Aug 29, 2016 | News
Tens of thousands of enforced disappearances in South Asia can only be addressed if all the region’s governments immediately criminalize this serious human rights violation, said today lawyers and activists from Bangladesh, India, Nepal, Pakistan and Sri Lanka.
The call came at a Conference on Enforced and Involuntary Disappearances, organized by the ICJ and Human Rights Commission of Pakistan (HRCP) on the eve of the International Day of the Victims of Enforced Disappearances.
South Asia has among the highest number of alleged victims of enforced disappearances in the world: tens of thousands of cases have been documented in Sri Lanka, Nepal, Pakistan and India, and since 2009, there has also been a surge in enforced disappearances in Bangladesh.
“Sri Lanka’s ratification of the Convention on Enforced Disappearance and its pledge to criminalize the practice is a welcome step,” said I. A. Rehman, Secretary General for the Human Rights Commission of Pakistan.
“Other States in the region should now follow suit and show that they are serious about their commitment to human rights by making enforced disappearance a specific crime in their domestic law,” he added.
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”.
At present, enforced disappearance is not a distinct crime in any South Asian country, which is one of the major hurdles to bringing perpetrators to justice.
In the absence of a legal framework on enforced disappearance, unacknowledged detentions by law enforcement agencies are considered “missing persons” cases.
On the rare occasions where criminal complaints are registered against alleged perpetrators, complainants are forced to categorize the crime as “abduction” or “kidnapping”.
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.
“Despite thousands of cases of enforced disappearance across South Asia, the governments have failed to follow their legal obligation to treat these crimes as the serious human rights violation they are,” said Sam Zarifi, ICJ’s Asia Director.
“South Asian governments have done very little to support the victims and survivors of enforced disappearance, or to ensure the rights of their family members to truth, justice and reparation,” he added.
Other barriers to bringing perpetrators to account are also similar in South Asian countries: military and intelligence agencies have extensive and unaccountable powers, including for arrest and detention; 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.
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 ICJ and the HRCP.
Contact
Sam Zarifi, ICJ Asia Pacific Regional Director (Bangkok), t: +66 807819002; e: sam.zarifi(a)icj.org
Read also
ICJ Practitioners’ Guides No. 9 Enforced Disappearance and Extrajudicial Execution: Investigation and Sanction and No. 10 Enforced Disappearance and Extrajudicial Execution: the Right of Family Members, which provide legal practitioners, activists and policy-makers with detailed and practical references on international standards on enforced disappearances and extrajudicial killings.
South Asia-International disappearances day statement-News-2016-ENG (full text in PDF)
Aug 16, 2016 | News
The ICJ said today that the attack on Ramón Cadena, its director in Central America, is deplorable evidence that human rights lawyers in Guatemala cannot carry out their activities without fear of reprisal.
Around a dozen armed men ransacked Ramón Cadena’s house in Guatemala City on Monday morning while he was attending a workshop elsewhere in the country.
The ICJ regional director for Central America is the latest victim of a recent wave of harassment and intimidation against human rights defenders and legal and environmental activists in Guatemala and neighboring Honduras.
“The ICJ strongly condemns the attack against Ramón Cadena, which is most likely linked to his activities as a human rights lawyer,” said Wilder Tayler, ICJ Secretary General.
Ramón Cadena, a highly prominent human rights lawyer in the region, was a key witness in the trial of former President Efrain Rios Montt for his role in the alleged genocide and other atrocities committed during the civil war of the 1970s and 80s.
Ramón Cadena has also been providing legal advice and support (on behalf of the ICJ) to the communities fighting against mining projects in Guatemala.
“We urge the Guatemalan authorities to provide the much needed protection to Ramón Cadena and promptly and thoroughly investigate the attack to find the culprits. They must also combat the increasing threats and growing insecurity faced by human rights defenders in the country, which is a clear assault on human rights,” Tayler added.
Contact
Wilder Tayler, ICJ Secretary General, t +41 76 562 38 10 ; e: wilder.tayler(a)icj.org
Several organizations have also condemned the attack on Ramón Cadena and issued a statement in Spanish which can be read here.
Jul 27, 2016 | News
Thailand’s government should immediately stop allowing criminal defamation laws to be used to harass victims and human rights defenders who seek justice for alleged incidents of torture, the ICJ said today.
Yesterday, the government charged three human rights defenders (Pornpen Khongkachonkiet, Somchai Homloar and Anchana Heemina, photo) under the criminal defamation provisions of the Penal Code and the Computer Crime Act, for publication of a report that documented 54 cases of alleged torture and other ill-treatment by the Thai authorities in the country’s restive deep South since 2004.
“Thailand must repeal or revise its vague and broad criminal defamation laws to prevent them from being used to silence human rights defenders and journalists working on important public interest issues,” said Wilder Tayler, the ICJ’s Secretary General.
“The imposition of harsh penalties such as imprisonment or large fines under these laws has a chilling effect on the exercise of freedom of expression – a right which is enshrined in treaties to which Thailand is a party and bound to uphold,” he added.
Also yesterday, the government used the same provisions to charge Naritsarawan Kaewnopparat, the niece of an army conscript who was killed after being severely punished by soldiers on a military base.
Although the Thai government has formally acknowledged that the death was caused by torture and compensated the family, none of the perpetrators have been held accountable for the death of Private Wichian Puaksom and have only faced military disciplinary sanctions of 30 days of detention or less, the ICJ reminds.
The case against Ms Kaewnopparat was brought by a military officer who alleges she accused him of being involved in her uncle’s death in the context of the family’s efforts to seek justice.
Last month, Thailand informed the Human Rights Council during its Universal Periodic Review that the Cabinet was considering a draft Act on Prevention and Suppression of Torture and Enforced Disappearance.
It was reported that the Cabinet approved the draft law on 24 May 2016 and would forward it for approval to the National Legislative Assembly.
At the conclusion of the review, Thailand also adopted several recommendations to protect human rights defenders and investigate reported cases of intimidation, harassment and attacks against them.
“Prosecuting people who seek justice for alleged torture goes against the spirit of the proposed legislation,” Tayler said.
“Thai authorities have an obligation to investigate and ensure justice for incidents of torture, but instead they are harassing and intimidating those responsible for exposing these horrendous acts.”
On 17 December 2015, Thailand joined 127 other states at the UN General Assembly in adopting a UN Resolution on human rights defenders.
The Resolution calls upon states to refrain from intimidation or reprisals against human rights defenders.
Contact:
Sam Zarifi, ICJ Asia Pacific Regional Director (Bangkok), t: +66 807819002; e: sam.zarifi(a)icj.org
Thailand-HRDs defamation charges-News-Press releases-2016-ENG (full text of press release in English, PDF)
Thailand-HRDs defamation charges-News-Press releases-2016-THA (full text of press release in Thai, PDF)
Jul 18, 2016 | News
Indian authorities must immediately, independently and thoroughly investigate all incidents of excessive, particularly lethal, use of force in Kashmir over the past week, the ICJ said today.
Indian security forces have an obligation to comply with Government commitments to avoid using excessive force to quell protests, and must be held to account for any violations.
Violent clashes between protesters and security forces broke out in Kashmir after a popular Kashmiri militant leader, Burhan Wani, was killed, along with his two associates, by security forces on 8 July.
More than 35 people have been killed, including one security officer, and over 2000 injured. In some areas, protestors threw stones and attacked police stations. Security forces used tear gas, pellet guns and firearms.
“Security forces must respect the right to life at all times, and only use force when strictly necessary and in a manner proportionate to the legitimate performance of their duties,” said Sam Zarifi, ICJ Asia Director.
“The number of persons injured over the past week, as well as the nature of their injuries, indicates the urgent need for investigations. If security forces use any kind of weapon, they are governed by international standards that require force to be used as a last resort in self-defence or defence of others against an imminent threat of death or serious bodily injury, and in a manner to minimize injuries,” he added.
Indian security forces began using pellet guns routinely after 2010 following heavy criticism of their misuse of firearms against protesters.
But during the recent protests, the use of pellet guns, considered non-lethal weapons by security forces, has resulted in serious and potentially permanent health consequences for persons affected, including eye injuries and organ damage, which have required urgent treatment.
A recent report has suggested that at least a 100 people have sustained eye injuries. Pellet guns have also injured non-protestors, including children.
“Indian authorities should stop the use of pellet guns until they can assess whether these weapons can be used in a manner that is consistent with human rights standards on the use of force, including whether they are inherently inaccurate, indiscriminate and arbitrary; and ensure that the use of all non-lethal weapons is strictly regulated, because they have the capacity to cause serious and permanent injury,” Zarifi said.
Hospitals in Kashmir are struggling to cope with the high number of patients. There have also been reports that security forces have stopped ambulances carrying injured people, and disrupted the functioning of hospitals.
“All allegations of excessive use of force and other unlawful behaviour by the security forces must be investigated immediately. At the same time, protesters who resort to violence or injure other people must also be properly investigated and brought to justice by proper trials,” he added.
“Security forces absolutely must not interfere with access to health care. In addition to prompt, independent and effective investigations on this, the Government must proactively ensure that all injured persons are able to safely access necessary and quality health care,” he added.
Indian Prime Minister Narendra Modi has called on security forces in Kashmir to exercise “absolute restraint”.
The Chief Minister, Mehbooba Mufti, has committed to ensuring accountability in all cases where excessive force was used by security forces.
It is crucial that the Government follows through on this promise, and conducts thorough, independent and prompt investigations.
In the past, violations by security forces have largely enjoyed impunity in Kashmir for several reasons, including laws like the Armed Forces Special Powers Act that shield security forces from legal accountability for human rights violations.
For example, in 2010, clashes between protestors and security forces in Kashmir resulted in over 100 deaths. Very few, if any, of these have been credibly investigated to date.
Current events also cast doubt over whether the reforms introduced since have improved policing practices and made security forces more accountable.
The ICJ is therefore calling on Indian authorities to:
- Order that security forces desist from using excessive and unlawful force, comply with international human rights law, and only use force when strictly necessary and in a manner proportionate to the legitimate performance of their duty;
- Promptly, independently and effectively investigate all allegations of excessive and lethal uses of force by security forces, make the results of these investigations public, initiate prosecutions where appropriate, and ensure that all victims are provided with effective redress;
- Provide necessary and quality health care to injured persons, ensure they are able to access it, that hospitals are stocked and equipped to deal with the increased patient load, and that all allegations of security forces attacking ambulances and hospitals are immediately investigated.
Contact:
Sam Zarifi, ICJ Regional Director for Asia and the Pacific, t: +66807819002; e: sam.zarifi(a)icj.org
India-Kashmir statement-News-Press release-2016-ENG (full text in PDF)
Jul 12, 2016 | News
The Indian Supreme Court’s recent decision reiterating the importance of accountability for human rights violations by police and security forces, in particular where unnecessary or excessive force is alleged to have been used, is a welcome step and must be immediately implemented.
In the case of EEVFAM v Union of India, petitioners alleged that 1,528 killings by the police and security forces in the Indian state of Manipur had amounted to unlawful extrajudicial executions. Manipur is the site of a long-running armed insurgency.
In 2013, a court-appointed commission – the Santosh Hegde Commission – conducted an inquiry into six of the cases mentioned in the petition, and found all the six killings to be unlawful.
“This judgment is a strong signal from the Court that human rights violations by security forces will not be tolerated in the name of national security or anti-terror policies,” said Sam Zarifi, the International Commission of Jurists (ICJ) Asia Director.
“It’s crucial for the government now to follow through on this ruling to bring the families of the victims of these and other extra judicial executions mentioned in this petition closer to truth, justice and accountability”.
The killings mentioned in the petition all took place in areas considered “disturbed” under the Armed Forces Special Powers Act (AFSPA). Once an area is declared “disturbed” under the AFSPA, 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 force, to cause death.
Under the AFSPA, governmental permission, or sanction, is required before any member of the armed forces can be prosecuted for crimes in a civilian court, thus effectively shielding armed forces from accountability for human rights violations.
“These, and other allegations, of human rights violations under the AFSPA only reiterate the urgent need to repeal this draconian and undemocratic law,” Zarifi said. “The allegations in this case are evidence of the culture of impunity that the AFSPA has perpetuated”.
In the present judgment, the Supreme Court made some welcome observations:
- It emphasized the need for accountability for human rights violations by security forces, reiterating the principles laid down in previous landmark cases. It said “every death caused by the armed forces, including in the disturbed area of Manipur should be thoroughly enquired into if there is a complaint or allegation of abuse or misuse of power”.
- It dismissed the government’s argument that legal safeguards would not fully apply to anyone considered an “enemy” under Indian law. The Court held that at least all Indian citizens were equally entitled to the enjoyment of the fundamental rights in the Constitution, stating “If members of our armed forces are deployed and employed to kill citizens of our country on the mere allegation or suspicion that they are ‘enemy’, not only the rule of law but our democracy would be in grave danger”.
- It noted that it did not have sufficient information about each of the 1,528 cases mentioned in the petition. It has directed parties to present detailed information about the status of each case.
“This judgment references India’s obligations under international human rights law, which requires the government to respect and protect the right to life and ensure access to effective remedies,” Zarifi said. “Accountability for all human rights violations is a key aspect of these rights”.
The ICJ called for independent, impartial and thorough investigations into all the cases mentioned in the petition, in line with international standards.
It said that persons responsible should be brought to justice in fair trials in civilian courts, and the family of victims should be accorded an effective remedy and reparation for any violations.
The ICJ will continue to follow the case, which will continue in four weeks. Several key issues remain to be addressed, which the court will look at in subsequent hearings.
First, how should the specific cases be investigated? The petitioners have asked for the constitution of a Special Investigation Team, comprising police officers from outside the state of Manipur, to investigate the allegations, to ensure that the enquiry is fair, independent and thorough.
Second, in what forum should trials take place? The Indian Army Act allows for army personnel on active duty to be tried by a court martial (military court) instead of a civilian court for all offences, including gross human rights violations.
International standards call for military personnel accused of gross human rights violations to be put on trial before a civilian court. The Court has left this question open for the allegations in the present petition, stating: “The law is therefore very clear that if an offence is committed even by Army personnel, there is no concept of absolute immunity from trial by the criminal court”.
Third, the Court will also consider the efficacy of the National Human Rights Commission; in particular whether its guidelines are binding or only advisory. Under Indian law, the NHRC has limited jurisdiction where human rights violations by the armed forces are concerned.
Contact
Sam Zarifi, ICJ Asia Pacific Regional Director (Bangkok), t: +66 807819002; e:sam.zarifi(a)icj.org
