Nov 22, 2018
Under its Global Redress and Accountability Initiative, the ICJ has launched its 2018 update to Practitioners’ Guide No 2, outlining the international legal principles governing the right to a remedy and reparation for victims of gross human rights violations and abuses by compiling international jurisprudence on the issues of reparations.
The Guide is aimed at practitioners who may find it useful to have international sources at hand for their legal, advocacy, social or other work.
Amongst revisions to the Guide, the 2018 update includes new sections on terminology and on non-discrimination;updated sections on the notions of ‘collective victims’, ‘collective rights’, the rights of ‘groups of individuals’; additional references to the work of the Committeeon the Elimination of Discrimination against Women and the Committee on the Rights of the Child; an updated section on remedies for unlawful detention, including references to the 2015 UN Basic Principles and Guidelines on Habeas Corpus; and updates on gender-based violence and on violations occurring in the context of business activities.
The Guide first recalls the States’ general duty to respect, protect, ensure and promote human rights, particularly the general duty of the State and the general consequences flowing from gross human rights violations (Chapter 1).
It then defines who is entitled to reparation: victims are, of course, the first beneficiaries of reparations, but other persons also have a right to reparation under certain circumstances (Chapter 2).
The Guide goes on to address the right to an effective remedy, the right to a prompt, thorough, independent and impartial investigation and the right to truth (Chapters 3-4).
It then addresses the consequences of gross human rights violations, i.e. the duty of the State to cease the violation if it is ongoing and to guarantee that no further violations will be committed (Chapter 6). It continues by describing the different aspects of the right to reparation, i.e. the right to restitution, compensation, rehabilitation and satisfaction (Chapter 7).
While the duty to prosecute and punish perpetrators of human rights violations is not necessarily part of the reparation as such, it is so closely linked to the victim’s right to redress and justice that it must be addressed in this Guide (Chapter 8).
Frequent factors of impunity, such as trials in military tribunals, amnesties or comparable measures and statutes of limitations for crimes under international law are also discussed (Chapter 9).
The guide is now also available in Turkish.
Download
Universal-Right to a Remedy-Publications-Reports-Practitioners’ Guides-2018-ENG (full text in English, PDF)
Universal-Right-to-a-Remedy-Publications-Reports-Practitioners-Guides-2018-TR [1] (full text in Turkish, PDF)
Universal-Right-to-a-Remedy-Publications-Reports-Practitioners-Guides-2018-THA (full text in Thai, PDF)
Nov 20, 2018
The ICJ said today that the Nepal Army’s petition before the Supreme Court seeking to overturn convictions of soldiers for the 2004 killing of 14-year-old Maina Sunuwar was riddled with legal flaws. Its success would be a blow to the fight against impunity in Nepal.
On the 12th Anniversary of the signing of the Comprehensive Peace Agreement (CPA), the ICJ released an analysis of the Nepal Army’s legal arguments in the petition to upend the convictions issued by the Kavrepalanchowk District Court for the killing Maina Sunuwar while in Army custody.
“The Nepal Army has sought to overturn the convictions of Maina’s killers by putting forth specious legal arguments that do not hold up under Nepali or international law, or in light of the past decisions of the Supreme Court,” said Frederick Rawski, ICJ Asia Pacific Director.
In the legal briefing, the ICJ sets out (i) Nepal’s obligations under international law and the Nepal Supreme Court’s jurisprudence to investigate and prosecute perpetrators of human rights violations; (ii) the impropriety of jurisdiction by a military court-martial in cases of serious human rights violations; and (iii) refutes the argument that the convictions violated principles of ‘double jeopardy’.
The briefing sets out international law and jurisprudence establishing the Government’s duty to prosecute serious human rights violations as distinct and separate from its obligation to establish the truth, including as part of a transitional justice process.
The briefing comes at a moment when the future of justice for conflict era crimes and human rights violations in Nepal is uncertain.
In July, a draft bill amending the existing legislative framework governing the transitional justice process was criticized by civil society, victim groups and human rights organizations – including in a joint analysis by the ICJ, Amnesty International and Trial International.
While a government panel elicited comments at consultations with victims and civil society, the government never produced a revised draft or conducted follow-up.
“How can the people of Nepal, and particularly conflict victims, have faith in government proposals to press forward on transitional justice when the Nepal Army continues to fight even minimal accountability with disingenuous legal arguments, such as in the case of Maina Sunuwar?” said Rawski.
“The foundation for any process moving forward must be the best interests of victims, a commitment to accountability, and respect for international human rights obligations. This has been affirmed many times over by the Supreme Court,” he added.
Contact
Frederick Rawski, ICJ Asia Pacific Director, t: +66 64 478 1121 ; e: frederick.rawski@icj.org
Background
Maina Sunuwar was subjected to enforced disappearance, torture and unlawful killing after a covert military operation, which included the involvement of then captain Niranjan Basnet on 17 February 2004.
The military refused to acknowledge Maina’s detention for many months.
After overcoming a number of procedural and political hurdles stretching over years, on 16 April 2017, the Kavre District Court sentenced three retired army officers to life imprisonment for Maina Sunuwar’s murder.
In September 2017, the Nepal Army filed a writ petition in the Supreme Court challenging the decision of the Kavre Court on several grounds, including that military courts had proper jurisdiction over the original case, that the District Court convictions violated the principle of ‘double jeopardy’ because the defendants had already been tried by a court-martial, and that the court system no longer had jurisdiction over conflict-related cases following the establishment of transitional justice institutions.
Nepal-Petition to overturn convictions for Maina Sunuwar killing-Advocacy-Analysis brief-2018-ENG (Full Analysis brief, in PDF)
Nov 16, 2018 | News
The South Cairo Criminal Court’s conviction and sentencing on 11 November 2018 of Assistant Detective Mohamed Sayed Abdel Halim and Police Officer Mohamed Ahmed Salem to three years and six months’ imprisonment respectively for conduct involving the torture and killing of 22-year-old Mohamed Abdel-Hakim Mahmoud does not amount to justice for the crimes against him, the ICJ said today.
The ICJ called on prosecutors to consider options for appeal or new charges that could hold the perpetrators properly to account for serious crimes, with sanctions appropriate to the gravity of their conduct and in line with international law.
The two officers apparently unlawfully arrested Mohamed Abdel-Hakim Mahmoud, otherwise known as “Afroto,” on 5 January 2018 and subjected him to severe beatings and other torture, as a result of which he died.
The Court convicted Abdel Halim of “beating that led to death,” a crime that carries a sentence of three to seven years’ imprisonment under Article 236 of the Egyptian Penal Code, and Salem of “light beating.”
“The low sentences imposed by the Court are completely disproportionate to the conduct of the perpetrators, who beat Afroto, threw him into a cell and then beat him again when he complained he was unable to breath. The perpetrators should have been held accountable for their true criminal conduct, which included torture and murder in police custody,” said Kate Vigneswaran, Senior Legal Adviser of the ICJ MENA Programme.
“The Egyptian authorities’ consistent efforts to immunize public officials from real accountability denies the victims and their families their right to redress and reinforces the Egyptian people’s increasing lack of trust in the Egyptian government and judicial system,” she added.
The definition of torture under Article 126 of the Egyptian Penal Code only establishes liability for torture for the purpose of obtaining a “confession” against a suspect, falling far short of the standard required by the Egyptian Constitution and the Convention Against Torture (CAT), which contemplate torture being undertaken for any number of purposes. The Penal Code also imposes penalties—hard labour and the death penalty—inconsistent with human rights, including for torture and murder.
“Egypt should amend the Penal Code to prohibit all forms of torture and abolish the death penalty and hard labour,” said Kate Vigneswaran.
“The authorities are obligated under international law to ensure effective justice for crimes committed by public officials by charging them with crimes and imposing sentences reflecting their criminal conduct. Legislative reform is needed to both ensure accountability for victims and uphold the rights of perpetrators,” she added.
Contact:
Kate Vigneswaran, Senior Legal Adviser, ICJ Middle East and North Africa Programme, m: +31 624894664, e: kate.vigneswaran@icj.org
Egypt-Afroto Verdict-News-2018-ENG (full story with additional information, in PDF)
Nov 15, 2018 | News
The ICJ and the Alternative Law Groups (ALG) today called on the Government of the Philippines to take immediate and effective action to addressing the apparently unlawful killing of Benjamin ‘Ben’ Ramos, a prominent lawyer and a founder of the National Union of People’s Lawyers (NUPL).
Benjamin Ramos was shot by two unidentified men in the public plaza of Barangay 5, Kabankalan City on 6 November 2018.
The ICJ and ALG call on the Government of the Philippines to conduct a thorough, prompt, impartial, and independent investigation into the killing of Benjamin Ramos.
Benjamin Ramos, in his work with the NUPL, had previously provided legal assistance to the families of the victims of the ‘Sagay 9 massacre’, which involved the killing of nine sugarcane farmers from the National Federation of Sugar Workers by unidentified armed men on 20 October 2018 in Negros Occidental, a province in the central part of the Philippines.
Given the sensitive nature of the work of Benjamin Ramos, which involved confronting powerful interests, it is important that any investigation consider the suspected links between that work and his killing.
“It is essential for the proper and effective functioning of the administration of justice that lawyers are kept safe as they fulfill their duties to protect the rights of their clients and promote the cause of justice,” said Emerlynne Gil, ICJ’s Senior International Legal Adviser.
As affirmed by the UN Basic Principles on the Role of Lawyers, governments must ensure that lawyers are able to perform all their professional functions without “intimidation, hindrance, harassment or improper interference.” In addition,“[w]here the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities”.
The organizations note that there have been at least thirty-four (34) lawyers killed since 2016, under the administration of President Rodrigo Duterte.
“The rising number of killings of lawyers is very concerning and alarming; it is an attack not only on individual lawyers but on the justice system as whole. The Philippine government must take immediate and proactive measures to ensure the safety of lawyers as they conduct their professional duties,” said Maria Generosa Mislang, National Coordinator of ALG.
Contact:
Emerlynne Gil, ICJ Senior International Legal Adviser, t: +662 619 8477 (ext. 206) ; e: emerlynne.gil(a)icj.org
Oct 31, 2018 | News
The ICJ and the Swiss Section of the ICJ called today on Swiss people to seriously consider the adverse implications, if adopted, of the popular initiative called the “Swiss law instead of foreign judges – initiative for self-determination” by its proponents. On 25 November 2018, Swiss citizens will be called to vote on this initiative.
The campaign against the initiative has identified it as an “anti-human rights” referendum.
“The initiative, if approved, would have the effect of making it very difficult for people in Switzerland to access Swiss courts to vindicate their human rights,” said Massimo Frigo, ICJ Senior Legal Adviser.
“Swiss people would lose important defences against abuses by the State or private entities,” he added.
Unlike the title suggests the scope of the initiative is directed against international law in general (except for very few existing peremptory norms) which includes international multilateral treaties or bilateral commercial and administrative agreements.
The initiative would therefore fly in the fact of a fundamental legal principle essential to the rule of law, namely that individual States cannot use their national arrangements as an excuse to avoid their international legal obligations.
“Switzerland, as home to numerous international law-making institutions, has a long and distinguished history of championing international law. Adoption of this initiative would be a blow to the country’s reputation and leadership in this area,” said Massimo Frigo.
“The role accorded to international law by the Swiss Constitution and the jurisprudence of the Swiss Supreme Court is essential to uphold reliability of Switzerland as party to international treaties, its role as central actor and generator in many fields of law including international trade, but also legal certainty in Switzerland”, said Professor Marco Sassoli, board member of the Swiss Section of the ICJ and ICJ Commissioner.
“Much of the economic and diplomatic success of Switzerland is based on its faithful adherence and promotion of international law. Essential Swiss values such as its neutrality or its commitment to the protection of war victims are based upon international law,” said Professor Sassoli.
Contrary to its title the initiative is not directed against “foreign judges” but against the practice of Swiss judges, those of the Swiss Federal Supreme Court, and neglects that the self-determination of peoples leads to their direct submission to international law and that the conclusion of treaties is an expression of and not contrary to the sovereignty of the State.
The text of this initiative if approved could lead to the erosion of primacy of international law among the sources of law in Switzerland.
The ICJ and ICJ-Swiss Section join the several NGOs, trade unions, economic actors, political parties and people of Switzerland that want to secure their rights and those of everyone in Switzerland and appeal to the voters before casting their vote to seriously consider the above arguments and not to decide based upon mere slogans such as “self-determination”, “democracy” or “foreign judges”.
Contact:
Massimo Frigo, ICJ Senior Legal Adviser, t: +41 22 979 38 05 ; e: massimo.frigo(a)icj.org
PDF available in Italian: Switzerland-25 November Referendum-News-Press Release-2018-ITA
PDF available in German: Switzerland-25 November Referendum-News-Press Release-2018-GER
