Jan 29, 2019 | News
On the second anniversary of the killing of prominent lawyer U Ko Ni, in public view at Yangon International Airport, the ICJ repeats its calls for a thorough and impartial investigation with a view to establish the facts, to deliver justice and to deter the repetition of similar crimes.
“This brazen killing of a prominent democracy advocate demands a rigorous State response to show this type of crime will be fully punished,” said Frederick Rawski, the ICJ’s Director for Asia and the Pacific.
Despite an official investigation and reports of more than 100 court hearings, nobody has been held accountable for U Ko Ni’s death – criminally or otherwise – and the circumstances have not yet been satisfactorily explained.
“Myanmar simply cannot satisfy its international law obligations without conducting an impartial and independent investigation that is free of military influence. Such an investigation is a pre-requisite for conducting an effective prosecution in a fair trial setting,” added Rawski.
U Ko Ni was well known as a vocal advocate for human rights and democratic reform in Myanmar. As an adviser to the National Legal of Democracy party, he was involved in creating the position of State Counselor, which formalized a leadership role for Daw Aung San Suu Kyi, despite a constitutional provision barring her from the Presidency.
At the time of his death, it is understood that U Ko Ni was working on proposals to replace Myanmar’s 2008 Constitution, the source of law underpinning military power.
“A credible justice process is required not only for U Ko Ni and his family, but to demonstrate the State will protect the right to life of all people including democracy advocates,” said Sean Bain, legal adviser for the ICJ.
“A crime of this nature stifles participation in the democratic process and so an effective justice process is imperative to deter its repetition,” Bain added.
Myanmar has a particular obligation to ensure that lawyers and others acting as human rights defenders are protected in carrying out their work.
Any justice process must be timely, effective and shed light on the facts.
The investigation into U Ko Ni’s killing has been beset by obstacles, including the unknown whereabouts of a primary suspect, the incorrect identification of a deceased individual as a suspect and the arrest of a person with the same name, and reported military involvement in the police investigation. Lines of inquiry related to the political motivations for the killing, particularly considering the military links of many suspects, do not appear to have been pursued satisfactorily, nor impartially, given military involvement in the investigation.
Criminal proceedings in Yangon’s Northern District Court, and related proceedings in the Yangon High Court, have been sluggish. Observing lawyers and individuals including from the ICJ have noted multiple instances of admission into evidence of testimony that appears to be irrelevant, failures of key witnesses to appear, and the long drawn out process of court proceedings whereby weeklong delays are common while continuances over successive days are rare.
These issues are emblematic of challenges in Myanmar’s justice system previously identified by the ICJ in which police, prosecutors and courts generally lack the independence and or will to effectively administer justice, particularly in politically sensitive cases.
“Two years is an incredibly long time to get to the position we are in now, and in our experience this highlights broader problems with the administration of justice in Myanmar,” added Bain.
Contact
Frederick Rawski, ICJ Asia Pacific Region Director, e: frederick.rawski(a)icj.org
Sean Bain, ICJ Legal Adviser, e: sean.bain(a)icj.org
Download:
Myanmar-Ko Ni Statement-News-web stories-2019-ENG (full story with background information, PDF)
Myanmar-Ko Ni Statement-News-web stories-2019-BUR (full text in Burmese, PDF)
Read also:
Myanmar: reverse laws and practices that perpetuate military impunity – new ICJ report
Killing of lawyer U Ko Ni must be promptly and impartially investigated
Jan 18, 2019
Today, the ICJ submitted recommendations to the Committee Considering the Draft Prevention and Suppression of Torture and Enforced Disappearance Act (‘Draft Act’) and urged that the Draft Act be amended without delay in order to ensure compliance with Thailand’s international legal obligations.
The Act, if properly conceived and implemented, will help ensure that Thailand is able to effectively address the crimes of torture and enforced disappearance, including by holding perpetrators accountable.
The Committee was recently set up by Thailand’s National Legislative Assembly (‘NLA’) to review the Draft Act, under discussion since 2017.
The recommendations were made with respect to the most recent amendments to the Draft Act that were approved by the NLA, in its first reading on 20 December 2018.
The ICJ’s recommendations reflect proposals for changes that ICJ and Amnesty International jointly first submitted to the Ministry of Justice on 23 November 2017.
While the ICJ welcomes the NLA’s decision to retain certain sections regarding emergency situations and non-refoulement in the Draft Act, it expressed concern at a number of deficiencies that would need to be addressed in order to bring the Draft Act into line with Thailand’s international human rights obligations, including the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) and the International Convention for the Protection of All Persons from Enforced Disappearances (ICPPED).
The key concerns include:
- Incomplete definitions of the crimes of torture and enforced disappearance, as well as of other key terms;
- Absence of provisions concerning cruel, inhuman and degrading treatment or punishment (“CIDT/P”);
- Inadequacy of provisions relating to modes of liability for crimes described in the Draft Act;
- Inadequacy of provisions on the inadmissibility in legal proceedings of statements and other information obtained by torture, CIDT/P and enforced disappearances as evidence in legal proceedings; and
- Insufficient safeguards against torture, CIDT/P and enforced disappearances.
Background
Thailand is a State party to the International Covenant on Civil and Political Rights (ICCPR) and UNCAT, and has signed, but not yet ratified, ICPPED.
The Draft Act was produced by the Ministry of Justice in consultation with non-governmental organizations and other civil society actors. Public hearings on the Draft Act, as required by the 2017 Constitution, were conducted through a series of meetings, including a forum that was co-hosted by the ICJ.
The evaluation of the public hearings was prepared by the Ministry of Justice and included the recommendations that were submitted by the ICJ and Amnesty International in November 2017. However, not all of the critical issues raised were satisfactorily addressed.
The amended Draft Act was proposed to the Cabinet, which later forwarded it to the NLA.
Thailand’s NLA requires three readings of a bill before it can be passed into a law.
On 20 December 2018, the Draft Act was approved by the NLA, in its first reading, during meeting No. 86/2561, with 167 supporting, 3 against and 15 abstaining.
Consequently, 15 Committee members were appointed to review the bill within 45 days before to the second and third readings by the NLA. 10 of 15 members of the Committee are from the Thai military, police or navy.
The Committee’s revision of the Draft Act was due to have been completed by 2 February 2019, but this deadline has reportedly been extended for another 30 days.
The NLA will reportedly stop passing any laws before the national elections, due to be held on 24 March 2019, and will be terminated on the day prior to the date of convocation of the first sitting of the National Assembly after the elections.
The termination of the NLA would leave the status of the bill in doubt, and at the least mean significant delays in its consideration and passage.
Download:
Thailande-Torture and enforced dis-Advocacy-non legal submission-2019-ENG (full text in English, PDF)
Thailande-Torture and enforced dis-Advocacy-non legal submission-2019-THA (full text in Thai, PDF)
Read also:
ICJ and Amnesty International, Recommendations to Thailand’s Ministry of Justice on the Draft Prevention and Suppression of Torture and Enforced Disappearances Act
Jan 16, 2019
The trial of civilians by military courts is a glaring surrender of human rights and fundamental freedoms, found the ICJ in its Briefing Paper Military Injustice in Pakistan released today.
The Pakistani Government must not extend the tenure of military courts to try civilians for terrorism-related offences, the ICJ said.
“Military trials of civilians have been a disaster for human rights in Pakistan,” said Frederick Rawski, ICJ’s Asia Director.
“As a recent judgment of the Peshawar High Court has confirmed, proceedings in these tribunals are secret, opaque, and violate the right to a fair trial before an independent and impartial tribunal,” he added.
In the briefing paper, the ICJ has documented serious fair trials violations in the operation of military courts, including: denial of the right to counsel of choice; failure to disclose the charges against the accused; denial of a public hearing; failure to give convicts copies of a judgment with evidence and reasons for the verdict; and a very high number of convictions – more than 97 per cent – based on “confessions” without adequate safeguards against torture and ill treatment.
The ICJ has also demonstrated how military courts are being used to give legal cover to the practice of enforced disappearances.
The use of military courts to try civilians is inconsistent with international standards, the ICJ recalled.
According to the military, in the four years since military courts were empowered to try terrorism-related offences, they have convicted at least 641 people. Some 345 people have been sentenced to death and 296 people have been given prison sentences. Only five people have been acquitted. At least 56 people have been hanged.
An earlier law giving military courts authority to try civilians will lapse on 30 March 2019. Last week, the Cabinet approved a proposal to extend the tenure of military courts for another two years. The Government is currently in consultation with opposition parties to get consensus on the extension.
“Extending the tenure of military courts is an attempt to deflect attention from the real issue: the Government’s failure to enact reforms to strengthen the criminal justice system during the four years military courts have been in operation,” said Rawski.
“The Government must account for its failure to deliver on the promise of delivering justice for the victims of terrorism and other abuses in Pakistan instead of once again extending the “exceptional” use of military courts for civilian trials,” he added.
The ICJ fears that repeated extensions risk making the practice effectively permanent.
If the Government decides to table legislation to extend the tenure of military courts, the Parliament must take a stand in defense of the rights of all people in Pakistan, instead of once again extending a discredited and abusive process, the ICJ says.
Contact
Frederick Rawski (Bangkok), ICJ Asia Pacific Regional Director, e: frederick.rawski(a)icj.org
Reema Omer, ICJ International Legal Advisor (South Asia) t: +447889565691; e: reema.omer(a)icj.org
Additional Information
The National Assembly and Senate of Pakistan passed the 21st amendment to the Constitution in January 2015, authorizing military courts to try civilians for terrorism-related offences for a period of two years. The 21st amendment lapsed on 6 January 2017.
Despite earlier promises that military courts were only temporary and “exceptional”, after the expiration of the 21st Amendment, Parliament enacted on 30 March 2017 the 23rd Amendment and amendments to the Army Act to renew military courts’ jurisdiction over civilians. The amendments were given retrospective effect from 7 January 2017, and were due to lapse two years after their date of “commencement”.
According to the law ministry, the expanded jurisdiction of military courts will lapse on 30 March 2019. (Earlier reports had suggested the amendments expired on Jan 6, 2019 — two years after the date of “operation” of the 23rd Amendment.)
Pakistan-military courts-Advocacy-Analysis brief-2019-ENG (full briefing paper in PDF)
Jan 3, 2019 | Advocacy, News, Non-legal submissions
On 30 December 2018, the ICJ and the International Service for Human Rights (ISHR) jointly submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee) directed against Thailand.
They did this as a State Party to the Optional Protocol to the UN Convention on the Elimination of All Forms of Discrimination against Women (the CEDAW Convention) on behalf and with the consent of Angkhana Neelapaijit, regarding the alleged enforced disappearance of her husband, Somchai Neelapaijit.
Somchai Neelapaijit, a prominent lawyer and human rights defender, disappeared after being stopped on a road in Bangkok on 12 March 2004 and pulled from his car by a group of men. He has not been seen since. More than 14 years after his alleged enforced disappearance, Somchai’s fate and whereabouts remain unknown.
Prior to his disappearance, Somchai had been defending clients from Thailand’s southern border provinces and had been doing extensive work to advocate for the rights of persons accused of terrorism, and to highlight the treatment of Malay-Muslims in the region.
The joint communication by ICJ and ISHR to the CEDAW Committee submits that Thailand has breached Articles 2(b)(c)(f), 5(a)(b), 15(1) and 16(1)(c)(d) of the CEDAW Convention, which relate to the rights of women to substantive equality and protection from all forms of discrimination, including in all matters relating to marriage and family relations, as well as to their right to an effective remedy for violations of the abovementioned provisions.
The communication further highlights the impact of enforced disappearance on family members of a disappeared person, noting its disproportionate impact on wives and female relatives, as most cases of enforced disappearance in Thailand involve male victims.
In addition to the CEDAW Convention and its Optional Protocol, Thailand is a party to a number of other international human rights instruments, including the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In January 2012, Thailand also signed the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), thereby committing itself to refrain from acts that would defeat the object and purpose of that treaty, namely the prevention and prohibition of the crime of enforced disappearance.
The ICJ has consistently called upon the Thai authorities to comply with their obligations under international human rights law to independently, impartially and effectively investigate the case of Somchai Neelapaijit and all other reported cases of enforced disappearance, and provide the families of the victims in such cases with access to effective remedies and reparations, including regular updates on the status of the investigations.
The ICJ has also submitted recommendations to the Thai authorities on the current Draft Prevention and Suppression of Torture and Enforced Disappearances Act, highlighting the crucial need for a domestic law to define and criminalize enforced disappearance and torture in line with Thailand’s international obligations.
Thailand-Communication to CEDAW-Advocacy-2019-ENG (full submission, in PDF)
Contact
Livio Zilli, ICJ Senior Legal Adviser & UN Representative, email: livio.zilli(a)icj.org
Read also
Thailand: ICJ submits recommendations on draft law on torture and enforced disappearance amendments
Thailand: ICJ marks 14th year anniversary of the enforced disappearance of Somchai Neelapaijit’
Thailand: ICJ, Amnesty advise changes to proposed legislation on torture and enforced disappearances
Thailand: pass legislation criminalizing enforced disappearance, torture without further delay
On the 10th anniversary of Somchai Neelapaijit’s alleged disappearance, the ICJ released a report ‘Ten Years Without Truth: Somchai Neelapaijit and Enforced Disappearances in Thailand’ documenting the legal history of the case.
Dec 19, 2018 | News
The Transgender Persons (Protection of Rights) Bill, 2018 fails to protect the human rights of transgender people as guaranteed under the Indian constitution and international law and standards and must not be passed in its present form by the Rajya Sabha.
The Bill was passed by the Lok Sabha (Lower House of Indian Parliament) on 17 December, 2018. The next step in order for the Bill to progress is for the Rajya Sabha (Upper House of Indian Parliament) to pass it.
The ICJ considers this Bill to be a missed opportunity to address the serious problem of discrimination against transgender people in India. The ICJ calls for the rejection of its problematic parts by the Rajya Sabha and for the elaboration of a revised Bill in line with rights upheld by the Indian Supreme Court and India’s obligations under international law.
The 2018 Bill, if adopted, would effectively deny to most transgender people their right to self-identification, by providing an overly complex bureaucratic procedure requiring an individual’s application for a transgender certificate to be approved by two different sets of authorities, despite earlier widespread condemnation of this process by the transgender community.
“As the ICJ reported in 2017, the transgender community is continually harassed, stigmatized, and abused by the police, judges, their family and society. This Bill, if it becomes law would further serve to facilitate and compound human rights violations against people from a marginalized community”, said Ian Seiderman, Legal and Policy Director at the ICJ.
The Bill has also introduced mandatory sex reassignment surgery for those transgender people who seek to identify their gender within the binary (male/female) framework. This requirement would be in contravention of the Supreme Court’s judgment in NALSA v. UOI, which guarantees the right to self-identification without the need for medical intervention.
Further, the Bill would collapse all offences against transgender people into one provision which includes offences ranging from “sexual abuse” and “physical abuse”, to “compel[ing] or entice[ing] a transgender person to indulge in the act of begging” among others. These crimes have not been defined in the Bill.
It also would provide for the same six-month to two-year sentence for all offences against transgender people. In some cases, this could be a significantly lighter sentence than when the same crime is committed against others, including discriminated groups such as cis-gendered women, under the general criminal law. In addition, the identification of “beggary” as an offence under the Bill is problematic since for many transgender people in the country, it remains one of the limited livelihood opportunities.
Further, the Bill does not address the question of reservations in employment and education despite specific directions by the Supreme Court in NALSA v. UOI.
Lastly, while the proposed law guarantees the right to non-discrimination to transgender people against persons, state and private sector bodies, it does not provide a definition of discrimination, nor does it provide an enforcement mechanism for ensuring transgender people’s right to non-discrimination.
The ICJ calls on the Rajya Sabha to substantially revise the problematic provisions of the Bill before resubmitting it for parliamentary consideration.
Background
The provisions identified above do not accord with protection of the rights of transgender people to equality, non-discrimination, equal protection of the law, enshrined in the Constitution and international law, including the International Covenant on Civil and Political Rights, which India ratified in 1979. Further, they are incompatible with international standards such as the Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity.
The ICJ, as part of SAATHII Vistaara Coalition, earlier this year drafted a Briefing Paper on India: Legal and Jurisprudential Developments on Transgender Rights, SAATHII Vistaara Coalition. The paper analyses in detail the domestic judicial developments on transgender rights as well as the legislative process undertaken until the Transgender Persons (Protection of Rights) Bill, 2018 was passed on 17 December 2018.
Additional Reading Material
- ICJ Briefing Paper on The Transgender Persons (Protection of Rights) Bill, 2016, analyzes the 2016 Bill, its shortcomings, and India’s international obligations, as it is the basis of the 2018 Bill.
- ICJ Briefing Paper on Implementation of NALSA Judgment discusses the 2014 April NALSA decision that affirmed that transgender people have the right to decide their self-identified gender. The paper analyses the responsibilities placed on Indian authorities, gaps in implementation, and India’s relevant international law obligations.
Contact
Maitreyi Gupta (Delhi), ICJ International Legal Advisor for India
e: maitreyi.gupta(a)icj.org, t: +91 7756028369
