Jan 26, 2016
The US Department of State has requested for the submission of public comments on the Responsible Investment Reporting Requirements for Burma.
The ICJ has urged caution over the United State’s recent decision to allow for an exception to the sanctions regime for people who have already been documented as having links to the military regime and implicated in human rights violations.
This caution reflects the ICJ’s work with the Directorate of Investment and Company Administration, the Attorney General’s Office, and the Union Supreme Court of Myanmar, as well as civil society organizations, to strengthen and support local efforts at ensuring that investment protects and promotes the rule of law, human rights and the environment.
In this regard, the ICJ has visited and researched on the human rights and environmental impacts of investments in the 3 Special Economic Zones (photo), as well as other non-SEZ sites, in the country.
The ICJ submits that future reporting must be strengthened to ensure that U.S. companies comply with the Reporting Requirements, conduct due diligence and disclose adequate information transparently about the impact of their business practices on human rights in Myanmar.
This is especially crucial in light of significant reporting gaps in July 2013.
Failure to strengthen the requirements will undermine the goal of the Reporting Requirement to be a tool for promoting investment that reinforces those political and economic reforms that are compliant with the rule of law and human rights and help to empower civil society.
Myanmar’s historic transition process is significantly influenced by economic development in the country.
In order for business activity to help protect and promote human rights for people in Myanmar, it is essential to demand more robust due diligence standards, including human rights and environmental standards, greater clarity on investors’ due diligence on land rights, as well as increased transparency on “passive” investments.
The U.S. Treasury Department’s list of individuals and businesses banned from having financial or business links to the U.S. must be urgently revised to provide updated and clear information to help potential investors entering Myanmar avoid commercial ventures with those involved in human rights abuses and corruption.
Myanmar-ICJ Letter to US State Dept-Advocacy-Open Letters-2016-ENG (Full text in PDF)
Jan 20, 2016 | News
The Indonesian government’s efforts to counter and punish attacks such as the deadly assault in central Jakarta last week can only succeed if they strengthen respect for rights and rule of law, said the ICJ today.
Indonesia’s National Counterterrorism Agency (BNPT) and the State Intelligence Agency (BIN) claimed that they lacked sufficient authority under the country’s existing Anti-Terrorism Law to stop the attacks.
Eight people were killed in an attack by armed men in central Jakarta on 14 January.
“Plans discussed by Indonesian authorities to amend the 2003 Anti-Terrorism Law to make it ‘more effective’ in addressing terrorist threats mostly focus on weakening hard-won protections for suspects and the rule of law,” said Emerlynne Gil, ICJ’s Senior Legal Adviser for Southeast Asia.
“In order to help the Indonesian government meet its obligation to protect its people from acts of terrorism, experience from around the world and Indonesia’s Suharto era shows that security can only be achieved through justice,” she added.
The head of the National Police, Gen. Badrodin Haiti, said that the Anti-Terrorism Law prevents police from prosecuting Indonesians returning home after allegedly serving as combatants in Syria.
One of the proposals is to give intelligence officers the authority to make arrests under the Anti-Terrorism Law.
“Giving intelligence officers the authority to make arrests will likely lead to an increase in violations of human rights,” said Gil.
“The roles of intelligence and of law enforcement are fundamentally different and need to remain separate,” she added.
The ICJ pointed out that there were not enough safeguards under Indonesia’s laws, specifically the State Intelligence Law, to ensure the accountability of the intelligence agency or its officers.
Another proposal is that authorities be given the power to arrest anyone they see as having a “strong indication” to be planning acts of terrorism.
The ICJ, however, observes that this proposal appears to allow Indonesian authorities to avoid judicial oversight so that it would be easier for them to arrest any person, irrespective of whether there is sufficient evidence of criminal activity or an intent to prosecute.
This proposal also appears to allow authorities to detain and interrogate persons suspected of involvement in terrorist acts with a view to gaining intelligence information without necessarily contemplating the filing of criminal charges.
As ICJ’s Eminent Jurists Panel on Terrorism, Counter-terrorism, and Human Rights has underscored, the practice of arrest and detention for the sole purpose of intelligence gathering may mean the arrest and detention of those “who are not necessarily criminal suspects, but who are also believed to have information that will ‘substantially’ assist the collection of intelligence relating to terrorism.” Detaining people for the sole purpose of intelligence gathering in the absence of evidence of criminal activities is a form of arbitrary detention.
Such a practice can also lead to secret or unacknowledged detention, which under international law constitutes enforced disappearance and is absolutely prohibited, the Geneva-based organization adds.
“The obligation to protect human rights and keep people safe from acts of terrorism are not at opposing poles,” said Gil. “They are complimentary and mutually reinforcing duties of protection incumbent on the State.”
“In fact, protecting human rights can be an effective shield in defending societies from acts of terrorism,” she added.
All measures to counter terrorism must strictly comply with obligations Indonesia has under international law.
Contact:
Emerlynne Gil, Senior International Legal Adviser of ICJ for Southeast Asia, t: +66 840923575 ; e: emerlynne.gil@icj.org
Background:
Indonesia’s Anti-Terrorism Law requires judicial approval to arrest a suspect in a terrorism case. Under the law, authorities may arrest any person “strongly suspected of committing a crime of terrorism on the basis of sufficient initial evidence.”
The Chairperson or Deputy Chairperson of a District Court determines whether sufficient initial evidence exists or has been obtained by authorities.
Under article 42 of Indonesia’s State Intelligence Law, the accountability of intelligence operations of the State Intelligence Agency is in principle ensured through a written report on these operations submitted to the President of Indonesia.
This provision has been criticized for failing to provide sufficient accountability, as the presidency is firmly within the Executive branch and lacks capacity to investigate and prosecute in the ordinary criminal justice system.
Furthermore, article 24 of the State Intelligence Law provides that the State has the obligation to give “protection” to all intelligence personnel when carrying out their intelligence duties and functions. Such protection is extended to their family members.
The law does not define “protection” and hence may be construed as the State being obliged to grant immunity to intelligence personnel and their family members from criminal prosecution or civil liability.
Jan 20, 2016 | News
The ICJ supported the convening of a three-day meeting of the Faculty of Law of the University of Zimbabwe. The meeting reviewed the content of the courses offered at the University with the view of aligning the subject matter to the new constitution.
The Dean of Law Mr Magade noted in his introduction that “this Curriculum Review gives us a fabulous opportunity to take a long and hard look at ourselves and self introspect and come up with suggestions on how to improve our curriculum. At the end of the day we need to produce a product or graduate that is fit for purpose.”
The meeting took place at the Troutbeck Inn in Nyanga from 18 to 20 January 2016 and congregated 30 academic staff members from the University including a curriculum expert, Dr Nziramasanga, from the Faculty of Education. Dr Mosito and Dr Dingake from the Lesotho and Botswana respectively also contributed to the review process.
Jan 15, 2016
Today, the ICJ submitted a third-party intervention in the case of M.B. v. Spain before the European Court of Human Rights.
The case arose from the attempted removal of a lesbian asylum applicant to Cameroon. The ICJ’s written submissions focus on the relevance of the Refugee Convention, as interpreted by a number of domestic courts, and the EU asylum acquis and the EU Charter of Fundamental Rights, to the determination of the scope and content of non-refoulement obligations under Article 3 of the European Convention on Human Rights (ECHR) of those Contracting Parties that are also EU Member States.
The ICJ’s intervention, in particular, addresses the following:
- the requirement of coerced (including self-enforced) concealment of one’s same-sex sexual orientation, which constitutes persecution under refugee law and is incompatible with the ECHR, in particular Article 3; and,
- the criminalization of consensual same-sex sexual conduct, which gives rise to a real risk of Article 3 prohibited treatment, thus triggering non-refoulement obligations under that provision of the ECHR.
Spain- ECtHR MB v Spain – advocacy – legal-submissions-2016-ENG
Jan 14, 2016 | News
As today marks the fifth anniversary of the toppling of Ben Ali’s regime, the ICJ calls on Tunisian authorities to adopt key legal and policy reforms to combat impunity and to deliver justice to victims of past human rights violations.
Under Ben Ali’s regime, thousands of human rights violations, including torture and other ill-treatment, unlawful killings, enforced disappearances, and arbitrary arrests and detentions, were committed by law enforcement and other security officers.
Numerous similar violations were also committed during the December 2010 to January 2011 uprising and some of them continue today.
“The political and institutional reforms introduced in Tunisia over the past 5 years should not be the sole yardstick to measure the success of the transition,” said Said Benarbia, Director of the ICJ Middle East and North Africa Programme.
“Victims of human rights violations, in particular under Ben Ali’s rule, and during the uprising still await justice,” he added.
Despite several cases being brought before Tunisian courts, in particular military courts, these proceedings have yet to establish the truth about violations, ensure that all those who are responsible are held to account, and fulfill the rights of victims to effective remedies and reparation.
“Until their rights to effective remedies and reparation are realized, including by holding the perpetrators to account, the transition will remain incomplete,” Benarbia said.
Indeed, despite numerous legal and policy reforms, including the adoption of the “Transitional Justice Law”, and the establishment of the Truth and Dignity Commission (Instance Vérité et Dignité), the ICJ is concerned that justice for victims remains mostly elusive.
Obstacles that impede victims’ access to justice and effective remedies include current weaknesses in the Tunisian criminal procedures, such as the broad discretion of the public prosecutor to dismiss cases without providing specific reasons (and the lack of ability of victims effectively to challenge such decisions), the lack of effective measures for the protection of victims and witness, inadequate laws on the definition of crimes and superior responsibility, and the use of military courts to address human rights violations.
“Key reforms both in law and practice are needed for Tunisia to properly address past abuses in Tunisia, end pervasive impunity and provide victims with justice,” Benarbia said.
Contact:
Theo Boutruche, Legal Adviser of the ICJ Middle East and North Africa Programme, tel: +96 170 888 961, e-mail: theo.boutruche(a)icj.org
Tunisia-Anniversary-News Press Release-2016-ARA (Arabic version, in PDF)
