May 27, 2015 | News
Representatives of 17 countries gathering in Bangkok on 29 May to discuss the humanitarian crisis involving thousands of Rohingya and Bangladeshis adrift in the Andaman Sea must adopt a regional response that complies with international human rights law and standards, said the ICJ today.
“The countries in ASEAN should work with each other and the international community to immediately save the lives of thousands of Rohingya and Bangladeshi people now trapped on ‘floating coffins’, and to address the human rights disaster in Rakhine state that helped create and foster this crisis,” said Sam Zarifi, ICJ’s Asia director.
“It’s essential that the participants of this meeting use this opportunity to establish a response that complies with international law and standards on human rights, the treatment of refugees and migrants, and people in distress on the sea,” he added.
The government of Thailand called the “Special Meeting on Irregular Migration in the Indian Ocean” to provide a forum for countries affected by this crisis.
The main countries involved in this crisis, Myanmar, Bangladesh, Thailand, and Malaysia, have not signed on to the Refugee Convention or to the Convention relating to the Status of Stateless Persons.
“Now they have to scramble to come up with a sensible and humane response,” Zarifi said.
“ASEAN countries have hidden behind the notion of ‘noninterference’ to turn a blind eye to the persecution of Rohingya in Myanmar, to the growth of criminal smuggling and human trafficking networks, and the increasing demand for undocumented laborers,” he added.
“But this crisis shows that problems in one country can and will quickly spread to the others unless ASEAN can provide a rights-compliant regional response.”
The ICJ calls on all ASEAN Member States and Bangladesh to become parties to key international treaties, such as the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, the Convention relating to the Status of Stateless Persons, and the 1979 International Convention on Maritime Search and Rescue (SAR).
The SAR encourages parties to enter into search and rescue agreements with neighboring states to ensure that assistance be provided to any person in distress at sea regardless of the nationality or status of such a person or the circumstances in which that person is found, and provide for their initial medical or other needs, and deliver them to a place of safety.
A draft ASEAN Convention Against Trafficking in Persons Especially Women and Children (ACTIP) and a corresponding Regional Plan of Action (RPA) for the Convention’s operationalization have yet to be endorsed by ASEAN leaders, and no copies of the drafts have been released to the public.
The ICJ calls on ASEAN to make this draft Convention and RPA public and hold consultations with civil society organizations, especially those that work with trafficked persons on which governments so frequently rely as service providers.
The ICJ also points out that certain ASEAN Member States have critical roles to play as integral components to the regional efforts addressing the current crisis.
It is clear that discriminatory policies and actions in Myanmar have significantly contributed to this regional humanitarian crisis, the ICJ says.
The ICJ adds that the Rohingya are forced to flee their homes because of ethnic conflict and the policies of the Myanmar government.
“The government has persecuted the Rohingya, refused to extend basic citizenship rights to them and in fact has recently passed legislation to entrench discrimination against the Rohingya such as the Protection of Race and Religion laws,” said Zarifi.
“These are some of the so-called ‘root causes’ that have displaced thousands within Rakhine State and driven the Rohingya to the sea and to the territory of neighboring countries. It is no longer possible to cite ‘sovereignty’ as an excuse for silencing regional discussions about these serious human rights concerns,” he added.
The ICJ has called on Myanmar to scrap laws that discriminate against minorities and to actively prosecute acts of violence fuelled by discrimination as well as crimes of hate speech.
The ICJ has also urged Myanmar to undertake every effort to improve basic living conditions for the Rohingya and Arrakhanese population in Rakhine State by enhancing respect for and protection of their economic, social, and cultural rights.
The ICJ also called on Thailand to assume its natural role as a key stakeholder in resolving this crisis.
“Thailand’s full commitment to a coordinated regional human rights based response is crucial,” Zarifi further said. “Thailand’s convening of a regional meeting is a welcome step, but as the meeting’s name suggests, Thailand still views this problem as primarily one of migration and trafficking, instead of as a serious human rights crisis that demands a human rights-based regional response.”
Thailand has recently committed to provide humanitarian assistance to migrants and refugees on board the boats.
However, the ICJ emphasized that Thailand and other countries must go further and rescue individuals in distress at sea and allow those who arrive on their shores to expeditiously and safely disembark.
Rather than pushing them back, involuntarily returning them, detaining them or applying other punitive measures, they should be provided with adequate and humane reception conditions and necessary medical care in the country.
Thereafter, with the aid of experts, their further protection and assistance needs must be individually and accurately determined and then addressed, consistent with international standards.
“The Thai government’s response that a naval vessel will be used as a floating administrative center for people already adrift in the waves, and that not even those in need of medical assistance will be allowed onshore, is simply callous and in violation of Thailand’s international obligations,” concluded Zarifi.
Additional information:
Eight ASEAN Member States will be attending the “Special Meeting on Irregular Migration in the Indian Ocean”: Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, Philippines, Vietnam, and Thailand. Singapore and Brunei Darussalam are not taking part in the meeting.
Also present will be representatives of Afghanistan, Australia, Bangladesh, India, Iran, New Zealand, Pakistan, Papua New Guinea, and Sri Lanka; the United States of America and Switzerland will participate as observers.
Three international organizations, namely the UN Refugee Agency (UNHCR), the UN Office of Drugs and Crimes, and the International Organization of Migration will also join the meeting.
Contact:
Sam Zarifi, ICJ Regional Director for Asia and the Pacific, t: +66807819002 ; e: sam.zarifi(a)icj.org
May 13, 2015 | News
The ICJ today condemned the decisions of the governments of Indonesia and Malaysia to turn away and push back boats carrying hundreds of Bangladeshis and Rohingyas, including women and children, out to sea.
The ICJ emphasized that the increase in the number of Rohingya arrivals in Indonesia and Malaysia underscores the need to address the root causes that drive these people to set off on these perilous journeys, including the longstanding human rights abuses to which Rohingyas are subjected.
The decision by the two governments to return the boats to sea came after the arrival of about 2,000 people, mostly believed to be Rohingya and Bangladeshi nationals, onto the shores of Malaysia and Indonesia earlier this week.
“This should be a wake-up call to ASEAN that human rights is not an internal affair of one Member State,” said Sam Zarifi, ICJ’s Regional Director for Asia and the Pacific.
“Had there been action on the part of ASEAN early on to protect the rights of Rohingyas in Myanmar, this looming humanitarian crisis would not have happened,” he added.
The large majority of Rohingyas have fled Myanmar because of the discrimination and deadly violence they face there as members of a religious minority.
Many of them had no choice but to resort to callous smugglers.
However, a recent crackdown on human trafficking in both Thailand and Malaysia has spooked smugglers who, in order to avoid arrest, have abandoned boatloads adrift at sea instead of taking them ashore.
It is reported that approximately 6000 Rohingyas and Bangladeshi are now on boats adrift in the Andaman Sea in poor and overcrowded conditions.
“The decisions of the Indonesian and Malaysian governments constitute an abject failure of their duty to increase search-and-rescue efforts at sea and to provide humanitarian relief to those in need. Moreover, pushing these people back out to sea is a life-endangering practice and in no way does it provide a safe and effective solution,” said Zarifi.
Under international law, the act of pushing those boats back to the high seas constitutes a collective expulsion and may constitute a violation of the principle of non-refoulement.
Such a practice is also likely to lead to violations of the right to seek and enjoy asylum from persecution, of the right not be subjected to torture and other ill-treatment, and of the right to life.
On 29 May 2015, senior officials and representatives from at least 6 ASEAN member states will be in Thailand to have a “Special Meeting on Irregular Migration in the Indian Ocean”.
“ASEAN member states must ensure that any regional decision taken on this issue will be one that adequately and meaningfully protects the lives of people who embark on those desperate journeys across the Indian Ocean,” added Zarifi.
The ICJ urges ASEAN member states to stop the practice of returning boatloads of asylum-seekers and migrants to the sea and to immediately adopt effective regional measures in line with international human rights standards.
The ICJ also urges ASEAN to strengthen its regional human rights mechanism so that it would be able to effectively address violations of human rights in the region.
Contact:
Emerlynne Gil, ICJ Senior International Legal Adviser, in Bangkok, email: emerlynne.gil(a)icj.org or mobile: +66 84 092 3575
Picture: EPA/Zikri Maulana
Apr 30, 2015 | News
The ICJ welcomes yesterday’s adoption, by the UN Working Group on Arbitrary Detention, of the Working Group’s “Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of His or Her Liberty by Arrest or Detention to Bring Proceedings Before Court”.
Under its resolution 20/16 (2012), the UN Human Rights Council requested the Working Group to prepare draft basic principles and guidelines on habeas corpus. The Working Group set out a first draft set of principles and guidelines ahead of its global consultation on the subject in September 2014. From 2 to 5 February 2015, the Working Group met to continue its elaboration of the Basic Principles and Guidelines, resulting in the adoption of a second draft. The Working Group adopted its final iteration of the document at the conclusion of its session on 29 April 2015. The Basic Principles and Guidelines will be presented to the Human Rights Council during the Council’s 30th regular session, to be held from 14 September to 2 October 2015.
The ICJ welcomes the Basic Principles and Guidelines as a means of assisting States to enhance, in law and in practice, respect for the right to habeas corpus. It especially welcomes certain aspects of the document, including:
- Paragraph 68, in which applicable qualifications are set out to any derogating measures to accommodate constraints on the application of some procedural elements of the right to habeas corpus;
- Principle 6 and Guideline 4 which reaffirm that habeas corpus petitions must be heard by courts that bear all characteristics of competence, independence and impartiality (paras 27, 70 and 72(a)), that competence includes the power to order immediate release if detention is fund to be arbitrary or unlawful (para 27), that immediate implementation of such orders is required (para 71(c)) and that courts must give reasoned and particularized decisions (para 71(d));
- Guideline 7, in which it is provided that individuals are entitled to take proceedings multiple times (paras 81 and 82), that expediency is required, including in cases of subsequent challenges, and especially in cases alleging, among other things, torture or ill-treatment (para 83) and that authorities remain obliged to ensure regular review of the continuing need for detention (para 84);
- Principle 9 and Guideline 8 concerning legal representation and legal aid;
- The clarifications in Principle 10 and Guideline that persons able to bring proceedings include counsel, family members or other interested parties, whether or not they have proof of the consent of the detainee (paras 34 and 92) and that no restrictions may be imposed on a detainee’s ability to contact such persons (para 35);
- The express recognition in Guideline 12 that information obtained by torture or other forms of ill-treatment may not be used in evidence;
- Guideline 13 concerning disclosure and limitations applicable to any non-disclosure of information on security or other grounds;
- Guideline 14, reflecting authorities’ obligation to justify the need and proportionality of detention;
- Principle 15 and Guideline 16 (on remedies), reflecting the overarching right to remedies and reparation (paras 43), the need for authorities to give immediate effect to an order for release (para 44) and the right to compensation, restitution, rehabilitation, satisfaction and guarantees of non-repetition (paras 109-112); and
- Principle 16 concerning the application of Article 9(4) of the International Covenant on Civil and Political Rights (ICCPR) alongside international humanitarian law (paras 45 and 47), the application of Article 9(4) to civilians in an international armed conflict (para 47), the application of habeas principles to prisoners of war (para 48), and the question of administrative detention or internment in the context of a non-international armed conflict (para 49).
The ICJ has engaged in all stages of the Working Group’s elaboration and consultations. It made written submissions in November 2013, April 2014 and March 2015. Its staff, Matt Pollard and Alex Conte, gave panel presentations at the September 2014 global consultation.
Apr 28, 2015 | Advocacy, News, Non-legal submissions
The ICJ is urging the European Council to immediately act to take effective measures to protect the lives of migrants at sea, after it failed to respond adequately to the repeated tragedies at a special meeting held on 23 April.
The special meeting of the European Council was called after the sinking of a boat in the Libyan Search and Rescue Zone left at least 700 persons dead. Since then, other incidents have brought the death toll in the Mediterranean to more than 1,000 in one week.
In its statement, released following the meeting, the European Council directed the EU institutions and the Member States to take a set of actions with the stated aim of preventing further loss of lives at sea.
The ICJ is deeply saddened by these tragedies that are the concern not only of the Mediterranean region and of Europe, but of the whole of the international community.
It is deeply regrettable that the reaction of the European Union and its Member States at a moment of such gravity has concentrated on presevering security of borders, and returning migrants, rather than on humanitarian and human rights concerns, particularly strengthening search and rescue operations in order to save lives, the ICJ says.
Although the European Council has affirmed that its “immediate priority is to prevent further loss of life at sea”, the measures envisaged in this statement are not designed to achieve this aim. Instead, they reflect a continuing security-based policy, centred on the need to “fight the traffickers” and on combatting irregular migration.
The ICJ supports the call of the UN Special Rapporteur on the rights of migrants, Fraçois Crépeau, urging the EU and Member States to focus their migration policies on the introduction of safe and legal migration routes and combatting the black labour market.
The framing of migration policies around narrowly perceived “security” interests and the strengthening of border controls creates a situation in which smugglers provide the only route for many migrants and this is leading to serious abuses of human rights. Migrants, many of whom are fleeing war or persecution, should not have to resort to such means of reaching safety in Europe.
“Strengthening our presence at sea”
While welcoming the increase in financial support for Frontex operations Triton and Poseidon with a view to foster its search and rescue capabilities, the ICJ is concerned that this commitment in the context of operations presently aimed to “control irregular migration flows towards the territory of the Member States of the EU and to tackle cross-border crime” risks marginalizing rescue at sea within these operations.
Resources must also be allocated directly to increase search and rescue capacities at the EU and national levels, in order to ensure that the human rights of migrants are protected, and that lives are saved.
“Fighting traffickers in accordance with international law”
The commitment in the statement to increase intelligence and police co-operation with third countries as a means of fighting trafficking, without corresponding human rights protections. Any such co-operation must be carried out in compliance with the EU Charter of Fundamental Rights, the European Convention on Human Rights and other international human rights law and standards.
Without strong safeguards in law and in practice, there is a risk that such co-operation may lead to exchange of information or evidence with, or transfer of suspects to, States in which human rights abuses are systematic or widespread or where particular individuals may be at risk.
This may lead to violations of human rights, including of the right to asylum, the right to the protection of non-refoulement, the right to be free from torture and ill-treatment and the right life.
In addition, engagement in intelligence and police cooperation, while an important tool in effective law enforcement, risks, if not undertaken with adequate safeguards, leading to infringements to the right to privacy, the right to data protection, and the prohibition of collective expulsions.
All of these rights are protected by the EU Charter of Fundamental Rights, as well as by international human rights treaties binding on EU Member States.
Regarding the commitment to take systematic action to capture and destroy vessels used by traffickers in the Mediterranean, the ICJ is also seriously concerned that any such any action risks to be in violation of international law and could lead to a risk of loss of lives.
Finally, the proposal to use Europol to detect and request removal of internet content used by “traffickers” to attract migrants and refugees may lack a sufficient legal basis in EU or national law.
While welcoming the statement’s acknowledgment that such measures must be in accordance with national constitutions, the ICJ recalls that they must also be in compliance with the EU Charter and international human rights law.
Any new measures must include safeguards and limitations to ensure that human rights, including the rights to freedom of expression and association are fully respected.
“Preventing illegal migration flows”
The ICJ is concerned that the stepping up of cooperation initiatives envisaged in the statement, with the aim of preventing irregular migration, poses a risk of complicity by the EU, i.e. aiding or assisting in violations of human rights by third countries.
The ICJ urges that any co-operation with third countries in preventing irregular migration must be in compliance with the EU Charter of Fundamental Rights and international human rights law.
Furthermore, the ICJ is particularly concerned by the decision of the European Council to promote further the readmission to third countries of “unauthorised economic migrants” and to order the establishment of a new return programme for the rapid return of “illegal migrants” from frontline member states, co-ordinated by Frontex.
While the content of the new fast return programme proposed by the Council remains unclear, as does the definition of “rapid return,” the ICJ considers that such a programme is likely to increase the possibility of European Union complicity in violations of the protections of non-refoulement, the right to asylum, the prohibition of collective expulsions and the right to an effective remedy, against its obligations under the EU Charter of Fundamental Rights.
The ICJ is concerned that the rapidity of the return could be linked to certain national expulsion practices that are at odds with the Member States’ obligations under the EU Charter and international human rights and refugee law. Furthermore, the ICJ recalls that under article 9 of the Frontex Regulation, Frontex, in its joint return operations, is not able to assess the compliance of return decisions on the merits. This lack of control increases the risk of aiding or assisting in serious violations of human rights.
“Reinforcing internal solidarity and responsibility”
Finally, in regard to the commitment to provide emergency aid to frontline Member States, the ICJ supports the rapid deployment of a long-term, sustainable programme of aid to such states, directed at the provision of search and rescue operations in the Mediterranean, and designed to safeguard the lives and rights of migrants.
The ICJ also recalls that, consistent with the dictates of the UN charter and international human rights treaties, States are under a general obligation to engage in international cooperation and assistance to protect human rights.
Conclusion
The ICJ deplores the fact that, following the tragic death of more than 1,000 people in one week, the EU Member States and the European Council, have failed to act meaningfully to protect the lives of migrants by taking decisive measures to protect the right to life of those crossing the Mediterranean.
In prioritizing border security and returns over search and rescue, the Member States of the European Union have demonstrated a reckless disregard for the human rights of migrants fleeing war, persecution or dire standards of living.
The ICJ urges the EU Member States and the EU institutions to take swift action, centred on the protection of lives and rights of migrants, in order to uphold the EU founding values of the rule of law and human rights, affirmed in article 2 of the Treaty on the European Union.
Apr 16, 2015 | News
Thailand must strengthen its efforts to solve the apparent enforced disappearance of Karen human rights defender, Pholachi “Billy” Rakchongcharoen, who “disappeared” one year ago this Friday, said the ICJ.
“Thailand must strengthen its efforts to carry out a thorough and effective investigation into Billy’s fate and whereabouts in a manner that complies with its international obligations,” said Kingsley Abbott, International Legal Adviser at the ICJ.
“As part of this process, it is essential that the authorities evaluate the investigation objectively to ensure it has been carried out independently and impartially, that the necessary resources have been allocated, and that all investigative opportunities have been pursued,” he added.
The ICJ reiterates its call for the Department of Special Investigations (DSI) to assume responsibility for the investigation because of the need for the DSI’s special expertise.
The DSI has the power to assume jurisdiction over special criminal cases including complex cases that require special inquiry, crimes committed by organized criminal groups, and cases where the principal is an influential person.
A six-day habeas corpus inquiry monitored by the ICJ and which concluded on 17 July 2014, and a subsequent appeal delivered on 26 February 2015, were unsuccessful in shedding any light on Billy’s fate or whereabouts.
Thailand, as a Party to the International Covenant on Civil and Political Rights, is required to investigate, prosecute, punish and provide a remedy and reparation for the crime of enforced disappearance.
Background
Billy (photo) was last seen on 17 April 2014 in the custody of Kaeng Krachan National Park officials. The officials claimed they detained Billy for illegal possession of honey but released him later the same day.
Billy had been working with ethnic Karen villagers and activists on legal proceedings the villagers had filed against the National Park, the Wildlife and Plant Conservation Department, the Ministry of Natural Resources and Environment, and the former Chief of Kaeng Krachan National Park concerning the alleged burning of villagers’ homes and property in the National Park in 2010 and 2011.
The Royal Thai Government has signaled its recognition of the gravity of the crime of enforced disappearance, and its commitment to combating it, by signing the International Convention for the Protection of All Persons from Enforced Disappearance on 9 January 2012.
The Convention affirms the absolute right not to be subject to enforced disappearance and places an obligation on states to investigate acts of enforced disappearance and to make it a criminal offence punishable by appropriate penalties that take into account its “extreme seriousness”, and to take the necessary measures to bring those responsible to justice.
Contact:
Kingsley Abbott, ICJ International Legal Adviser, t: +66 (0) 94 470 1345 ; e: kingsley.abbott(a)icj.org
Thailand-Billy one year-News-PressRelease-2015-THA (full text in PDF)
