Feb 7, 2017 | News
Cambodian authorities should immediately drop the politically motivated criminal investigation of human rights defenders Am Sam-at and Chan Puthisak, the ICJ, Amnesty International and Human Rights Watch said today.
Cambodian officials have accused Sam-at, a respected human rights monitor at the Cambodian League for the Promotion and Defense of Human Rights (LICADHO) for nearly 20 years, and Puthisak, a land rights activist from Boeung Kak Lake and former prisoner of conscience, of instigating violence at a 10 October 2016 demonstration.
Para-police forces, who are regularly used to suppress demonstrations, violently dispersed what had been a peaceful protest in Phnom Penh.
When Puthisak attempted to prevent para-police from confiscating a drum that was being used by a demonstrator, four or five para-police attacked him, repeatedly beating him on the head with their fists, according to a video of the incident.
When Sam-at tried to stop the assault, the para-police attacked him, also beating him on the head. Both men sustained injuries that needed medical attention.
“The investigation of Sam-at and Puthisak by the Cambodian authorities is a typically absurd and undisguised case of judicial harassment,” said Champa Patel, Southeast Asia and Pacific Director at Amnesty International.
“As usual, unnecessary and excessive use of force by the para-police goes unpunished, and those who work to promote and protect human rights find themselves subject to criminal proceedings.”
On 4 November, two members of the para-police filed a complaint with the Phnom Penh Court of First Instance, alleging that they were injured during the dispersal of the demonstration.
The authorities are investigating Sam-at and Puthisak for instigating intentional violence, under Articles 27 and 217 of Cambodia’s Criminal Code, which carry penalties of up to three years in prison.
Both men are due for questioning on 8 February by Phnom Penh Court of First Instance Deputy Prosecutor Ngin Pich.
There has been no indication that complaints filed against para-police by Sam-at and Puthisak after the incident on 10 October 2016 are being investigated.
The 10 October demonstration involved approximately 150 participants peacefully calling for respect for housing and land rights in Freedom Park, an area designated for demonstrations.
The protestors were marching on a street adjacent to the park when the incident took place.
Videos of the incident establish that the demonstration was peaceful and that Sam-at was wearing a blue human rights monitor vest when the para-police attacked him.
The case investigation of the two falls within a wider pattern of judicial intimidation in Cambodia.
There are currently as many as 26 human rights and political activists in prison on charges which have all the hallmarks of being politically motivated.
This includes 14 political activists who were jailed following a demonstration in July 2014, when para-police violently clashed with participants.
No efforts have been reported of the authorities’ efforts to bring to justice the para-police responsible for the unlawful use of force.
“The case against Sam-at and Puthisak is part of an extensive effort by the Cambodian authorities to discredit the legitimate work of human rights organisations and to make clear the threat of prison for everyone working to promote and protect rights in the country,” said, Phil Robertson, Asia Deputy Director at Human Rights Watch.
“This campaign of intimidation against rights advocates has to stop now.”
Para-police, often referred to as “district security guards,” are auxiliary security forces that are regularly used to violently suppress demonstrations in Cambodia.
No single legal document sets out the rules governing their functions and powers. Rather, their legal basis and the rules governing their activities are set out in a confusing combination of government statements and policies, and by instructions from the Ministry of Interior.
They work in tandem with police, under the authority of district governors.
“The Cambodian government should be commending people like Sam-at and Puthisak for their work to promote and protect human rights rather than trying to intimidate them,” said Kingsley Abbott, Senior International Legal Advisor at the ICJ.
“The case should be immediately and formally closed and a genuine investigation initiated into wrongful use of force by the para-police.”
Feb 1, 2017 | News
The ICJ today launched a new global initiative focussed on redress and accountability for gross human rights violations.
In all regions of the world, perpetrators of gross human rights violations enjoy impunity while victims, especially the most vulnerable and marginalized, remain without effective remedies and reparation.
Governments of countries in transition and/or experiencing a wider rule of law crisis often seek to provide impunity for perpetrators of gross violations of human rights, or make no effort to hold them to account, or misuse accountability mechanisms to provide arbitrary, politically partial justice.
Yet international law requires perpetrators to be held accountable and victims to be provided with effective remedies and reparation, including truth and guarantees of non-recurrence.
This is reinforced by the 2030 Sustainable Development Agenda, which recognizes the need to build peaceful, just and inclusive societies that provide equal access to justice, are based on the rule of law and respect for human rights, and provide for accountability.
“Impunity and lack of redress dehumanizes victims and acts as an impediment to the cementing of democratic values and the rule of law”, said Alex Conte, coordinator of the ICJ initiative.
Lack of accountability and claims for justice dominate national debates, frequently leading to a paralysis or reduced functioning of the institutions of the State and detracting from the pursuit of other rule of law and development initiatives.
Impunity threatens a nascent democracy by rendering its constitution hollow, weakening its judiciary and damaging the political credibility of its executive.
Public institutions often act in ways that bring them into disrepute and undermine the public confidence in them that is required for sustainable transition, for example through the legislature enacting laws providing for impunity, through law enforcement and the judiciary acting on a selective basis or without independence, and/or through the executive ignoring rule of law based judgments by higher courts.
A failure to guarantee redress and accountability has too often also resulted in former structures of power, to the extent that they enjoy impunity, transforming into criminal and hostile elements that may perpetuate violence and conflict.
The ICJ’s new initiative, generously sponsored by the Finnish Ministry of Foreign Affairs, currently focuses on seven countries (Cambodia, Mozambique, Myanmar, Nepal, Tajikistan, Tunisia and Venezuela) aims to combat impunity and promote redress for gross human rights violations.
It concentrates on the transformative role of the law, justice mechanisms and justice actors, seeking to achieve greater adherence of national legal and institutional frameworks with international law and standards so as to allow for effective redress and accountability; more independent justice mechanisms capable of dealing with challenges of impunity and access to redress; and judges, lawyers, human rights defenders, victims and their representatives that are better equipped to demand and deliver truth, justice and reparation.
The initiative will commence with the production of baseline studies on the situation in each focus country concerning accountability, access to justice/redress and the independence and accountability of judges and lawyers.
These will form the basis for tailored plans of action for each country identifying interventions and capacity building activities that can best drive the brining to justice of perpetrators of human rights violations and the access of victims to effective remedies and reparation.
Implementation of those activities will follow, alongside the production of global manuals and guides on key challenges for redress and accountability.
GRA Initiative Factsheet
Jan 6, 2017 | News
As Pakistani military courts once again cease to have jurisdiction over civilians for terrorism-related offences, the Government must urgently reform the country’s criminal justice system, the ICJ said today.
Perpetrators of terrorist attacks must be brought to justice pursuant to fair credible trials and in accordance with due process, the human rights organization added.
The 21st Amendment and corresponding amendments to the Army Act 1952 are scheduled to lapse today, as their respective two-year sunset clauses expire. So far, the Pakistani Government has not proposed any legislation to extend the jurisdiction of military courts to conduct trials of civilians, the ICJ says.
The Geneva-based organization has published an updated list of people convicted by military courts, the charges against them, and their alleged organizational affiliations.
“The lapse of the jurisdiction of military courts over civilians is a step in the right direction, but unsurprisingly, there is no sign of the promised reforms to strengthen the ordinary criminal justice system to effectively handle terrorism-related cases,” said Sam Zarifi, ICJ’s Asia Director.
The National Action Plan envisioned military courts as a short-term “exceptional” measure to try “terrorists”, to be operational only for a two-year period during which the Government would bring about necessary “reforms in criminal courts system to strengthen the anti-terrorism institutions.”
“The Pakistani Government must not re-enact legislation to continue secret military trials of civilians, nor resort to more short-term, short-sighted security measures that are contrary to human rights protections,” Zarifi added.
Instead, the Government should urgently invest in enhancing the capacity and security of judges, investigators and prosecutors to make the regular criminal justice system more effective in conducting fair, credible terrorism trials and bringing perpetrators to account, the ICJ says.
According to military sources and ICJ’s monitoring of military trials in Pakistan since January 2015, military courts have convicted 274 people for their “involvement” in terrorism-related offences, 161 of whom have been sentenced to death.
Twelve out of the 161 people sentenced to death have been hanged, 113 people have been given prison sentences. Details of only seven people given life imprisonment have been made public. The names, charges, and duration of prison terms for the remaining 106 people have not been disclosed.
Contact
Sam Zarifi, ICJ Asia Pacific Regional Director (Bangkok), t: +66 807819002; e: sam.zarifi(a)icj.org
Reema Omer, ICJ International Legal Adviser for Pakistan (Lahore), t: +923214968434; e: reema.omer(a)icj.org
Read also
Pakistan: stop military trials for civilians
Pakistan: ICJ urges Government not to extend oppressive counter-terrorism law
Additional information
At least 159 out of 168 people (95 per cent) whose convictions have been publicly acknowledged by the military had allegedly “admitted” to the charges, raising serious questions about the possibility of torture or other coercive measures being used to secure these confessions.
The ICJ’ 2009 global study on state responses to security threats examined in detail the dangers of the “exceptionalism doctrine”, which justifies a departure from the normal legal processes and human rights protections on the basis of the “exceptional” character of the threat.
In time, many of these measures became permanently incorporated into ordinary law, blinding governments to the actual reasons behind the lack of accountability for terrorism and serious crime.
Dec 15, 2016 | News
The Pakistani Government must not extend legal provisions that empower military courts to try civilians for terrorism-related offences, the ICJ said today.
The 21st Amendment and corresponding amendments to the Army Act, 1952, are scheduled to lapse on 6 January 2017, when their respective two-year sunset clauses expire.
“These military trials of civilians has been a disaster for human rights in Pakistan,” said Sam Zarifi, ICJ’s Asia Director.
“The conduct of these tribunals over the last two years has demonstrated that military trials are secret, opaque, violate even basic fair trials rights —and don’t do anything to protect people from acts of terrorism,” he added.
In a question-and-answer briefing paper released today, the ICJ provides answers to key questions regarding the conduct of military courts and the issues that have arisen in their operation.
The military has acknowledged the convictions of at least 144 people by military courts for their “involvement” in terrorism-related offences, 140 of whom have been sentenced to death.
Twelve out of the 140 people sentenced to death by military courts have been hanged.
The military has announced that least four people have been given life imprisonment sentences, but the actual number could be much higher.
Some 135 out of 144 people (94 per cent) convicted by military courts had allegedly “confessed” to the charges, raising serious questions about the possibility of torture or other coercive measures being used to secure these convictions.
The ICJ has documented how proceedings before Pakistani military courts fall short of national and international standards requiring fair trials before independent and impartial courts:
- Judges are part of the executive branch of the State and continue to be subjected to military command;
- The right to appeal to civilian courts is not available;
- The right to a public hearing is not guaranteed;
- A duly reasoned, written judgment, including the essential findings, evidence and legal reasoning, is denied;
- The procedures of military courts, the selection of cases to be referred to them, the location and timing of trial, and details about the alleged offences are kept secret; and
- The death penalty is implemented after unfair trials.
In addition to these concerns, the ICJ has also received reports that suspects tried by military courts have been subjected to torture and ill-treatment in detention and their family members have been harassed and intimidated by military authorities.
Allegations of torture and ill-treatment are not effectively investigated and information alleged to have been obtained by means of torture or other ill-treatment is not excluded as evidence in trial, the ICJ says.
In at least two cases, the petitioners have also alleged that the convicts were children under the age of 18 at the time they were arrested by law enforcement agencies.
Military courts were empowered to try civilians pursuant to the National Action Plan against terrorism, in contravention of international standards.
The National Action Plan envisioned military courts to be a short-term “solution” to try “terrorists”, to be operational only for a two-year period during which the Government would bring about necessary “reforms in criminal courts system to strengthen the anti-terrorism institutions”.
With less than one month left before military courts cease to be in effect, there is little sign of the promised reforms to strengthen the ordinary criminal justice system to effectively handle terrorism-related cases, the ICJ adds.
“Pakistan has not used the period of using military courts to reform and strengthen the criminal justice system,” said Zarifi.
“On the contrary, military courts have only further undermined the legitimacy of the ordinary courts and weakened the rule of law in Pakistan.”
The ICJ urges the Pakistan Government to not extend the 21st Amendment and ensure that all counter-terrorism laws and procedures are in accordance with Pakistan’s human rights obligations.
Contact
Sam Zarifi, ICJ Asia Pacific Regional Director (Bangkok), t: +66 807819002; e: sam.zarifi(a)icj.org
Reema Omer, ICJ International Legal Adviser for Pakistan (Lahore), t: +923214968434; e: reema.omer(a)icj.org
pakistan-military-courts-qa-advocacy-2016-eng (full Q& A on Military Courts, in PDF)
pakistan-list-of-convicted-advocacy-2016-eng (full list of convicted people, in PDF)
Dec 6, 2016 | Advocacy, News, Non-legal submissions
Nearly five months after the failed coup attempt in Turkey, the country remains locked in an acute rule of law crisis. The government must take urgent steps to restore the rule of law, the ICJ said today.
Mass arrests, many of them arbitrary, and credible allegations of the torture and other ill-treatment of detainees, mean that access to legal advice, to a fair trial and to effective judicial remedies are crucial. However, the unprecedented summary and arbitrary purge of the judiciary following the coup, and arrests of judges, prosecutors and lawyers, have significantly weakened the justice system and its capacity to protect against and effectively remedy violations of human rights. The vulnerability of detainees to violations of their human rights has been compounded by unwarranted restrictions on access to lawyers and extended periods of pre-trial detention.
State of Emergency
The ICJ is concerned that the State of Emergency, which involves derogations from Turkey’s international human rights law obligations, has been renewed for a second period of 90 days, until mid-January. Sweeping emergency decrees continue to erode human rights, including rights of fair trial, the right to liberty, and freedoms of expression and association.
The ICJ recalls that in times of crisis, any measures derogating from human rights must be strictly necessary to meet a current threat to the life of the nation. This necessity must be continually re-assessed so that the derogating measures apply for the shortest time possible. Certain human rights, including the right to life, the prohibition of torture or ill-treatment, and the essential elements of arbitrary deprivation of liberty and to a fair trial and the right to an effective remedy can never be restricted even in a state of emergency. The ICJ is concerned that Turkey’s notifications of derogation purport to derogate in general terms from a number of these rights.
Measures taken under the State of Emergency should be rigorously and urgently reviewed to ascertain whether they are permissible under international law and whether they remain necessary and proportionate to any current threat to the life of the nation. Moreover, it must be ensured that non-derogable rights, including the prohibition on torture and other ill-treatment, and the right to a fair trial, are not limited by emergency measures. The ICJ urges the Turkish authorities to lift the State of Emergency and the derogations from its international human rights law obligations at the earliest opportunity.
Independence of the judiciary
The ICJ reiterates its grave concern at mass dismissals of judges and prosecutors, which have a devastating effect on the independence of the judiciary. More than 3,000 judges and prosecutors – approximately one fifth of the judiciary – have been arbitrarily dismissed under emergency decrees, without procedural safeguards and without the right to reasoned decisions.
Judges and prosecutors have been detained in very large numbers. In total, more than 2,000 have been detained, including two judges of the Constitutional Court, 109 members of the Court of Cassation, 41 Members of the Council of State and five members of the High Council for Judges and Prosecutors (HSYK).
Restructuring of the Court of Cassation and the Council of State, under legislation adopted in July, has required the reappointment of all judges of these courts. New judges have been appointed rapidly, through procedures that lack transparency, and in the context of strong executive influence over the appointment process in the HSYK.
The ICJ is also gravely concerned that the independent association of judges, YARSAV, has been shut down, and its President, Murat Arslan, has been arrested.
These measures have eroded the separation of powers in Turkey and have seriously undermined the independence of the judiciary at every level, compromising the courts’ ability to provide fair trials or an effective remedy for violations of human rights. The impact of this situation on the protection of human rights goes beyond what can be justified under the state of emergency. To meet its international human rights obligations, the Turkish government must as a matter of urgency take steps to restore the independence of the judges and of the governing bodies of the judiciary. Procedural safeguards that protect against arbitrariness in criminal, civil and administrative procedures, including in regard to the dismissal of judges, must be reinstated.
Independence of lawyers and access to legal advice
The ICJ is similarly concerned at measures that undermine the independence of the legal profession and the capacity of lawyers to protect human rights. More than 573 lawyers are reported to have been detained in connection with the failed coup since July, and more than 200 have been arrested, and their assets frozen.
Amongst those reported to be arrested are four Presidents of regional bar associations: Orhan Öngöz, President of the Trabzon Bar; Mehmet Cemal Acar, President of the Siirt Bar; İsmail Taştan, President of the Gumushane – Bayburt Regional Bar and Fevzi Kayacan, President of the Konya Bar. The ICJ considers that many of these detentions and arrests are likely to be arbitrary.
These developments have very serious consequences, not only for the rights of lawyers themselves, but also for the right to a fair trial of their clients and the effectiveness of judicial remedies for violations of human rights. They raise concerns that lawyers are being identified with their clients or their clients’ causes, contrary to the Principle 18 of the UN Basic Principles on the Role of Lawyers. The ICJ recalls that under the UN Basic Principles, governments must ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference.
Furthermore, the ICJ is concerned that hundreds of NGOs have been closed under emergency decrees, including a number of lawyers’ associations. Such closures have serious implications for rights of freedom of association and expression, and for the rule of law.
The ICJ calls on the Turkish government to take urgent steps to guarantee the independence of the legal profession, protect lawyers from arbitrary detention or arrest and provide procedural safeguards to ensure the right to fair trial of lawyers under criminal investigation.
Contact:
Roisin Pillay, ICJ Europe Director, at roisin.pillay(a)icj.org or +32 2 734 84 46
Massimo Frigo, ICJ Europe Legal Adviser, at massimo.frigo(a)icj.org or +41 22 979 38 05
