Aug 29, 2016 | News
Tens of thousands of enforced disappearances in South Asia can only be addressed if all the region’s governments immediately criminalize this serious human rights violation, said today lawyers and activists from Bangladesh, India, Nepal, Pakistan and Sri Lanka.
The call came at a Conference on Enforced and Involuntary Disappearances, organized by the ICJ and Human Rights Commission of Pakistan (HRCP) on the eve of the International Day of the Victims of Enforced Disappearances.
South Asia has among the highest number of alleged victims of enforced disappearances in the world: tens of thousands of cases have been documented in Sri Lanka, Nepal, Pakistan and India, and since 2009, there has also been a surge in enforced disappearances in Bangladesh.
“Sri Lanka’s ratification of the Convention on Enforced Disappearance and its pledge to criminalize the practice is a welcome step,” said I. A. Rehman, Secretary General for the Human Rights Commission of Pakistan.
“Other States in the region should now follow suit and show that they are serious about their commitment to human rights by making enforced disappearance a specific crime in their domestic law,” he added.
Under international law, an enforced disappearance is the arrest, abduction or detention by State agents, or by people acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the detention or by concealing the fate or whereabouts of the “disappeared” person which places the person outside the protection of the law.
The UN General Assembly has repeatedly described enforced disappearance as “an offence to human dignity”.
At present, enforced disappearance is not a distinct crime in any South Asian country, which is one of the major hurdles to bringing perpetrators to justice.
In the absence of a legal framework on enforced disappearance, unacknowledged detentions by law enforcement agencies are considered “missing persons” cases.
On the rare occasions where criminal complaints are registered against alleged perpetrators, complainants are forced to categorize the crime as “abduction” or “kidnapping”.
These categories do not recognize the complexity and the particularly serious nature of enforced disappearance, and often do not provide for penalties commensurate to the gravity of the crime.
They also fail to recognize as victims relatives of the “disappeared” person and others suffering harm as a result of the enforced disappearance, as required under international law.
“Despite thousands of cases of enforced disappearance across South Asia, the governments have failed to follow their legal obligation to treat these crimes as the serious human rights violation they are,” said Sam Zarifi, ICJ’s Asia Director.
“South Asian governments have done very little to support the victims and survivors of enforced disappearance, or to ensure the rights of their family members to truth, justice and reparation,” he added.
Other barriers to bringing perpetrators to account are also similar in South Asian countries: military and intelligence agencies have extensive and unaccountable powers, including for arrest and detention; members of law enforcement and security forces enjoy broad legal immunities, shielding them from prosecution; and military courts have jurisdiction over crimes committed by members of the military, even where these crimes are human rights violations.
Victims’ groups, lawyers, and activists who work on enforced disappearance also face security risks including attacks, harassment, surveillance, and intimidation.
A comprehensive set of reforms, both in law and policy, is required to end the entrenched impunity for enforced disappearances in the region – criminalizing the practice would be a significant first step, said ICJ and the HRCP.
Contact
Sam Zarifi, ICJ Asia Pacific Regional Director (Bangkok), t: +66 807819002; e: sam.zarifi(a)icj.org
Read also
ICJ Practitioners’ Guides No. 9 Enforced Disappearance and Extrajudicial Execution: Investigation and Sanction and No. 10 Enforced Disappearance and Extrajudicial Execution: the Right of Family Members, which provide legal practitioners, activists and policy-makers with detailed and practical references on international standards on enforced disappearances and extrajudicial killings.
South Asia-International disappearances day statement-News-2016-ENG (full text in PDF)
Aug 23, 2016
The ICJ released today a briefing paper on investigation of extrajudicial executions in the Philippines.
This document is meant to contribute to ongoing discussions, following a hearing conducted by the Committee on Justice and Human Rights of the Philippine Senate, on the reported increase in the number of deaths of persons allegedly involved in the trade and sale of illegal drugs in the country.
The ICJ had previously written to President Rodrigo Duterte (photo), calling on him to unequivocally denounce extrajudicial killings, whether of alleged criminals or of any person in the Philippines.
The ICJ also urged the government to immediately conduct investigations into police operations that resulted in these deaths.
Philippines-EJK debate-Advocacy-Analysis Brief-2016-ENG
Photo credit: Grig C. Montegrande/Inquirer.
Aug 18, 2016
Today, the ICJ released a briefing paper on the Transgender Persons (Protection of Rights) Bill, 2016, asking that it be withdrawn and revised to be consistent with international human rights law, and directions of the Indian Supreme Court.
The briefing paper answers key questions about the history of this Bill, what measures it seeks to introduce, outlines the ICJ’s key concerns about the Bill as currently drafted – including key omissions – in light of directions of the Supreme Court and applicable international human rights law.
“It is important to have a law guaranteeing transgender rights in India,” said Sam Zarifi, ICJ Asia director.
“However, any such legislation must be consistent with the spirit and directions of the Supreme Court in the case of NALSA v UOI and with international human rights law”.
The Transgender Persons (Protection of Rights) Bill, 2016 was approved by the Cabinet last month.
It was introduced in the Lok Sabha (lower house of Parliament) on 2 August 2016 and is currently pending.
The Bill’s definition of who is “transgender person”, the process of gender recognition it outlines, as well as the lack of adequate provisions on employment, education, anti-discrimination measures, and penalties for offences committed, are deeply problematic and at odds with the Supreme Court’s directions in the judgment of the Supreme Court in the case of NALSA v UOI.
“While a comprehensive transgender rights bill is long overdue in India, the problems and omissions in the current Bill will undermine the progress made on transgender rights in India,” Zarifi said.
“The government must immediately withdraw the Bill, meaningfully consult with the transgender community, and substantially revise its provisions such that it comprehensively protects the rights of all transgender people in India,” he added.
Background
In 2014, in the case of NALSA v UOI, the Supreme Court affirmed transgender persons’ right to their self-identified gender, directed the government to grant legal recognition of the same, and to take specific steps to ensure equality and non-discrimination for transgender persons.
States and government departments have begun to take piecemeal measures to implement the directions in the NALSA judgment, however several aspects of the decision remain unimplemented. See ICJ Briefing Paper on the implementation of the NALSA decision .
In April 2015, the Rajya Sabha (Upper House of India’s Parliament) passed the Rights of Transgender Persons Bill 2014, which was a private member’s Bill. Simultaneously, the government was developing its own draft of a transgender rights bill, which has now been introduced in Parliament. For more details see here.
INDIA-TG BILL CRITIQUE-Advocacy-Analysis brief-2016-ENG (full text, PDF)
Aug 12, 2016
An opinion piece by Sean Bain, ICJ Legal Consultant in Myanmar.
Although Myanmar’s new civilian-led government has said little about the future of controversial, large-scale foreign investments, some projects are gaining ground without adequate public consultation and oversight.
Among them is the Kyaukphyu Special Economic Zone, a China-backed project in Rakhine State.
Communities affected by the development of the Kyaukphyu SEZ are concerned about speculators improperly buying-up land and are worried they will be displaced without due compensation.
This scepticism reflects recent bad experiences with infrastructure projects in the area, where officials reneged on commitments to comply with international standards on resettlement and compensation.
The ICJ has made several visits to Kyaukphyu over the past two years to monitor the human rights and environmental impacts of investment projects.
The ICJ has spoken with community groups, government and business.
As at the sites of the country’s two other SEZs, at Dawei and Thilawa, the ICJ has found that a lack of transparency is a key complaint of affected communities.
Since the National League of Democracy took office in April, the development of large-scale projects has slowed whilst the new government takes stock of Myanmar’s investment agreements.
Yet some of these projects are moving ahead – apparently without direction from the central government.
In the final months of its term, the Union Solidarity and Development Party government announced that the Chinese conglomerate, CITIC, had won tenders to develop an SEZ and build a deep-sea port at Kyaukphyu.
A corporate promotional video suggests the SEZ will create an investment and economic hub akin to Singapore in one of Myanmar’s poorest regions.
The port is expected to establish an alternate shipping route for Chinese trade by linking Yunnan Province with the Bay of Bengal – significant for China’s western provinces and for regional geopolitics.
An oil and gas pipeline completed in 2013 already connects Kyaukphyu with China.
Public access to information about the SEZ project remains scarce.
Research by the ICJ could not establish whether investment agreements have been finalised.
In the meantime, local authorities and project developers are moving forward with preparatory work for land acquisition and the resulting resettlement and livelihood changes for the local population.
The ICJ documented that when the NLD formed government, authorities were conducting land demarcation activities with an inter-departmental team in the Kyaukphyu area.
Plots and property were measured and documented, indicating preparations for future compensation.
Yet community members say they have received limited information about the purpose and method of this process.
Civil society groups have requested maps that collate this data but government officials have not made them available.
Residents recently told the ICJ that land prices are increasing as speculators buy plots in anticipation of future demand in the SEZ area. Farmers toiling in the fields may be unaware of the transactions.
Most don’t have land titles to sell, for a variety of reasons: Customary tenure is unrecognised; there were disincentives for land registration during the Socialist era; and would-be title holders continue to face barriers to registration, including corruption and laws that provide little protection and are poorly enforced.
These property transactions raise questions about who has the right to sell land and indicate that de facto land acquisition is occurring, despite a May 2016 Presidential Notification ordering a temporary halt to state land acquisitions.
Development of a new land law modelled on international standards and drafted in consultation with civil society was among 14 recommendations the ICJ recently made to the new government.
In southeast Myanmar, civil society groups investigating impacts of the Dawei SEZ documented that residents with insecure tenure sold land to speculators for prices below what they would be entitled to receive in an appropriate compensation process.
These sales reportedly occurred in response to pressure, coercion and misinformation from businesspeople in collusion with local authorities.
Depriving displaced persons of adequate compensation impedes their ability to re-establish livelihoods and results in violations of rights enshrined in the International Covenant on Economic, Social and Cultural Rights – that Myanmar has signed and the NLD has indicated it intends to ratify.
The Kyaukphyu project risks repeating these violations.
Access to remedy is severely limited because the judiciary lacks the independence, capacity and willingness to adjudicate conflict and disputes over land.
Authorities and investors associated with SEZs can and must mitigate these risks by immediately sharing plans with communities and establishing accessible lines of communication.
Over the past year CITIC has invested in reaching out to communities affected by the SEZ development. CITIC has offered community members microfinance and has began setting up vocational training opportunities.
These activities are efforts by CITIC to be a responsible investor in Myanmar. But these activities are not enough to satisfy the company’s legal obligations.
Companies are obliged to disclose project-related information in a timely manner and to arrange appropriate consultations that adhere to international standards.
Civil society and local leaders have told the ICJ that they hope future meetings with CITIC will be more inclusive and allow for genuine feedback and dialogue.
Myanmar’s Environmental Impact Assessment (EIA) Procedure, approved last December under the Environmental Conservation Law, requires developers to disclose timely project information with communities and civil society.
The procedure obliges developers to ensure that affected parties have opportunities to express their views and concerns before an EIA starts, as well as during and after the process.
The ICJ has encouraged CITIC to use the EIA as a chance to demonstrate its stated commitments to responsible investment in Kyaukphyu. It is also an opportunity for the government to exercise its regulatory right to protect human rights and the environment.
Communities have a right to timely information about project developments so they can participate in planning and make informed decisions about their future.
Transparency, access to information, and opportunities for genuine consultation and participation are principles of international standards such as the World Bank’s Policy on Involuntary Resettlement.
Through the EIA Procedure, Myanmar law requires that developers of major projects adhere to these standards.
In Kyaukphyu, the NLD government has an opportunity to enforce social and environmental safeguards for investment projects.
This is not without challenges: under the SEZ Law, responsibility for land acquisition is conferred to the military-controlled Ministry of Home Affairs. But the NLD now gets to appoint officials responsible for project approvals.
The NLD will also determine the composition of the peak body for SEZ implementation in Myanmar.
These new powers must be used to ensure that any displacement occurs only when absolutely necessary, and through a process consistent with international standards.
Whilst the NLD government continues to review investment agreements, in Kyaukphyu the situation is transforming.
Affected communities require transparent access to information, genuine consultation and opportunities to participate in decision-making.
The government and developers must immediately demonstrate stated commitments to responsible investment in Myanmar by applying democratic principles of timely and meaningful transparency and consultation.
