Venezuela to cooperate with the FFM and to honor the commitments they have made during this session, including by allowing OHCHR unfettered access to all regions and detention centers and implementing their recommendations. Cooperation and constructive engagement and measures for international accountability and justice should be seen as complementary and mutually reinforcing.
We welcome the renewal and strengthening of the mandate of the Group of Eminent Experts on Yemen, sending a clear message to parties to the conflict – and to victims – that accountability is at the center of the mandate, and providing a crucial and much-needed deterrent to further violations and abuses. States should support the recommendations made by the GEE in their recent report, including prohibiting the authorization of transfers of, and refraining from providing, arms that could be used in the conflict to such parties; and clarifying the GEE’s role to collect and preserve evidence of abuses.
We welcome the renewal of the mandate of the Special Rapporteur on Cambodia, but regret that calls to strengthen the mandate of the OHCHR to monitor and report on the situation have been ignored. We regret that the resolution fails to accurately depict the continuing crackdowns on civil society and the severity and scale of recent attacks on the political opposition.
We welcome the renewal of the mandate of the Commission of Inquiry on Burundi. Its work is vital as the country heads towards elections in 2020. The Burundian Government should desist from denial and insults, and should cooperate with the Commission and other UN bodies and mechanisms.
We welcome that the EU and OIC have jointly presented a resolution on Myanmar requesting the High Commissioner to report on the implementation of the recommendations of the Fact-Finding Mission at HRC 45. However, the international community needs to take stronger action to ensure accountability for and cessation of grave international crimes, in particular by referring Myanmar to the ICC and imposing a global arms embargo – and by acting on the FFM’s reports, including those on economic interests of the military and on sexual and gender-based violence in Myanmar and the gendered impact of its ethnic conflicts.
The joint EU/OIC resolution on Myanmar welcomes the FFM report on the military’s economic interests, which identifies companies contributing to abuses. The High Commissioner, however, has still not transmitted the database of companies facilitating Israel’s illegal settlements more than 2 and a half years after its mandated release. The High Commissioner pledged in March to fulfil the mandate “within the coming months”. The ongoing unexplained and unprecedented delays have become a matter of credibility, for both the High Commissioner and the HRC. Mr. President, we request that you confer with the High Commissioner and advise as soon as possible when this important Council mandate will be fulfilled.
‘Cautious optimism’ best defines our approach to Sudan. While this year’s resolution, which welcomes the peaceful popular uprising, renews the Independent Expert’s mandate, supports the opening of an OHCHR country office, and highlights the role and needs of civil society, is an improvement on 2018, significant challenges remain. Ensuring accountability for the perpetrators of grave human rights and humanitarian law violations should be a central priority for the new Government, and the Council should assist in this regard.
We regret the lack of Council action on Kashmir and urge the Council, as well as India and Pakistan, to act on all the recommendations in the report of the UN High Commissioner for Human Rights.
On terrorism and human rights, we are deeply disappointed that Mexico and other States have partially acquiesced in attempts by Egypt to dilute or distract the work of the Special Rapporteur on counter-terrorism away from its appropriate focus on human rights violations while countering terrorism and human rights of victims of terrorism. We regret that States have asked the Special Rapporteur to spend the limited time and resources of the mandate, to comment on the overbroad concept of the “effects” of terrorism, by which Egypt and some other States seem primarily to mean macroeconomic, industrial, and investment impacts, rather than the human rights of individual victims. The length to which States seem willing to put the existing Special Rapporteur’s mandate at risk, in the name of protecting it, while failing even to incorporate stronger consensus text on human rights issues included in the most recent merged parallel resolution at the General Assembly, suggests that the merger of the previous Mexican and Egyptian thematic resolutions no longer holds any real promise of positive results for human rights.
We welcome the adoption of the resolution on the question of the death penalty, which is an important reflection of the movement towards the international abolition of this cruel punishment. Significantly, this resolution reiterates and affirms the position of international law that the abolition of the death penalty is an irrevocable commitment and that an absolute prohibition exists to guard against its reintroduction. We also welcome the acknowledgement of the ‘most serious crimes’ threshold that acts to restrict the death penalty, in States that have yet to abolish it, only to crimes of extreme gravity; this resolution plainly identifies that criminal conduct that does not result directly and intentionally in death can never meet the threshold test and can never serve as a basis for the use of the death penalty. We are very pleased to acknowledge that the adoption of this resolution is complimentary to the General Assembly’s resolution calling for an international moratorium on the death penalty and, together, they serve to illustrate the advancing global commitment to abolition.
We welcome the Council’s renewed attention to the protection of the right to privacy in the digital age: fully integrating human rights into the design, development and deployment of Artificial Intelligence, machine learning technologies, automated decision-making, and biometric systems, is essential to safeguard not only the right to privacy, but also to freedom of expression, peaceful assembly, and association, and economic social and cultural rights.
On human rights in the administration of justice, we welcome the focus in this year’s resolution on concrete measures to prevent and respond to violence, death and serious injury in situations of deprivation of liberty, which illustrates the potential of thematic resolutions to set out specific practical, legal and policy steps that can be drawn on by governments, civil society, and other stakeholders to have real positive impact at the national level.
We commend Australia for its leadership on Saudi Arabia, as well as the other States who stood up for women’s rights activists and accountability. We urge more States to live up to their commitment to defend civil society and sign the statement in the coming 2 weeks.
We appreciate the attention paid by individual governments to the situation in China, including the dire situation facing Uyghurs and other Turkic Muslims; the crackdown on human rights defenders, including those working to draw attention to violations of economic, social and cultural rights; and the suppression of fundamental freedoms in Tibet. However, we deplore that the Council and many of its members have once again failed to take decisive action to ensure monitoring and reporting on the human rights situation in the country, especially Xinjiang, and press for access for the High Commissioner.
For five years since the last joint statement in March 2014, the Council has failed to hold Egypt accountable for continuing systematic and widespread gross human rights violations. In the latest crackdown on peaceful protests, reports indicate that more than 2000 people have been arrested in the past week. When will the Council break its silence and convene a Special Session to address the grave and deteriorating human rights situation in Egypt?”
Signatories:
- International Service for Human Rights (ISHR)
- DefendDefenders (the East and Horn of Africa Human Rights Defenders Project)
- Commonwealth Human Rights Initiative (CHRI)
- CIVICUS: World Alliance for Citizen Participation
- Cairo Institute for Human Rights Studies
- Asian Legal Resource Centre
- Asian Forum for Human Rights and Development (FORUM-ASIA)
- International Commission of Jurists (ICJ)
- Amnesty International
- Association for Progressive Communications (APC)
- Human Rights Watch
- International Federation for Human Rights (FIDH)
Sep 17, 2019 | Advocacy
The ICJ welcomes the final report of the FFM (Independent International Fact Finding Mission).
Having monitored justice and human rights in Myanmar for over 50 years, the ICJ has an established presence in the country, and supports justice sector actors to implement reforms necessary to protect human rights through the rule of law.
With this experience, the ICJ concurs with conclusions of the FFM and the Special Rapporteur: particularly those highlighting the pervasive damage of unchecked military power and impunity on human rights, the rule of law, and development of an inclusive democratic society.
Myanmar’s Government has failed to fulfill international law obligations to investigate, prosecute and punish perpetrators of rights violations. In this context, the launch of an IIMM (Independent Investigative Mechanism for Myanmar) is necessary, and welcome. Myanmar should cooperate with the Mechanism, whose files may enable future prosecutions of individual criminals.
But this Mechanism is not a court: all States, particularly Myanmar, must work toward holding criminal trials, in competent jurisdictions, inline with international standards – noting that prosecutions target criminals, not the country.
Other immediate opportunities for Myanmar to protect human rights include: amending the National Human Rights Commission Law to expand its mandate and independence; amending laws that facilitate impunity such as the 1959 Defence Services Act; enacting an anti-discrimination law; and reviewing the 1982 Citizenship Law. These legislative reforms are urgent and possible steps that are necessary to demonstrate if the Government is genuine about its international law obligations. Any constitutional reform must also expand rights protections.
As the FFM’s mandate is ending, the ICJ would like to ask the experts: how can States best monitor and implement your recommendations, particularly related to international criminal accountability?
See also:
ICJ, Achieving Justice for Gross Human Rights Violations in Myanmar, January 2018
Terms of Reference for the UN Independent International Mechanism for Myanmar (unofficial Burmese translation), 16 January 2019, available here.
Statement to the Human Rights Council by Mr. Nicholas Koumjian, Head of the Independent Investigative Mechanism for Myanmar (unofficial Burmese translation with accompanying English text), 9 September, available here.
Sep 8, 2019 | News
At a training event for senior prosecutors hosted by the Union Attorney General’s Office (UAGO) on 7 September 2019 in Yangon, Nay Pyi Taw, the ICJ made presentations on the international standards and legal obligation on unlawful killings.
Representing each of Myanmar’s 14 states and regions, some 30 law officers attended the activity, which was a capacity-building training hosted by the UAGO. This is part of the ICJ’s ongoing engagement with authorities in Myanmar as well as in neighboring countries on the Minnesota Protocol on the investigation of potentially unlawful death (the Minnesota Protocol).
The Minnesota Protocol provides guidance on the State’s implementation of its duty under international law to investigate potentially unlawful killings, including when State actors may have been involved. It applies to deaths under custody, suspicious deaths, and enforced disappearances. Myanmar has experienced widespread incidents of such deaths, including in recent years those constituting serious crimes under international law.
ICJ Associate Legal Adviser, Jenny Domino, introduced salient points of the Minnesota Protocol and shared relevant examples from experience promoting and protecting human rights in the Philippines. She highlighted the significance of the State’s duty to investigate potentially unlawful killings in upholding the right to life under international human rights law.
ICJ Legal Researcher, Ja Seng Ing, shared the case of Laotian activist Sombath Somphone, who was subjected to enforced disappearance on 15 December 2012 with the apparent consent or acquiescence of State agents. To date, Laotian authorities have failed to conduct effective investigations with a view to revealing the fate or whereabouts of Somphone. ICJ has repeatedly called for accountability on the issue.
Participants discussed these cases in relation to the comparative remedies and practical challenges related to the conduct of investigations in Myanmar, where police and prosecutors both have roles to play in the conduct of investigations.
First published in 1991 and subsequently revised in 2016 under the auspices of the United Nations Office of the High Commissioner for Human Rights, the Minnesota Protocol includes guidelines on conducting investigations to ensure that they are prompt; effective and thorough; impartial and independent; and transparent.
Since December 2017, the ICJ has co-hosted several regional workshops in Asia focused on this topic, with lawyers, academics, and State authorities from Thailand, Cambodia, Nepal, India, and Myanmar attending the events.
See also:
https://www.icj.org/thailand-launch-of-the-revised-minnesota-protocol/
https://www.icj.org/myanmar-reverse-laws-and-practices-that-perpetuate-military-impunity-new-icj-report/
Jul 3, 2019 | Advocacy, Non-legal submissions
The ICJ has joined other organisations in denouncing reprisals and interference against Special Procedures, independent experts appointed by the UN Human Rights Council to report on human rights.
The statement, delivered by Asian Forum for Human Rights and Development (Forum-ASIA) on behalf of a group of NGOs, read as follows:
“Our organisations are gravely concerned by the proliferation of reprisals against Special Procedures mandate holders and members of Expert Mechanisms and Commissions of Inquiry (COI) by States, including members of the Council, as well as threats against the Special Procedures system as a whole.
Special Procedures are the eyes and ears of the Council and ensure that this body’s work remains relevant and informed by the reality of human rights on the ground. Reprisals aim to discredit, intimidate, deter and silence these experts, and to prevent civil society from engaging with them.
We are alarmed by a pattern of reprisals and non-cooperation by Council-member, the Philippines. The government has threatened the Special Rapporteur on extrajudicial killings with physical violence on numerous occasions. It has made terrorism accusations against the Special Rapporteur on the rights of indigenous peoples.
Burundi and Eritrea are also engaged in patterns of reprisals, with the Special Rapporteur on Eritrea and members of the COI’s on both Burundi and Eritrea having been attacked on multiple occasions, at the Council, the GA or in the media. The Maldives has accused the Special Rapporteur on freedom of religion or belief of spreading anti-Islamic activities, resulting in death threats against him online. The Special Rapporteur on Myanmar has faced reprisals and has also experienced violent threats on social media.
We call on States to cooperate in good faith and end all reprisals against Special Procedures and those who cooperate with them. The President and States must act immediately in meetings when such reprisals occur. This Council must safeguard its Special Procedures from all efforts to undermine them through reprisals or other dangerous initiatives.”
The joint statement was on behalf of:
Article 19
Asian Forum for Human Rights and Development
Centro de Estudios Legales y Sociales
Cairo Institute for Human Rights Studies
CIVICUS: World Alliance for Citizen Participation
Commonwealth Human Rights Initiative
Concelho Indigenista Missionário CIMI
Conectas Direitos Humanos
DefendDefenders
Franciscans International
Human Rights Law Centre
International Commission of Jurists
International Federation for Human Rights Leagues (FIDH)
International Humanist and Ethical Union
International Service for Human Rights
World Movement Against Torture (OMCT)
Jun 25, 2019 | News
Myanmar’s 1982 Citizenship Law, which has fueled widespread discrimination against various ethnic minority groups, is irreconcilable with core rule of law principles and the State’s obligations under international human rights law, the ICJ said today in a briefing paper.
The briefing paper Citizenship Law and Human Rights in Myanmar: Why Law Reform is Urgent and Possible (available in English and Burmese) analyses the legal framework for citizenship in Myanmar, and assesses certain provisions of the 2008 Constitution relevant to citizenship as well as the 1982 Citizenship Law.
This law embedded the current narrow definition of citizenship, which generally links citizenship acquisition to membership of a prescribed “national race.”
The resulting system enables and legitimizes discrimination against various groups, particularly against persons of South Asian or Chinese descent, members of whole ethnic groups, such as the Rohingya, and also the children of single mothers.
“Enacted by unelected military governments, Myanmar’s citizenship laws fuel widespread discrimination throughout the country,” said Sean Bain, Legal Adviser for the ICJ.
“The government must act immediately to dismantle this discriminatory system and to protect in law the human rights of all persons,” he added.
The intentionally discriminatory character of this law, and its equally discriminatory implementation, largely explain why many long-term residents of Myanmar lack a legal identity (more than 25 percent of persons enumerated in the 2014 Census).
The ICJ recommends three immediately achievable, concrete areas of law reform to the Government: 1) legislative reform, including most urgently of the 1982 Citizenship Law and the Child Rights Bill now being considered by the parliament; 2) Constitutional reform, to protect the right of citizens to full political participation; and 3) to institute interim measures to address discrimination on the basis of race or ethnicity.
A review of the 1982 Law was recommended in 2017 by the Government’s advisory commission chaired by the late United Nations Secretary-General Mr Kofi Annan, but the Government has not yet demonstrated any tangible progress on this.
“The government has the means at hand to get rid of this discriminatory system, which has undermined the rule of law and blocked the development of a pluralistic democracy. The government can and must implement the recommendations of its own advisory commission. The pervasiveness of discrimination cannot continue to go unaddressed, and there are no reasonable legal grounds for further delay in initiating pathways to reform,” Bain said.
UN Member States, as well as International Finance Institutions and UN agencies, must also ensure that assistance to the Government of Myanmar enables necessary reforms, and does not, in any way, entrench the existing discriminatory system.
Coinciding with the launch of this report, yesterday the ICJ hosted an event in Yangon where a panel of Myanmar legal scholars and researchers discussed the impact of current legal arrangements for citizenship on human rights, and why law reform is both urgent and possible. Representatives including from diplomatic missions, UN agencies, the Myanmar National Human Rights Commission, a multilateral donor and Non-Government Organizations attended the event.
Background
“Citizenship” is a legal concept describing an individual’s relationship to the State. In contrast, “statelessness” is when somebody does not have citizenship of any State. Terms such as “nationality,” “race” or “ethnicity” are generally culturally embedded concepts, understood differently by different people and in different contexts.
In many countries, particularly those with diverse populations, the right to citizenship is defined broadly to include persons with different ethnicities and even nationalities. In post-independence Myanmar, the concept of being a “national” or “indigenous” had a generally broad definition, allowing persons of different backgrounds to become citizens, including but not limited to the descendants of persons who had immigrated to Myanmar.
The 1982 Citizenship Law embedded in legislation the concept of “national races,” and introduced a hierarchy of citizenship categories that effectively institutes first-class and second-class citizens. Under this system, many life-long residents of Myanmar have effectively been rendered stateless, including members of entire ethnic groups, and children of mixed ancestry.
This discriminatory system has fostered an environment where crimes against humanity have taken place with absolute impunity.
Although section 347 of Myanmar’s 2008 Constitution guarantees “any person to enjoy equal rights” and protections before the law, other constitutional provisions restrict “fundamental rights” to citizens, including the rights to health and to education. Even for citizens, political rights are limited if a parent, child or spouse is not a citizen of Myanmar – the most infamous example of this is Daw Aung San Suu Kyi, who is constitutionally barred from the Presidency because her sons are foreign citizens.
The formation in February of this year of a Constitutional Amendment Committee also presents opportunities to expand the narrow definition of “fundamental rights,” to ensure their compliance with the constitutional guarantee of equality and protection before the law for “any person” (section 347), and with the State’s international human rights law obligations.
The Child Rights Bill, currently under consideration by the parliament, also offers opportunities to ensure that Myanmar’s laws comply with its treaty obligations, for example, under the UN Convention on the Rights of the Child, including with respect to the right of a child to acquire a nationality (citizenship), and the State’s related obligation to prevent statelessness.
See also
ICJ convenes workshop on reforming 1982 Citizenship law
ICJ materials on human rights law in Myanmar
Download
Myanmar-Citizenship law reform-Advocacy-Analysis Brief-2019-ENG (full report in English)
Myanmar-Citizenship law reform-Advocacy-Analysis Brief-2019-BUR (full report in Burmese)
Myanmar-Citizenship law reform-News-web story-2019-BUR (full story in Burmese)
Contact
Sean Bain, ICJ Legal Adviser, sean.bain(a)icj.org
