Mar 7, 2019 | Advocacy, News
The ICJ joined a list of 77 civil society organizations to call on relevant authorities in Myanmar to drop spurious charges against journalist Ko Swe Win, to decriminalize defamation, and to release human rights defenders currently imprisoned under repressive criminal defamation laws.
The statement reads:
On the second anniversary of the defamation charges brought upon Ko Swe Win, editor at online newspaper Myanmar Now, we, the undersigned 77 civil society organisations, call on the relevant authorities to drop the case against him. Spurious defamation charges under Article 66(d) of the Telecommunications Law were filed against him on 7 March 2017 by ultranationalists intent on suppressing free speech. The Government of Myanmar must take concrete steps in parliament to decriminalise defamation, repeal Article 66(d) of the Telecommunications Law and drop the charges and release all activists and human rights defenders currently in prison and being charged under this repressive legislation.
Article 66(d) of the Telecommunications Law of 2013 was amended in 2017, but notably, defamation is still criminalised and carries a punishment of up to two years of imprisonment or a fine of up to one million kyat or both. The law is still frequently used to stifle free speech in Myanmar and silence critics. To date, a reported 173 cases have been filed under Article 66(d) since its enactment.
The UN Human Rights Committee has called on all states to decriminalise defamation, indicating that imprisonment for defamation is a penalty that can never be appropriate or compatible with the right to freedom of expression. In addition, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has stated that defamation should be treated as a matter of civil rather than criminal law, stressing that criminal prosecution for defamation inevitably becomes a mechanism of political censorship, which contradicts freedom of expression and of the press. In the case of Article 66(d), Myanmar law allows for agents of the offended party to file charges for defamation and initiate criminal proceedings on their behalf. In effect, this means that powerful organisations and individuals can operate via proxies to target those that they consider disturbing, a form of judicial harassment with severe implications for the individuals who are accused.
Ko Swe Win was charged with defamation under Article 66(d) of the Telecommunications Law for sharing a story by Myanmar Now on Facebook. The story quoted a senior monk who said that well-known ultranationalist monk U Wirathu’s actions could be cause for him to be expelled from the monkhood as they violated the tenets of Buddhism. U Wirathu, notorious for using Facebook to agitate against Muslims, had previously expressed support for and thanked U Kyi Lin – the recently convicted gunman who shot and killed prominent lawyer U Ko Ni in January 2017. U Ko Ni was an expert on constitutional law and was working to change the military-drafted 2008 Constitution. The plaintiff, a follower of U Wirathu, brought the charges in March 2017 and the court proceedings started in July 2017.
Since then, Ko Swe Win has had to travel regularly to the courthouse in Mandalay, where the charge was filed, from his home in Yangon and back – a distance of over 1,200 kilometres. The court hearings, now totaling 55, have been ongoing for almost two years, but the court has still only heard the plaintiff’s side, which has consistently been stalling the process. On some occasions, Ko Swe Win has travelled from Yangon only to find that the plaintiff or witnesses have failed to appear in court and that the proceedings have been postponed. The plaintiff himself was arrested in August 2017 and has since been detained, which has caused significant delays to the process.
U Wirathu has been summoned twice but failed to appear. On the first occasion, his lawyer informed the court that U Wirathu could not make the hearing because he was attending a donation ceremony. On the second occasion, U Wirathu’s lawyer requested that the hearing be held at his monastery compound. That request was denied by the township court, but U Wirathu appealed to the higher district court, which also denied the request. While the district court considered the request, no hearings could be held in the township court. Ko Swe Win however, was still required to make an appearance every two weeks before the township court judge just to be informed of the next date he was due to appear in court. This procedure, which required him to travel from Yangon to Mandalay, was typically over in a matter of minutes.
The many irregularities of this case highlight the lack of independence of the Myanmar judiciary. It appears that the authorities are determined to target those that are working to expose troubling truths and terrible crimes, rather than those who commit them. Those responsible for spreading dangerous speech and inciting violence face no consequences, while those who criticise such dangerous actions continue to be prosecuted. In a recent parallel case, also fraught with controversies, two Reuters reporters – Wa Lone and Kyaw Soe Oo – were convicted to seven years in prison for exposing a mass killing of Rohingya men and boys carried out by the Myanmar military in northern Rakhine State.
In Myanmar, high-ranking military commanders, some of whom are accused by UN investigators for war crimes, crimes against humanity, and even genocide, remain at large, while journalists who expose the truth and report on human rights violations in the country are charged under repressive laws. This inverted idea of justice needs to come to an end if Myanmar is to continue its path towards democracy.
As long as Article 66(d) remains, people in Myanmar, especially those who criticise powerful individuals, officials and government policies online, will be at risk of being imprisoned for their peaceful exercise of the right to freedom of expression.
In light of the above, we call on the Government of Myanmar and its relevant authorities to:
- Drop the defamation charges under Article 66(d) of the Telecommunications Law against Ko Swe Win and other activists and human rights defenders and release those currently imprisoned under this repressive legislation;
- Repeal Article 66(d) of the Telecommunications Law, or at a very minimum, amend it to ensure that:
- defamation is no longer criminalised by deleting references to “defamation” as well as vague language such as “disturbing”;
- only a government prosecutor can file a criminal complaint under Article 66(d);
- where recognisably criminal acts such as “extortion” and “threats” occur in the law they are clearly and narrowly defined in line with international human rights law, to ensure it is not used to criminalise the peaceful expression of views.
Download
Myanmar-statement on defamation-Advocacy-2019-ENG (full statement in English, PDF)
Myanmar-statement on defamation-Advocacy-2019-BUR (full statement in Burmese, PDF)
Mar 5, 2019 | News
On 4 March 2019, Malaysia acceded to the Rome Statute of the International Criminal Court (ICC), making it the 124th State Party to the ICC.
“The decision by Malaysia’s government to become party to the Rome statute should be commended as a positive sign of its commitment to the rule of law and acceptance to work with the global community to end impunity and ensure accountability for some of the gravest crimes under international law,” said Frederick Rawski, the ICJ’s Asia-Pacific Director.
The ICJ considers the establishment of the ICC as a watershed achievement in the development of international law and the will and capacity of States to act in concert to address atrocities around the world that carry devastating consequences for the victims.
The aim to end impunity on a global scale requires that the Rome Statute be ratified universally.
The ICC was established in 2002 as a permanent international criminal court to investigate and, where warranted, put on trial individuals charged with the some of the most serious crimes of international concern, particularly the crime of genocide, crimes against humanity, war crimes and the crime of aggression.
The Rome Statute operates on the principle of complementarity, meaning that the ICC can only become engaged when the responsible States are unable or unwilling to investigate and prosecute allegations at the national level.
“Malaysia’s accession serves as an example for the entire Asian region, which has been significantly underrepresented at the ICC,” said Rawski.
“It sends a timely message of support for international accountability, at a moment when the actions of two of Malaysia’s neighboring countries – Myanmar and the Philippines – are the focus of preliminary investigations by the ICC, and after Philippines announced its intent to withdraw from the Statute last year,” he added.
In March 2018, the ICC was formally notified by Philippines of its intention to withdraw from the Rome Statute after the court initiated a preliminary examination into allegations of crimes committed in the context of the Philippines’ government’s “war on drugs” campaign since July 2016. The ICJ condemned this move as a blow to international justice.
In September 2018, the ICC launched a preliminary examination into allegations of forced deportations of Rohingya Muslims from Myanmar into Bangladesh, on the basis that the court had jurisdiction because Bangladesh is a State Party and the deportations occurred in part on Bangladeshi territory. The ICJ submitted an amicus curiae in support of such jurisdiction.
Contact
Frederick Rawski, ICJ Asia and Pacific Regional Director, e: frederick.rawski(a)icj.org
See also
Philippines: the Government should reconsider withdrawal from ICC
ICJ submits Amicus Curiae Brief to International Criminal Court
Mar 1, 2019 | Events, Multimedia items, News, Video clips
This event took place today at the Palais des Nations, United Nations, in Geneva. Watch it on video.
The situation of the rule of law in Turkey and of human rights defenders who promote it continues to be of serious concern.
Following the attempted coup of 15 July 2016, the two-year state of emergency and security legislation enacted thereafter, human rights defenders face harassment and are subject to pressure by authorities, including by unfounded criminal charges of terrorist offenses. Lack of accountability for gross violations of the rights of human rights defenders is also a particular problem.
The panel discussion at this side event will also focus on the situation of human rights defenders for the rule of law in Turkey and the lack of accountability for human rights violations against them, including for the killing of the head of the Bar Association of Diyarbakir three years ago.
The event is organized by the ICJ jointly with the International Bar Association’s Human Rights Institute.
Speakers:
– Michel Forst, UN Special Rapporteur on human rights defenders
– Feray Salman, Coordinator of the Human Rights Joint Platform (IHOP)
– Kerem Altiparmak, ICJ Legal Consultant
– Jurate Guzeviciute, International Bar Association’s Human Rights Institute
Chair:
Saman Zia-Zarifi, ICJ Secretary General
Event Flyer:
Turkey- HRD side event HRC40-News-Events-2019-ENG
https://www.facebook.com/ridhglobal/videos/795507517477571/
Feb 28, 2019 | Advocacy, News
The ICJ made a submission to Mr. Léo Heller, the United Nations Special Rapporteur (Special Rapporteur) on the human rights to water and sanitation, in response to a call for submission in advance of the Special Rapporteur’s 2019 Human Rights Council Report on the human rights to water and sanitation in spheres of life beyond the households, in particular in public spaces.
The ICJ’s submission focuses on the status and the impact of inadequate access to water and sanitation on lesbian, gay, bisexual, transgender and queer individuals (LGBTQ), and more specifically on transgender persons and non-binary persons, in India.
ICJ’s submission draws on its ongoing work on the human rights of LGBTQ persons in India, where from 2017 to date, the ICJ has studied LGBTQ persons’ access to and enjoyment of economic, social, and cultural rights, focusing on access to adequate housing, decent work, and public spaces and services including water and sanitation. The goal is to reveal, address, and reduce discriminatory treatment against LBGTQ persons in accessing economic, social and cultural rights as a result of discriminatory laws and practice through advocacy with the Indian State and with the United Nations.
Read the full submission here.
Feb 19, 2019 | News
The ICJ today called for the Italian Senate to allow for the investigation of the Minister of Interior and Vice-President of the Council of Ministers, Matteo Salvini, for his role in the alleged arbitrary deprivation of liberty of some 177 persons, including potential refugees, held for five days on the “U-Diciotti” boat last summer.
The ICJ said that the Italian Senate’s Commission on Elections and Immunities should recommend the authorization of the criminal investigation to the full Senate, where Matteo Salvini also sits as a Senator.
“The decision on investigation of gross human rights violations such as mass and arbitrary deprivation of liberty should not be subject to political scrutiny but be left to the assessment of the judiciary,” said Massimo Frigo, Senior Legal Adviser for the ICJ Europe Programme.
The indictment for “kidnapping” against Minister Salvini has already been approved at the judicial stage by the Tribunal of Ministers of Catania, which affirmed that Minister Salvini is alleged to have abused his administrative power in this matter for the political goal of negotiating resettlements with other European countries.
“No human being should effectively be made hostage for the purpose of political negotiations,” said Massimo Frigo.
“It does not matter which country may have been primarily responsible for the rescue at sea. No authority may arbitrarily restrict of the right to liberty of 177 human beings,” he added.
The ICJ considers that it is highly problematic for the principle of the rule of law that the decision on prosecution for a crime underlying a gross violation of human rights, such as kidnapping, be entrusted to a political body.
This decision should be left to the judiciary based on legal and not political grounds.
Under international human rights law, including the European Convention on Human Rights and the International Covenant on Civil and Political Rights, States have an obligation to investigate, prosecute, try and, if found guilty, convict persons responsible of gross violations of human rights, among which counts the arbitrary deprivation of liberty.
This applies to all State officials, irrespective of their position of authority.
Contact
Massimo Frigo, ICJ Senior Legal Adviser, t: +41 22 979 38 05 ; e: massimo.frigo(a)icj.org
Background
The Italian “U. Diciotti” boat was at the centre of a political scandal last August when the Minister of Interior Matteo Salvini refused disembarkation of 177 people for several days in order to negotiate their resettlement with other European countries.
While the boat entered Italian waters on 20 August, they were eventually disembarked in the night between Saturday 25 and Sunday 26 August after some countries and the catholic church made some nominal declaration of resettlement or reception.
Minister Salvini was later accused of “kidnapping” for having arbitrarily deprived of their liberty the 177 persons on board the “U.Diciotti”. While the prosecutor in the case asked for the dismissal of the charges, the Tribunal of Ministers, composed of ordinary judges, that is responsible for the legal assessment of the indictment, held the indictment to be in accordance with the law and that sufficient suspicion existed to warrant an investigation.
According to article 96 of the Constitution and articles 8-9 of the Constitutional Law no. 1 of 16 January 1989, it is up to the Parliament to authorize the investigation and prosecution of a Minister. The decision would therefore be up to the Senate in the case of Minister Salvini, as he is a Senator. The Senate may refuse by absolute majority, if it considers “that the person has acted for the protection of a State interest that is constitutionally relevant or for the pursuance of a preminent public interest in the function of Government” (unofficial translation). No appeal is possible against this decision.
Reportedly, the President of the Council of Ministers, Giuseppe Conte, the Vice-President of the Council of Ministers, Luigi Di Maio, and the Minister Danilo Toninelli, have submitted observations to the Senate’s Committee holding that the decision in the case was the reflecting the line of the whole Government and not only of the Minister of Interior.
