Sep 13, 2017 | Advocacy, News
As proceedings resume in India v. Pakistan (Jadhav case) before the International Court of Justice (ICJ), the ICJ has published a briefing paper to clarify the key issues and relevant laws raised in the case in a Question and Answer format.
The case concerns Pakistan’s failure to allow for consular access to an Indian national detained on charges of serious crimes.
India has alleged “egregious violations of the Vienna Convention on Consular Relations (VCCR)” by Pakistan in connection with the detention, trial and conviction of Indian national Kulbhushan Sudhir Jadhav.
Pakistani authorities arrested Jadhav on 3 March 2016.
India was informed of the arrest on 25 March 2016. On 10 April 2017, Pakistan’s military announced Jadhav had been convicted and sentenced to death by a military court for “espionage and sabotage activities against Pakistan.”
India’s requests for consular access, made at least sixteen times starting from 25 March 2016, were either denied by Pakistan or made conditional upon India’s assistance in the investigation against Jadhav.
India alleges that denial of consular access breaches Pakistan’s obligations under Article 36(1) of the VCCR, to which both States are parties.
In May 2017, the ICJ accepted India’s request for provisional measures and directed Pakistan to “take all measures at its disposal” to ensure Jadhav is not executed pending the final decision of the Court.
India is due to file its written memorial with supporting documents today, 13 September.
Pakistan will have three months to file a counter-memorial.
The ICJ will then decide on dates for oral hearing of arguments.
Following the hearings, the Court will deliberate and issue a judgment.
While the case at issue is limited to denial of consular access under the VCCR, it engages other critical fair trial concerns that arise in military trials in Pakistan.
The International Commission of Jurists has documented how Pakistani military courts are not independent and the proceedings before them fall far short of national and international fair trial standards.
Judges of military courts are part of the executive branch of the State and continue to be subjected to military command; the right to appeal to civilian courts is not available; the right to a public hearing is not guaranteed; and a duly reasoned, written judgment, including the essential findings, evidence and legal reasoning, is denied.
The case also underscores one of inherent problems of the death penalty: that fair trial violations that lead to the execution of a person are inherently irreparable.
The International Commission of Jurists considers the death penalty a violation of the right to life and cruel, inhuman or degrading punishment and notes that a large majority of States, in repeated UN resolutions, have called on retentionist states to declare a moratorium on the practice with a view to abolition.
Contact:
Frederick Rawski (Bangkok), ICJ Asia Pacific Regional Director, e: frederick.rawski@icj.org
Reema Omer (London), ICJ International Legal Adviser, South Asia t: +447889565691; e: reema.omer(a)icj.org
Download the Q&A:
India-ICJ Q&A Jadhav case-Advocacy-2017-ENG (in PDF)
Feb 10, 2017 | News
Extending the mandate of the Truth and Reconciliation Commission (TRC) and Commission on Investigation of Disappeared Persons (COID) without accompanying legal amendments to the TRC Act, 2014, in line with Nepal’s international legal obligations, will be meaningless, the ICJ said today.
It will fail to empower the commissions to address the root causes of the conflict and provide justice to victims, the ICJ added.
On 9 February 2017, the Government of Nepal formally extended the mandate of the TRC and COID for another year.
The TRC and COID were established on 10 February 2015 through the Commission on Investigation of Disappeared Persons, Truth and Reconciliation Act, 2014 (TRC Act), with the mandate to investigate alleged human rights abuses committed by both sides of Nepal’s decade-long armed conflict between the Government of Nepal and Communist Party of Nepal-Maoist (CPN-M) rebels.
However, due to a flawed legal mandate, resource and capacity limitations, and lack of political will, the commissions have been unable to carry out their work effectively.
“Unless the government of Nepal is prepared to amend the TRC Act in line with the Nepal Supreme Court’s rulings and international law, and to take other concrete steps to address the persistent challenges that have plagued the commissions’ ability to complete their work over the past two years, the extension of their mandate will be meaningless,” said Sam Zarifi, the ICJ’s Asia-Pacific Director.
In two separate rulings, the Nepal Supreme Court has previously ruled that the TRC Act and its predecessor TRC Ordinance were in violation of Nepal’s international legal obligations, as they allowed for amnesties for gross human rights abuses and serious violations of international humanitarian law amounting to crimes under international law.
Despite repeated calls by the ICJ, as well as other human rights and victims groups, to ensure a credible transitional justice process by amending the TRC Act in line with Nepal’s Supreme Court order and international standards, and by providing adequate resources to enable the commissions to carry out their work effectively and independently, the Government of Nepal has thus far failed to take any steps to implement the Supreme Court’s orders.
Nevertheless, the commissions finally commenced their work in February 2016, one year into their two-year mandate, and despite a severe lack of public faith in the commitment of the government and the ability of the commissions to deliver justice, victims came forward to submit more than 60,000 complaints to the two commissions combined.
“The government of Nepal must demonstrate its commitment to deliver justice to victims of Nepal’s armed conflict,” said Zarifi. “Victims have already waited more than a decade to receive justice and are losing hope in the transitional justice process.”
“The Nepal government and political parties must not once again betray the trust of victims by perpetuating a fundamentally flawed transitional justice process without concomitant reforms that will address victims’ rights to truth, justice and reparation,” he added.
While extending the mandate of the TRC and COID, the Government of Nepal must immediately establish a credible transitional justice process that ensures victims’ rights to truth, justice and reparation by: amending the TRC Act in line with the Supreme Court rulings and international law; empowering the TRC and COID with adequate resources to function independently, transparently and in a victim-centred manner; and, adopting necessary legislation to criminalize serious international crimes, including enforced disappearance, torture and other ill-treatment, and rape and other sexual violence, with retroactive effect and without any limitations period for conflict-era cases.
Oct 1, 2015 | News
The ICJ today welcomed the adoption by the UN Human Rights Council of a further resolution on promoting reconciliation, accountability and human rights in Sri Lanka.
The resolution, co-sponsored for the first time by the Government of Sri Lanka (GOSL), is a historic step towards post-war justice, accountability and reconciliation.
The ICJ at the same time called on the GOSL to take genuine and prompt steps to deliver on the commitments and obligations reflected in the resolution, which was adopted by the UN Human Rights Council by consensus.
“Today’s resolution is a significant step towards achieving justice, accountability and reconciliation for the victims of Sri Lanka’s long and bloody civil war,” said Nikhil Narayan, ICJ’s senior legal adviser for South Asia.
“The shift in posture of the Sri Lankan Government in co-sponsoring the resolution marks a further welcome break from the Rajapakse regime. The Government must now demonstrate its political will by immediately launching concrete steps towards a genuine process of truth-seeking, justice and reconciliation,” he added.
The consensus resolution reflects certain key recommendations contained in the Report of the office of the UN High Commissioner for Human Rights (OHCHR) summarizing findings of the OHCHR Investigation on Sri Lanka (OISL), the ICJ notes.
The investigation and report was mandated by an earlier UN resolution on Sri Lanka, adopted in March 2014 over the strong objections of the Rajapakse government.
The report documents in vivid detail alleged serious violations and abuses of human rights and humanitarian law amounting to war crimes and crimes against humanity committed by both sides during the armed conflict in Sri Lanka, including extrajudicial killings, torture, enforced disappearances, forced recruitment, including of children, and sexual violence.
One of the most important recommendations of the High Commissioner for Human Rights called for an accountability process through a special judicial mechanism and prosecutor’s office that involves the full participation of international judges, prosecutors, lawyers and investigators.
Responding in part to this call, the resolution affirms the importance of participation of foreign judges, defence lawyers, prosecutors and investigators in an independent and impartial judicial mechanism to hold individuals accountable for human rights and humanitarian law violations, including those documented in the report.
The resolution also mandates further monitoring and reporting back to the Council on implementation of the accountability and other measures.
“The international community, through the UN Human Rights Council, the Office of the High Commissioner for Human Rights and Special Procedures, and other UN member states, must as the High Commissioner himself recommended, remain engaged through continued and sustained monitoring, assistance, support and fully integrated involvement of the international community to ensure full implementation of the resolution,” said Narayan.
Background:
The ICJ has worked with judiciaries, governments, civil society and victims around the world for decades to address impunity and victims’ right to remedy for violations of international human rights and humanitarian law, including in situations of transition.
In Sri Lanka, the ICJ has been documenting and reporting on a gradual erosion of judicial independence, impartiality and integrity under successive governments, and the resulting culture of impunity, for over thirty years.
The ICJ considers the International Criminal Court (ICC) to be the preferred mechanism for individual accountability where national authorities and courts lack the capacity or the willingness to genuinely investigate and prosecute all war crimes and crimes against humanity. In the absence of an ICC process, the ICJ’s extensive experience in Sri Lanka and elsewhere demonstrates that any credible and effective accountability process in Sri Lanka must involve, at a minimum, a majority of international judges, prosecutors and investigators.
The ICJ therefore advocated for and welcomed the resolution’s recognition of the need for international participation.
Since January 2015, when a new president was elected, the GOSL has undertaken a number of important steps to reverse the slide towards authoritarianism and the erosion of the rule of law and the culture of impunity experienced under the Rajapakse government, and restore democratic governance and build confidence towards reconciliation among Sri Lanka’s ethnic minorities, including by restoring the Constitutional Council through the passage of the 19th amendment to the Sri Lankan Constitution, and returning some tracts of military-occupied lands in the North and East.
However, after decades of war and distrust, and a history of promises undelivered, much work remains to be done to deliver justice to victims and their families, and to rebuild trust and confidence among Sri Lanka’s fractured ethnic minorities. Continued and sustained monitoring and engagement by the international community in ensuring the progress of the implementation of this resolution will be essential.
Equally importantly, today’s consensus resolution also reaffirmed the OHCHR’s recommendations on: the mandate and resources of the accountability mechanisms; legislating retroactive recognition of international crimes under national law; justice and security sector reform; repealing the Prevention of Terrorism Act (PTA); strengthening the Witness and Victim Protection Act; accession to the International Convention on the Protection of All Persons from Enforced Disappearances (CED), the Additional Protocols to the Geneva Convention, and the Rome Statute of the International Criminal Court; and continued monitoring of and technical support for implementation through the OHCHR and by the Council.
Contact
Nikhil Narayan, ICJ’s senior legal adviser for South Asia; t: +41 79 730 09 27; e: nikhil.narayan(a)icj.org
Apr 30, 2015 | News
The ICJ welcomes yesterday’s adoption, by the UN Working Group on Arbitrary Detention, of the Working Group’s “Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of His or Her Liberty by Arrest or Detention to Bring Proceedings Before Court”.
Under its resolution 20/16 (2012), the UN Human Rights Council requested the Working Group to prepare draft basic principles and guidelines on habeas corpus. The Working Group set out a first draft set of principles and guidelines ahead of its global consultation on the subject in September 2014. From 2 to 5 February 2015, the Working Group met to continue its elaboration of the Basic Principles and Guidelines, resulting in the adoption of a second draft. The Working Group adopted its final iteration of the document at the conclusion of its session on 29 April 2015. The Basic Principles and Guidelines will be presented to the Human Rights Council during the Council’s 30th regular session, to be held from 14 September to 2 October 2015.
The ICJ welcomes the Basic Principles and Guidelines as a means of assisting States to enhance, in law and in practice, respect for the right to habeas corpus. It especially welcomes certain aspects of the document, including:
- Paragraph 68, in which applicable qualifications are set out to any derogating measures to accommodate constraints on the application of some procedural elements of the right to habeas corpus;
- Principle 6 and Guideline 4 which reaffirm that habeas corpus petitions must be heard by courts that bear all characteristics of competence, independence and impartiality (paras 27, 70 and 72(a)), that competence includes the power to order immediate release if detention is fund to be arbitrary or unlawful (para 27), that immediate implementation of such orders is required (para 71(c)) and that courts must give reasoned and particularized decisions (para 71(d));
- Guideline 7, in which it is provided that individuals are entitled to take proceedings multiple times (paras 81 and 82), that expediency is required, including in cases of subsequent challenges, and especially in cases alleging, among other things, torture or ill-treatment (para 83) and that authorities remain obliged to ensure regular review of the continuing need for detention (para 84);
- Principle 9 and Guideline 8 concerning legal representation and legal aid;
- The clarifications in Principle 10 and Guideline that persons able to bring proceedings include counsel, family members or other interested parties, whether or not they have proof of the consent of the detainee (paras 34 and 92) and that no restrictions may be imposed on a detainee’s ability to contact such persons (para 35);
- The express recognition in Guideline 12 that information obtained by torture or other forms of ill-treatment may not be used in evidence;
- Guideline 13 concerning disclosure and limitations applicable to any non-disclosure of information on security or other grounds;
- Guideline 14, reflecting authorities’ obligation to justify the need and proportionality of detention;
- Principle 15 and Guideline 16 (on remedies), reflecting the overarching right to remedies and reparation (paras 43), the need for authorities to give immediate effect to an order for release (para 44) and the right to compensation, restitution, rehabilitation, satisfaction and guarantees of non-repetition (paras 109-112); and
- Principle 16 concerning the application of Article 9(4) of the International Covenant on Civil and Political Rights (ICCPR) alongside international humanitarian law (paras 45 and 47), the application of Article 9(4) to civilians in an international armed conflict (para 47), the application of habeas principles to prisoners of war (para 48), and the question of administrative detention or internment in the context of a non-international armed conflict (para 49).
The ICJ has engaged in all stages of the Working Group’s elaboration and consultations. It made written submissions in November 2013, April 2014 and March 2015. Its staff, Matt Pollard and Alex Conte, gave panel presentations at the September 2014 global consultation.
Mar 20, 2015 | Advocacy
The ICJ today joined a call with Libyan, regional and other international NGOs for the Human Rights Council to create an independent inquiry mechanism into serious human rights and humanitarian law violations in Libya.
The escalating armed conflict and significantly deteriorating human rights situation in Libya requires a strong and urgent response from the Human Rights Council.
The statement calls for the creation of an independent inquiry mechanism with the mandate to investigate and ensure accountability for gross human rights and humanitarian law violations occurring throughout the country including attacks on civilians, the widespread use of torture, arbitrary detention, enforced disappearances and unlawful killings.
The statement outlines the ongoing impunity for those responsible for violations, the inability of the Libyan criminal justice system to deal with such crimes and it calls on the Human Rights Council to encourage Libya’s cooperation with the ICC.
Libya-HRC joint Statement-Advocacy-2015-ENG (full text in PDF)
Libya-HRC joint Statement-Advocacy-2015-ARA (full text in PDF)
