Sep 1, 2017 | News
Today the Supreme Court of Kenya took the unprecedented step of voiding the presidential elections held on 8 August 2017 citing the failure by the Independent Electoral and Boundaries Commission (IEBC) to adhere to constitutionally mandated processes.
The ICJ commends the Supreme Court of Kenya for adjudication of a sensitive case at a high professional standards amidst a charged political atmosphere.
The ICJ in partnership with the Africa Judges and Jurists Forum (AJJF) sent a mission of three distinguished judges to observe the proceedings during the presidential petition in Kenya.
The delegation consisted of Retired Chief Justice Earnest Sakala (Zambia), Justice Dingake (Botswana) and Justice Chinhengo (Zimbabwe).
The mission’s observations will be publicized in due course.
Kenya held national elections on 8 August 2017 administered by the IEBC.
The IEBC subsequently announced that Uhuru Kenyatta had won the elections with a 54% majority.
The opposition National Super Alliance Coalition led by Raila Odinga filed an election petition alleging serious irregularities in the tabulation and transmission of the results of the elections and asking the court to nullify the results and order fresh elections.
The Supreme Court heard the election petitition culminating in the decision that was handed down today.
According to the observers, the court conducted the hearing in a manner consistent with the rule of law and that adhered to the Kenyan Constitution and international principles of a fair trial.
The Court gave acted fully as a competent, independent and impartial judicial body.
“The decision taken by the Supreme Court today is precedent setting. It places a cost on the election management body for apparently failing to adhere to constitutional imperatives and the normative framework governing the conduct of elections,” said Arnold Tsunga, Africa Director of the ICJ.
“Elections are a high stakes subject in Kenya, as elsewhere in the world. Previous elections have shown that violence and multiple human rights violations increase during the election period. We therefore encourage the political leaders in Kenya to accept the court’s verdict and to encourage their supporters to exercise maximum restraint and tolerance as the country braces itself for fresh elections,” he added.
Finally the ICJ urges the authorities in Kenya and the IEBC to quickly comply with and implement the court’s judgement.
Contact
Arnold Tsunga, ICJ Director for Africa, t: +27716405926 ; e: arnold.tsunga@icj.org
Aug 29, 2017 | News, Publications, Reports, Thematic reports
South Asian states can only address the tens of thousands of cases of enforced disappearances by recognizing enforced disappearance as a serious crime in domestic law, said the ICJ today.
On the eve of the International Day of the Victims of Enforced Disappearances, the ICJ 58-page report No more ‘missing persons’: the criminalization of enforced disappearance in South Asia analyzes States’ obligations to ensure that enforced disappearance constitutes a distinct, autonomous crime under national law.
It also provides an overview of the practice of enforced disappearance, focusing specifically on the status of the criminalization of the practice, in five South Asian countries: India, Pakistan, Bangladesh, Sri Lanka and Nepal.
For each State, the report briefly examines the national context in which enforced disappearances are reported, the existing legal framework, the role of the courts; and the international commitments and responses to recommendations concerning criminalization.
“It is alarming that despite the region having some of the highest numbers of reported cases of disappearances in the world, enforced disappearance is not presently a distinct crime in any South Asian country,” said Frederick Rawski, ICJ’s Asia Director.
“This shows the lack of political will to hold perpetrators to account and complete apathy towards victims and their right to truth, justice and reparation,” he added.
In Nepal and Sri Lanka, draft legislation to criminalize enforced disappearance is under consideration.
Though the initiatives are welcome, the draft bills in both countries are flawed and require substantial improvements to meet international standards.
In the absence of a clear national legal framework specifically criminalizing enforced disappearance, unacknowledged detentions by law enforcement agencies are often treated by national authorities as “missing persons” cases.
On the rare occasions where criminal complaints are registered against alleged perpetrators, complainants are forced to categorize the crime as “abduction”, “kidnapping” or “unlawful confinement”.
These categories do not recognize the complexity and the particularly serious nature of enforced disappearance, and often do not provide for penalties commensurate to the gravity of the crime.
They also fail to recognize as victims relatives of the “disappeared” person and others suffering harm as a result of the enforced disappearance, as required under international law.
“Like torture and extrajudicial execution, enforced disappearance is a gross human rights violation and a crime under international law,” said Rawski.
“South Asian States must recognize that they have an obligation to criminalize the practice with penalties commensurate with the seriousness of the crime–filing “missing” person” complaints in cases of disappearance is not enough, and in fact, it trivializes the gravity of the crime,” he added.
Other barriers to bringing perpetrators to account are also similar across South Asian countries: military and intelligence agencies have extensive and unaccountable powers, including for arrest and detention, often in the name of “national security”; members of law enforcement and security forces enjoy broad legal immunities, shielding them from prosecution; and military courts have jurisdiction over crimes committed by members of the military, even where these crimes are human rights violations, and proceedings before such courts are compromised by their lack of independence and impartiality.
Victims’ groups, lawyers, and activists who work on enforced disappearance also face security risks including attacks, harassment, surveillance, and intimidation.
A comprehensive set of reforms, both in law and policy, is required to end the entrenched impunity for enforced disappearances in the region – criminalizing the practice would be a significant first step, said the ICJ.
Contacts:
Frederick Rawski (Bangkok), ICJ Asia Pacific Regional Director, e: frederick.rawski(a)icj.org
Reema Omer, ICJ International Legal Advisor (South Asia) t: +923214968434; e: reema.omer(a)icj.org
Thyagi Ruwanpathirana, ICJ National Legal Advisor (Sri Lanka), e: thyagi.ruwanpathirana(a)icj.org
Background
Under international law, an enforced disappearance is the arrest, abduction or detention by State agents, or by people acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the detention or by concealing the fate or whereabouts of the “disappeared” person which places the person outside the protection of the law.
The UN General Assembly has repeatedly described enforced disappearance as “an offence to human dignity”.
South Asia-Enforced Disappearance-Publications-Reports-Thematic Reports-2017-ENG (full report in PDF)
Aug 24, 2017 | News
On the one-year anniversary of the enactment of a law establishing the Office on Missing Persons (OMP), the ICJ called on the Sri Lankan Government to swiftly operationalize the Office.
The ICJ also urged the Government to set up other transitional justice mechanisms it committed to in the context of a key 2015 UN Human Rights Council resolution, without further delay.
On 23 August 2016, the OMP Act received the Speaker’s assent and became law. Even after one year, however, the Office has not been operationalized.
Organizations have reportedly made the claim that the President has unconstitutionally allocated the subject of the OMP to himself.
The Government’s failure to follow Constitutional provisions when setting up an important office such as the OMP, which has a permanent mandate to search and trace the whereabouts of “missing persons”, leaves the office exposed to future uncertainty- a move that affected communities can ill afford after a long and unjustifiable delay in setting up the OMP, the ICJ notes.
“The delay has already resulted in affected communities losing hope and faith in the Government’s transitional justice agenda, as is evident by continuous protests in the North,” said Frederick Rawski, ICJ’s Asia and Pacific Director.
The ICJ noted that in September 2015, the Government of Sri Lanka made a promise to the people of Sri Lanka and the international community, to initiate a process of reconciliation which “involves addressing the broad areas of truth seeking, justice, reparations and non-recurrence and for non-recurrence to become truly meaningful, the necessity of reaching a political settlement that addresses the grievances of the Tamil people”.
In the context of UN Human Rights Council resolution 30/1, adopted 1 October 2015, the Government of Sri Lanka made a commitment to establish four main transitional justice mechanisms, a Commission for Truth, Justice, Reconciliation and Non-recurrence, an Office on Missing Persons, an Office for Reparations and a Judicial Mechanism with a Special Counsel, amongst numerous other reforms.
Almost two years since these promises were made, only one mechanism, the OMP, has been established by law.
In March 2017, the need for implementation of these commitments related to reconciliation, accountability and human rights were reaffirmed, and a comprehensive report, followed by a discussion on the implementation of Council resolution 30/1, is due at the Human Rights Council’s 40th session in March 2019.
The Consultation Task Force on Reconciliation Mechanisms (CTF), a panel of 11 independent eminent persons appointed by Prime Minister Ranil Wickremesinghe, publicly released its final report on 3 January 2017.
The report already outlines structures and recommendations for the promised mechanisms based on country-wide consultations.
The ICJ called on the government of Sri Lanka to implement Task Force recommendations to deliver justice for victims of human rights abuse.
“The Government of Sri Lanka should make public its plans and drafts for the proposed mechanisms based on consultations, as well as a timeline for when it hopes to establish them, in order to stop further erosion of faith by the affected communities,” Rawski added.
In February, President Sirisena affirmed that he will prioritize Constitutional Reform over Transitional Justice-related reforms adding that there is a need to foster support for Transitional Justice amongst all communities.
The linkages between the two reform processes are many and one process cannot be seen independent of the other.
There is, however, very little progress on either front or a broad-based campaign to garner support for transitional justice, the ICJ said.
Two years into its tenure, the Government of Sri Lanka must take stock of its commitments and forge ahead with its reform agenda before the increasingly negative perception of the Government compromises the change it pledged and incumbency fatigue sets in, the ICJ added.
“The Government must act, and act now, to stop the disconnect between the hopes of affected communities and the lack of substantive progress of the transitional justice agenda from growing further, and deliver on its commitments before the opportunity for progressive reform is lost for good,” Rawski added.
Contact:
Frederick Rawski, ICJ’s Asia Pacific Regional Director (Bangkok), e: frederick.rawski(a)icj.org
Thyagi Ruwanpathirana, ICJ’s National Legal Advisor (Sri Lanka), e: thyagi.ruwanpathirana(a)icj.org
Aug 15, 2017 | Advocacy
Tep Vanny, one of Cambodia’s most prominent land activists and human rights defenders, will have spent one year in prison on 15 August for defending her community and exercising her human rights.
The ICJ and other human rights organizations condemn her arbitrary imprisonment and call for her convictions to be overturned, for all ongoing politically motivated and unsubstantiated charges against her to be dropped, and for her immediate release from prison.
Tep Vanny has fought tirelessly to protect the rights of members of the Boeung Kak Lake community, following their forced eviction from their homes in Phnom Penh.
More recently, she played a leading role in the so-called ‘Black Monday” campaign, challenging the arbitrary pre-trial detention of five human rights defenders, Lim Mony, Ny Sokha, Yi Soksan, Nay Vanda, and Ny Chakrya (the “Freethe5KH” detainees).
On 22 August 2016, following her arrest at a protest calling for the release of the five, she was convicted of ‘insulting of a public official’, and sentenced to six days in prison.
However, instead of releasing her based on time served, the authorities reactivated dormant charges dating back to a 2013 protest and kept her in detention.
“It is clear that the authorities are using the courts to lock me up, silence my freedom of expression and break my spirit,” said Tep Vanny. “They want to stop me from advocating and seeking a solution for the remaining people from Boeung Kak Lake as well as other campaigns to demand justice in our society.”
On 19 September 2016, Tep Vanny was sentenced, along with three other Boeung Kak Lake community activists, to six months imprisonment for “insulting and obstructing public officials” in a reactivated case related to a 2011 peaceful protest calling for a resolution to the Boeung Kak Lake land dispute, despite the absence of credible inculpatory evidence.
This conviction has since been upheld by the Court of Appeal on 27 February 2017.
On 23 February 2017, following proceedings which fell short of fair trial standards, Tep Vanny was convicted of “intentional violence with aggravating circumstances”, sentenced to a further 30 months in prison and fined more than 14 million riel (about US $3,500 – or twice the annual minimum wage in Cambodia) for having peacefully participated in protests calling for the release of her fellow activist Yorm Bopha, back in 2013.
While the #FreeThe5KH human rights defenders were released on bail on 29 June 2017, after having spent 427 days in arbitrary detention, Tep Vanny remains in prison.
She is currently on trial in a third reactivated case, facing charges of “public insult” and “death threats” brought by another member of the Boeung Kak Lake community, despite the complaint having been dropped by the community member.
On 8 August 2017, the Court of Appeal upheld her February 2017 conviction.
Cambodia-Joint Statement Tep Vanny-Advocacy-2017-ENG (full statement in English, PDF)
Cambodia-Joint Statement Tep Vanny-Advocacy-2017-KHM (full statement in Khmer, PDF)
Cambodia-Infographic TV Case Overview-Advocacy-2017-KHM (Infographic in Khmer, PDF)
Jul 30, 2017 | News
Indian authorities must ensure full compliance with the Supreme Court’s historic judgment directing independent investigations into alleged extrajudicial killings by the police and security forces in Manipur from 1979 to 2012, the ICJ said today.
The ICJ is calling for independent, impartial and thorough investigations into all cases, in line with international standards.
It is further calling on Indian authorities to ensure all accused are brought to justice in fair trials in ordinary civilian courts, and that the families of victims are accorded access to an effective remedy and reparation for any human rights violations.
“Through this judgment, the Indian Supreme Court has given fresh hopes to the victims of human rights violations in India who seek justice,” said Frederick Rawski, ICJ’s Asia Pacific Programme Director.
“This bold and principled decision should finally end the cynical attempts by Indian security forces and law enforcement agencies to shield themselves from criminal accountability,” he added.
On 14 July 2017, the Supreme Court ordered the Director of the Central Bureau of Investigations (CBI) to constitute a Special Investigation Team (SIT) within two weeks to go through the records of at least 85 cases of alleged extrajudicial killings that took place in Manipur between 1979 and 2012, lodge First Information Reports (FIRs), and complete investigations where required.
The Court also directed that the investigations must be completed by 31 December 2017.
The Court noted that the Manipur Police had not registered any FIR at the instance of the family members of the deceased.
It also held that the Manipur Police could not be expected to carry out impartial investigations as some of its own personnel were said to be involved in the “fake encounters”.
India has a legal obligation under Articles 2(3) and 6 of the International Covenant on Civil and Political Rights (ICCPR), to which it is party, to investigate allegations of violations of the right to life promptly, thoroughly and effectively through independent and impartial bodies and to ensure that those responsible are brought to justice.
On 27 July 2017, the CBI constituted a five-member Special Investigating Team in accordance with the Supreme Court’s directions.
“The CBI’s compliance with the Supreme Court’s directions through the prompt constitution of an investigation team is a welcome step,” added Rawski. “It must now ensure that investigations are thorough, independent, impartial and in line with international standards, including the ICCPR.”
The ICJ urged the State of Manipur and the Union of India to extend full cooperation and assistance to the Special Investigating Team to complete the investigations without any hurdles or delays.
Other allegations of human rights violations in the petition must also be investigated in line with international standards, the ICJ said.
Contact
Frederick Rawski, ICJ’s Asia Pacific Regional Director (Bangkok), e: frederick.rawski(a)icj.org
Background
Extrajudicial Execution Victim Families Association, Manipur (EEVFAM) and Human Rights Alert filed a petition in the Supreme Court of India in 2012, alleging that from 1979 to 2012 over 1,528 cases of fake “encounter killings” had taken place in Manipur.
They further alleged that the State government had not conducted proper investigations into the allegations of excessive use of force by the security forces and the police and requested the Court to constitute a special investigation team, comprising police officers from outside the state of Manipur, to conduct a probe into the alleged unlawful killings.
In July 2016, the Supreme Court emphasized the need for accountability for human rights violations by security forces, including under the Armed Forces Special Powers Act (AFSPA), and directed the petitioners to present detailed documentation in support of their allegations.
In April 2017, the Supreme Court dismissed the Central Government’s curative petition requesting the Court to reconsider its July 2016 judgment on the ground that it hampered the security force’s ability to respond to insurgent and terrorist situations.
The killings mentioned in the petition all took place in areas considered “disturbed” under AFSPA. Once an area is declared “disturbed”, armed forces are given a range of “special powers”, which include the power to arrest without warrant, to enter and search any premises, and in certain circumstances, use lethal force.
AFSPA has facilitated gross human rights violations by the armed forces in the areas in which it is operational.
Human rights organizations, including the ICJ, and several UN human rights bodies have recommended that the AFSPA be repealed or significantly amended.
