Jun 22, 2016
In a briefing paper published today, the ICJ explained the legal issues and political context of the case against Colonel Kumar Lama, a Nepali Army officer.
Earlier this month, Colonel Lama’s trial on allegations of torture of two Nepali detainees in 2005 resumed in the United Kingdom.
“This case is one of the all too rare occasions when the principle of universal jurisdiction has been applied in judicial procedures in the UK, if not the world over,” said Sam Zarifi, ICJ’s Asia Director. “The decision will have far reaching implications, not only for the victims in this case but for all victims of torture and other serious abuses around the world seeking justice.”
In January 2013, the UK exercised a form of “universal jurisdiction” to charge Colonel Lama on two counts of committing torture under Section 134(1) of the Criminal Justice Act, 1988.
The charges are based on allegations that Colonel Lama was involved in the torture of two Nepali detainees in 2005, at the height of Nepal’s decade-long internal armed conflict. Colonel Lama’s trial began in February 2015 in London. After a few weeks, however, the trial was adjourned because there were problems with interpretation in court. The trial began afresh earlier this month.
The briefing paper addresses questions around the charges against Colonel Lama; the political context in Nepal when the acts of torture allegedly happened; the principle of “universal jurisdiction”; and procedural questions around such trials in the UK.
“The case comes at a time when an agreement between the ruling parties in Nepal is threatening to entrench impunity for those who planned and carried out unlawful killings, enforced disappearances, torture and ill-treatment, and other serious crimes in Nepal’s civil war,” added Zarifi.
“It is an important and long overdue opportunity to challenge the systemic impunity for conflict-era human rights abuses in Nepal.”
Contact
Sam Zarifi, ICJ Asia-Pacific Director, t: +66-807-819-002; e: sam.zarifi(a)icj.org
Nepal-Lama Q&A-Advocacy-2016-ENG (full paper in PDF)
Jun 21, 2016
The ICJ has joined other leading NGOs in an open letter urging the UN High Commissioner for Human Rights to set out clear benchmarks for assessing progress in Sri Lanka’s implementation of the Human Rights Council resolution on accountability and reconciliation.
20 June 2016
To: The UN High Commissioner for Human Rights
Dear High Commissioner,
Subject: Open letter on the oral update on Sri Lanka at the 32nd session of the UN Human Rights Council
We write to you ahead of your oral update to the UN Human Rights Council on Sri Lanka. October 1, 2015 marked an important milestone in the UN’s engagement with Sri Lanka. Sri Lanka joined the international consensus and cosponsored resolution 30/1 at the UN Human Rights Council. The resolution called on the Office of the High Commissioner to “assess progress on the implementation of its recommendations and other relevant processes related to accountability reconciliation and human rights.” The resolution identified your forthcoming oral update as a midway point in this process of assessment prior to a comprehensive progress report next March.
While the government’s assurances on progress have been plentiful its performance on the ground has been mixed and not befitting expectations outlined in your report and in the resolution as well as those of victims and people on the ground. There have been some positive developments on international cooperation such as the government’s recent decision to ratify the Convention against Enforced Disappearances and Convention on the Rights of Persons with Disabilities, the extension of standing invitations to Special Procedures and the visit of a number of Special Procedures, your own visit and that of other UN officials.
At the same time there have been mixed signals on the government’s commitments made through the October resolution, at the highest level of the government. There have been distressing reports on the ongoing use of arrests under the Prevention of Terrorism Act (PTA) instead of the regular criminal code. The PTA is a draconian law consistently condemned by UN bodies and officials and which the government had pledged to repeal as part of its October commitment. Repealing the PTA and dealing with the outstanding cases of those still detained under the law should be a foremost priority.
While there is more space for freedom of expression and assembly, incidents of intimidation are still taking place. For example the WGEID reported incidents of intimidation of those who met them, and persons planning to meet you on your visit reportedly were also subjected to intimidation a day before your visit. Some land occupied by the military has been released, but much has not been.
A draft law of the Office of the Missing Persons (OMP), one of the four transitional justice mechanisms committed to by the government, has been published with minimal consultations, and before the Task Force established to conduct consultations had even begun face-to-face consultations with affected communities and citizens. It is crucial that laws for the other three mechanisms are passed by March 2017, but unlike the OMP, with greater transparency and allowing sufficient opportunities and time for genuine consultations. It is also important to clearly indicate the inter-linkages and complementarity of the different mechanisms and how they will together guarantee rights to truth, criminal justice, reparations and guarantees of non-recurrence, and not undermine any of these rights and the working of each mechanism.
We are convinced that the government needs to meet clear benchmarks in relation to commitments it had made to its own people and the international community. Mindful of the long history of failed efforts towards reconciliation and accountability for human rights violations in Sri Lanka, we are worried that in March 2017, the absence of clear progress may cause a loss of confidence in the current UN backed process for justice, accountability and reconciliation.
Member states of the Council have indicated that their engagement with the Sri Lankan government will be guided by your oral update on the implementation of the October Council resolution on Sri Lanka. This expectation has been heightened by your and your staff’s visits to Sri Lanka and those of the Special Procedures. Thus, we believe it is crucial for your oral update to identify areas where progress has been made, as well as areas where there is a lack of progress and incorporate clear benchmarks that include immediately achievable steps.
At the end of your visit to Sri Lanka in February this year, you identified some of these steps in stating that “the military needs to accelerate the return of land it has seized and is still holding to its rightful owners” and “the size of the military force in the North and the East can be reduced to a level that is less intrusive and intimidating, as a first step in security sector reform.”
In your statement to the current session of the Council on June 13, you identified a comprehensive transitional justice strategy as critical for the government’s implementation of its commitments. In this regards, the establishment, without delay, of a judicial mechanism with full participation of international judges, lawyers and prosecutors, is an element of the Council resolution (and the OISL and OHCHR reports on a judicial mechanism) that represents an essential benchmark for the credibility of the overall process.
Please accept the assurances of our highest consideration
Asian Forum for Human Rights and Development (FORUM-ASIA)
Franciscans International
Human Rights Watch
International Commission of Jurists
International Movement Against All Forms of Discrimination and Racism (IMADR)
International Service for Human Rights
The open letter can be downloaded in PDF format here: UN-HRC32-SriLanka-OpenLetter-2016
Jun 21, 2016 | News
The ICJ urged the diplomatic community in Myanmar to assist, and assess, the new government’s efforts to improve the protection and promotion of human rights in the country at a diplomatic dialogue today.
The ICJ shared its 14 General Recommendations to the new Government and Parliament, with ambassadors and high-level diplomatic representatives, and discussed specific, actionable recommendations to the Government to effectively address human rights violations immediately and in the long term and to provide redress to those whose rights have been violated.
Access to justice for victims of human rights violations has been severely curbed in Myanmar during decades of military rule.
Most of the population has been consistently denied access to the courts and effective remedies as a result of unfair and discriminatory laws and poor court decisions.
With an improper regulatory regime for investment and environmental protection, and an ineffective judiciary to enforce laws and provide access to justice, economic development has risked undermining human rights protection and negatively impacting on economic, social and cultural rights.
Vani Sathisan, ICJ’s International Legal Adviser for Myanmar, stated that while the new government is more receptive than its predecessor to international human rights laws and standards, it should urgently establish a clear plan on strengthening rule of law reform and that all legislation must be guided by the principles of non-discrimination, greater accountability, transparency and justice.
Among the key recommendations the ICJ shared are:
- Supporting the committing of resources to the judiciary as well as the Attorney General’s Office to improve the state of legal education, court facilities, and safeguards to prosecutors to undertake investigations independently;
- Pushing for the passage of new land laws in consultation with civil society modeled on international standards and best practices;
- Ensuring that a new investment law conforms to the new land law that protects all forms of land tenure and provides access to justice when human rights occur;
- Seeking more clarity on the Government’s ability to monitor and regulate the conduct of businesses and their impacts on human rights;
- Supporting and strengthening the capacity of the Myanmar National Human Rights Commission to undertake investigations on human rights violations independently and impartially;
- Repealing or amending laws that are abused to violate the right to freedom of expression and opinion; and
- Encouraging the Government to consult and engage more closely with civil society and the international human rights community.
The diplomatic dialogue aimed to provide the international human rights organizations with an opportunity to clarify their various policy guidelines and provide updates to assist the diplomatic community with their multilateral lobbying efforts in Myanmar with the Executive, Legislative and Judiciary, and civil society.
The Embassy of Denmark hosted the event. Members of the diplomatic community included those from the EU, UK, Canada, Denmark, Sweden, Finland, Australia, The Philippines and Bangladesh.
The ICJ was joined in a panel by the Office of the High Commissioner for Human Rights and Human Rights Watch.
Jun 20, 2016
Myanmar’s new government, led by the National League for Democracy of Aung San Suu Kyi, must establish a clear plan for strengthening the rule of law and protection of human rights, said the ICJ today as it released its 14 General Recommendations to the new Government and Parliament.
“The NLD has a tremendous opportunity and obligation to reverse years of official rejection and neglect of the rights of the people of Myanmar,” said Sam Zarifi, ICJ’s Asia Director.
“Myanmar’s severe human rights problems can’t be solved immediately, or even for years to come, but it’s crucial for the new Government to announce its strategy and show its commitment to improving the lives and livelihoods of all people in Myanmar,” he added.
After close discussions with all branches of the Government, as well as civil society and international experts, the ICJ has identified areas in which the Government can immediately and in the long-term address human rights violations in Myanmar and outlines measures to be taken to ensure that all legislation is guided by the principles of non-discrimination, greater accountability, transparency and justice.
Among the key recommendations of the ICJ are:
- Strengthening the independence and competence of the judiciary as well as the Attorney General’s Office;
- Improving the Government’s ability to monitor and regulate the conduct of businesses and their impact on the rights and well-being of people;
- Repealing or amending laws and practices that discriminate on the basis of religious or ethnic identity (particularly at-risk groups such as the Rohingya), or sexual orientation and gender identity; and
- Ensuring accountability and redress for violations of human rights, especially when committed by State security forces.
“Access to justice for victims of human rights violations has been severely curbed in Myanmar over the past decades, with most of the population being consistently denied access to the courts and effective remedies as a result of unfair and discriminatory laws as well as poor court decisions,” said Zarifi.
“The military remains dominant in Myanmar, wielding undue influence over various sectors in the country, including the judiciary, and continues to enjoy impunity for gross violations of human rights and serious violations of international humanitarian law,” he added.
The ICJ says Myanmar should immediately engage with the international human rights community.
It must accede to the International Covenant on Civil and Political Rights, ratify the International Covenant on Economic, Social and Cultural Rights, and expedite accession to the Convention against Torture and the Optional Protocol thereto, and ratification of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, the ICJ adds.
Contact:
Sam Zarifi, ICJ Regional Director for Asia and the Pacific, t: +66807819002; e: sam.zarifi(a)icj.org
Vani Sathisan, ICJ International Legal Adviser for Myanmar, t: +95(0)9250800301; e: vani.sathisan(a)icj.org
Additional Information:
The ICJ’s General Recommendations relate to the following matters:
1. Independence of judges;
2. Independence of lawyers;
3. Reform of the Union Attorney General’s Office;
4. Land laws;
5. Investment law;
6. Bilateral investment treaties;
7. Special Economic Zones;
8. Offenses against religion;
9. Discriminatory laws targeting women and minorities;
10. Rights of the Rohingya;
11. Discrimination on the basis of sexual orientation and gender identity;
12. Criminal defamation and freedom of expression;
13. Peaceful assembly law; and
14. Ending impunity for violations of human rights.
Myanmar-Recommendation to NLD Gvt-Advocacy-Analysis Brief-2016-ENG (full text, in PDF)
Jun 9, 2016 | News
The Thai military must immediately withdraw its abusive criminal complaints against three leading human rights defenders for raising allegations of torture in Thailand’s restive deep South, said the ICJ today.
“It is simply astonishing that the Thai government is lodging these complaints at a time when Thailand has just promised to adopt important anti-torture legislation and has publicly reaffirmed its commitment to protect human rights defenders,” said Sam Zarifi, ICJ Asia Regional Director.
“The military must immediately withdraw its complaints and instead ensure all allegations of torture and ill-treatment are promptly and effectively investigated in line with Thailand’s international legal obligations,” he added.
On 10 February 2016, three Thai organizations, the Cross Cultural Foundation (CrCF), Duay Jai Group (Hearty Support Group), and the Patani Human Rights Organization (HAP), issued a report that documented 54 cases of alleged torture and ill-treatment by the Thai authorities in the deep South since 2004.
On 17 May 2016, the Internal Security Operations Command (ISOC) Region 4, responsible for national security operations in the Southern Border Provinces, responded to the report by filing complaints of criminal defamation and violations of the Computer Crime Act B.E. 2550 (2007) against the report’s three co-editors, Somchai Homlaor and Pornpen Khongkachonkiet of CrCF, and Anchana Heemmina of Hearty Support Group.
Criminal defamation carries a maximum penalty of two years imprisonment and a fine of up to 200,000 Baht (USD $5,600). Violation of article 14(1) of the Computer Crime Act, carries a maximum penalty of five years imprisonment or a fine of up to 100,000 Baht (USD $2,800), or both.
It is the second time since 2014 that the Thai military has filed criminal defamation complaints against Pornpen Khongkachonkiet and Somchai Homlaor for raising allegations of torture in the deep South.
“The Thai military should also take heed of the recent decision of the Phuket Provincial Court in the Phuketwan case, which found that the Computer Crime Act was not intended to cover allegations of defamation,” said Zarifi.
On 1 September 2015, the Phuket Provincial Court acquitted two journalists of criminal defamation and violations of the Computer Crime Act after the Royal Thai Navy complained the journalists defamed it when, on 17 July 2013, the journalists reproduced a paragraph from a Pulitzer prize-winning Reuters article that alleged “Thai naval forces” were complicit in human trafficking.
The use of criminal defamation laws, carrying penalties of imprisonment, against human rights defenders reporting on alleged human violations, constitutes a violation of Thailand’s obligations under the International Covenant on Civil and Political Rights (ICCPR), to which it is a state party.
As affirmed in the UN Declaration on Human Rights Defenders, “Everyone has the right, individually and in association with others:… freely to publish, impart or disseminate to others views, information and knowledge on all human rights and fundamental freedoms.”
Background
On 17 December 2015, Thailand joined 127 other states at the UN General Assembly in adopting a UN Resolution on human rights defenders. The Resolution calls upon states to refrain from intimidation or reprisals against human rights defenders.
Last month, Thailand informed the Human Rights Council during its Universal Periodic Review that the Cabinet was considering a draft Act on Prevention and Suppression of Torture and Enforced Disappearance. It was reported that the Cabinet approved the draft law on 24 May 2016.
At the conclusion of the review, Thailand also adopted several recommendations to protect human rights defenders and investigate reported cases of intimidation, harassment and attacks against them.
The right to an effective remedy against torture and other ill-treatment and to have complaints promptly, fully and impartially investigated is guaranteed under international treaties to which Thailand is party, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the ICCPR.
Thailand has an obligation under both treaties to conduct such investigations where there are allegations of torture and ill-treatment and to bring to justice those responsible in fair criminal proceedings.
Thailand was criticized in May 2014 for its failure to address violations when the United Nations Committee Against Torture expressed its concern “at the numerous and consistent allegations of serious acts of reprisals and threats against human rights defenders, journalists, community leaders and their relatives, including verbal and physical attacks, enforced disappearances and extrajudicial killings, as well as by the lack of information provided on any investigations into such allegations.”
The Committee recommended that Thailand “should take all the necessary measures to: (a) put an immediate halt to harassment and attacks against human rights defenders, journalists and community leaders; and (b) systematically investigate all reported instances of intimidation, harassment and attacks with a view to prosecuting and punishing perpetrators, and guarantee effective remedies to victims and their families.”
Contact:
Sam Zarifi, Asia Regional Director, t: +66 80 781 9002; e: sam.zarifi(a)icj.org
Kingsley Abbott, Senior International Legal Adviser, t: +66 94 470 1345; e: kingsley.abbott(a)icj.org
Thailand-Retaliation HRDs-News-web stories-2016-ENG (full story in Thai, PDF)
