Aug 8, 2017
Transitional justice mechanisms must undergo serious reform in line with international human rights standards and the directives of Nepal’s Supreme Court in order to provide justice for victims of conflict-era human rights violations and abuses, the ICJ said in a discussion paper released today.
ICJ’s discussion paper Nepal’s Transitional Justice Process: Challenges and Future Strategy summarizes the key challenges faced by Nepal’s transitional justice process as identified by conflict victims, representatives of human rights organizations, lawyers and other stakeholders during consultations held in Pokhara, Biratnagar and Nepalgunj and a national roundtable meeting in Kathmandu in May and June 2017.
The discussion paper concludes with the identification of the strategies for civil society organizations and victims’ representatives to address the challenges of Nepal’s transitional justice process.
“The voices heard in our consultations provide a stark reminder that more than ten years after the end of the conflict and over two years since the Commissions of Inquiry were established, victims of serious human rights violations and abuses are still searching for justice,” said Frederick Rawski, ICJ’s Director for Asia and the Pacific.
The discussions reaffirm ICJ’s own assessment that the transitional justice mechanisms, the Truth and Reconciliation Commission (TRC) and the Commission on Investigation of Disappeared Persons (CoID), have fallen short of international standards, both in constitution and operation, despite the repeated reinforcement of such standards by the Supreme Court of Nepal.
The Commissions have a deeply flawed legal mandate, which, among other problems, allows them to recommend amnesties for serious human rights violations and abuses.
In addition, their non-consultative, uncoordinated and opaque approach to their work has also created distrust with all major stakeholders, including conflict victims and members of civil society.
The key challenges identified by the participants include:
- Lack of political will to address past human rights violations and abuses;
- Inadequate legislative framework to address conflict-era human rights violations and abuses;
- Lack of adequate human, financial and technical resources for the TRC and COID;
- Failure of the TRC and COID to take measures to gain confidence of conflict victims and other stakeholders;
- Inadequate procedures to ensure confidentiality and security for victims and witnesses;
- Lack of coordination among the Commissions and other state institutions responsible for addressing conflict-era human rights violations and abuses; and
- The failure of the Commissions to adopt credible and transparent processes for their work.
As of July 2017, the TRC has received 58052 complaints of human rights violations, and the CoID has received 2874 complaints of alleged enforced disappearances.
Since the ICJ held its consultations on the operation of the transitional justice mechanisms, the Commissions have started preliminary investigations in some of the cases.
However, according to information received by the ICJ, these investigations also suffer from the flaws described above: the investigation teams have inadequate human and financial resources to handle the large number of cases; there are concerns about the opacity of the appointment process of the investigators; and the Commissions have taken no measures to ensure confidentiality and security of victims and witnesses who participate in the investigations.
Victims have also expressed concern that the investigators in many districts have asked them about their interest in reconciliation, even where there complaints are of serious conflict-era crimes.
This is despite the Supreme Court ruling out any possibility for reconciliation in cases of serious crime in Madhav Kumar Basnet v the Government of Nepal (2014).
“As the Commissions start preliminary investigations into complaints of human rights violations and abuses, they must ensure both victims’ access to justice, as well as the security and confidentiality of victims and other witnesses,” added Rawski.
Contact:
Frederick Rawski, ICJ’s Asia Pacific Regional Director (Bangkok), e: frederick.rawski@icj.org
Nepal-TJus Process-Advocacy-2017-ENG (Full paper in PDF)
Apr 28, 2017
The ICJ today called on the Moroccan authorities to comprehensively reform its legal framework on pre-trial rights, guarantees and procedures, with a view to ensuring its full compliance with international human rights law and standards.
The statement came following a high-level mission to Morocco from 24 to 27 April 2017. The ICJ consulted with members of the Parliament and of the judiciary, as well as with executive officials, on the reforms needed to enhance the guarantees and procedures on police custody and preventive detention, as well as to effectively protect the right to liberty and security of person.
During the mission, the ICJ launched its paper Reform the Criminal Justice System in morocco; Strengthen pre-trial rights, guarantees and procedures which details how the use of pre-trial detention has been routine in Morocco.
The paper also points out that investigative judges and prosecutors routinely disregard provisions of the Code of Criminal Procedure that provide for pre-trial detention to be used only in exceptional cases.
Pre-trial detainees represent more than 40 percent of the prison population and most of the time convicted and pre-trial detainees are not kept separate, in violation of the latter’s right to be presumed innocent.
“Morocco must comply with its international legal obligations and ensure that pre-trial detention is an exceptional measure that can be used only as a measure of last resort, when there is sufficient evidence that deems it necessary to prevent flight, interference with evidence or the recurrence of crime,” said Said Benarbia, director of the ICJ MENA Programme.
The briefing paper also details how the Morocco Code of Criminal Procedure fails to provide for a means by which all individuals deprived of their liberty can, from the outset of the deprivation of their liberty, bring proceedings before an independent and impartial court able to determine, without delay, the lawfulness of their detention.
The provisions on police custody also fail to comply with Morocco’s obligations under international law.
Under the current framework, in ordinary cases of felonies and misdemeanors punishable with prison time, a person can be placed under garde à vue for up to three days without being brought before a judge; for up to eight days in cases of “internal or external threats against national security”; and for up to 12 days in cases of “terrorism.”
“The grounds for placing individuals under police custody must be clearly and precisely defined in the law, and include elements of appropriateness, predictability and due process of law,” said Benarbia.
“The maximum amount of time during which a person can be held in police custody without being brought physically before a judge must be reduced to the absolute minimum, and in ordinary cases no longer than 48 hours,” he added.
The ICJ also called on the Moroccan authorities to enhance defence rights during all pre-trial procedures, and remove all the obstacles that subject the exercise of these rights to the public prosecutor authorization, or that severely undermine the right to an effective counsel in proceedings before the investigative judges and prosecutors.
“The Moroccan authorities should ensure that anyone arrested or detained has immediate access to legal assistance as soon as they are placed in police custody, during the initial stages of police investigation, and before questioning by the investigative judge or prosecutor,” further said Benarbia.
“These guarantees are not only necessary to ensure the fairness of proceedings, including the principle of equality of arms, but they also serve as safeguards against arbitrary detention and torture and other ill-treatment in Morocco,” he added.
Contact:
Said Benarbia, Director of the ICJ Middle East and North Africa Programme, t: +41.22.979.3817, e: said.benarbia(a)icj.org
Additional information
The mission was led by Martine Comte, honorary judge and former President of the Court of Appeal of Orléans, and included François Casassus-Builhe, former French judge, and prosecutor; Said Benarbia, director of the ICJ Middle East and North Africa (MENA) programme, and Giulia Soldan, programme manager of the ICJ MENA programme.
The ICJ delegation met with Mr. Habib El Malki; President of the Chamber of Deputies; Mr. Mohamed Aujjar, Minister of Justice; Mr. Mustapha Farès, First President of the Cassation Court; Mr. Mohamed Abdennabaoui, Prosecutor General of the Cassation Court; Mr. Driss El Yazami, President of the National Council of Human Rights; Mr. Mohamed Akdim, President of the Morocco Bar Associations; Mr. Adil El Bitar, President of the Commission on Justice, Legislation, and Human Rights at the Chamber of Deputies, Mr. Abdessamad Kayouh, Vice-President of the Chamber of Counselors, and representatives of the civil society and the criminal justice system.
Morocco-Reform crim just syst-News-press release-2017-ARA (news in Arabic, PDF)
Morocco-Reform Crim Justice System-Advocacy-Anaylsis Brief-2017-ENG (full brief in English, PDF)
Morocco-Reform Crim Justice System-Advocacy-Anaylsis Brief-2017-ARA (full brief in Arabic, PDF)
Apr 18, 2017
In a briefing paper issued today, the ICJ presents its comments on selected key aspects of the Common Asylum procedure Regulation proposed by the European Commission.
On 13 July 2016, the European Commission published a proposal (Common Asylum procedure Regulation) to replace the current Common Asylum procedures Directive.
The ICJ submission focuses on the potential impact of the current proposal on the rights of asylum seekers in Europe, including the right to an effective remedy and the principle of non-refoulement.
In the briefing, the ICJ raises concerns at the proposal to use excessively accelerated and border procedures, even when children are involved, at the introduction of excessively short time-limits for people to access an effective remedy and at the limited scope of the proposal.
The ICJ further opposes the lack of access to information in a language an asylum seeker understands, and the limited access to legal assistance and representation and to legal aid.
The ICJ invites the co-legislators, the European Parliament and the Council of the EU to take these concerns into account during their negotiations.
Europe-Common Asylum Procedure Reg-Advocacy-Analysis brief-2017-ENG (full text in PDF)
Mar 30, 2017
Sri Lanka’s criminal justice system must undergo serious reform in line with international human rights standards in order to provide justice for victims of human rights abuses, the ICJ said in a discussion paper released today.
In a discussion paper titled Challenges to Accountability for Human Rights Violations in Sri Lanka: A Synopsis of Findings from a Meeting with Lawyers and Human Rights Defenders in Colombo, November 2016, the ICJ has identified priorities for action raised by Sri Lankan lawyers and human rights defenders during a workshop on accountability for human rights violations and abuses held in Colombo, Sri Lanka, in November 2016.
“After decades of undue political interference with judicial institutions by authoritarian regimes, the Sri Lankan criminal justice system as a whole has been weakened and is simply not equipped with the capacity or will to adequately pursue accountability for gross human rights cases,” said Nikhil Narayan, South Asia Senior International Legal Adviser for the ICJ.
“It is crucial that Sri Lanka embarks on real systemic reform of the criminal justice system, both legal and administrative, to strengthen its ability to deal with human rights violations and reverse the deteriorating public faith and credibility in the justice sector,” he added.
The issues raised by participants during the workshop in November 2016 echoed many of those identified in the ICJ’s prior studies, reflecting the ongoing and unaddressed systemic challenges that practitioners continue to face today, despite the change of government and perception that the adjudication of human rights cases is seamless.
This discussion paper highlights several key concerns raised by the participants, all of whom are human rights lawyers and defenders. These include:
- the public’s lack of faith in the criminal justice system anchored to the lack of will and ability to investigate, prosecute, and adjudicate human rights violations;
- the gaps in the legal framework to address serious human rights violations;
- questions as to the independence of State actors involved in the judicial system;
- undue delays in pending cases, the lack of functional independence and impartiality of the Attorney General’s Office; and,
- the poor processes and non-transparency in recent legal reform initiatives.
“Our workshop provided a stark reminder that, despite the end of the war nearly a decade ago, the same structural deficiencies in the criminal justice system that existed during the conflict continue to obstruct real justice and accountability for human rights abuses, both conflict-era and ongoing,” Narayan said.
“Particularly now, at a time when the Sri Lankan State at all levels is trying to convince both the domestic and international audience that the existing criminal justice system is sufficiently capable of adjudicating cases of gross human rights abuses stemming from the conflict as part of the transitional justice process, human rights lawyers and defenders in Sri Lanka have issued a counter-point to these claims,” he added.
The discussion paper concludes with the identification and prioritization of key strategies for criminal justice reform that could help address these challenges, including:
- Clarifying the role of the Attorney General’s Office, including strengthening its functional independence and impartiality;
- Strengthening the independence and impartiality of the judiciary;
- Strengthening the functional independence of the police;
- Incorporating gross human rights violations amounting to crimes under international law as specific offences in Sri Lankan law in line with international standards;
- Strengthening the functional independence and impartiality of independent constitutional commissions such as the Human Rights Commission of Sri Lanka and the National Police Commission, among others;
- Encouraging and supporting the Bar Association of Sri Lanka in taking a stronger public advocacy role on human rights and rule of law; and,
- Greater public awareness-raising of law reform initiatives.
Contact
Nikhil Narayan, South Asia Senior International Legal Adviser, e: Nikhil.narayan(a)icj.org
Background
The November 2016 workshop was the first of two colloquia to discuss ongoing challenges faced in promoting greater accountability for human rights violations and abuses through the Sri Lankan criminal justice system.
The second colloquium was held with Sri Lankan high court judges in Colombo in January 2017. The outcome of the judges’ colloquium will be published in a discussion paper next month.
The ICJ has previously published several reports, including in 2010 and 2012, documenting the deep politicization and capacity deficit of the Sri Lankan judiciary and criminal justice system in dealing with gross human rights violations and abuses.
Sri Lanka-FCO Accountability 1-Advocacy-Analysis brief-2017-ENG (full paper in PDF)
Mar 29, 2017
Nepal’s draft Criminal Code Bill must be revised in line with international human rights standards in order to ensure justice for victims of serious human rights violations, the ICJ said in a briefing paper released today.
The ICJ is calling on Nepal’s Parliament to make significant changes to the draft before it adopts this important legislation.
In its briefing paper Serious Crimes in Nepal’s Criminal Code Bill, 2014 the ICJ has evaluated the Criminal Code Bill, 2014, which aims to update Nepal’s criminal law and codify new crimes.
The ICJ has concluded that a number of provisions of the Bill are not in accordance with Nepal’s international obligations.
“While the Criminal Code Bill makes a nod towards addressing impunity for gross human rights violations, the draft law falls well short of what Nepal needs to do to hold abusers accountable for the most serious crimes”, said Nikhil Narayan, South Asia Senior International Legal Adviser for the ICJ. “For instance, the bill fails entirely to include war crimes, crimes against humanity and genocide.”
“It is crucial that Nepal revise the Criminal Code Bill in line with international standards in order to ensure justice and accountability for victims of these grave offences,” he added.
The briefing paper identifies several key shortcomings of the Bill, including an inadequate definition of the crime of enforced disappearance and the inappropriate inclusion of a statute of limitation for filing complaint of enforced disappearance, which would necessarily lead to impunity.
In respect of the crime of rape, there were numerous shortcomings as to the definition, discriminatory provisions on penalties for marital versus non-marital rape, inadequate provisions for reparation to rape victims and inappropriate limitations periods for filing complaints of rape.
The ICJ previously analyzed Nepal’s Torture and Cruel, Inhuman or Degrading Treatment (Control) Bill, 2014, criminalizing torture and other ill-treatment, and in that briefing paper too found several provisions of the soon-to-be-enacted anti-torture law to be inconsistent with Nepal’s international legal obligations.
The ICJ briefing paper on the Criminal Code Bill is released at a time when the Legislative Committee of the Legislature-Parliament has approved the draft Bill based on its sub-committee report and intends to table the Bill before the Parliament for debate and vote in the coming weeks.
“Many of the serious human rights abuses that systematically occurred during Nepal’s decade-long armed conflict have still not been criminalized under the country’s domestic law, denying justice to the many victims of that conflict,” Narayan said.
“This Criminal Code Bill is an opportunity for the Government of Nepal to demonstrate its commitment to ending the culture of impunity in the country by promulgating a strong law that ensures justice and accountability for serious crimes in line with its international human rights obligations,” he added.
In its briefing paper, the ICJ has made several recommendations for revision of the Criminal Code Bill, including:
- Amending the definition of enforced disappearances in line with Nepal’s international obligations and the Convention on the Protection of All Persons from Enforced Disappearance (CED);
- Revising the penalty provisions in the Criminal Code Bill to comply with relevant provisions of the CED and other international standards;
- Removing the statute of limitations for enforced disappearance cases;
- Amending the provisions on rape and sexual violence to ensure that they are gender neutral, and that both perpetrators and victims can be male, female, or “third-gender”, as defined by the Supreme Court of Nepal;
- Maintaining consistent penalties for both marital rape and non-marital rape;
- Revising the penalty for rape to reflect the seriousness of the crime and the long-lasting damage suffered by the victim, in line with international standards; and,
- Including provisions criminalizing genocide, crimes against humanity and war crimes, in line with international law and standards.
Contact
Nikhil Narayan, South Asia Senior International Legal Adviser, e: Nikhil.narayan(a)icj.org
Sam Zarifi, Asia-Pacific Regional Director, e: sam.zarifi(a)icj.org
Nepal-Serious Crimes Bill-Advocacy-Analysis Brief-2017-ENG (full paper, in PDF)
