Oct 4, 2019 | Advocacy, News
Reform of the 1959 Defence Services Act is a necessary step to address ongoing military impunity. The case of Ko Par Gyi’s killing should be reopened to satisfy the State’s international law obligations and deter repetition of serious crimes by soldiers.
Five years after the death of journalist Ko Par Gyi, the ICJ calls on the Government of Myanmar to reform the 1959 Defence Services Act, which was used to shield soldiers from accountability for involvement in his killing.
“The case is emblematic of the 1959 Defence Services Act being used to enable impunity for human rights violations by soldiers throughout Myanmar, by transferring to military courts the authority to investigate and prosecute serious crimes against civilians,” said Frederick Rawski, Asia Pacific Region Director for the ICJ.
“Impunity for Ko Par Gyi’s death is another example of this law being used to shield soldiers from accountability for serious crimes,” added Rawski. “Legislators should reform the 1959 law to enable the public criminal prosecution of soldiers for serious crimes in all circumstances, and take other steps to address the accountability gap.”
After being detained by police in Mon State and transferred into military detention on 30 September 2014, Ko Par Gyi died four days later in the custody of Tatmadaw soldiers. Unceremoniously buried in a shallow grave, Ko Par Gyi’s death was hidden from his family and the public for weeks. Nobody has been held accountable for his death and his family lacks access to redress, including their right to know the truth.
A deeply flawed inquiry carried out secretly in military courts, pursuant to the 1959 Act, resulted in the acquittal of the soldiers allegedly involved. This effectively ended other efforts to hold the perpetrators accountable, including through an inquest at the Kyaikmaraw Township Court in Mon State. It also flouted the Myanmar National Human Rights Commission’s recommendation for a police investigation and public criminal trial to be undertaken by civilian authorities.
“Five years on, Myanmar authorities must finally initiate a thorough, independent and impartial investigation into the killing of journalist Ko Par Gyi,” said Sean Bain, legal adviser for the ICJ. “The truth must be established and recognized, and those responsible for his apparently unlawful killing need to be brought to justice in fair trials,” he added.
Several provisions of the 1959 Act are used to facilitate a transfer of cases involving military personnel from civilian to military courts, including for serious crimes against civilians. This has been used as a tool to avoid accountability in cases throughout Myanmar, such as its use to justify the early release of soldiers who were convicted by a military court in the killing of ten Rohingya civilians in Rakhine State in 2017.
International legal standards prohibit the use of military courts to try military personnel for gross human rights violations and crimes under international law. The detention and prosecution of journalists, based solely on their lawful activities undertaken while doing their job, violates the right to freedom of expression, and the rights to seek, receive and impart information and to participate in public affairs.
Myanmar authorities have an obligation to reopen the case of Ko Par Gyi with a view to establishing the circumstances of his death, as with any potentially unlawful killing by either State or non-State actors.
“By empowering civilian courts to oversee such cases, the NLD Government would send a powerful message to all justice sector institutions, including police, prosecutors and judges, that they can and should review potential crimes involving the military with independence and impartiality, in line with the rule of law,” added Bain.
The National League for Democracy (NLD)-led Government has the legislative authority to immediately reform the 1959 Act to align it with international standards. The ICJ has called for reform of this law, including by allowing the prosecution of soldiers for serious crimes to be undertaken under the jurisdiction of civilian courts.
See also:
ICJ, “The investigation and prosecution of potentially unlawful death: ICJ Practitioners’ Guide no. 14,” 14 September 2019, available here.
ICJ, “Achieving Justice for Gross Human Rights Violations in Myanmar – a baseline study,” 16 January 2018, available here.
Contact
Sean Bain, ICJ legal adviser, e: sean.bain(a)icj.org
Full statement with additional information, in English: Myanmar-Ko Par Gyi killing-Press-Releases-2019-ENG (PDF)
Full statement, in Burmese: Myanmar-Ko Par Gyi killing-Press-Releases-2019-BUR (PDF)
Oct 3, 2019 | News
From 1 to 3 October, the ICJ and the Lesotho National Federation of Organizations of the Disabled (Lnfod), an umbrella body of organizations for persons with disabilities, held a judicial training in Lesotho on the rights and access just to persons with disabilities.
The workshop was attended by judges, magistrates, disability law and policy experts, Lnfod and ICJ legal advisers and ICJ Commissioner Justice Charles Mkandawire.
At the workshop, the ICJ Legal Adviser Associate Nokhukanya Farise discussed on the UN international legal framework on access to justice for persons with disabilities at both the universal and regional levels. In this regard, the ICJ highlighted provisions related to access to justice of the International Convention on the Rights of Persons with Disabilities (CRPD), as well as the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa.
These instruments provide for a substantive right to access to justice for persons with disabilities under article 13.
In addition, they expand on the rights to non-discrimination and equality of persons with disabilities, as well as their right to equality and access to the physical environment, facilities, services and infrastructure required under article 9 of the CRPD.
Justice Charles Mkandawire of the High Court of Malawi and ICJ Commissioner, who attended the workshop and facilitated a session on the role of the judiciary, said: “The judiciary should be functional independently of the executive and legislature, and the relationship between all three should be characterised by mutual respect. The judiciary should also be impartial and independent to prevent the abuse of power.”
Lnfod has been actively working to secure access to justice for persons with disabilities in the criminal justice system of Lesotho. In the workshop, independent law and policy expert Dianah Msipa discussed the case of Koali Moshoeshoe and Others v DPP and Others, where Lnfod successfully challenged the constitutionality of Section 219 of the Criminal Procedure & Evidence Act No.9 of 1981 in the High Court (Constitutional Division).
That provides that persons with intellectual/psychosocial disabilities are not competent witnesses, denying them equal access to justice.
Lnfod explained the Court’s ruling that the legal barrier violated the right to equality before the law and was discriminatory on the basis of disability. It also disproportionately affected women and girls with intellectual and psychosocial disabilities as this rendered them vulnerable sexual abuse.
Lnfod indicated it hoped that the Koali Moshoeshoe case would act as a reformative judicial precedent which will be disseminated and implemented by the courts of law across the country.
“The shift towards the realization of the right to legal capacity for persons with intellectual/psychosocial presents a remarkable opportunity towards overall enjoyment of all the rights provided for in the United Nations Convention on the Rights of Persons with Disabilities on an equal basis with others,” Lnfod said in a statement delivered before the workshop.
At the workshop, independent disability law and policy expert Dianah Msipa explored the issues of understanding disability, the rights of access to justice for persons with disabilities, barriers to effective participation in the criminal justice system, and the use of accommodations in access to justice.
“The training was well-received by all the delegates and I am encouraged by the word of the delegates who stated that they would start providing accommodations to persons with disabilities,” Dianah Msipa said.
Contact:
Khanyo Farise, e: Nokukhanya.Farise@icj.org
Oct 1, 2019 | News
Today, the ICJ published a Turkish translation of Practitioners’ Guide N°2 on the Right to a Remedy and Reparation for Gross Human Rights Violations.
The translation has been funded by the European Instrument for Democracy and Human Rights (EIDHR).
Under its Global Redress and Accountability Initiative, the ICJ had launched its 2018 update to Practitioners’ Guide No 2, outlining the international legal principles governing the right to a remedy and reparation for victims of gross human rights violations and abuses by compiling international jurisprudence on the issues of reparations.
The Guide is aimed at practitioners who may find it useful to have international sources at hand for their legal, advocacy, social or other work.
Amongst revisions to the Guide, the 2018 update includes new sections on terminology and on non-discrimination;updated sections on the notions of ‘collective victims’, ‘collective rights’, the rights of ‘groups of individuals’; additional references to the work of the Committeeon the Elimination of Discrimination against Women and the Committee on the Rights of the Child; an updated section on remedies for unlawful detention, including references to the 2015 UN Basic Principles and Guidelines on Habeas Corpus; and updates on gender-based violence and on violations occurring in the context of business activities.
The Guide first recalls the States’ general duty to respect, protect, ensure and promote human rights, particularly the general duty of the State and the general consequences flowing from gross human rights violations (Chapter 1).
It then defines who is entitled to reparation: victims are, of course, the first beneficiaries of reparations, but other persons also have a right to reparation under certain circumstances (Chapter 2).
The Guide goes on to address the right to an effective remedy, the right to a prompt, thorough, independent and impartial investigation and the right to truth (Chapters 3-4).
It then addresses the consequences of gross human rights violations, i.e. the duty of the State to cease the violation if it is ongoing and to guarantee that no further violations will be committed (Chapter 6). It continues by describing the different aspects of the right to reparation, i.e. the right to restitution, compensation, rehabilitation and satisfaction (Chapter 7).
While the duty to prosecute and punish perpetrators of human rights violations is not necessarily part of the reparation as such, it is so closely linked to the victim’s right to redress and justice that it must be addressed in this Guide (Chapter 8).
Frequent factors of impunity, such as trials in military tribunals, amnesties or comparable measures and statutes of limitations for crimes under international law are also discussed (Chapter 9).
The guide in Turkish is available here.
This document has been produced with the financial assistance of the European Union. The contents of this document are the sole responsibility of the ICJ and can under no circumstances be regarded as reflecting the position of the European Union.
Sep 30, 2019 | Agendas, Events, Uncategorized
Today, in the framework of the EU funded project “Enhancing legal protection of migrants rights in Kazakhstan”, the Legal and Policy Resource Center (LPRC) and the ICJ began a series of three trainings linked to this issue for lawyers and civil society organizations.
Three two-day trainings on “International and national Law on the protection of migrants in legal practice” will take place from 30 September to 5 October in Nur-Sultan, Shymkent and Almaty.
The trainings will address international and national law and standards relevant to the protection of the rights of migrants, including in situations of expulsion and detention, as well as with regard to the respect, protection and fulfilment of their economic, social and cultural rights.
During the trainings, 100 attorneys and lawyers of non-governmental organizations from 10 regions of Kazakhstan will be trained.
Kazakhstan-Training-Agenda-MigrationIHRL-NurSultan-2019-engrus (download the agenda of the Nur Sultan training in Russian and English)
Kazakhstan-Training-Agenda-MigrationIHRL-Shymkent-2019-engrus (download the agenda of the Shymkent training in Russian and English)
Kazakhstan-Training-Agenda-MigrationIHRL-Almaty-2019-engrus (download the agenda of the Almaty training in Russian and English)
Sep 30, 2019 | Advocacy, News, Publications
The ICJ today published a “Strategic Litigation Handbook for Myanmar.” In this, the ICJ seeks to offer an accessible, concise and substantial overview of the conceptual basis and purpose of strategic litigation.
The Handbook shows the potential impacts of strategic litigation in Myanmar, by drawing on experiences from Myanmar and other countries, while recognizing the related challenges and opportunities, as expressed by legal professionals and civil society actors. It is intended to be useful to all legal practitioners and community activists in Myanmar.
While there is no universal definition or conception of ‘strategic litigation,’ the term is typically used to describe litigation whereby the interests may go beyond those of the primary litigants. The various adjudication processes it entails are sometimes referred to as ‘public interest litigation’, ‘impact litigation’, ‘test case litigation’, or ‘community lawyering’. What they all have in common is the idea that courts and the law can be used as part of a campaign to achieve broader change in relation to matters seen to be in the broader public interest.
Part one of the Handbook explores core aspects of strategic litigation, including its origins, key concepts, potential impacts, challenges and forums. In part two, areas of law are identified which offer potential options for strategic litigation actions, including procedures, legislation and constitutional writs. Practical steps for the planning and application of strategic litigation, such as media strategy and case selection, are outlined in part three. Finally, part four of the Handbook discusses related challenges in the Myanmar context, including a discussion of requisite reforms required in the justice sector more broadly.
The Handbook (first edition) is published in Burmese and English.
