Feb 15, 2019 | News
The International Court of Justice will hold public oral hearings in India v. Pakistan (Jadhav case) from 18 to 21 February 2019. Before they commence, the International Commission of Jurists (ICJ) has published a briefing paper to clarify the key issues and relevant laws raised in the case in a Question and Answer format.
The case concerns Pakistan’s failure to allow for consular access to an Indian national, Kulbhushan Sudhir Jadhav, detained and convicted by a Pakistani military court on charges of “espionage and sabotage activities against Pakistan.”
India has alleged that denial of consular access breaches Pakistan’s obligations under Article 36(1) of the Vienna Convention on Consular Relations (VCCR), to which both States are parties.
Pakistan has argued, among other things, that the VCCR is not applicable to spies or “terrorists” due to the inherent nature of the offences of espionage and terrorism, and that a bilateral agreement on consular access, signed by India and Pakistan in 2008, overrides the obligations under the VCCR.
ICJ’s Q&A discusses the relevant facts and international standards related to the case, including: India’s allegations against Pakistan; Pakistan’s response to the allegations; the applicable laws; and the relief the International Court of Justice can order in such cases.
Contact:
Frederick Rawski (Bangkok), ICJ Asia Pacific Regional Director, e: frederick.rawski(a)icj.org
Reema Omer (London), ICJ International Legal Adviser, South Asia t: +447889565691; e: reema.omer(a)icj.org
Additional information
While the case at issue is limited to denial of consular access under the VCCR, it engages other critical fair trial concerns that arise in military trials in Pakistan.
The International Commission of Jurists has documented how Pakistani military courts are not independent and the proceedings before them fall far short of national and international fair trial standards. Judges of military courts 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; and a duly reasoned, written judgment, including the essential findings, evidence and legal reasoning, is denied.
The case also underscores one of inherent problems of the death penalty: that fair trial violations that lead to the execution of a person are inherently irreparable.
Download the Q&A:
Pakistan-Jadhav case Q&A-Advocacy-Analysis brief-2019-ENG
Feb 12, 2019 | News
Today in Bogotá, Colombia, ICJ and its partners launched a new 30-month project under the ICJ’s Global Accountability Initiative entitled, Promoting justice for extrajudicial killings and enforced disappearances in Colombia, Guatemala and Peru.
The aim of the project is to promote the accountability of perpetrators and access to effective remedies and reparation for victims and their families in cases of extrajudicial killings and enforced disappearances in Colombia, Guatemala and Peru – and Latin America more broadly – through effective, accountable and inclusive laws, institutions and practices that also reduce the risk of future violations
The ICJ’s partners include the Asociacion de Familiares de Detenidos-Desaparecidos de Guatemala (FAMDEGUA), Asociación Red de defensores y defensoras de derechos humanos (dhColombia), Equipo Argentino de Antropología Forense (EAAF), Equipo Peruano de Antropología Forense (EPAF), Fundación de Antropología Forense de Guatemala (FAFG), and the Instituto de Defensa Legal (IDL).
Christof Heyns, Director of the Institute for International and Comparative Law in Africa and Professor of Human Rights Law at the University of Pretoria – and a former Special Rapporteur on extrajudicial, summary or arbitrary executions – also joins the project as special adviser.
In carrying out the project the ICJ will conduct general studies on obstacles to impunity in Colombia, Guatemala and Peru, as well as specific documentation of emblematic cases of serious human rights violations. The ICJ will also produce a practitioners’ guide for use by civil society, victims and their representatives on the investigation and prosecution of potentially unlawful death, and a regional guide for forensic experts on the investigation and prosecution of potentially unlawful death. In connection with the project the IJC intends to conduct strategic litigation, trial observations and capacity building activities involving judges, prosecutors, investigators, lawyers, civil society, victim groups and forensic experts.
The project is supported by the EU European Instrument for Democracy and Human Rights (EIDHR).
Contacts:
Kingsley Abbott, Senior Legal Adviser & Coordinator of the ICJ’s Global Accountability Initiative, email: kingsley.abbott(a)icj.org
Rocío Quintero, Legal Adviser, Latin America, email: rocio.quintero(a)icj.org
Feb 12, 2019 | Artículos, Noticias
Hoy en Bogotá, Colombia, la CIJ, junto con sus socios en la región, lanzaron el proyecto “Promoviendo justicia para ejecuciones extrajudiciales y desapariciones forzadas en Colombia, Guatemala y Perú”, en el marco de la Iniciativa de Responsabilidad Global de la CIJ.
El objetivo del proyecto es promover la rendición de cuentas y el acceso a recursos efectivos y medidas de reparación para las víctimas y sus familias, en casos de ejecuciones extrajudiciales y desapariciones forzadas en Colombia, Guatemala y Perú.
Este proyecto se implementa en conjunto con la Asociación Red de Defensores y Defensoras de Derechos Humanos de Colombia (dhColombia), el Equipo Argentino de Antropología Forense (EAAF), la Asociación de Familiares de Detenidos-Desaparecidos de Guatemala (FAMDEGUA), el Equipo Peruano de Antropología Forense (EPAF), la Fundación de Antropología Forense de Guatemala (FAFG), y el Instituto de Defensa Legal de Perú (IDL).
Además, Christof Heyns, director del Instituto de Derecho Internacional y Comparado en África de la Universidad de Pretoria, y ex Relator Especial sobre ejecuciones extrajudiciales, sumarias o arbitrarias, se une al proyecto como asesor especial.
En el marco de este proyecto, se realizarán estudios generales sobre los obstáculos existentes para la investigación y judicialización de estas graves violaciones a los derechos humanos en Colombia, Guatemala y Perú, y se documentarán casos emblemáticos de las violaciones ocurridas en dichos países. También, se producirá una guía para uso de la sociedad civil, las víctimas y sus representantes, sobre la investigación y el enjuiciamiento de muertes potencialmente ilegales; y se elaborará una guía para expertos forenses sobre la investigación de estas graves violaciones. Adicionalmente, se realizarán litigios estratégicos y observaciones de audiencias, así como actividades de capacitación que involucren a jueces, fiscales, investigadores, abogados, grupos de víctimas y expertos forenses.
El proyecto cuenta con el apoyo del Instrumento Europeo para la Democracia y los Derechos Humanos (IEDDH).
Contactos:
Kingsley Abbott, asesor legal senior y coordinador de la iniciativa global de rendición de cuentas de la CIJ. Correo electrónico: kingsley.abbott(a)icj.org
Rocío Quintero M, asesora legal, América Latina. Correo electrónico: rocio.quintero(a)icj.org
Feb 12, 2019 | News
The ICJ has called on Sri Lanka’s President, Maithripala Sirisena, to retract his recent pronouncement that executions would resume in the country notwithstanding a moratorium on capital punishment that has lasted 43 years. The last execution was carried out in Sri Lanka in 1976.
“Resuming executions would be an egregious violation of Sri Lanka’s obligations under international human rights law, a serious threat to human rights in the country, and it would be inconsistent with the global trend towards the abolition of the death penalty,” said Frederick Rawski, ICJ’s Asia-Pacific Director.
Speaking in Parliament last week, President Sirisena vowed to resume executions of those convicted of “drug offences” as early as within the next two months.
The ICJ considers any resumption of executions in Sri Lanka as constituting a violation of international law and an appalling disregard for the international human rights system as a whole.
“At least 150 countries have now either abolished the death penalty or instituted an official or unofficial moratorium. There is a growing understanding around the world that the death penalty is an unacceptable assault on rights and dignity,” Fredrick Rawski added.
The ICJ opposes the death penalty in all circumstances – as it constitutes a violation of the right to life and its imposition constitutes per se cruel, inhuman, or degrading punishment.
The Human Rights Committee, the Treaty Body supervising the implementation of the International Covenant on Civil and Political Rights (ICCPR), by which Sri Lanka is bound, has recently made clear in its General Comment 36 on Right to life that, “it is contrary to the object and purpose of Article 6 [of the ICCPR, which enshrines the right to life] for States parties to take steps to increase de facto the rate and extent in which they resort to the death penalty”, and that, “States parties that are not yet totally abolitionist should be on an irrevocable path towards complete eradication of the death penalty, de facto and de jure, in the foreseeable future. The death penalty cannot be reconciled with full respect for the right to life, and abolition of the death penalty is both desirable and necessary for the enhancement of human dignity and progressive development of human rights.”
Moreover, the UN Human Rights Committee has made it clear that the imposition of the death penalty for “drug offenses” is incompatible with the Covenant.
The UN General Assembly has adopted repeated resolutions, most recently in December 2018, by overwhelming majority in calling for all retentionist States to observe a an immediate moratorium with a view to abolition.
It must be noted that Sri Lanka voted in favor of a moratorium on the use of the death penalty in the 2018 UN GA Resolution. This commitment should not be reversed, but upheld in practice instead, the ICJ says.
The ICJ calls on the Government of Sri Lanka to reject the resumption of executions and to do away with the death penalty once and for all. Instead of planning on resuming executions, the Sri Lankan authorities should focus on effective, evidence-based approaches to crime prevention in manners that conform to international human rights law and standards, such as formulating policies and legislation that address the underlying social and economic causes of criminality, which are also vital to ensuring stability and the rule of law.
The ICJ also urges Sri Lanka to immediately ratify the 2nd Optional Protocol to the International Covenant on Civil and Political Rights, which obligates State Parties to take all necessary measures to abolish the death penalty.
Feb 11, 2019 | News
The ICJ, Amnesty International and TRIAL International today called for the Government of Nepal to commit to a transparent and consultative transitional justice process that complies with international law and the judgments of the Supreme Court of Nepal.
On 6 February, the Government of Nepal extended the mandates of the Truth and Reconciliation Commission (TRC) and the Commission on the Investigation of Enforced Disappearance of Persons (CIEDP) for an additional year and committed to the selection of new commissioners by April 2019.
Following the announcement, the ICJ, Amnesty International and TRIAL International voiced concerns about past approach to transitional justice and urged the Government to ensure that the next two months are used to get the flawed process on track.
The organizations warned that this should not become another missed opportunity to ensure that victims are provided the justice, truth and reparation that they so desperately seek.
“A further one-year extension will be meaningless if measures are not taken to secure the independence and impartiality of the commissions,” said Frederick Rawski, ICJ Asia Pacific Director.
“This can only be achieved through a transparent selection process driven by a genuine will to combat impunity – not just for conflict victims, but for future generations,” he added.
The three organizations reiterated their view that the process to date has failed to deliver justice, truth or reparation for victims of crimes under international law and gross human rights violations or establish laws and institutional safeguards to ensure that such crimes are never repeated.
The organizations underscored the need for independent, competent and impartial commissions, compliance with international law, and the meaningful participation of conflict victims, civil society and National Human Rights Commission in the design and implementation of the process.
“This is a great opportunity for Nepal to learn from its past, as well as experiences from other post-conflict societies, that the credibility of transitional justice process ultimately lies on the integrity, competence, independence and expertise of the commissioners. The independence of the Commission, together with a legal framework in accordance with international law, will make or break the success of the commitment to guarantee justice, truth and reparation,” said Biraj Patnaik, South Asia Director of Amnesty International. “The process for appointing new commissioners must be transparent and open to public scrutiny. Victims and civil society must have a robust opportunity to propose and vet candidates.”
The organizations also noted with disappointment that substantive legal concerns raised repeatedly by victims, civil society and the international human rights community have gone unanswered.
The government has not given a clear indication as to whether or how these concerns will be addressed.
“In addition to its obligation to ensure that conflict victims have access to an effective remedy and reparation, the authorities have a separate and independent obligation to investigate and if there is sufficient admissible evidence, prosecute those suspected of criminal responsibility in fair trials before ordinary civilian courts – and, if found guilty, punish them with appropriate penalties which take into account the grave nature of the crimes,” said Helena Rodríguez-Bronchú, Head of TRIAL International’s program in Nepal.
“These obligations are clearly established in international law, as well affirmed in ruling after ruling by the Supreme Court. It is about time that the Government stopped proposing measures that are clearly inconsistent with the letter and spirit of those judgements,” she added.
Concerns raised about existing, and proposed, legislation include: disparities between the definitions of specific crimes under international law and human rights obligations and violations under national, and international law; inadequate provisions to ensure that serious crimes under international law are subject to criminal accountability (including punishment proportionate to the seriousness of the crimes); and a reliance on compensation at the expense of other forms of reparation and remedy for conflict survivors and their families
The ICJ, Amnesty International and TRIAL International had previously submitted a legal analysis of draft transitional justice legislation circulated in 2018, including recommendations on how to ensure compliance with international law and good practices.
