Apr 20, 2017 | News
Nepali authorities should immediately take effective steps to enforce the landmark Kavre district court murder verdict for the 2004 torture and killing of teenage Maina Sunuwar, the ICJ, Amnesty International, and Human Rights Watch said today.
On 16 April 2017, the Kavre district court sentenced three army officers to life imprisonment for the murder of Maina Sunuwar, a 15-year-old girl (photo) who was tortured in army custody and died as a result in February 2004.
Maina’s killing took place during the decade-long armed conflict between the Maoists and government forces that ended in 2006.
A court martial in 2005 found that Maina had died in army custody, convicted the three officers of torture and murder, but only sentenced the three perpetrators to six months’ imprisonment for minor offences, and promptly released them on grounds that they had already served the six months while confined to army barracks during the period of investigation.
“These convictions are an important development in Nepal’s slow-paced justice system’s ability to deal with grave conflict-era human rights abuses,” said Sam Zarifi, the ICJ’s Secretary General.
“What we need now is for the government to demonstrate its commitment to the rule of law and enforce them,” he added.
The trial before the Kavre district court took place in the absence of any of the four accused, despite repeated court summonses, including an arrest warrant, to notify them of the charges and compel them to appear in court.
The three accused army officers who were convicted of Maina Sunuwar’s murder, Bobi Khatri, Amit Pun and Sunil Adhikari, are no longer in the army and are believed to have fled abroad after the court martial proceedings.
The fourth accused, who was acquitted, Major Niranjan Basnet, is still in the army and was repatriated to Nepal from a UN peacekeeping assignment in Chad in 2009 due to the indictment against him.
Maina Sunuwar’s case has become emblematic of the shortcomings in Nepal’s justice system that have repeatedly frustrated efforts of Nepali conflict victims to secure justice for wartime abuses.
Maina Sunuwar’s mother first filed a report with the police in November 2005.
Since then, there have been numerous procedural and political hurdles, and a lack of cooperation by the military as it sought to protect its own.
An arrest warrant issued in 2008 was never enforced by Nepali authorities, with the police telling the court they were unable to trace them.
“Maina Sunuwar’s case was a true test case for the Nepal criminal justice system, but the government has a habit of simply ignoring court orders,” said Brad Adams, Asia director of Human Rights Watch. “This is the first sign of hope for victims after more than ten years since the end of the conflict—and now we need to see all those convicted of murder behind bars.”
The human rights organizations expressed concern that the government might refuse to seek to take measures to enforce the Kavre court’s verdict given its prior record on this and thousands of other conflict-era cases.
In a disturbing example, the police have yet to implement a 13 April 2017 Supreme Court order to arrest Bal Krishna Dhungel, a Maoist politician convicted of a 1998 murder.
Dhungel has yet to serve out his life sentence handed down by the courts.
The court gave the police a week to execute its order and present Dhungel before it.
“The Kavre district court has done its job, reaffirming the independence of the judiciary from political and military pressure, and holding perpetrators of serious crimes committed during the conflict to account,” said Biraj Patnaik, Amnesty International South Asia Regional Office Director. “Now the authorities must do their job by breaking with the practice of successive past governments that ignore and undermine the courts’ decisions. We expect the government to promptly implement this week’s ruling.”
Contact
Nikhil Narayan, ICJ’s South Asia Senior International Legal Adviser, e: Nikhil.narayan@icj.org
Sam Zarifi, ICJ’s Secretery General, e: sam.zarifi@icj.org
Mar 8, 2017 | Advocacy, Analysis briefs, News
Today the ICJ submitted a brief opposing the current efforts by South Africa to withdraw from the Rome Statute of the International Court.
The brief was submitted in collaboration with a number of South Africa’s leading jurists to the South African Parliamentary Portfolio Committee on Justice and Correctional Services.
The brief was signed by Retired South African Constitutional Court Justices Laurie Ackermann; Richard Goldstone; Johann Kriegler; Yvonne Mokgoro, Kate O’Regan, Zak Yacoob. It was co-signed by Navi Pillay, former United Nations High Commissioner for Human Rights, former judge of the ICC and former President of the International Criminal Tribunal for Rwanda (ICTR). Wilder Tayler, Secretary General, signed on behalf of the ICJ
The ICJ and leading South Africa jurists call on South African Parliamentarians not to pass The Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill [B23-2016].
They also urge South Africa to remain a party to the Rome Statute of the ICC and engage, where appropriate with other African States, in actively pursuing appropriate reforms within the Assembly of State Parties, with a view to making the ICC more effective in advancing the objectives of international justice.
“South Africa should actively encourage other African states to put in place legislation required to empower domestic courts with the ability to try genocide, war crimes and crimes against humanity. South Africa should continue to work constructively with civil society on the advancement of international criminal justice,” the report stated.
“Pursuit of justice and pursuit of peace are complementary and mutually reinforcing objectives that South Africa will best achieve by remaining party to the Rome Statute of the ICC. Its not an either or situation. Protecting heads of States from justice whatever they do compromises peace too much,” said Retired Justice Zak Yacoob.
The report also underscored the danger of an impunity gap if South Africa pulls out of the ICC, as there would be no other effective regional or international forum in which to prosecute the most serious crimes under international law.
“Given the devastating impact of impunity on the rule of law, on development efforts and on society at large, it is vital that South Africa projects itself as a leader in anti-impunity efforts in the region. Pulling out of the Rome Statute of the ICC would crush the best chances that Africa has today to tackle the pervasive impunity that affects the region and would be a most unfortunate move for South Africa and the wider international community,” said Wilder Tayler, Secretary General of the ICJ.
Background
South Africa is one of the earliest parties to the Rome Statute of the ICC. It signed the Rome Statute on the day it was adopted, 17 July 1998, and ratified it on 27 November, 2000. Both during the negotiations preceding the Rome Conference that established the Court in 1998, and at the Conference itself, South Africa played a leading role.
However, the events of June 2015 surrounding the arrival of President Omar al Bashir of Sudan in South Africa appears to have engendered a shift in South Africa’s posture, leading many observers to call into question the country’s commitment to international justice.
The failure by South African authorities to arrest and surrender President al Bashir to the ICC, although he had been indicted by the ICC for war crimes, crimes against humanity and genocide, led to the Southern Africa Litigation Centre (SALC) taking the government to court to compel it to fulfil its obligations both under the Rome Statute and the Implementation of the International Criminal Court Act 27 of 2002 (Implementation Act).
On 19 October 2016, the Minister of International Relations and Co-operation gave notice of South Africa’s intention to withdraw from the Rome Statute.
The Portfolio Committee on Justice and Correctional Services put out a call for submissions to be made to the Parliamentary Portfolio Committee on Justice and Correctional Services on the Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill [B23-2016] to be made by 8th March 2017. The ICJ Brief was filed pursuant to that call.
Contact
Arnold Tsunga, Director of the ICJ Africa Programme, arnold.tsunga@icj.org and +277 164 059 26
RSA-ICC Withdrawal-Advocacy-Analysis Brief-2017 (Analysis brief in PDF)
Mar 7, 2017 | Advocacy, Non-legal submissions
Today at the UN Human Rights Council the ICJ expressed concerns about violence and other wrongs against children in times of armed conflict and peacetime.
The ICJ statement was delivered during an interactive dialogue with the Special Representatives of the Secretary General on Violence against Children and for Children and Armed Conflict.
The ICJ thanked the Special Representatives for their annual reports (Violence against Children UN doc.A/HRC/34/45-ENG and Children and Armed Conflict UN doc.A/HRC/34/44-ENG) and then continued as follows:
We welcome the renewed commitment of States, via the Sustainable Development Goals (in particular SDG 5.2 and 5.3 and SDG 16.2 and 16.3), to eliminating violence against children and ensuring access to justice for everyone by 2030.
However, as the Special Representative for Violence against Children’s report noted, we must ensure that protecting children from violence is not simply an ideal but is realized in practice.
The ICJ is concerned about systemic problems where States agree in principle to protect children from violence but disagree on fundamental definitions of ‘children’ and ‘violence’.
We agree with the Special Representative for Children and Armed Conflict’s assessment that States must close any legal lacunae that fail to implement the almost universally accepted definition of ‘child’ as everyone below the age of 18.
We ask that all forms of violence against children be condemned even where some violent practices, such as child marriage or female genital mutilation, were once considered culturally acceptable.
We welcome efforts undertaken to prevent violence against children and protect children in armed conflict to ensure their human rights are protected.
However, rights protections are meaningless without accountability and so we would like to ask which measures should be put in place to eradicate impunity and ensure access to justice for children who have suffered violence and other wrongs in times of armed conflict and otherwise?
The statement can be downloaded in PDF format here: HRC34-OralStatement-violence against children+children armed conflict-Advocacy-2017
Dec 6, 2016 | Advocacy, News, Non-legal submissions
Nearly five months after the failed coup attempt in Turkey, the country remains locked in an acute rule of law crisis. The government must take urgent steps to restore the rule of law, the ICJ said today.
Mass arrests, many of them arbitrary, and credible allegations of the torture and other ill-treatment of detainees, mean that access to legal advice, to a fair trial and to effective judicial remedies are crucial. However, the unprecedented summary and arbitrary purge of the judiciary following the coup, and arrests of judges, prosecutors and lawyers, have significantly weakened the justice system and its capacity to protect against and effectively remedy violations of human rights. The vulnerability of detainees to violations of their human rights has been compounded by unwarranted restrictions on access to lawyers and extended periods of pre-trial detention.
State of Emergency
The ICJ is concerned that the State of Emergency, which involves derogations from Turkey’s international human rights law obligations, has been renewed for a second period of 90 days, until mid-January. Sweeping emergency decrees continue to erode human rights, including rights of fair trial, the right to liberty, and freedoms of expression and association.
The ICJ recalls that in times of crisis, any measures derogating from human rights must be strictly necessary to meet a current threat to the life of the nation. This necessity must be continually re-assessed so that the derogating measures apply for the shortest time possible. Certain human rights, including the right to life, the prohibition of torture or ill-treatment, and the essential elements of arbitrary deprivation of liberty and to a fair trial and the right to an effective remedy can never be restricted even in a state of emergency. The ICJ is concerned that Turkey’s notifications of derogation purport to derogate in general terms from a number of these rights.
Measures taken under the State of Emergency should be rigorously and urgently reviewed to ascertain whether they are permissible under international law and whether they remain necessary and proportionate to any current threat to the life of the nation. Moreover, it must be ensured that non-derogable rights, including the prohibition on torture and other ill-treatment, and the right to a fair trial, are not limited by emergency measures. The ICJ urges the Turkish authorities to lift the State of Emergency and the derogations from its international human rights law obligations at the earliest opportunity.
Independence of the judiciary
The ICJ reiterates its grave concern at mass dismissals of judges and prosecutors, which have a devastating effect on the independence of the judiciary. More than 3,000 judges and prosecutors – approximately one fifth of the judiciary – have been arbitrarily dismissed under emergency decrees, without procedural safeguards and without the right to reasoned decisions.
Judges and prosecutors have been detained in very large numbers. In total, more than 2,000 have been detained, including two judges of the Constitutional Court, 109 members of the Court of Cassation, 41 Members of the Council of State and five members of the High Council for Judges and Prosecutors (HSYK).
Restructuring of the Court of Cassation and the Council of State, under legislation adopted in July, has required the reappointment of all judges of these courts. New judges have been appointed rapidly, through procedures that lack transparency, and in the context of strong executive influence over the appointment process in the HSYK.
The ICJ is also gravely concerned that the independent association of judges, YARSAV, has been shut down, and its President, Murat Arslan, has been arrested.
These measures have eroded the separation of powers in Turkey and have seriously undermined the independence of the judiciary at every level, compromising the courts’ ability to provide fair trials or an effective remedy for violations of human rights. The impact of this situation on the protection of human rights goes beyond what can be justified under the state of emergency. To meet its international human rights obligations, the Turkish government must as a matter of urgency take steps to restore the independence of the judges and of the governing bodies of the judiciary. Procedural safeguards that protect against arbitrariness in criminal, civil and administrative procedures, including in regard to the dismissal of judges, must be reinstated.
Independence of lawyers and access to legal advice
The ICJ is similarly concerned at measures that undermine the independence of the legal profession and the capacity of lawyers to protect human rights. More than 573 lawyers are reported to have been detained in connection with the failed coup since July, and more than 200 have been arrested, and their assets frozen.
Amongst those reported to be arrested are four Presidents of regional bar associations: Orhan Öngöz, President of the Trabzon Bar; Mehmet Cemal Acar, President of the Siirt Bar; İsmail Taştan, President of the Gumushane – Bayburt Regional Bar and Fevzi Kayacan, President of the Konya Bar. The ICJ considers that many of these detentions and arrests are likely to be arbitrary.
These developments have very serious consequences, not only for the rights of lawyers themselves, but also for the right to a fair trial of their clients and the effectiveness of judicial remedies for violations of human rights. They raise concerns that lawyers are being identified with their clients or their clients’ causes, contrary to the Principle 18 of the UN Basic Principles on the Role of Lawyers. The ICJ recalls that under the UN Basic Principles, governments must ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference.
Furthermore, the ICJ is concerned that hundreds of NGOs have been closed under emergency decrees, including a number of lawyers’ associations. Such closures have serious implications for rights of freedom of association and expression, and for the rule of law.
The ICJ calls on the Turkish government to take urgent steps to guarantee the independence of the legal profession, protect lawyers from arbitrary detention or arrest and provide procedural safeguards to ensure the right to fair trial of lawyers under criminal investigation.
Contact:
Roisin Pillay, ICJ Europe Director, at roisin.pillay(a)icj.org or +32 2 734 84 46
Massimo Frigo, ICJ Europe Legal Adviser, at massimo.frigo(a)icj.org or +41 22 979 38 05
Dec 2, 2016 | Agendas, Events, News
Today, the ICJ and Scuola Superiore Sant’Anna are holding a training for lawyers on the rights of migrant children and on accessing international human rights mechanisms in Pisa (Italy).
The training aims to support the strategic use of national and international mechanisms to foster migrant children’s access to justice. The training will take place over the course of two days from 2-3 December 2016.
The training will focus on accessing the international mechanisms in order to protect and promote the rights of migrant children, the child’s right to family life and the best interests of the child principle. A moot court exercise will be held on the second day of the training.
Trainers include experts from the ICJ and Scuola Superiore Sant’Anna, the Italian Court of Cassation and the University of Milan.
The training is based on draft training materials prepared by the ICJ (to be published in the second half of 2017) and the ICJ Practitioners Guide no. 6: Migration and International Human Rights Law.
It is organized as part of the FAIR project co-funded by the Rights, Equality and Citizenship Programme of the European Union and OSIFE.
Download the agenda in Italian here:
italy-rights-migrant-children-training-agenda-2016-ita
