May 1, 2020 | News
The decision by Nepal’s Supreme Court to reject a petition by the government asking that it review its 2015 ruling against amnesties for grave conflict-era crimes is an important step in securing truth, justice and reparations for the thousands of victims of the country’s decade-long conflict, the ICJ and other groups said today.
The armed conflict between Maoist and government forces ended in 2006, but victims of serious abuses by both sides are still awaiting justice, accountability and reparations.
The ICJ, Amnesty International, TRIAL International, and Human Rights Watch called upon the Government to revise the 2014 Transitional Justice Act and ensure its implementation in accordance with the Supreme Court’s judgments, so as to assure access to justice for the victims of conflict-era abuses.
Nepal’s transitional justice law, which was passed by Parliament in April 2014, established a Truth and Reconciliation Commission and a Commission of Investigation on Enforced Disappeared Persons.
However, it contained provisions that could allow for amnesties even for crimes such as torture, including rape and other sexual violence and ill-treatment and enforced disappearance.
On 26 February 2015, the Supreme Court struck down the amnesty provisions and ordered the act to be amended accordingly. However, the government immediately petitioned to overturn the ruling. That petition was rejected by the court on April 27, 2020.
“With the Supreme Court’s decision, there can be no further excuse for government backsliding on ensuring truth, justice, reparations and guarantees of non-recurrence. The government should immediately amend the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act, 2014 in line with the Supreme Court’s orders and its own international obligations,” said Biraj Patnaik, South Asia Director at Amnesty International.
With its latest ruling the Supreme Court has upheld the principle that there can be no amnesties for those suspected of criminal responsibility for crimes under international law and human rights violations. More than 13 years since the Comprehensive Peace Agreement of November 2006 promised justice to the victims, no one has been made accountable for any conflict era crimes.
“The request filed by the Nepal Government to review the decision of the Supreme Court was another attempt to evade the real issue: accountability for mass human rights violations. We are delighted that the Supreme Court held its ground and reaffirmed the importance of fair and efficient transitional justice mechanisms,” said Cristina Cariello, the Head of Nepal Program at TRIAL International.
Amnesty International, the ICJ, Human Rights Watch and TRIAL International have repeatedly expressed concerns about the faltering transitional justice process. Besides the failure to amend the law to uphold basic principles of justice, there have been long delays and repeated political interference in appointments to the two transitional justice commissions.
“Over the past decade, the Supreme Court of Nepal has produced some of the most human rights compliant jurisprudence in South Asia. This petition cynically sought to have the Court undermine its own judgement, so that the government could sidestep its responsibility to provide accountability for conflict-related human rights violations,” said Frederick Rawski, ICJ Asia Pacific Director. “The government has no excuse for not immediately amending the transitional justice legal framework so that it is consistent with the Court’s jurisprudence and Nepal’s international legal obligations.”
An effective transitional justice system requires strong legal foundations consistent with international law and standards, and the political will to address the demands of victims of the conflict, the organizations said.
“When Nepal stood for election to the United Nations Human Rights Council the government promised to uphold its human rights obligations, but 3 years later, as it seeks re-election, there has been nothing but impunity and evasion on transitional justice,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “These are crimes under international law, subject to universal jurisdiction, and if justice is denied at home victims may take their cases abroad.”
Contact
Frederick Rawski, ICJ Asia-Pacific Director, frederick.rawski(a)icj.org, +66644781121
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Nepali
Apr 21, 2020
La Guía para Profesionales No. 14 de la CIJ, inicialmente publicada en inglés, describe los estándares internacionales que deben considerarse en las investigaciones y los enjuiciamientos que se lleven a cabo en los casos de muertes potencialmente ilícitas.
Dichas investigaciones deben cumplir los estándares internacionales del derecho internacional de los derechos humanos.
La Guía aborda los contenidos del Protocolo de Minnesota sobre la Investigación de Muertes Potencialmente Ilícitas (2016). Dicho texto fue publicado por la Oficina del Alto Comisionado de las Naciones Unidas para los Derechos Humanos en 2017, y ofrece orientación a los Estados para aplicar los Principios de Minnesota y el deber de investigar en virtud del derecho a la vida. La versión original del Protocolo fue realizada en 1991, y su revisión contó con la experiencia de distintas organizaciones, entre ellas, la Comisión Internacional de Juristas.
La versión en inglés de la Guía No. 14 fue publicada en septiembre de 2019 en el marco de la Iniciativa global de rendición de cuentas de la CIJ. Su versión en español se publica gracias al apoyo financiero de la Unión Europea, en desarrollo del proyecto “Promoviendo justicia para ejecuciones extrajudiciales y desapariciones forzadas en Colombia, Guatemala y Perú”.
Esta Guía se nutre de otras Guías para Profesionales de la CIJ, en especial:
Universal-PG 14 Unlawful death-Publications-Reports-Practitioners Guides series-2020-SPA (Guia N°14 en español)
Apr 17, 2020 | News
On the sixth anniversary of the apparent enforced disappearance of Karen activist, Pholachi “Billy” Rakchongcharoen, the ICJ repeated its calls for Thailand to bring those responsible to justice and apply appropriate penalties that take into account the extreme seriousness of the crime.
On 23 December 2019, after the Thai Ministry of Justice’s Department of Special Investigation (DSI) in September had located bone fragments which they identified as likely belonging to Billy, eight charges, including premeditated murder and concealing the body, were brought against four officials of Kaeng Krachan National Park, with whom Billy was last seen. However, in January 2020, public prosecutors suddenly dropped seven murder-related charges against the four accused on the basis that there was insufficient evidence to take the cases to trial.
“It is disturbing that after six years the prosecutors could not move forward with the prosecution because the authorities failed to gather evidence to identify the perpetrator for Billy’s murder despite the discovery of bone fragments,” said Frederick Rawski, Asia Regional Director of the ICJ. “Thai authorities should, pursuant to its international legal obligations, continue to gather other direct and circumstantial evidence to prosecute and punish perpetrator with appropriate penalties.”
The four suspects are now facing only a minor charge for failing to exercise their official functions because they released Billy instead of handing him over to the police after they took him into custody in April 2014 for collecting wild honey in the park.
“Thailand needs to implement legislation criminalizing enforced disappearance without delay so that prosecutors have the appropriate tools to prosecute those responsible, and are not forced to bring charges for crimes of lesser gravity,” he added.
Download the statement with detailed background information in English and Thai.
Contact
Frederick Rawski, ICJ Asia-Pacific Director, t: +66 64 478 1121; e: frederick.rawski(a)icj.org
Further reading
Thailand: discovery of “Billy’s” remains should reinvigorate efforts to identify perpetrator(s)
Thailand: continuing delay in the enactment of the draft law on torture and enforced disappearance undermines access to justice and accountability
Apr 8, 2020
In a briefing paper analyzing complementarity challenges between Libyan proceedings and the International Criminal Court (ICC), the ICJ today called for full compliance with Libya’s obligations under international law to penalize, investigate and prosecute crimes under international law.
The ICJ calls for greater consideration to be given to fair trial violations and other shortcomings of the Libyan criminal justice system in the context of future cases and in any review of admissibility decisions before the ICC.
The briefing examines the standards applied by the ICC in determining the admissibility of the Libya-related cases, and assesses such standards in light of Libya’s obligations under international law and the findings of the ICJ’s report Accountability for Serious Crimes under International Law in Libya: An Assessment of the Criminal Justice System.
International fair trial standards are extensively violated in Libya, as testified by the case against 37 former Gadhafi officials, whose fair trial rights have been breached throughout the domestic proceedings.
Moreover, in prominent cases such as that concerning the 1996 massacre of 1200 prisoners in the Abu Salim prison, domestic courts failed to ensure accountability for crimes under international law by applying statutes of limitations.
The ICC has considered admissibility challenges brought by Libya in respect of the cases against Saif al-Islam Gadhafi (Muammar Gadhafi’s son) and Abdullah Al-Senussi (former head of the Military Intelligence), determining Gadhafi’s case admissible and Al-Senussi’s case inadmissible.
Warrants of arrest remain outstanding against Al-Tuhamy Mohamed Khaled (former head of the Libyan Internal Security Agency) and Mahmoud Mustafa Busayf Al-Werfalli (commander in the Al-Saiqa Brigade in the Libyan Arab Armed Forces), who are both at large.
“Libya’s criminal justice system is unable to ensure accountability for crimes under international law,” said Said Benarbia, the ICJ’s MENA Programme Director.
“To do so, courts should be able to operate free from fear or intimidation, and to apply laws that fully comply with Libya’s obligations under international law, including those on fair trial rights.”
The briefing highlights that, in addressing the admissibility of cases before the ICC, full consideration should be given to whether Libya fulfils its international obligations in terms of penalization of crimes under international law and guaranteeing that domestic proceedings are carried out in line with international fair trial standards.
“Until the Libyan proceedings are able to dispense justice consistent with international law and standards, impunity will continue to prevail in the country,” said Kate Vigneswaran, the ICJ’s MENA Programme Senior Legal Adviser.
“To contribute to dismantling such impunity, proceedings before the ICC should fully take into account and address fair trial violations and other obstacles that continue to impede the effective functioning of the Libyan proceedings.”
Contacts
Said Benarbia, Director of the ICJ Middle East and North Africa Programme, t: +41 22 979 3817; e: said.benarbia(a)icj.org
Kate Vigneswaran, ICJ Senior Legal Adviser, t: +31 62 489 4664, e: kate.vigneswaran(a)icj.org, twitter: @KateVigneswaran
Full English language briefing paper, in PDF: Libya-ICC assessment-Advocacy-Analysis Brief-2020-ENG
Full Arabic language briefing paper, in PDF: Libya-ICC assessment-Advocacy-Analysis brief-2020-ARA
Apr 6, 2020 | News
ICJ has joined other NGOs in welcoming steps taken by Indian authorities to decongest prisons in an effort to contain the novel coronavirus (COVID-19). The Government should release all unjustly detained prisoners as a matter of priority.
The joint statement read as follows:
The fate of hundreds of arbitrarily detained Kashmiri prisoners hangs in the balance as the number of confirmed cases of coronavirus in India passes the 4,000 mark and many more are likely to remain undetected or unreported.
Inmates and prison staff, who live in confined spaces and in close proximity with others, remain extremely vulnerable to COVID-19. While the rest of the country is instructed to respect social isolation and hygiene rules, basic measures like hand washing – let alone physical distancing – are just not possible for prisoners.
Under international law, India has an obligation to ensure the physical and mental health and well-being of inmates. However, with an occupancy rate of over 117%, precarious hygienic conditions and inadequate health services, the overcrowded Indian prisons constitute the perfect environment for the spread of coronavirus.
In a bid to contain the spread of the disease among inmates and prison staff, the Supreme Court asked state governments on 23 March 2020 to take steps to decongest the country’s prison system by considering granting parole to those convicted or charged with offenses carrying jail terms of up to seven years.
The United Nations High Commissioner for Human Rights Michelle Bachelet also called on governments to “examine ways to release those particularly vulnerable to COVID-19, among them older detainees and those who are sick, as well as low-risk offenders.”
Various state governments in India have now begun releasing detainees. However, there is a concern that hundreds of Kashmiri youth, journalists, political leaders, human right defenders and others arbitrarily arrested in the course of 2019, including following the repeal of Article 370 of the Indian Constitution on 5 August 2019, will not be among those benefiting from the measure. Article 370 provided special status to Jammu & Kashmir.
Human rights groups and UN experts have repeatedly called for the release as a matter of priority of “those detained without sufficient legal basis, including political prisoners and others detained simply for expressing critical or dissenting views.”
Last month, the Ministry of Home Affairs revealed that 7,357 persons had been arrested in Jammu & Kashmir since 5 August 2019. While the majority have since been released, hundreds are still detained under sections 107 and 151 of the Criminal Procedure Code, the Unlawful Activities (Prevention) Act (UAPA), and the Public Security Act (PSA), a controversial law which allows the administrative detention of any individual for up to two years without charge or trial. Reportedly, many of those still detained are minors.
Many of those detained were transferred to prisons all across India, thousands of kilometers away from their homes, hampering their lawyers’ and relatives’ ability to visit them. Some of the families, often too poor to afford to travel, have been left with nothing but concerns over the physical and psychological well-being of their loved ones.
Mr. Miyan Abdul Qayoom, a human rights lawyer and President of the Jammu & Kashmir High Court Bar Association, was also cut off from his family and lawyer. Detained since 4 August 2019 in India’s Uttar Pradesh State, he was transferred to Tihar jail in New Delhi following a deterioration of his health. Mr. Qayoom, 70, suffers from diabetes, double vessel heart disease, and kidney problems.
Mr. Ghulam Mohammed Bhat was also transferred to a jail in Uttar Pradesh. In December 2019, he died thousands of kilometers away from his home at the age of 65 due to lack of medical care.
With the entire country in a lockdown and a ban on prison visits for the duration of the outbreak imposed, inmates are more isolated from the outside world than ever. In such a situation, prison authorities must ensure that alternative means of communication, such as videoconferencing, phone calls and emails, are allowed. However, this has not often been the case. Especially in Jammu & Kashmir, where full internet services are yet to be restored after a communication blackout imposed on the population on 5 August 2019, contacts between inmates and the outside world are even more limited.
- Amnesty International India
- Asian Forum for Human Rights and Development (FORUM-ASIA)
- CIVICUS: World Alliance for Citizen Participation
- International Commissions of Jurists (ICJ)
- International Federation for Human Rights (FIDH)
- World Organisation Against Torture (OMCT)
To download the statement with detailed information and key recommendations, click here.
