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.
Feb 12, 2019 | News
Today in Bogotá, Colombia, ICJ and its partners launched a new 30-month project under the ICJ’s Global Accountability Initiative entitled, Promoting justice for extrajudicial killings and enforced disappearances in Colombia, Guatemala and Peru.
The aim of the project is to promote the accountability of perpetrators and access to effective remedies and reparation for victims and their families in cases of extrajudicial killings and enforced disappearances in Colombia, Guatemala and Peru – and Latin America more broadly – through effective, accountable and inclusive laws, institutions and practices that also reduce the risk of future violations
The ICJ’s partners include the Asociacion de Familiares de Detenidos-Desaparecidos de Guatemala (FAMDEGUA), Asociación Red de defensores y defensoras de derechos humanos (dhColombia), Equipo Argentino de Antropología Forense (EAAF), Equipo Peruano de Antropología Forense (EPAF), Fundación de Antropología Forense de Guatemala (FAFG), and the Instituto de Defensa Legal (IDL).
Christof Heyns, Director of the Institute for International and Comparative Law in Africa and Professor of Human Rights Law at the University of Pretoria – and a former Special Rapporteur on extrajudicial, summary or arbitrary executions – also joins the project as special adviser.
In carrying out the project the ICJ will conduct general studies on obstacles to impunity in Colombia, Guatemala and Peru, as well as specific documentation of emblematic cases of serious human rights violations. The ICJ will also produce a practitioners’ guide for use by civil society, victims and their representatives on the investigation and prosecution of potentially unlawful death, and a regional guide for forensic experts on the investigation and prosecution of potentially unlawful death. In connection with the project the IJC intends to conduct strategic litigation, trial observations and capacity building activities involving judges, prosecutors, investigators, lawyers, civil society, victim groups and forensic experts.
The project is supported by the EU European Instrument for Democracy and Human Rights (EIDHR).
Contacts:
Kingsley Abbott, Senior Legal Adviser & Coordinator of the ICJ’s Global Accountability Initiative, email: kingsley.abbott(a)icj.org
Rocío Quintero, Legal Adviser, Latin America, email: rocio.quintero(a)icj.org
Feb 11, 2019 | News
The ICJ, Amnesty International and TRIAL International today called for the Government of Nepal to commit to a transparent and consultative transitional justice process that complies with international law and the judgments of the Supreme Court of Nepal.
On 6 February, the Government of Nepal extended the mandates of the Truth and Reconciliation Commission (TRC) and the Commission on the Investigation of Enforced Disappearance of Persons (CIEDP) for an additional year and committed to the selection of new commissioners by April 2019.
Following the announcement, the ICJ, Amnesty International and TRIAL International voiced concerns about past approach to transitional justice and urged the Government to ensure that the next two months are used to get the flawed process on track.
The organizations warned that this should not become another missed opportunity to ensure that victims are provided the justice, truth and reparation that they so desperately seek.
“A further one-year extension will be meaningless if measures are not taken to secure the independence and impartiality of the commissions,” said Frederick Rawski, ICJ Asia Pacific Director.
“This can only be achieved through a transparent selection process driven by a genuine will to combat impunity – not just for conflict victims, but for future generations,” he added.
The three organizations reiterated their view that the process to date has failed to deliver justice, truth or reparation for victims of crimes under international law and gross human rights violations or establish laws and institutional safeguards to ensure that such crimes are never repeated.
The organizations underscored the need for independent, competent and impartial commissions, compliance with international law, and the meaningful participation of conflict victims, civil society and National Human Rights Commission in the design and implementation of the process.
“This is a great opportunity for Nepal to learn from its past, as well as experiences from other post-conflict societies, that the credibility of transitional justice process ultimately lies on the integrity, competence, independence and expertise of the commissioners. The independence of the Commission, together with a legal framework in accordance with international law, will make or break the success of the commitment to guarantee justice, truth and reparation,” said Biraj Patnaik, South Asia Director of Amnesty International. “The process for appointing new commissioners must be transparent and open to public scrutiny. Victims and civil society must have a robust opportunity to propose and vet candidates.”
The organizations also noted with disappointment that substantive legal concerns raised repeatedly by victims, civil society and the international human rights community have gone unanswered.
The government has not given a clear indication as to whether or how these concerns will be addressed.
“In addition to its obligation to ensure that conflict victims have access to an effective remedy and reparation, the authorities have a separate and independent obligation to investigate and if there is sufficient admissible evidence, prosecute those suspected of criminal responsibility in fair trials before ordinary civilian courts – and, if found guilty, punish them with appropriate penalties which take into account the grave nature of the crimes,” said Helena Rodríguez-Bronchú, Head of TRIAL International’s program in Nepal.
“These obligations are clearly established in international law, as well affirmed in ruling after ruling by the Supreme Court. It is about time that the Government stopped proposing measures that are clearly inconsistent with the letter and spirit of those judgements,” she added.
Concerns raised about existing, and proposed, legislation include: disparities between the definitions of specific crimes under international law and human rights obligations and violations under national, and international law; inadequate provisions to ensure that serious crimes under international law are subject to criminal accountability (including punishment proportionate to the seriousness of the crimes); and a reliance on compensation at the expense of other forms of reparation and remedy for conflict survivors and their families
The ICJ, Amnesty International and TRIAL International had previously submitted a legal analysis of draft transitional justice legislation circulated in 2018, including recommendations on how to ensure compliance with international law and good practices.
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
