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An opinion piece by Reema Omer, ICJ Legal Adviser in Pakistan.

“There is a climate of impunity in Pakistan with regard to enforced disappearances, and the authorities are not sufficiently dedicated to investigate cases of enforced disappearance and hold the perpetrators accountable.”

The UN Working Group on Enforced and Involuntary Disappearances (WGEID) made this scathing assessment of Pakistan’s dismal response to the widespread practice of enforced disappearances in the country in a report presented to the UN Human Rights Council last week.

The report is a follow-up of the recommendations made by the WGEID pursuant to a country visit to Pakistan in 2012.

In the report, the Working Group “regrets that most of the recommendations contained in its country visit report have not been implemented” and also points out that the Government has failed to communicate even a single case “where perpetrators of enforced disappearances have been held accountable.”

The WGEID’s critical assessment of Pakistan’s record in confronting serious human rights violations at the UN Human Rights Council should push the Government to reconsider its perfunctory engagement with UN human rights mechanisms and work towards implementing its recommendations on ending the now nationwide practice of enforced disappearances.

The WGEID reiterated its previous calls that the crime of enforced disappearance be expressly included in Pakistan’s criminal code.

Despite hundreds, if not thousands, of people “missing” in Pakistan following the apparent abduction by or with the complicity of the state, enforced disappearances are still not specifically criminalized.

This is particularly deplorable as Pakistan accepted a recommendation made during its 2012 Universal Periodic Review to make enforced disappearances a distinct crime.

As a result, on the rare occasion where the police register criminal complaints in such cases, “disappearances” are reported as “missing persons” cases or as cases of “abduction” or “kidnapping”.

These categories are inadequate classifications of enforced disappearance cases as they do not recognize the seriousness or complexity of the crime; do not provide for commensurate penalties; and do not address the need to remedy the suffering and grief of families of those “disappeared”, who are not considered “victims” according to the law.

In a conference on enforced disappearances last month, the ICJ and Human Rights Commission of Pakistan (HRCP) also highlighted the Government’s failure to specifically criminalize enforced disappearance as one of the biggest hurdles towards bringing perpetrators to justice.

Furthermore, the WGEID reiterated that “clear rules and dedicated institutions should be created to ensure the oversight and accountability of law enforcement and intelligence agencies” in light of the security agencies’ failure to comply with orders of the courts and the Commission of Inquiry on Enforced Disappearances.

Since the 21^st Amendment to the Constitution empowering military courts to try certain terrorism-related cases, Pakistan has moved further from ensuring “oversight and accountability” of security agencies, particularly where alleged excesses and human right violations are in the name of “fighting terrorism”.

Pursuant to the 21^st Amendment and amendments to the Army Act, 1952, all personnel associated with military courts –including members of the court, prosecutors, and “any person concerned with court proceedings” – have complete immunity from prosecution for actions taken in “good faith”.

This immunity is retrospective, which means that even if people were arrested and detained before the 21^st Amendment was passed, they are considered to be arrested or detained under the authority of the amended law and therefore may benefit from its immunity provisions.

In practice, as feared by human rights activists and criminal justice proponents, this has led to further entrenching impunity for the crime of enforced disappearance.

The WGEID’s report comes just weeks after the Supreme Court dismissed all 16 petitions made by families of people convicted and sentenced to death by military tribunals.

In some cases, the families had alleged people convicted by military courts had been subjected to enforced disappearance by military authorities as far back as 2010 and had been kept in secret detention for many years before their military trials.

In the past, the Supreme Court has acknowledged the unlawfulness of keeping people in secret detention, even calling this practice a “crime against humanity” and urging strict action against those responsible.

In this case, however, the Court refused to even consider the question of the alleged “disappearances”.

Interpreting its jurisdiction to review trials by military courts very narrowly, it held that the circumstances in which people were arrested, even if they were forcibly disappeared and kept in secret detention for years, was not relevant.

What this means is that a conviction by military courts “legitimizes” the act of enforced disappearance, and people abducted by law enforcement agencies years before military courts were even authorized to try cases of civilian terrorism suspects are left with no legal recourse to challenge their “disappearance”.

As the WGEID highlighted in its report, there is no question that Pakistan faces serious security challenges.

However, experience from around the world shows that disregard for human rights fuels cycles of terrorism and counterterrorism, and that respect for human rights must necessarily constitute a part of the solution in situations of conflict and instability.

This means that all suspects, including people suspected of committing terrorism-related crimes, must be given a chance to defend themselves in trials that meets basic standards of fairness.

The cruel practice of forcibly disappearing people and putting them outside the protection of the law must end.

An opinion piece by Emerlynne Gil, ICJ Senior International Legal Adviser, Asia & Pacific Programme, based in Bangkok, Thailand.

One of the points that emerged clearly from the Philippines’ Senate hearing on extrajudicial killings held on 15 September was that the Philippines must get rid of its militias immediately.

These dangerous, Government-sponsored armed groups must be abolished and their existing members demobilized.

During the hearing, the Committee on Justice & Human Rights called Edgar Matobato as a witness, who claimed to be a former member of the Civilian Armed Forces Geographical Units (CAFGU) when he was selected to join Davao Death Squad (DDS) and told to kill — extrajudicially execute — suspected criminals in Davao City when President Rodrigo Duterte was the city’s mayor.

The CAFGU is an irregular auxiliary group for the Armed Forces of the Philippines (AFP), one of the militias operating in the country today. It was created in 1987 through Executive Order 264 issued by President Corazon Aquino.

It was justified as a ‘vital tool’ in the Government’s counter-insurgency measures.

Another militia group in the Philippines is the Civilian Volunteer Organization (CVO), which is meant to assist barangay officials in maintaining peace and order in the community.

While the CAFGU is controlled by the AFP, the Philippine National Police (PNP) controls the CVO.

Matobato’s profile is typical of that of the many individuals who comprise these militias.

Upon Senator Sonny Angara’s questioning, Matobato revealed that he had not completed his elementary education and had been working as a subsistence farmer when he was recruited to join CAFGU.

He disclosed that he did not have any knowledge or training about the legal processes involved in apprehending criminals and did not have any understanding of how the justice system works.

Joining the militias is an attractive option for people like Matobato who have a difficult time getting a job to feed their families. Members of CAFGU receive a subsistence allowance of around P4,600 per month (approximately US$96), which is a reasonably attractive salary for people in situations of hardship.

They also receive other benefits, such as scholarships for their dependents and health insurance.

Joining the militias is also very easy. For instance, to join the CAFGU, one only needs the approval of the local military head.

In some areas, one may also just present a recommendation from a local chief executive — whether the barangay captain or the mayor.

Immediately after the Senate hearing last Thursday, the spokesperson for the armed forces denied that Matobato was ever a member of the CAFGU.

He said that they could not find his name in their database.

Because recruitment policies are not standardized and are often very informal, it would be easy for the military to repudiate claims of membership with the CAFGU.

The CAFGU was formed as “force multipliers” for the AFP, to help the army in counter-insurgency activities.

One of the main tasks of CAFGU members is to assist the military in fighting the New People’s Army (NPA).

They participate in offensive operations against the NPA and act as local guides during military patrols.

In non-conflict areas, however, CAFGU members are used to act as guards for military installations or sometimes even private businesses.

Militia recruits do not receive the rigorous training given to personnel of the armed forces or the police.

At most, they are given very basic weapons training, enough to enable them to handle the firearms they are given from the Government’s arsenal.

Militia recruits certainly do not receive training on basic military discipline or law enforcement practices, much less on general human rights principles.

The lax recruitment practices and the lack of training, especially on basic policing principles and applicable human rights standards, have resulted in numerous human rights abuses committed by militias, including extrajudicial killings and enforced disappearances.

For decades, human rights groups have raised serious concerns about these abuses.

In 2015, CAFGU members, along with several military personnel, were alleged to have been involved in the extrajudicial killing of three human rights defenders from the Alternative Learning Center for Agricultural and Livelihood Development (ALCADEV) in Surigao del Sur.

Bills were presented in the past seeking to repeal Executive Order 264 and demobilize these militias, but these were never passed.

During the second cycle of the United Nations’ Universal Periodic Review (UPR) in 2014, the Philippines Government committed to take measures to exert more control over these militias.

The Government also committed to holding these militias accountable pursuant to the Philippines’ obligations under international human rights law.

The 2015 General Appropriations Act provides that no new CAFGUs shall be recruited in anticipation of the planned demobilization of the group “as a result of the implementation of the Revised AFP [Armed Forces] Modernization Program”.

That is indeed an important step.

However, to accelerate the demobilization of these groups and solidify the commitments made by the Philippines during the UPR, lawmakers should pass a law repealing Executive Order 264 and demobilizing all militias in the country.

Demobilizing the militias should not only mean formally disbanding the groups and requiring their members to turn in their firearms.

The law should also provide for the practical implementation by the Philippines of its international human rights obligation to investigate all allegations of human rights abuses made against members of these groups so that the perpetrators of such abuses are brought to justice.

Reparations for victims and their families must also be provided under the law.

Enacting this law would be one positive outcome of these hearings.

The Senate must indeed continue to address the crisis of extrajudicial killings in the Philippines under President Duterte so the killings will stop and the killers brought to justice.

But if one result of the hearings would be to abolish militias and properly demobilize the current members of these dangerous institutions, it would be an important step towards ending the human rights violations and abuses committed by militias and Government-sponsored death squads in the Philippines.

An opinion piece by Vani Sathisan, International Legal Adviser for the ICJ in Myanmar.

 The world observes Human Rights Day on 10 December to mark the momentous strides in international human rights law since the adoption of the Universal Declaration of Human Rights (UDHR) in 1948. In Myanmar, recent political changes have been both momentous and transformative.

Nonetheless, what was proclaimed by the UDHR as the “equal and inalienable rights of all members of the human family”, continue to be infringed upon by the arbitrary and highly subjective interpretation and application of laws, some of them dating back to British colonial times.

Successive governments in Myanmar have used overly broad or vaguely defined laws to curtail freedom of expression that is protected under international law.

They often invoke the justification, typically inappropriately, of protecting national security, or to prevent public disorder or avoid outraging the religious feelings of a class.

None of these efforts have served or can serve to address or respond to sectarian and religious violence.

On behalf of the ICJ, I have observed trials of those arrested and detained on criminal defamation charges for their Facebook posts that allegedly defame either the Tatmadaw or a political leader.

One of the laws used to charge the accused is the Penal Code, first drafted in 1860.

The ICJ released a briefing paper last month highlighting how the enforcement of Myanmar’s defamation laws can result in violations of a number of international laws and standards protecting human rights, and also have an overall chilling effect on the freedom of opinion and expression and freedom of assembly in the country.

Various provisions of the Penal Code have been used in the past to criminalize free expression and peaceful demonstrations and imprison activists and hundreds of political dissidents, such as popular political satirist Zarganar.

Just last week, authorities arrested and charged five men under Section 505b of the Penal Code with “causing fear or alarm to the public” after they published a calendar referring to Myanmar’s persecuted Muslim Rohingya as an official ethnic minority.

The Myanmar government refuses to recognize the Rohingya as citizens, claiming that they are “illegal” migrants from neighbouring Bangladesh. The accused have been reportedly re-arrested despite pleading guilty to publishing materials that could “damage national security” and paying a fine of one million kyat.

Others in Myanmar face criminal sanctions simply because their acts of expression were perceived to be at odds with particular interpretations of Buddhism, Myanmar’s majority religion.

Section 295a, enacted by colonial authorities in 1927 to curb communal tension, states that, “deliberate and malicious intention of outraging the religious feelings of any class by insulting its religion or religious beliefs” shall be punished with imprisonment, or with fine, or with both.

In Myanmar, courts have convicted individuals in the absence of evidence of any deliberate and malicious intent to insult a religion.

In late 2008, several activists, including monks and nuns, were imprisoned with hard labour on 295a charges.

Earlier this year, Htin Linn Oo, a writer and National League for Democracy information officer, was sentenced to two years imprisonment with hard labour under 295a for publicly questioning the Buddhist credentials of those using Buddhism to incite violence.

A Buddhist himself, he earned the wrath of nationalist monks who demanded a tougher punishment outside the District Court, which rejected his appeal, reportedly stating it “should not interfere” with the lower court’s decision.

Interestingly, the translated version of a court order in another 295a case in Myanmar shows no regard whatsoever to any evidence of a “deliberate and malicious intent to insult a religion” as required under the charge.

It may be that the defendant had caused offence to some within the Buddhist community. But did he commit a crime punishable under Section 295a?

The UN Human Rights Committee established by the International Covenant on Civil and Political Rights (ICCPR)—a treaty which carries many of the principles of the UDHR into international law—emphasizes that “Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant”.

The only limited exception under the Covenant would be for proportionate and non-discriminatory measures to prohibit “advocacy of…religious hatred that constitutes incitement to discrimination, hostility or violence”.

Section 295A falls far short of this threshold. (The ICCPR has 168 state parties, but Myanmar is not one of them, despite its pledge to consider international recommendations during the UN Universal Periodic Review to become one.)

The Rabat Plan of Action, an outcome of a four-year initiative by the UN Office of the High Commissioner for Human Rights, has underscored that States should ensure that the three part test for restrictions of freedom of expression—legality, proportionality and necessity—also applies to cases of incitement to hatred.

Article 20 of the ICCPR requires this high threshold because limitation of speech must remain an exception and must be “provided by law, be clearly and narrowly defined to serve a legitimate interest, and be necessary in a democratic society to protect that interest.”

The ICJ has observed and documented the pre-trial and trial phases of some of these cases and has concluded that they violate international standards of fair trial.

Hearings sometimes last less than five minutes and bail has been denied repeatedly to an accused suffering from poor health.

These are indicative of the struggles of Myanmar’s judiciary in adjudicating politically sensitive cases with impartiality and competence.

These prosecutions undermine the rule of law in Myanmar and shed light on how Myanmar laws are inconsistent with human rights, including freedom of opinion and expression, freedom of thought, conscience, and religion, and the right to equality before the law without discrimination.

Prosecutors must act in the interests of justice, drop charges inconsistent with human rights and not push for cases without sufficient evidence to back the charges.

The government and the parliament also play critical roles in drafting, amending and repealing laws to anticipate and account for the possibility of aggravated discrimination, and to prevent the entrenchment of institutionalized social intolerance.

Former UN High Commissioner for Human Rights Navi Pillay has described the freedom of expression as “among the most precious and fundamental of our rights as human beings.”

That means respecting the rights of others to their opinions.

Myanmar must cultivate respect for the rule of law.

Those arbitrarily and unfairly languishing behind bars deserve justice.

Calling for their release is a duty for all those who believe in the right to freedom of opinion and expression.