Jun 25, 2019 | News, Publications, Reports
Colombia’s transitional justice tribunal, the Special Jurisdiction for Peace (JEP in its Spanish acronym) has made progress in fighting impunity, but can do more to address the needs and demands of victims of the country’s long civil war, the ICJ said in a report released in Bogota today.
The report Jurisdicción Especial para la Paz: análisis a un año de su entrada en funcionamiento (available only in Spanish) will be presented by a high-level mission composed of the President of the ICJ, Prof Robert Goldman (former President of Inter-American Commission on Human Rights), the Vice President of the ICJ, Carlos Ayala (former President of the Inter-American Commission on Human Rights), and ICJ Commissioner Philippe Texier, former judge of the Court of Cassation of France.
The commissioners will meet with different Colombian authorities including the President of Colombia, Iván Duque Márquez, and the President of the JEP, Patricia Linares Prieto.
They will also meet with victims and other members of civil society.
The JEP is charged with prosecuting and punishing gross violations of human rights and serious violations of international humanitarian law committed during the country’s civil war.
The JEP was established by the Peace Agreement entered into between the Colombian government and the former armed group FARC-EP, on November 24 of 2016.
“The JEP has made progress in guaranteeing victims’ rights and fighting impunity for gross violations of human rights and serious violations of international humanitarian law,” said Prof Robert Goldman, ICJ’s President.
“But the JEP must do more to strengthen the effective participation of victims in its procedures, as well as to guarantee victims’ rights to justice and full reparation in compliance with international standards,” he added.
Accordingly, the report identifies ways by which the JEP can achieve these goals.
The ICJ also expresses concern about security threats faced by human rights defenders and victims and witnesses appearing before the JEP. The ICJ urges the JEP and other Colombian public authorities to adopt effective measures to guarantee their safety.
The ICJ also considers it is necessary to ensure respect for the judicial independence of the JEP against external pressures to ensure the proper performance of its functions.
The report describes the findings of a mission carried out by ICJ Commissioners Carlos Ayala, Wilder Tayler and Philippe Texier in January 2019. The report includes an analysis of the main actions and decisions taken by the JEP as well as relevant decisions of other public authorities. It reflects developments up to June 7, 2019.
Jun 25, 2019 | Comunicados de prensa, Informes, Noticias, Publicaciones
La Jurisdicción Especial para la Paz (JEP) es el tribunal de justicia transicional diseñado por el Acuerdo Final de Paz suscrito entre el Gobierno Colombiano y la guerrilla de las FARC-EP, con el fin de investigar y sancionar las graves violaciones a los derechos humanos y al derecho internacional humanitario cometidas en el conflicto colombiano.
En Bogotá, durante la semana del 24 de junio de 2019, será presentado el informe Jurisdicción Especial para la Paz, análisis a un año y medio de su entrada en funcionamiento, por una misión de alto nivel compuesta por el Presidente de la CIJ, Robert Goldman, el Vicepresidente de la CIJ, Carlos Ayala, y el comisionado de la CIJ Philippe Texier, ex juez de la Corte de Casación de Francia.
Para ello, se reunirán con diferentes autoridades colombianas incluidas, el Presidente de Colombia, Iván Duque Márquez y la Presidenta de la JEP, Patricia Linares Prieto. También se reunirán con víctimas y otros miembros de la sociedad civil.
En el informe “la CIJ reconoce los avances realizados por la JEP para garantizar los derechos de las víctimas y combatir la impunidad de las graves violaciones a los derechos humanos y del derecho internacional humanitario”, señala el profesor Robert Goldman, Presidente de la CIJ.
Al mismo tiempo, el profesor Goldman advierte que “la JEP debe avanzar en la adopción de acciones concretas para fortalecer la participación efectiva de las víctimas en sus procedimientos, así como para garantizar su derecho a la justicia y a la reparación integral, conforme a los estándares internacionales”.
Asimismo, la CIJ expresa preocupación por la situación de seguridad que enfrentan las víctimas y los testigos que comparecen ante la JEP. Por ello, exhorta a que la JEP y las demás autoridades competentes para que adopten medidas efectivas que garanticen su seguridad dentro de los trámites de la Jurisdicción.
En esa línea, la CIJ resalta en el documento que, aunque la JEP enfrenta varios desafíos y todavía tiene un largo camino que recorrer, es una institución fundamental para la consolidación de la paz en Colombia. En ese sentido, desde una perspectiva crítica pero propositiva, el informe ofrece insumos para que la JEP fortalezca y desarrolle sus funciones con plena observancia de los estándares internacionales, en particular respecto de los derechos de las víctimas y la sanción efectiva de los responsables.
Por otra parte, en el informe también se concluye que no son necesarias reformas legislativas al marco jurídico de la JEP; sino que solo es necesario que la JEP realice una interpretación de su normativa encaminada a desarrollar, profundizar e implementar, de mejor manera, los derechos de las víctimas, conforme con los estándares internacionales.
Por último, la CIJ también considera esencial que se garantice la independencia judicial de la JEP frente a presiones externas para asegurar el correcto ejercicio de sus funciones.
El informe presenta los hallazgos encontrados por una misión de la CIJ integrada por los comisionados Carlos Ayala, Wilder Tayler y Philippe Texier, la cual se realizó en enero de 2019. Estos hallazgos fueron ampliados y complementados con un análisis de las principales actuaciones realizadas por la JEP, así como, con un seguimiento a las actuaciones desarrolladas por otras autoridades.
La fecha de corte del informe es el 7 de junio de 2019.
Colombia-Jurisd para la paz-PUBLICATIONS-Reports-Fact-finding mission report-2019-SPA (Informe en PDF)
Jun 25, 2019 | News
The ICJ welcomes yesterday’s judgment of the Court of Justice of the EU (CJEU) which ruled that forcing the retirement of Polish Supreme Court judges by lowering their mandatory retirement age, violated EU law.
Following the judgement, the security of tenure of these judges must now be permanently ensured, the ICJ said.
“The independence of the judiciary in Poland has been systematically undermined by the Polish executive and legislative authorities in recent years. This is a landmark decision that should herald a return to the rule of law in Poland, including legal, institutional and practical protection for judicial independence,” said Róisín Pillay, Europe and Central Asia Programme Director at the ICJ.
“This decision should be fully complied with. But it should also prompt the Polish authorities to reverse the wider damage that has been done to the rule of law, to restore the independence of the institutions of the judiciary, and end the harassment of judges through unjustified disciplinary proceedings,” she added.
In its decision issued on 24 June, the CJEU found that the lowering of the retirement age for judges, without transitional arrangements for those already in office, was not justified by any legitimate objective and therefore undermined the principle of irremovability of judges, which is central to judicial independence. It therefore violated the principle of effective judicial protection in Article 19(1) of the Treaty of European Union.
The Court also considered the discretionary power of the President to allow a judge to remain in office following the mandatory retirement date.
It found that, although this power was based on the opinion of the National Council of the Judiciary, such opinions were in practice given without any reasons, and therefore did not provide an effective safeguard.
The Court found that the President’s discretionary power gave rise to reasonable doubts that judges could be subject to external influence, in violation of the principle of effective judicial protection under Article 19(1) TEU.
Background
A law on the Supreme Court, which entered into effect in July 2018, attempted to force the “retirement” of 27 of the 72 Supreme Court judges, including the First President, by lowering the mandatory retirement age for its judges from 70 to 65 years.
The ICJ has repeatedly condemned the “forced retirement” of the 27 Supreme Court Justices as violating the security of tenure of judges in direct contravention of the principle of judicial independence, as expressed in international law and standards.
These include the UN Basic Principles on the Independence of the Judiciary, Council of Europe standards, the European Court of Human Rights’ jurisprudence and the rule of law principles enshrined in article 2 of the Treaty on European Union.
An ICJ letter of 11 July 2018, signed by 22 senior judges from all regions of the world, urged the Polish government to act immediately to reinstate the forcibly retired judges in office.
Proceedings against Poland under Article 258 TFEU were launched by the European Commission in October 2018, alleging infringement of Article 19(1) TEU (the principle of effective judicial protection) together with Article 47 of the EU Charter of Fundamental Rights (the right to a fair hearing and an effective remedy).
Following an interim decision of the CJEU in December 2018, the judges who were forcibly retired were reinstated in office, under a Law on the Supreme Court that came into force in January 2019.
Jun 25, 2019 | News
Myanmar’s 1982 Citizenship Law, which has fueled widespread discrimination against various ethnic minority groups, is irreconcilable with core rule of law principles and the State’s obligations under international human rights law, the ICJ said today in a briefing paper.
The briefing paper Citizenship Law and Human Rights in Myanmar: Why Law Reform is Urgent and Possible (available in English and Burmese) analyses the legal framework for citizenship in Myanmar, and assesses certain provisions of the 2008 Constitution relevant to citizenship as well as the 1982 Citizenship Law.
This law embedded the current narrow definition of citizenship, which generally links citizenship acquisition to membership of a prescribed “national race.”
The resulting system enables and legitimizes discrimination against various groups, particularly against persons of South Asian or Chinese descent, members of whole ethnic groups, such as the Rohingya, and also the children of single mothers.
“Enacted by unelected military governments, Myanmar’s citizenship laws fuel widespread discrimination throughout the country,” said Sean Bain, Legal Adviser for the ICJ.
“The government must act immediately to dismantle this discriminatory system and to protect in law the human rights of all persons,” he added.
The intentionally discriminatory character of this law, and its equally discriminatory implementation, largely explain why many long-term residents of Myanmar lack a legal identity (more than 25 percent of persons enumerated in the 2014 Census).
The ICJ recommends three immediately achievable, concrete areas of law reform to the Government: 1) legislative reform, including most urgently of the 1982 Citizenship Law and the Child Rights Bill now being considered by the parliament; 2) Constitutional reform, to protect the right of citizens to full political participation; and 3) to institute interim measures to address discrimination on the basis of race or ethnicity.
A review of the 1982 Law was recommended in 2017 by the Government’s advisory commission chaired by the late United Nations Secretary-General Mr Kofi Annan, but the Government has not yet demonstrated any tangible progress on this.
“The government has the means at hand to get rid of this discriminatory system, which has undermined the rule of law and blocked the development of a pluralistic democracy. The government can and must implement the recommendations of its own advisory commission. The pervasiveness of discrimination cannot continue to go unaddressed, and there are no reasonable legal grounds for further delay in initiating pathways to reform,” Bain said.
UN Member States, as well as International Finance Institutions and UN agencies, must also ensure that assistance to the Government of Myanmar enables necessary reforms, and does not, in any way, entrench the existing discriminatory system.
Coinciding with the launch of this report, yesterday the ICJ hosted an event in Yangon where a panel of Myanmar legal scholars and researchers discussed the impact of current legal arrangements for citizenship on human rights, and why law reform is both urgent and possible. Representatives including from diplomatic missions, UN agencies, the Myanmar National Human Rights Commission, a multilateral donor and Non-Government Organizations attended the event.
Background
“Citizenship” is a legal concept describing an individual’s relationship to the State. In contrast, “statelessness” is when somebody does not have citizenship of any State. Terms such as “nationality,” “race” or “ethnicity” are generally culturally embedded concepts, understood differently by different people and in different contexts.
In many countries, particularly those with diverse populations, the right to citizenship is defined broadly to include persons with different ethnicities and even nationalities. In post-independence Myanmar, the concept of being a “national” or “indigenous” had a generally broad definition, allowing persons of different backgrounds to become citizens, including but not limited to the descendants of persons who had immigrated to Myanmar.
The 1982 Citizenship Law embedded in legislation the concept of “national races,” and introduced a hierarchy of citizenship categories that effectively institutes first-class and second-class citizens. Under this system, many life-long residents of Myanmar have effectively been rendered stateless, including members of entire ethnic groups, and children of mixed ancestry.
This discriminatory system has fostered an environment where crimes against humanity have taken place with absolute impunity.
Although section 347 of Myanmar’s 2008 Constitution guarantees “any person to enjoy equal rights” and protections before the law, other constitutional provisions restrict “fundamental rights” to citizens, including the rights to health and to education. Even for citizens, political rights are limited if a parent, child or spouse is not a citizen of Myanmar – the most infamous example of this is Daw Aung San Suu Kyi, who is constitutionally barred from the Presidency because her sons are foreign citizens.
The formation in February of this year of a Constitutional Amendment Committee also presents opportunities to expand the narrow definition of “fundamental rights,” to ensure their compliance with the constitutional guarantee of equality and protection before the law for “any person” (section 347), and with the State’s international human rights law obligations.
The Child Rights Bill, currently under consideration by the parliament, also offers opportunities to ensure that Myanmar’s laws comply with its treaty obligations, for example, under the UN Convention on the Rights of the Child, including with respect to the right of a child to acquire a nationality (citizenship), and the State’s related obligation to prevent statelessness.
See also
ICJ convenes workshop on reforming 1982 Citizenship law
ICJ materials on human rights law in Myanmar
Download
Myanmar-Citizenship law reform-Advocacy-Analysis Brief-2019-ENG (full report in English)
Myanmar-Citizenship law reform-Advocacy-Analysis Brief-2019-BUR (full report in Burmese)
Myanmar-Citizenship law reform-News-web story-2019-BUR (full story in Burmese)
Contact
Sean Bain, ICJ Legal Adviser, sean.bain(a)icj.org
Jun 24, 2019 | News
The ICJ convened a half-day panel discussion today in Yangon, Myanmar, to discuss national laws governing citizenship, and outline how, throughout the country, they have a discriminatory impact on people’s enjoyment of their human rights.
The event also provided the opportunity to introduce the ICJ’s new legal briefing Citizenship and Human Rights in Myanmar: Why Law Reform is Urgent and Possible
ICJ legal researcher Ja Seng Ing and legal adviser Sean Bain kicked off the event by noting that Myanmar’s legal framework for citizenship – enacted by unelected military governments – fuels widespread discrimination against members of ethnic minority groups throughout the country.
Bain highlighted the incompatibility of the domestic legal framework governing citizenship in Myanmar with core rule of law principles and with the State’s obligations under international human rights law, including the Convention on the Rights of the Child.
He presented the ICJ’s practical recommendations for law reform, outlined in the ICJ’s new legal briefing, including with respect to the 1982 Citizenship Law and the 2008 Constitution, and to the Child Rights Bill currently under consideration by Myanmar’s national parliament.
Senior Advocate U Ohn Maung, a lawyer with decades of experience supporting access for members of minority groups to the official documentation often necessary to obtain even basic services, emphasized that citizenship in Myanmar should be a more inclusive concept, reflective of its pluralistic, multi-ethnic demography.
Daw Zarchi Oo and Daw Su Chit shared the findings of independent civil society research.
They highlighted various groups including: migrants and migrant workers; individuals belonging to sexual and/or gender minorities; single mothers; the children of fathers who are foreign nationals or who are estranged from their fathers; and people living with disabilities, who are all adversely impacted by current legal arrangements for citizenship and by their discriminatory implementation.
Daw Zarchi Oo also spoke about her own past experience of being stateless, and Daw Su Chit elaborated on her work with civil society and others to develop a gendered analysis of the impact of discriminatory citizenship laws in Myanmar.
Around 60 participants, including from domestic civil society, the legal community, international non-government organizations, the Myanmar National Human Rights Commission, the diplomatic community and others joined this event, and participated in the discussions.
The 1982 Citizenship Law embedded the current narrow definition of citizenship, which generally links its acquisition to membership of a prescribed “national race.”
Many of the 2008 Constitution’s provisions on “fundamental rights” are restricted to citizens only, with a result being that the State generally does not recognize the human rights of persons who do not qualify as citizens under domestic law, or are otherwise excluded due to the laws’ discriminatory implementation.
The intentionally discriminatory character of the 1982 Law, and its discriminatory implementation, largely explains why many long-term residents of Myanmar lack a legal identity (more than 25 percent of persons enumerated in the 2014 Census).
The situation of Rohingya people, who the State generally does not recognize as citizens, is the most egregious example of the human rights violations associated with this system.
This event is part of the ICJ’s broader support to promote and protect human rights in Myanmar through research, analysis, advocacy and creating spaces for discussion.
See also:
ICJ convenes workshop on reforming 1982 Citizenship law
