Jan 6, 2016
One year into the establishment of military courts to try civilians for terrorism-related offences, the operation of Pakistan’s system of “military justice” shows complete disregard of the right of a fair trial, the ICJ said in a new briefing paper released today.
“The trials by Pakistan’s military courts have reaffirmed fears of human rights groups and the legal community that military trials in Pakistan are secret, opaque and make a mockery of Pakistan’s domestic and international fair trial obligations”, said Sam Zarifi, ICJ’s Asia Director.
In its analysis brief, the ICJ examines the performance of Pakistan’s military courts in the first year of their operation, including their failure to respect the defendants’ right to a fair trial.
Proceedings before Pakistani military courts fall well short of national and international standards requiring fair trials before independent and impartial courts:
- Judges 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;
- A duly reasoned, written judgment, including the essential findings, evidence and legal reasoning, is denied;
- The procedures of military courts, the selection of cases to be referred to them, the location and timing of trial, and details about the alleged offences are kept secret; and
- The death penalty is implemented after unfair trials.
In addition to these concerns, the ICJ has also received reports that suspects being tried by military courts have been subjected to torture and ill-treatment in detention and their family members have been harassed and intimidated by military authorities.
These concerns are exacerbated by the military’s refusal to give family members and civil society monitors access to detention centers.
A number of families have also alleged that juveniles are being tried by military courts in contravention of Pakistani and international law standards on the rights of children.
“Pakistan faces a genuine threat from militant groups engaging in acts of terrorism and the Pakistani Government has an obligation to protect all people from such attacks,” said Zarifi.
“But militarizing the judicial process will not lead to justice and it will not control terrorism. This is the lesson from around the world,” he added.
Since the amendments to the Constitution and Army Act one year ago, the Pakistan Government has constituted 11 military courts to hear terrorism-related cases. Military courts have concluded the trials of 64 people, finding the defendants guilty in 40 cases. 36 people have been sentenced to death and four have been given life sentences.
Nearly a hundred cases are still pending before the various military courts in the country.
Eight civilians convicted by military courts in secret trials for their involvement in “terrorist activities” have been hanged.
The ICJ considers these executions unlawful, in breach of Pakistan’s domestic law and its international legal obligations.
The ICJ has urged Pakistan to roll back the system of “military justice” and undertake a comprehensive review of its counter terrorism laws, policies and practices to ensure they are compatible with Pakistan’s national and international legal obligations.
Contact
Sam Zarifi, ICJ Asia Pacific Regional Director (Bangkok), t: +66 807819002; email: sam.zarifi(a)icj.org
Reema Omer, ICJ International Legal Adviser for South Asia (London), t: +44 7889565691; email: reema.omer(a)icj.org
Pakistan-military courts brief-Advocacy-Analysis brief-2016-ENG (full text in PDF)
Dec 11, 2015
The ICJ, jointly with other human rights NGOs, has presented comments on the measures needed to strengthen implementation of European Court of Human Rights judgments, in a submission to the Council of Europe ad hoc Working Party on Reform of the European Convention System.
The NGO comments to the Committee of Ministers Working Party on Reform of the European Convention System (GT‐REF.ECHR) analyse the measures that need to be taken under Chapter C of the Brussels Declaration and Action Plan on Implementation of the European Convention on Human Rights, agreed by Council of Europe Member States in March 2015.
They recommend inter alia that where a state fails to fully execute a judgment, a greater variety of graduated measures should be identified, sequenced, and applied, including measures under Article 46(4) ECHR.
Europe-Brussels Declaration Chapter C.-Advocacy-analysis brief-2015-ENG (full text in PDF)
Nov 26, 2015
Myanmar’s Parliament must abolish or extensively amend its criminal defamation laws to ensure the protection of the right to freedom of opinion and expression, said the ICJ today.
Criminal defamation laws in Myanmar impose harsh sanctions, such as imprisonment, to punish free expression.
The prospect of arrests, detentions, criminal trials and prison time could chill the exercise of free expression of opinions and exchange of information.
The ICJ, the United Nations Human Rights Committee (which monitors and supervises States’ compliance with their international human rights obligations), the UN Special Rapporteur on freedom of opinion and expression and other international human rights authorities and an increasing number of governments consider that criminal defamation laws should be abolished, as they are incompatible with the right to freedom of expression and opinion.
Myanmar’s 2008 Constitution provides for the protection of freedom of expression but sets out broad and ambiguous restrictions that limit the enjoyment of these rights.
In addition, the judiciary of Myanmar currently struggles to adjudicate such criminal defamation cases with impartiality and competence.
The result is that enforcement of the defamation laws can result in violations of a number of international laws and standards protecting human rights, and also could have an overall chilling effect on the freedom of opinion and expression in the country.
Just last month, three people faced criminal defamation charges and were detained pending trial for posting material on Facebook that allegedly defame either the Myanmar army or a political leader.
- Kachin activist Patrick Kum Jaa Lee was arrested in Yangon for allegedly posting a Facebook post showing someone stepping on a photo of an army Commander-in-Chief Senior General;
- Chaw Sandi Tun was arrested for a Facebook post pointing out that an army official was wearing clothes of a similar colour to those of then opposition leader Aung San Suu Kyi; and
- Maung Saungkha was arrested for allegedly posting a poem on Facebook he had written about having a tattoo of the President on his penis. His next hearing at Shwepyithar Township has been scheduled for tomorrow.
The ICJ is monitoring some of these trials to assess their compliance with international laws and standards. In one such trial, involving Patrick Kum Jaa Lee, the accused has been denied bail for the fifth time this week despite his ailing health.
The laws used to charge and detain the accused are the Electronic Transaction Law, specifically under provision 34(d), the Myanmar Telecommunications Law, specifically under provision 66(d), and Article 500 of the Penal Code.
Download the full paper here:
Myanmar-Criminal Defamation Laws-Advocacy-Position paper-2015-ENG (in PDF)
Myanmar-Criminal Defamation Laws-Advocacy-Position paper-2015-BUR (Burmese version, in PDF)
Nov 3, 2015
In a memorandum published today, the ICJ is calling on the Tunisian Parliament to revise the draft law on the Constitutional Court with a view to ensuring its full compliance with international standards, in particular those on judicial independence.
The establishment of a truly independent Constitutional Court in Tunisia holds out the promise of strengthening the rule of law by enhancing protection of the rights guaranteed under the new Constitution, the ICJ notes.
But to achieve these aims, key aspects of the draft law must be changed, the Geneva-based organization stresses.
“Tunisian law makers must amend the draft law to provide the Court with the necessary guarantees of independence, broader functions and to ensure individuals easier access to the Court, whose function is to protect their rights under Tunisia’s new Constitution,” said Said Benarbia, Director of the ICJ Middle East and North Africa Programme.
The draft law must also be revised to ensure that all members of the Court are appointed because of their legal expertise and integrity, and that its composition includes women and reflects the diversity of the population of Tunisia, the ICJ says.
Ensuring that a body composed of at least a majority of judges will select the individuals to be appointed to the Court will bolster the Court’s independence.
“The judges of the Court should be selected in a clear and open process, led by judges, that ensures that the individuals appointed to sit on the Court are chosen for their skills and not on the basis of their political affiliations or loyalties,” Benarbia added.
Additional safeguards against the possibility of removal for unjustified reasons and which ensure fair disciplinary procedures are needed to ensure the guardians of the Constitution may rule without fear or favour, the ICJ adds.
The draft law should be amended so as to more clearly provide the Court with a role as a check on measures taken by the executive branch of government.
It is also crucial that provisions of the draft law be added to broaden the Court’s mandate and increase individuals’ access to it, the ICJ underlines.
For example, unnecessary restrictions, such as any specific accreditation for lawyers should be removed, and provisions authorizing the Court to accept third parties as interveners and amicus curiae to increase the basis of information on which the Court decides a case should be added.
Contact:
Theo Boutruche, Legal Adviser of the ICJ Middle East and North Africa Programme, t: +96 170 888 961, e: theo.boutruche(a)icj.org
Tunisia-Draft Law Const Court-Advocacy-Analysis Brief-2015-ENG (full memo in PDF, English)
Tunisia-Draft Law Const Ct-News-Press releases-2015-ARA (full press release in PDF, Arabic)
Tunisia-Draft Law Const Court-Advocacy-Analysis Brief-2015-ARA (full memo in PDF, Arabic)
Sep 21, 2015
The ICJ today urged the European Council to mandate the EU institutions and Member States to take urgent co-ordinated action to protect the human rights of migrants and refugees who are now arriving in Europe on a large scale, to avoid exacerbating an already grave human rights crisis.
European Council President, Donald Tusk, has called for an extraordinary, informal meeting of heads of State and government for Wednesday 23 September, to discuss a common coordinated approach to address the situation.
The ICJ is following with extreme concern the latest developments in the refugee and migration emergency, with thousands of persons trying to reach the EU every day, including those fleeing war or persecution in Syria, Eritrea, Afghanistan and Ethiopia.
“The current situation represents an acid test for the EU’s identity as a legal order based on human rights and the rule of law,” said Róisín Pillay, Director of the ICJ Europe programme.
“In this rapidly developing human rights crisis, the EU institutions and Member States must respond in accordance with their international human rights and refugee law obligations, which are also founding principles of the EU,” she added.
The unprecedented number of refugees and other migrants – 9,000 persons crossed the Hungarian-Serbian border only on 14 September – has already seen numerous tragedies, including deaths by drowning in the Mediterranean Sea, the ICJ deplores.
It has also seen incidents raising serious human rights concerns, the Geneva-based organization says.
These include the numbering on their skin of refugees and migrants to the Czech Republic; ill-treatment of persons trying to cross the Greek-Macedonian border; and, most lately, deployment of the Hungarian army at the border with Serbia and allegations of ill-treatment, seizure and push-backs by the Hungarian authorities.
“The EU must urgently take co-ordinated action to provide adequate reception conditions and effective access to international protection for people fleeing war, persecution and other serious violations of human rights,” said Massimo Frigo, Legal Adviser of the ICJ Europe Programme.
The ICJ stresses that all refugees and other migrants, regardless of their status, are entitled to full protection of their human rights under international law.
The EU institutions and all EU Member State authorities have a duty to safeguard these rights at all times, including under the EU Treaties and the EU Charter of Fundamental Rights, the ICJ adds.
Contact:
Massimo Frigo, Legal Adviser, ICJ Europe Programme, t: +41 22 979 3805 ; e: massimo.frigo(a)icj.org
Europe-Migration statement-Advocacy-analysis brief-2015-ENG (full text in pdf)
Photo: EPA
