Feb 7, 2019 | Advocacy, Non-legal submissions
The ICJ has submitted a written statement on Sri Lanka to the Human Rights Council ahead of its 40th Session in Geneva.
Almost ten years after Sri Lanka emerged from a period of conflict and massive human rights violations, the Government of Sri Lanka still has largely failed to implement its human rights obligations and commitments as reflected in Resolution 30/1.
The ICJ statement focuses on two of four transitional justice mechanisms which the Government committed to establish under the Resolution: (a) the judicial mechanism with special counsel to investigate violations of human rights and international humanitarian law; and (b) the office of missing persons. It highlights how female victims of war are uniquely impacted by the Government’s failure to implement the commitments made before the UNHRC and underscores the importance of holistically including women when such measures are implemented.
Recommendations:
The ICJ considers that the gravity and character of the crimes under international law committed in Sri Lanka, and the failure of the Government of Sri Lanka to meet its obligations and commitments to ensure justice for such crimes including as provided for in resolution 30/1, means that referral to the International Criminal Court or the creation of another international mechanism to facilitate criminal accountability would be fully warranted. If however the Council does not choose to pursue these options at this stage, the ICJ urges the Council at minimum to:
- Continue the monitoring of Sri Lanka through the adoption of a new resolution to ensure that the Government complies with all its obligations and commitments as reflected in resolution 30/1.
- Provide for OHCHR to develop, with the Sri Lankan Government, an implementation strategy with definitive timelines to ensure that the time afforded under the new resolution is utilised to expedite the implementation of measures assured under Resolution 30/1.
- Encourage Member States to exercise universal jurisdiction in order to bring perpetrators to justice.
The ICJ urges the Government of Sri Lanka to:
- Take immediate measures to establish the judicial mechanism with international involvement as contemplated under operative paragraph 6 of Resolution 30/1. The mechanism should ensure gender parity, be accessible for women in civil society, and allow female victims to fully participate in the process.
- Spread awareness regarding the importance of certificates of absence and confirm to the community that issuance of a certificate will not result in the end of efforts to find the person.
- Ensure an overall gender strategy is integrated in all other transitional justice mechanisms that are yet to be established so that structural injustices against women, especially in terms of discrimination and lack of participation, are addressed.
(full text of submission, in PDF: UN-HRC40-SriLanka-WrittenStatement-2019-EN)
Jan 29, 2019 | News
On the second anniversary of the killing of prominent lawyer U Ko Ni, in public view at Yangon International Airport, the ICJ repeats its calls for a thorough and impartial investigation with a view to establish the facts, to deliver justice and to deter the repetition of similar crimes.
“This brazen killing of a prominent democracy advocate demands a rigorous State response to show this type of crime will be fully punished,” said Frederick Rawski, the ICJ’s Director for Asia and the Pacific.
Despite an official investigation and reports of more than 100 court hearings, nobody has been held accountable for U Ko Ni’s death – criminally or otherwise – and the circumstances have not yet been satisfactorily explained.
“Myanmar simply cannot satisfy its international law obligations without conducting an impartial and independent investigation that is free of military influence. Such an investigation is a pre-requisite for conducting an effective prosecution in a fair trial setting,” added Rawski.
U Ko Ni was well known as a vocal advocate for human rights and democratic reform in Myanmar. As an adviser to the National Legal of Democracy party, he was involved in creating the position of State Counselor, which formalized a leadership role for Daw Aung San Suu Kyi, despite a constitutional provision barring her from the Presidency.
At the time of his death, it is understood that U Ko Ni was working on proposals to replace Myanmar’s 2008 Constitution, the source of law underpinning military power.
“A credible justice process is required not only for U Ko Ni and his family, but to demonstrate the State will protect the right to life of all people including democracy advocates,” said Sean Bain, legal adviser for the ICJ.
“A crime of this nature stifles participation in the democratic process and so an effective justice process is imperative to deter its repetition,” Bain added.
Myanmar has a particular obligation to ensure that lawyers and others acting as human rights defenders are protected in carrying out their work.
Any justice process must be timely, effective and shed light on the facts.
The investigation into U Ko Ni’s killing has been beset by obstacles, including the unknown whereabouts of a primary suspect, the incorrect identification of a deceased individual as a suspect and the arrest of a person with the same name, and reported military involvement in the police investigation. Lines of inquiry related to the political motivations for the killing, particularly considering the military links of many suspects, do not appear to have been pursued satisfactorily, nor impartially, given military involvement in the investigation.
Criminal proceedings in Yangon’s Northern District Court, and related proceedings in the Yangon High Court, have been sluggish. Observing lawyers and individuals including from the ICJ have noted multiple instances of admission into evidence of testimony that appears to be irrelevant, failures of key witnesses to appear, and the long drawn out process of court proceedings whereby weeklong delays are common while continuances over successive days are rare.
These issues are emblematic of challenges in Myanmar’s justice system previously identified by the ICJ in which police, prosecutors and courts generally lack the independence and or will to effectively administer justice, particularly in politically sensitive cases.
“Two years is an incredibly long time to get to the position we are in now, and in our experience this highlights broader problems with the administration of justice in Myanmar,” added Bain.
Contact
Frederick Rawski, ICJ Asia Pacific Region Director, e: frederick.rawski(a)icj.org
Sean Bain, ICJ Legal Adviser, e: sean.bain(a)icj.org
Download:
Myanmar-Ko Ni Statement-News-web stories-2019-ENG (full story with background information, PDF)
Myanmar-Ko Ni Statement-News-web stories-2019-BUR (full text in Burmese, PDF)
Read also:
Myanmar: reverse laws and practices that perpetuate military impunity – new ICJ report
Killing of lawyer U Ko Ni must be promptly and impartially investigated
Dec 12, 2018 | News
The ICJ today called on President Andrzej Duda to sign legislation that would require the reinstatement of the Supreme Court justices that were forcibly “retired” in July 2018.
On 21 November 2018, the lower house of the Polish Parliament (Sejm) approved Draft Law no. 3013, which would amend the Law on the Supreme Court. This amendment would ensure that the Supreme Court and Supreme Administrative Court justices who “retired … return in office on the day of entry into force of this Law” (Article 2.1).
The Minister of Justice has stated that the Law is being adopted to implement the EU Court of Justice interim measures issued in the infringement proceedings against Poland for the failure to respect the tenure of its Supreme Court justices.
“The draft law is a step in the right direction to implement the interim measures by the Court of Justice of the EU,” said Massimo Frigo, Senior Legal Adviser for the ICJ Europe and Central Asia Programme.
“It is important that President Duda signs this law promptly to ensure the independence of the judiciary in Poland as well as respect for its obligations under EU law,” he added.
The ICJ however is concerned that this law still refers to the Supreme Court justices to be reinstated as “retired.”
The forced “retirement” of one-third of the Supreme Court Justices constituted effectively a disguised dismissal in breach of international law and EU law standards on the rule of law and the independence of the judiciary.
Any reference to the “retirement” of the Supreme Court Justices should therefore be deleted.
“The Government’s intention that these measures be issued to implement the Court of Justice’s interim measures suggests that these measures are not intended to be permanent,” said Massimo Frigo.
“The Court of Justice and the European institutions should pursue the Article 7 procedure and the infringement proceedings until the forced judicial “retirements” are fully rescinded and no further similar attempts are made to undermine judicial independence and function.”
Background
A law on the Supreme Court, which entered into effect in July 2018, attempted to force the “retirement” of 27 of the 72 Supreme Court judges, including the First President, by lowering the mandatory retirement age for its judges from 70 to 65 years.
The ICJ has condemned the “forced retirement” of the 27 Supreme Court Justices as violating the security of tenure of judges in direct contravention of the principle of judicial independence, as expressed in international law and standards.
These include the UN Basic Principles on the Independence of the Judiciary, Council of Europe standards, the European Court of Human Rights’ jurisprudence and the rule of law principles enshrined in article 2 of the Treaty on European Union.
An ICJ letter of 11 July 2018, signed by 22 senior judges from all regions of the world, urged the Polish government to act immediately to reinstate the forcibly retired judges in office.
The European Commission has recognized the current situation as undermining “the principle of judicial independence, including the irremovability of judges” and has triggered a procedure under Article 7 of the Treaty of the European Union that could ultimately lead to suspension of Poland’s EU voting rights.
The Commission has also launched infringement proceedings against Poland in respect of the law on the Supreme Court.
Dec 12, 2018 | Events, News
On 12 December 2018, the ICJ co-organized a panel discussion at Bangkok Art and Culture Center (BACC) in Thailand marking the 6th anniversary of the evident enforced disappearance of prominent Lao civil society leader Sombath Somphone.
The panel discussion was co-organized with the International Federation for Human Rights (FIDH), ASEAN Parliamentarians for Human Rights (APHR) and Forum Asia.
On 15 December 2012, Closed Circuit Television (CCTV) footage taken by police cameras near a police checkpoint in Vientiane, Lao PDR, appeared to show that Sombath Somphone was abducted at the checkpoint by, or with the consent or acquiescence of, agents of the State. He has not been seen since.
Six years after his abduction, Laotian authorities have repeatedly failed to provide meaningful information as to his fate or whereabouts, or conduct an independent, impartial and effective investigation towards determining his fate. The last police report on his case was issued on 8 June 2013.
In light of the 6th anniversary, the panel discussion considered what further steps could be taken to continue advocacy on his case and spoke about regional implications and responses.
The panelists were:
- Ng Shui-Meng, Wife of Sombath Somphone;
- Edmund Bon, Lawyer, Malaysia’s Representative to the ASEAN Intergovernmental Commission on Human Rights;
- Premrudee Daoroung, Project SEVANA’s South-East Asia Coordinator;
- Charles Santiago, Malaysian Member of Parliament.
The panel was moderated by the Andrea Giorgetta from the International Federation for Human Rights (FIDH).
Dec 10, 2018 | Multimedia items, News, Video clips
Today, 10 December 2018 marks the 70th anniversary of the adoption of the Universal Declaration of Human Rights (UDHR). Developed as a universal standard setting out the rights to be enjoyed by everyone, the elaboration of the UDHR was one of the first actions undertaken by the newly established UN in carrying out its human rights mandate.
The UN Charter, forged after the ravages of the Second World War, places advancement of human rights as a core purpose and principle of the UN.
Over the past 70 years, the UN and regional human rights systems have taken the UDHR as the benchmark in developing the impressive normative architecture that constitutes the present day basis of international human rights law and standards.
The International Commission of Jurists (ICJ) was founded in 1952, only four years after the UDHR, with a mission to advance the rule of law and legal protection of human rights. Most of the international legal human framework at that time had still not yet been developed. The founding members of the ICJ believed that the lofty human rights principles enunciated in the UDHR needed to be transformed into hard and enforceable legal obligations incumbent on all States. From its founding, the ICJ worked to develop treaties and other standards aimed to make the enjoyment of human rights real for people, and not merely aspirational.
According to Sam Zarifi, Secretary General of the ICJ, “The ICJ’s biggest contribution to the international legal framework is still to bring together jurists from around the world to defend the rule of law and the universality of human rights at the global and local level.”
“Many now established global legal instruments have the fingerprints of the ICJ all over them. Crucial regional frameworks in the African, European, and American regions were developed with the deep and sustained involvement of the ICJ, as were the creation of the post of UN High Commissioner for Human Rights and the International Criminal Court,” said Sam Zarifi.
The UDHR has not only inspired the work of human rights defenders, but has also been foundational for the general acceptance of the notion of human rights around the world.
From 1948 until the end of the twentieth century, there has generally been a continuous upward trajectory towards the advancement of human rights, even if there have been many pitfalls along the way.
The notion that people have rights is now universally accepted and known by people. At the Vienna Conference on Human Rights in 1993, all States of the world not only reaffirmed their commitment to the UDHR, but also agreed that “the universal nature of these rights and freedoms is beyond question.”
Over the years, there have certainly been major shortcomings in the push to achieve the realization of the human rights for all.
Some of the extreme examples include armed conflicts replete with crimes against humanity, war crimes and even genocide, followed by a failure to hold perpetrators accountable.
And there remains extreme poverty in parts of the world marked by a thorough neglect of economic and social rights.
Despite these shortfalls in implementation, it remains the case that human rights have been accepted as a key component in addressing humanity’s problems in the 70 years since the adoption of the UDHR.
“Over the years, more and more States have ratified human rights treaties, more States have incorporated human rights in their domestic law, and more courts have started to enforce human rights. At the grass roots law level, more organizations have demanded human rights as an entitlement and not just as an aspiration,” explains Ian Seiderman, Legal and Policy Director of the ICJ.
Despite, this long term trend in advancement of human rights, there are warning signs that progress is slowing and in some places has even reversed particularly in the past decade.
“We are now seeing a very strong pushback against human rights proclaimed in the UDHR from countries around the world,” says Ian Seiderman.
“Some of the pressures have come from the security angle, where even States that previously championed rights insist that rights protection must cede to security interest. More recently there has been a rise in populist authoritarian governments that don’t even pay lip service to human rights anymore. And many States have also turned their backs on the commitment to protect the most marginalized and vulnerable, such as refugees and migrants,” he adds.
Roberta Clarke, Chair of the ICJ Executive Committee:
At the normative level, there remains the notable gap in the international legal protection from transnational corporations and other business that abuse human rights and the reticence of many States to participate in good faith in the efforts at the UN to close this gap with a new business and human rights treaty.
This backlash has only redoubled the ICJ’s commitment to fight for the values originally imagined by the writers of the Universal Declaration of Human Rights.
The ICJ and its individual Commissioners remain heavily involved in the development of human rights standards and their implementation based on the UDHR and a part of the larger human rights movement.
The ICJ continues to work to adopt human rights law to changing conditions in the modern world, develops the human rights capacities of lawyers and judges in all parts of the world, undertakes legal advocacy internationally and in many countries, and provides legal tools for human rights practitioners.
Robert Goldman, ICJ President:
On the 70th anniversary of the UDHR, it is critically important to recall why the UDHR was established in the first place, especially in light of the current regression of human rights development around the world.
The preamble of the UDHR reminds us that “ disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind.”
But more critically, it also insists that addressing these and other acts of inhuman rights require that human rights be protected by the rule of law.
This will be the ICJ’s continuing mission.
