May 6, 2020 | Advocacy, News, Publications
In a report published today, the ICJ called on the police and prosecutorial authorities in Myanmar to re-open the investigation into the death of journalist Ko Par Gyi in military custody in September 2014.
The report documented the many barriers that have prevented justice from being served in this case, as well as other cases of gross human rights violations in Myanmar.
The ICJ called on the Union Parliament to repeal or amend the 1959 Defence Services Act and other legislation that effectively provides immunity to military personnel accused of serious crimes. These and other barriers have been described at length in the ICJ’s 2018 report on Achieving Justice for Gross Human Rights Violations.
“More than three years ago, the police abruptly ended their formal inquiry into the killing of Ko Par Gyi, without providing any justifiable legal rationale for its closure,” said Frederick Rawski, ICJ Asia Pacific Director. “In the intervening years, we have seen what happens when this culture of military impunity goes unaddressed.”
In the report, An unlawful killing: How Ko Par Gyi’s death highlights barriers to justice in Myanmar, the ICJ evaluated the various investigations into the death and identified three key obstacles to justice in the case:
- the existence and operation of national laws like the 1959 Defence Services Act that shield security forces from public criminal prosecutions, serving to deny victims and their families the right to truth about violations;
- sub-standard investigative practices that are vulnerable to political pressure and lacked independence, and simultaneous, separate and uncoordinated investigations that resulted in an unsystematic and ineffective approach to investigating the case; and
- a lack of transparency that denied the family their right to access information concerning the violations and accountability processes.
Ko Par Gyi was detained by police in Mon State and transferred to military detention on 30 September 2014. He died four days later in military custody. A deeply flawed inquiry carried out in military courts, pursuant to the 1959 Defence Services Act, resulted in the acquittal of the soldiers allegedly involved. Those same provisions are commonly used to transfer cases involving military personnel from civilian to military court. Under international standards, military courts should not be used to try military personnel or others for gross human rights violations and crimes under international law.
“It is no surprise that an international investigative mechanism has been established to look into alleged serious human rights violations in Rakhine and elsewhere in Myanmar,” said Rawski. “Myanmar’s legal framework does not provide adequate safeguards to ensure independent investigation into and prosecution of serious human rights violations. What happened to Ko Par Gyi’s case illustrates that all too clearly.”
The UN Human Rights Council has established an Independent Investigative Mechanism for Myanmar (IIMM) to collect evidence and prepare files for criminal prosecution of the most serious international crimes and violations of international law committed in Myanmar since 2011.
Key recommendations in the report include:
- To the Executive and the Union Parliament: amend the 1959 Defense Services Act to align it with democratic principles, the constitutional guarantee of equal legal protection, and the State’s international law obligation to protect the right to life, including by prosecuting serious violations.
- To the Tatmadaw: apply standards and procedures in military courts that conform to international law, ensure all crimes perpetrated against civilians are tried in the civilian judicial system, and reform rules of engagement to explicitly instruct soldiers to protect life, consistent with international law.
- To the Myanmar Police Force and the Union Attorney General’s Office: align investigative procedures and practices with international law and standards.
- To the Myanmar National Human Rights Commission: take an active and broad interpretation of the MNHRC mandate to address serious human rights violations including those which have gone before courts.
- To UN Member States and international organizations: ensure any organizational support to security forces is contingent on and enables demonstrable commitments to prevent and punish violations by its members.
This report was produced as part of the ICJ’s Global Accountability Initiative, which aims at combatting impunity and promoting redress for gross human rights violations around the world through the entrenchment of the rule of law
Download
An unlawful killing: How Ko Par Gyi’s death highlights barriers to justice in Myanmar in English and Burmese.
Press statement with additional background information on Ko Par Gyi in English and Burmese.
Contact:
Frederick Rawski, ICJ Asia Pacific Regional Director, (Bangkok), t:+66 64 4781121, e: frederick.rawski@icj.org
Kingsley Abbott, Coordinator of the ICJ’s Global Accountability Initiative, t: +66 94 470 1345; e: kingsley.abbott(a)icj.org
May 1, 2020 | News
The decision by Nepal’s Supreme Court to reject a petition by the government asking that it review its 2015 ruling against amnesties for grave conflict-era crimes is an important step in securing truth, justice and reparations for the thousands of victims of the country’s decade-long conflict, the ICJ and other groups said today.
The armed conflict between Maoist and government forces ended in 2006, but victims of serious abuses by both sides are still awaiting justice, accountability and reparations.
The ICJ, Amnesty International, TRIAL International, and Human Rights Watch called upon the Government to revise the 2014 Transitional Justice Act and ensure its implementation in accordance with the Supreme Court’s judgments, so as to assure access to justice for the victims of conflict-era abuses.
Nepal’s transitional justice law, which was passed by Parliament in April 2014, established a Truth and Reconciliation Commission and a Commission of Investigation on Enforced Disappeared Persons.
However, it contained provisions that could allow for amnesties even for crimes such as torture, including rape and other sexual violence and ill-treatment and enforced disappearance.
On 26 February 2015, the Supreme Court struck down the amnesty provisions and ordered the act to be amended accordingly. However, the government immediately petitioned to overturn the ruling. That petition was rejected by the court on April 27, 2020.
“With the Supreme Court’s decision, there can be no further excuse for government backsliding on ensuring truth, justice, reparations and guarantees of non-recurrence. The government should immediately amend the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act, 2014 in line with the Supreme Court’s orders and its own international obligations,” said Biraj Patnaik, South Asia Director at Amnesty International.
With its latest ruling the Supreme Court has upheld the principle that there can be no amnesties for those suspected of criminal responsibility for crimes under international law and human rights violations. More than 13 years since the Comprehensive Peace Agreement of November 2006 promised justice to the victims, no one has been made accountable for any conflict era crimes.
“The request filed by the Nepal Government to review the decision of the Supreme Court was another attempt to evade the real issue: accountability for mass human rights violations. We are delighted that the Supreme Court held its ground and reaffirmed the importance of fair and efficient transitional justice mechanisms,” said Cristina Cariello, the Head of Nepal Program at TRIAL International.
Amnesty International, the ICJ, Human Rights Watch and TRIAL International have repeatedly expressed concerns about the faltering transitional justice process. Besides the failure to amend the law to uphold basic principles of justice, there have been long delays and repeated political interference in appointments to the two transitional justice commissions.
“Over the past decade, the Supreme Court of Nepal has produced some of the most human rights compliant jurisprudence in South Asia. This petition cynically sought to have the Court undermine its own judgement, so that the government could sidestep its responsibility to provide accountability for conflict-related human rights violations,” said Frederick Rawski, ICJ Asia Pacific Director. “The government has no excuse for not immediately amending the transitional justice legal framework so that it is consistent with the Court’s jurisprudence and Nepal’s international legal obligations.”
An effective transitional justice system requires strong legal foundations consistent with international law and standards, and the political will to address the demands of victims of the conflict, the organizations said.
“When Nepal stood for election to the United Nations Human Rights Council the government promised to uphold its human rights obligations, but 3 years later, as it seeks re-election, there has been nothing but impunity and evasion on transitional justice,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “These are crimes under international law, subject to universal jurisdiction, and if justice is denied at home victims may take their cases abroad.”
Contact
Frederick Rawski, ICJ Asia-Pacific Director, frederick.rawski(a)icj.org, +66644781121
Download
English
Nepali
Feb 28, 2020 | Advocacy, Non-legal submissions
At the UN Human Rights Council, the ICJ today urged renewed international action to ensure justice and accountability for crimes under international law in Sri Lanka.
The statement, delivered during a discussion of updates and reports from the High Commissioner for Human Rights, read as follows:
“The ICJ deeply regrets the Sri Lankan Government’s withdrawal of support for the process under resolutions 30/1 and 40/1. ICJ supports the joint statement read by IMADR.
The Sri Lankan legal system and judicial institutions have for decades demonstrated a chronic inability to address systemic and entrenched impunity for crimes under international law perpetrated by the military and security forces.[1] The new President’s promises to protect the military from accountability, and senior command appointments of individuals credibly accused of crimes under international law, only deepen the concern.
As the High Commissioner notes,[2] the failure to deal comprehensively with impunity and to reform institutions may lead to more human rights violations.
The Tamil population have consistently and rightly rejected any reconciliation process that ignores justice and accountability, and it is obvious that no justice or accountability process that is left to domestic Sri Lankan institutions alone can be credible. The compromise national-international “hybrid” judicial accountability mechanism foreseen by resolution 30/1 already fell far short of what the situation actually warrants.
If the Government seeks now to abandon even that compromise, purely international processes, whether before the ICC or through creation of another international accountability mechanism by the Council, and the exercise of universal jurisdiction by other States, are the only remaining options for securing the justice required by international law and indispensable to any credible reconciliation process for Sri Lanka.”
[1] International Commission of Jurists, Authority without Accountability: The Crisis of Impunity in Sri Lanka, 2012, https://www.icj.org/sri-lanka-new-icj-report-documents-crisis-of-impunity/; Human Rights Council must respond to ongoing failure of Sri Lankan justice system to ensure accountability for human rights violations, 2014, https://www.icj.org/human-rights-council-must-respond-to-ongoing-failure-of-sri-lankan-justice-system-to-ensure-accountability-for-human-rights-violations/; Sri Lanka: the need for an international inquiry, 2014, https://www.icj.org/sri-lanka-the-need-for-an-international-inquiry/; Sri Lanka: Joint Open Letter to the Ambassadors of UN Human Rights Council Member States, 2015, https://www.icj.org/wp-content/uploads/2015/07/SriLanka-JointOpenLetter-Accountability-Advocacy-2015.pdf; Sri Lanka’s victims demand and deserve credible justice, 2016, https://www.icj.org/sri-lankas-victims-demand-and-deserve-credible-justice/.
[2] UN Doc A/HRC/43/19, para 36.
Feb 27, 2020 | Events, News
An event at the UN Human Rights Council on 28 February will highlight the continuing failure of Sri Lanka to secure justice for crimes under international law, and discuss ways forward for international efforts to fill the gap.
The event will take place 28 February 2020, 13:00 – 14:00, in Room XXIII of the Palais des Nations in Geneva.
It will be moderated by Human Rights Watch, with a short video will be followed by an interactive discussion with panelists from Amnesty International and the International Commission of Jurists.
A flyer for the event can be downloaded in PDF format here: HRC43 – Sri Lanka
Jan 25, 2020 | News
Recent steps taken by the government are a serious setback on Nepal’s transitional justice process, the ICJ, Amnesty International, Human Rights Watch and TRIAL International said today.
The organizations expressed concern about the decision to appoint commissioners to the two transitional justice commissions without adequate consultations, and without amending the legal framework to make it consistent with international human rights law and Supreme Court of Nepal rulings.
“Nepal’s political leaders know that a transparent process is essential to ensure justice and accountability for egregious rights violations during the conflict, but they keep trying to protect those responsible for the abuses,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “If the political leadership continues to evade responsibility, they leave little choice but for victims to approach courts outside the country.”
On January 18, 2020, a five-member committee formed by the government to recommend names for commissioners for the Truth and Reconciliation Commission (TRC) and the Commission on the Investigation of Enforced Disappeared Persons (CIEDP) submitted its nominations. The committee sent the names forward despite longstanding demands by victims’ groups and civil society for the government to first amend the transitional justice legal framework to ensure that it complies with Nepal’s international obligations and is responsive to victims’ concerns.
Instead, the Ministry of Law, Justice and Parliamentary Affairs on January 13 hastily convened provincial consultations on the transitional justice laws lasting just three hours, which allowed little time for meaningful participation by victims’ groups and civil society.
“The government’s decision to carry out another rushed and secretive set of consultations fails to give due respect to the long-standing demands of victims and civil society,” said Frederick Rawski, ICJ’s Asia-Pacific Director. “It also makes it very difficult to take seriously the statements of political leaders that they are committed to supporting a victim-centred and human rights compliant process.”
Victims’ groups and human rights organizations have rejected these appointments and consultations, and have reiterated that they will not support a transitional justice process that is opaque, non-consultative, and undermines the victims’ right to truth, justice and reparations.
In addition, in its secretariat meeting earlier this week, the Nepal Communist Party (NCP) nominated Agni Sapkota as the speaker of the Federal Parliament. Sapkota, a member of parliament and the party standing committee, has been accused of responsibility for the abduction and killing of Arjun Lama in 2005 in Kavre. The case is the subject of proceedings including before the Supreme Court of Nepal.
NCP should reconsider Sapkota’s nomination as speaker of the parliament until there is a thorough and independent investigation, the organizations said.
“Nepal authorities should not appoint to high office people that are under investigation for human rights abuses, when they could interfere with that investigation,” said Audrey Oettli, Program Manager at TRIAL International. “Such appointments are yet another illustration of the government’s unwillingness to demonstrate a basic commitment to holding perpetrators of conflict-era rights abuses accountable.”
In March 2008, the Supreme Court directed the police to register a case against Sapkota for abducting and killing Lama and to carry out an investigation. The police did not comply. In 2010, Australia and the US rejected visa applications from Sapkota in light of the allegations of serious human rights violations.
When Sapkota was appointed information communication minister in May 2011, the UN Office of the High Commissioner for Human Rights issued a statement expressing concern, saying that states have a responsibility “to ensure that the name of a person is fully cleared following a thorough investigation before any appointment to a high public office is announced.”
The ICJ, Amnesty International, Human Rights Watch and TRIAL International have repeatedly expressed concern about the transitional justice process. An effective transitional justice system requires strong legal foundations consistent with international law and standards, and the political will to address the demands of victims of the conflict, the organization said.
Concerns raised about the legal framework include: disparities between the definitions of specific crimes under international law and human rights obligations and violations under national, and international law; inadequate provisions to ensure that serious crimes under international law are subject to criminal accountability, including punishment proportionate to the seriousness of the crimes; and a reliance on compensation at the expense of other forms of reparation and remedy for conflict survivors and their families.
The government should amend the the 2014 Transitional Justice Act to make it consistent with the Supreme Court’s rulings and international human rights standards, the groups said. It should initiate a genuine consultative and transparent process for the appointment of commissioners. And it should conduct credible and impartial investigations instead of appointing people accused of conflict-era crimes to high public offices.
“The government and the political parties in Nepal are increasingly showing that they are unwilling and incapable to deliver truth, justice and reparations to the conflict victims domestically,” said Biraj Patnaik, South Asia Director at Amnesty International. “Their signal of impunity will further push the victims and activists to seek justice internationally under universal jurisdiction. Instead of putting those suspected of criminal responsibility into positions of power, the government should bring them to justice in fair trials.”
To download the statement in Nepali, click here.
Contact
- Frederick Rawski, ICJ Asia-Pacific Director, e: frederick.rawski(a)icj.org, +66 644781121
- Biraj Patnaik, Amnesty International, South Asia Director, e: biraj.patnaik(a)amnesty.org, t: +94 716123280
- Meenakshi Ganguly, HRW, South Asia Director, e: gangulm(a)hrw.org
- Audrey Oettli, TRIAL International, Program Manager, e: a.oettli(a)trialinternational.org
