Sep 27, 2018 | News
Today’s decision by the UN Human Rights Council to create an ‘independent mechanism’ to collect evidence of crimes in Myanmar, is a significant step toward accountability for gross human rights violations, the ICJ said.
“The creation of this evidence-gathering mechanism is a welcome concrete step towards justice,” said Matt Pollard, Senior Legal Adviser for the ICJ.
“But this is a stopgap measure, effectively creating a prosecutor without a court, that only underscores the urgent need for the Security Council to refer the entire situation to the International Criminal Court, which was created for precisely such circumstances,” he added.
The Council’s decision follows on conclusions and recommendations by the Independent International Fact-Finding Mission on Myanmar (FFM).
The FFM’s 444-page full report described large-scale patterns of grave human rights violations against minority groups in the country, particularly in Rakhine, Kachin and Shan States.
It also highlighted the need for criminal investigations and prosecutions for crimes under international law, something the FFM concluded that national courts and commissions within Myanmar could not deliver.
“National justice institutions within Myanmar lack the independence, capacity and often also the will to hold perpetrators of human rights violations to account, particularly when members of security forces are involved. The latest government-established inquiry in Rakhine State also seems designed to deter and delay justice,” Pollard said.
The Human Rights Council resolution did not create a new international court or tribunal.
Evidence held by the independent mechanism could be made available to international or national proceedings, whether at the International Criminal Court (ICC) or another ad hoc international tribunal, or to national prosecutors asserting jurisdiction over the crimes under universal jurisdiction or other grounds.
While there is no realistic prospect of effective national prosecutions within Myanmar in the near future, evidence held by the mechanism could also be available in future should national institutions eventually become sufficiently impartial, independent, competent, and capable to do so.
A preliminary examination of the situation of Rohingyas, being conducted by the ICC, may also lead to criminal proceedings but will likely be limited to those crimes that have partially occurred within Bangladesh, such as the crime against humanity of deportation.
Bangladesh is a State Party to the Rome Statute of the ICC whilst Myanmar is not.
The Security Council also has authority to refer the entire situation to the International Criminal Court.
“The Myanmar government should stop denying the truth and should work with the international community, and particularly the United Nations, to improve the horrific conditions facing the Rohingya and other ethnic minorities whose rights have been violated so brutally by the security forces, as documented by the Fact Finding Mission,” Pollard said.
“Myanmar’s international partners, including neighbours like India, China, and members of the Association of Southeast Asian Nations (ASEAN), should exercise their influence to help ensure that Myanmar addresses this serious threat to the stability of the country and the region, by ensuring respect, protection and fulfillment of the full range of civil, cultural, economic, political and social rights of the affected minorities,” he added.
The Council resolution makes several other substantive recommendations, including a call on the Government of Myanmar to review the 1982 Citizenship Law, and a recommendation for the United Nations to conduct an inquiry into its involvement in Myanmar since 2011.
Contact:
Matt Pollard, ICJ Senior Legal Adviser (Geneva), e: matt.pollard@icj.org, +41 79 246 54 75.
Frederick Rawski, ICJ Asia Pacific Regional Director (Bangkok), e: frederick.rawski@icj.org
Read also:
Why an IIIM and Security Council referral are needed despite the ICC ruling relating to Bangladesh (13 September 2018)
Government’s Commission of Inquiry cannot deliver justice or accountability (7 September 2018)
ICJ releases Q & A on crime of genocide (27 August 2018)
Myanmar: reverse laws and practices that perpetuate military impunity (16 January 2018)
Summary report of the Fact Finding Mission (12 September 2018)
Full report of the Fact Finding Mission (published 18 September 2018)
Text of the Resolution (unofficial version tabled in advance of the vote)
Myanmar-IIIM statement-Advocacy-2018-BUR (Full story in Burmese)
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 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 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.
Sep 3, 2018 | News
The ICJ held a workshop on reforming Myanmar’s 1982 citizenship law in Yangon from 1 to 2 September 2018.
The workshop convened a group of international and national legal experts, human rights defenders, political scientist, academics and researchers to jointly consider the way forward to identify creative legal and non-legal advocacy approaches for reforming Myanmar’s 1982 Citizenship Law.
The ICJ, UN organs and civil society organizations, through research and legal analysis, have consistently found this law to be discriminatory both in its content and application.
Unlike many other laws promulgated during the military junta era of General Ne Win, this law remains in force. Its tiered hierarchy of citizenship has effectively rendered many individuals as second- or third-class citizens, or in some instances stateless.
In August 2017, the government’s own Advisory Commission on Rakhine State, chaired by the late Kofi Annan, recommended a review of the Citizenship Law. The recommendation was accepted by the Government of Myanmar in principle, but in practice this commitment has not been followed up by any implementing measures.
The workshop’s participants included academics, researchers, human rights defenders, political scientist, legal and non-legal experts of different ethnic and religious backgrounds from a range of organizations from the U.K, Spain, Australia, Kachin, Chin, Mandalay, Rakhine, and Yangon.
The ICJ’s legal adviser, Sean Bain, introduced the workshop by noting that legal recognition of nationality is central to the enjoyment of many human rights.
Noting that protecting the right to nationality is an essential part of the rule of law in any democratic society, he highlighted that too often it is members of minority groups who experience a violation of their human rights due to discriminatory laws and their application with regards to citizenship.
The ICJ’s legal researcher Dr. Ja Seng Ing presented the overview and assessment of the Citizenship Law, including problematic provisions and key institutional actors with authority in Myanmar.
Amal de Chickera, a Sri Lankan Human Rights lawyer and Co-Director of Institute on Statelessness and Inclusion, delivered an introduction on the International law and comparative studies and the approaches and strategies for law reform from international perspectives.
José María Arraiza, Information, Counselling and Legal Assistance Specialist, Norwegian Refugee Council, spoke about a number of approaches and strategies for legal reform, including imperative role of collective identities, inclusive dialogue and evidence based advocacy strategies with comparative international experiences.
Michelle Yesudas, a Malaysian Human Rights lawyer, shared good practices and lesson learned from application of strategic litigation in citizenship related cases in Malaysian context to raise the awareness of the public and also discussed potential strategies for pushing the legislative reform and enforcement of the law in Myanmar.
The ICJ’s legal adviser Daw Hnin Win Aung, facilitated a panel discussion where the Senior legal scholars and researchers from Myanmar also provided their perspectives, based on their own independent research and writing on the legal and non-legal opportunities and challenges for law reform in Myanmar.
Advocate lawyer, Daw Zar Li Aye highlighted the legal consequences of mixed-nationality marriage in Myanmar, for instance, the authorities used physical appearance of the children as a determining factor when considering provision of citizenship / documentation in practice.
The participants considered a wide range of issues relating to statelessness and citizenship in Myanmar with comparative case studies, including the varying approaches for law reform across the region to improve understanding of the advocacy target groups on the issue and potentially inform public policy.
The participants also recognized the importance of multidisciplinary approaches, including strategic litigation in citizenship related cases, for developing advocacy strategies for law reform and to increase knowledge and understanding of the general public on the issue.
This event is part of the ICJ’s ongoing efforts to convene civil society actors including lawyers to discuss critical human rights issues in Myanmar with a view to advancing the protection of human rights in the country.
