Jan 16, 2018 | News, Publications, Reports, Thematic reports
Myanmar’s government must take concrete action to counteract decades of military impunity for human rights violations, the ICJ concluded in a report published today.
The report Achieving Justice for Gross Human Rights Violations in Myanmar finds that gross human rights violations in Myanmar rarely go punished, particularly in conflict areas.
Justice remains elusive for victims and their families as a result of laws, institutions and investigative practices that protect members of security forces from prosecution, the ICJ says.
“Decades of denial of justice for victims of gross human rights violations in Myanmar, and impunity for the perpetrators, particularly when involving the military, have severely eroded the rule of law,” said Sam Zarifi, the ICJ’s Secretary General.
“The Myanmar government must now take concrete steps to combat impunity, especially for the military,” he added.
The release of the ICJ’s report follows last week’s statement from the Office of the Commander in Chief of the Tatmadaw, Myanmar’s military, acknowledging that security forces had participated in the killing of ten Rohingya Muslims in Rakhine State’s Inn Dinn Village.
It is the Tatmadaw’s first admission of serious crimes perpetrated by security forces during its ‘clearance operations’, which have resulted in mass displacement and human rights violations, following attacks on police posts by the Arakan Rohingya Salvation Army on 25 August 2017.
Military and security personnel in Myanmar seldom face justice for human rights violations, because they are protected by legal provisions of the 2008 Constitution, the 1959 Defence Services Act and the 1995 Police Force Maintenance of Discipline Law, which include immunities and special courts that shield soldiers, police and officials from public criminal prosecutions for serious crimes, the ICJ notes.
The ICJ’s report finds that investigations into allegations of rights violations rarely result in effective prosecutions or redress.
Eight case studies – from Kachin, Karen, Mon and Rakhine states – illustrate how victims and their families, as well as journalists and human rights defenders, lack access to justice and are even harassed for seeking it.
“Admission of culpability for this one incident is an important first step and must be followed by a full and proper investigation, and justice for the victims and their families,” said Zarifi.
“The dire human rights situation in northern Rakhine State, and in conflict areas such as in Shan and Kachin states, necessitates credible, independent and impartial investigations with a view to publicly prosecute those responsible for unlawful acts and their commissioning.”
“Options available to the parliament and to the executive include addressing barriers to accountability, by reforming laws that protect security forces involved in serious crimes, and by aligning investigative procedures with international standards,” he added.
Contact
Alex Conte, ICJ Global Accountability Coordinator (Geneva), t: +41 79 957 2733; e: alex.conte(a)icj.org
Frederick Rawski, ICJ Asia Pacific Regional Director (Bangkok), t: +66 6 4478 1121 ; e: frederick.rawski(a)icj.org
Background
Special inquiries commissioned by the Government of Myanmar into allegations of human rights violations generally fail the test of independence and impartiality, or are severely undermined by inadequate resources and or restricted mandates.
These inquiries rarely result in effective prosecutions or access to remedies and reparation.
Members of security forces, when prosecuted, usually appear in military or special police courts, which generally impose low or meaningless sanctions that are wholly inconsistent with penalties applicable in Myanmar’s Penal Code.
Laws governing military and police acts are inadequate for the victims of human rights violations because they do not contemplate the provision of remedies and reparation.
There is very limited precedent or established practice for the provision of effective remedies or reparation for victims of criminal acts in Myanmar, particularly when such crimes involve human rights violations by State actors.
Wittingly or unwittingly, relevant authorities routinely violate national laws that prescribe procedures for the conduct of criminal investigations and prosecutions, particularly in politically sensitive cases involving human rights violations.
Violations of basic fair trial rights, included in national laws, are commonplace.
State authorities continue to exert improper influence on politically-sensitive court cases including those involving allegations of gross human rights violations.
Courts tend to not intervene where human rights violations are occurring nor do they guarantee non-repetition where they have occurred.
Prosecutors rarely, if ever, accept petitions from victims of gross human rights violations to initiate criminal proceedings.
The judicial harassment of victims of human rights violations is commonplace in Myanmar when victims, their families or lawyers seek remedies or reparation through the courts or other mechanisms.
Defamation and unlawful association are among the criminal charges commonly instituted by authorities, including against journalists investigating human rights violations or working in conflict areas.
Overall, Myanmar’s prosecutors lack the independence to effectively prosecute acts involving human rights violations.
Interference with and intimidation of lawyers, particularly in politically sensitive cases involving human rights violations, undermines their to effectively represent clients and to pursue effective remedies and reparations.
Download
Myanmar-GRA Baseline Study-Publications-Reports-Thematic reports-2018-ENG (full report in English)
Myanmar-GRA-Baseline Study-Publications-Reports-Thematic-reports-2018-BUR (full report in Burmese)
Myanmar-Accountability Baseline report-News-Press releases-2018-BUR (Burmese translation)
Read also
Questions & Answers on Human Rights Law in Rakhine State
Reuters journalists detained in Myanmar: respect their rights, end their incommunicado detention
Dec 20, 2017 | News
Legal Advisers from the International Commission of Jurists addressed a locally-initiated forum on human rights held in Yangon in December.
Participants who attended from across the country heard from more than twenty presenters and panelists, speaking on topics including: freedom of religion and belief; human rights in armed conflict; freedom of assembly and expression; and economic, social and cultural rights.
The ICJ’s International Legal Adviser Sean Bain joined a panel discussing ongoing human rights violations in areas of conflict and insecurity.
In November the ICJ published a report, “Questions and Answers on Human Rights Law in Rakhine State,” which lays out applicable national and international law in the human rights crisis there, and steps necessary to improve the situation.
Sean Bain emphasized that rights violations against Rohingya Muslims should also be examined with reference to the overall patterns of violations throughout the country, too often perpetrated by security forces with impunity against peoples of many ethnicities and religions, particularly in conflict areas.
On a panel discussion on religious freedom, Advocate Daw Zar Li Aye outlined relevant provisions in national and international law that protect freedom of religion and belief.
She noted, however, that in practice ambiguous and vague provisions of national laws have been applied in a discriminatory manner against members of minority groups.
Zar Li Aye also suggested that any legislative amendments incorporate clearly stated objectives to protect religious freedom, in line with the State’s international law obligations.
Many participants in the forum noted the emergence of a backlash against the language of human rights in recent months, linked to the crisis in northern Rakhine State.
Asked how human rights defenders in Myanmar may continue their work in this context, Sean Bain responded, “To be truly effective in protecting human rights for all we must stay true to our values and not accept violations against any people in any context.”
The ICJ’s involvement in this Forum is part of ongoing engagement with civil society groups in Myanmar.
Dec 18, 2017 | News
The ICJ today called on Myanmar authorities to immediately disclose the whereabouts of two journalists who have been detained incommunicado for nearly one week, and to grant prompt access to lawyers and families.
Reuters reporters Wa Lone and Kyaw Soe Oo have not been heard from since they were arrested by police in Yangon on Tuesday 12 December.
“Fair trial rights violations seriously undermine the rule of law in Myanmar. All detainees must be allowed prompt access to a lawyer and to family members,” said Frederick Rawski, the ICJ’s Asia-Pacific Regional Director.
“Authorities are bound to respect these rights in line with Myanmar law and the State’s international law obligations,” he added.
The right to legal counsel is a bedrock rule of law principle that is set out in a range of international human rights laws and standards, including in article 11 of the Universal Declaration of Human Rights.
Sean Bain, Legal Adviser for the ICJ, said that jurists should assess if the journalists’ detention conforms to applicable laws.
“Their situation appears to constitute arbitrary detention,” he said. “The judiciary should immediately review the lawfulness of detention and demand their release if it is indeed unlawful.”
“Judges and lawyers in Myanmar have an opportunity to assert their independence by challenging the unlawful actions of officials. Such blatant violations of fair trial rights should not go unanswered,” he added.
State media reports the journalists were charged under the 1923 Official Secrets Act in connection with their work investigating actions of security forces in Rakhine State.
More than 650,000 people, mostly Rohingya Muslims, fled to Bangladesh as a result of military operations following attacks on police posts in August by the Arakan Rohingya Salvation Army.
Reuters has reported from both sides of the Myanmar-Bangladesh Border.
“The treatment of these reporters threatens freedom of expression. The harsh penalties they face sends a clear message to other journalists that they could face the same consequences for doing their job,” said Rawski.
In Myanmar, colonial-era laws were invoked to bring criminal charges against journalists in at least three jurisdictions in 2017.
Offences in these laws are often broadly defined, carry harsh penalties, and are open to abuse by authorities.
Journalists who received ten-year jail terms in 2014 under the Official Secrets Act were later released in a Presidential amnesty.
Amendments proposed at the time in parliament were rejected.
“The abuse of archaic laws like the Official Secrets Act must end. It is within the power of the National League for Democracy-dominated legislature to review these laws with a view to aligning them with the rights reflected in Myanmar’s constitution and in international law,” Rawski added.
Contact
Frederick Rawski, ICJ Asia Pacific Regional Director, t: +66 6 4478 1121 ; e: frederick.rawski(a)icj.org
Sean Bain, ICJ International Legal Adviser, e: sean.bain(a)icj.org
Background
The UN Basic Principles on the Role of Lawyers emphasize that, “Governments shall further ensure that all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than 48 hours from the time of arrest or detention.”
Sections 19 and 375 of the Myanmar Constitution also guarantee the right of legal defense, as does Myanmar’s Code of Criminal Procedure (section 340), Courts Manual (section 455(1)), the Police Manual (section 1198c) and the Prisons Act (section 40).
Sections 21(c) and 376 of the Constitution and section 61 of the Code of Criminal Procedure state that persons cannot be detained for more than 24 hours without a judge’s order.
The right to legal defense implies the right to access legal counsel during this 24-hour period.
Under section 403 of the Courts Manual, a detainee can be remanded only once he or she has appeared before a judge. It is unknown if the two Reuters journalists have appeared in court.
Competent judges are empowered to compel a search for a detainee if they have reason to believe the person is confined unlawfully, as per section 100 of the Criminal Procedure Code.
Lawyers and family members may also request the courts to review the lawfulness of detention, by submitting a habeas corpus petition to the High Court and or to the Supreme Court.
The Tshwane Principles on National Security and the Right to Information, which address the right to access and to share information, as an aspect of freedom of expression in the context of national security, affirm that journalists “should not be prosecuted for receiving, possessing or disclosing classified information to the public, or for conspiracy or other crimes based on their seeking or accessing classified information.”
Read also
Handbook on Habeas Corpus in Myanmar
Right to Counsel: The Independence of Lawyers in Myanmar
Myanmar-Reuters Journos-News-Press releases-2017-BUR (Story in Burmese, PDF)
Dec 5, 2017 | Advocacy, Non-legal submissions
The ICJ today addressed an emergency Special Session of the UN Human Rights Council on Myanmar, outlining key requirements for the protection of the Rohingya minority, including safe and voluntary return of refugees.The Special Session is expected to adopt a resolution to address “The human rights situation of the minority Rohingya Muslim population and other minorities in the Rakhine State of Myanmar.”
The ICJ statement read as follows:
“It is encouraging that the Governments of Bangladesh and Myanmar have recognized the right of displaced Rohingya to return to their places of residence.
However, any provisions for return must comply with international law, including as regards non-refoulement. Effective guarantees that all displaced persons will be able to return to their place of prior residence in a safe, dignified, voluntary and sustainable manner, without discrimination, are essential.
Rohingya refugees must also be provided with alternatives to return, including the option of seeking international protection. Anything short of this would amount to their forcible return and thus violate the non-refoulement principle.
It is of the utmost urgency that the gross and systematic violations that have given rise to the forced displacement are immediately brought to an end and that measures are taken to prevent their recurrence, including by holding perpetrators responsible.
No-one may be forcibly returned to the current circumstances that prevail in Rakhine State, and voluntary returns will only ultimately take place if and when refugees are satisfied they are not returning to further violations in Myanmar.
Any provisions for restrictions on freedom of movement upon return are also of concern, particularly given past experience, with internment camps housing tens of thousands of Muslims displaced in 2012 still in place. Such restrictions elsewhere in Rakhine State contribute to violations of, among other things, the human rights to life, to health, to food, to education and to livelihoods.
To ensure that the rights of refugees are respected and protected, Bangladesh and Myanmar should immediately seek to ensure that UNHCR is involved, and its guidance followed, in any discussion of repatriation processes.
The Government of Myanmar must cooperate with the UN-mandated Fact Finding Mission to independently establish facts and provide a proper foundation for effective responses to human rights violations and humanitarian crises in Rakhine State, as well as in Shan and Kachin States, whose populations also face related patterns of human rights violations by military and security forces.”
The Council adopted a resolution at the end of the session, which reflects many of the concerns raised by the ICJ and others: A_HRC_S_27_L1
Nov 30, 2017 | News
The ICJ addressed representatives of over 400 civil society organizations from all 14 states and regions of Myanmar at the MATA Forum held in the township of Pyin Oo Lwin, close to Mandalay.
Hosted from 28 to 30 November by the Myanmar Alliance for Transparency and Accountability (MATA), the Forum featured seminars and discussions on the ‘The Role of Civil Society Organizations related to Democracy, Federalism, Human Rights and Natural Resource Governance.’
MATA facilitated presentations and discussions by a range of actors on these topics – including by Sean Bain, an International Legal Adviser from the ICJ.
The ICJ’s presentation began with a reflection about key legal concepts, noting the differences between ‘rule by law’ and ‘rule of law’ as understood in the Myanmar context.
MATA members helped facilitate discussion on the application of law in Myanmar, and on key rule of law principles of democracy, human rights, accountability, transparency and justice.
Participants in the Forum were presented with an overview of Myanmar’s laws governing land and investment, assessed in relation to the State’s international legal obligations to respect and to protect human rights.
In particular, Myanmar ratified the International Covenant on Economic, Social and Cultural Rights in October 2017 and its obligations under this treaty will enter into force on 6 January 2018.
It was noted that many national laws – including a proposed new Land Acquisition Bill – fall short on fulfilling the State’s international human rights law obligations.
There was also discussion about how applying the principle of non-discrimination in law and practice is critical for Myanmar’s NLD-led government to meet its international obligations and fulfill its stated commitment to rule of law.
Historical examples were given of legal regimes in South Africa and Australia that legalized discriminatory practices of apartheid and the dehumanization of indigenous peoples. The law must no longer be used in Myanmar as a justification for discrimination.
The ICJ’s involvement in this Forum is part of ongoing engagement with civil society groups in Myanmar.
