Myanmar: Government must do far more to comply with International Court Justice’s order on protection of Rohingya population

Myanmar: Government must do far more to comply with International Court Justice’s order on protection of Rohingya population

In order to comply substantially with the International Court of Justice’s provisional measures Order in the case of The Gambia v. Myanmar, Myanmar should carry out legal reforms and cooperate with international accountability processes, said the ICJ today.

The Gambia has accused Myanmar of violations of the 1948 Genocide Convention in respect of its treatment of Rohingya population, characterized by acts of widespread killing and displacement of the population.

The  call comes as Myanmar is scheduled to report on “all measures taken” to give effect to the provisional measures Order (Order) issued by the Court on 23 January 2020.

“Myanmar has not taken ‘all measures within its power’ to prevent acts of genocide until it implements comprehensive legal and constitutional reforms,” said Sam Zarifi, Secretary General of the International Commission of Jurists.  “Accountability lies at the heart of prevention, and so long as the Tatmadaw remains unaccountable to the civilian authorities the cycle of impunity for criminal atrocities within the country will continue.”

Since the Order, Myanmar has taken a limited number of steps linked to its compliance with the Order, including issuing three Presidential Directives encouraging anti-hate speech activities, and ordering compliance with the Genocide Convention and the preservation of evidence of human rights and related violations in Rakhine.

Myanmar has also asserted that the findings of the Government-commissioned Independent Commission of Inquiry (ICOE), which made selective admissions including that war crimes may have been committed during the 2017 “clearance operations” in Rakhine, have been transmitted to the Attorney General and the Commander-in-Chief of the Tatmadaw and that action would be taken “in conformity with military justice procedures if there is credible evidence of any commission of offence by members of the Tatmadaw.”

However, the Government has yet to amend or repeal key laws that facilitate discrimination against the Rohingya, including the 1982 Citizenship Law, 2015 Race and Religion Protection Laws and 2014 Myanmar National Human Rights Commission Law. On 6 May 2020, the International Commission of Jurists published a report on the killing of a journalist, Ko Par Gyi, in September 2014, which condemned the fundamentally flawed “military justice procedures” used to address allegations of serious human rights violations.  The report highlighted the many deficiencies in ensuring to accountability for serious human rights violations in Myanmar under its prevailing legal framework, including:

  • that several provisions of national laws facilitate impunity for serious human rights violations by soldiers against civilians, shield security forces from public criminal prosecutions and deny victims and their families of the right to truth about violations;
  • investigations into unlawful killings routinely lack the independence, impartiality and effectiveness necessary to establish the truth and to provide accountability and redress; and
  • the rights of victims and their families are rarely respected, including the right to access information concerning the violations and accountability processes, and the right to remedies and reparations.

The UN Human Rights Council has established an Independent Investigative Mechanism to look at allegations of genocide, crimes against humanity and other atrocities in Myanmar, but the government has failed to extend its cooperation with the mechanism.

“Myanmar’s inability to prevent serious human rights violations under the existing legal framework underscores the need for it to cooperate with international justice processes, including the UN’s Independent Investigative Mechanism for Myanmar – and for the UN Security Council to refer the situation to the International Criminal Court,” added Zarifi.

Download the statement with detailed background information here.

Contact

Sam Zarifi, Secretary General of the International Commission of Jurists, t: +41 79 726 4415; e: sam.zarifi(a)icj.org

Kingsley Abbott, Coordinator of the ICJ’s Global Accountability Initiative, t: +66 94 470 1345; e: kingsley.abbott(a)icj.org

Related work

Report: Remove barriers to justice for killing of journalist Ko Par Gyi

Statement: Why law reform is urgent and possible

Statement: Implement International Court of Justice provisional measures Order without delay

Briefing Paper: Four immediate reforms to strengthen the Myanmar National Human Rights Commission

Briefing Paper: Myanmar’s discriminatory citizenship laws can and must be reformed

Jadhav case: International Court of Justice holds alleged “spy” sentenced to death wrongly denied consular access

Jadhav case: International Court of Justice holds alleged “spy” sentenced to death wrongly denied consular access

The International Commission of Jurists (ICJ) today welcomed the decision of the International Court of Justice (ICJ-CIJ for its acronym) upholding the right of consular access and notification for Indian national Kulbhushan Jadhav.

The Court determined that Pakistan had unlawfully denied Jadhav consular access before and after his summary trial by a military court.

It emphasized that any “potential prejudice and the implications for the evidence and the right of defence of the accused should receive close scrutiny during the review and reconsideration.”

The Court categorically held that Article 36 of the Vienna Convention on Consular Relations (VCCR) “does not exclude from its scope certain categories of persons, such as those suspected of espionage,” as argued by Pakistan.

“The decision by the International Court today is a resounding affirmation that there can be no curtailment of the right to consular access by foreign nationals by States that are Party to the VCCR,” said Ian Seiderman, Legal and Policy Director of the ICJ.

“Consular access is essential to ensure a fair trial for foreign nationals and this human right must not in any way be made contingent upon the offence foreign nationals are charged with.”

The International Court called on Pakistan to give effect to the Court’s ruling by providing effective review and reconsideration of both his conviction and sentence, including by taking account of the principles of the right to a fair trial.

The ICJ has pointed out that Pakistan’s military justice system and procedures are incompatible with the right to a fair trial. Under international standards, military tribunals are never permissible in prosecutions against civilians for offences carrying the death penalty.

Since 3 March 2016, Kulbhushan Jadhav has been in custody of the Pakistani authorities. The circumstances of his arrest remain in dispute between the Parties.

India was informed of the arrest on 25 March 2016. On 10 April 2017, Pakistan’s military announced Kulbhushan Jadhav had been convicted and sentenced to death by a military court for “espionage and sabotage activities against Pakistan.”

India had brought the case against Pakistan before the International Court of Justice, alleging “egregious violations” of the VCCR by Pakistan because of the denial of consular access to Jadhav.

In response, Pakistan had primarily argued that Jadhav is a an Indian spy involved in acts of terrorism in Pakistan, and the VCCR is not applicable to spies or “terrorists” due to the inherent nature of the offences of espionage and terrorism.

“States around the world continue to use counter terrorism and national security as a justification to curtail human rights – the International Court of Justice’s affirmation that the protections under the VCCR are not conditional is hugely significant in this context,” said Ian Seiderman.

The International Court also held that it considered a continued stay of Jadhav’s execution as constituting “an indispensable condition for the effective review and reconsideration of the conviction and sentence.”

In May 2017, the Court had asked Pakistan to take all measures at its disposal to ensure that Jadhav is not executed pending the final decision in the proceedings.

The ICJ 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.

Background

In addition to the arguments regarding espionage and terrorism, Pakistan also relied on a bilateral agreement on consular access, signed by India and Pakistan in 2008, arguing that the agreement overrides the obligations under the VCCR. The International Court of Justice, however, rejected this argument, on the ground that, among other things, obligations under the VCCR may be enhanced or clarified by bilateral treaties, but cannot be diluted or undermined.

India had requested a number of other measures of relief from the Court, including the annulment of Kulbhushan Jadhav’s death sentence; a declaration that Kulbhushan Jadhav’s military trial was in violation of the VCCR and international human rights law, including the International Covenant on Civil and Political Rights (ICCPR); a directive restraining Pakistan from giving effect to the death sentence; and a directive to release Kulbhushan Jadhav and ensure his safe passage to India.

However, in accordance with its jurisdictional competencies and prior precedents, the Court denied these remedies to India. As “appropriate reparation” in this case, the Court directed Pakistan to effectively review and reconsider Jadhav’s conviction and sentence “to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Vienna Convention.”

Contact

Ian Seiderman: ICJ Legal and Policy Director, e: ian.seiderman(a)icj.org

Frederick Rawski: ICJ’s Asia Pacific Region, e: frederick.rawski(a)icj.org

Zambia: support International Criminal Court, ICJ and other groups say

Zambia: support International Criminal Court, ICJ and other groups say

Zambia should reaffirm its membership in the International Criminal Court to best advance justice for victims of atrocities, a group of African organizations and international nongovernmental organizations – including the ICJ – with a presence in Africa said today.

Zambia’s government began public consultations on the country’s ICC membership the week of March 27, 2017.

This was in response to the African Union summit’s adoption in January of an “ICC withdrawal strategy.”

An unprecedented 16 countries, including Zambia, entered reservations to this decision.

Zambia has been a role model on the continent in matters of peace, democracy, and human rights. Leaving the ICC would erode the country’s leadership and threaten respect for the rights of victims of the most brutal crimes across Africa, the group of organizations said.

As a member of the Southern Africa Development Community (SADC), Zambia has a proud history in the establishment of the ICC, they added.

SADC was active in the diplomatic conference in Rome in 1998 where the ICC’s treaty was finalized after six weeks of negotiations.

SADC members developed 10 principles for an effective, independent, and impartial court at a meeting in Pretoria in 1997.

The ICC is a groundbreaking achievement in the fight against impunity, the organizations said.

It is the first and only global criminal court that can prosecute individuals responsible for atrocities.

It is a court of last resort in that it has the authority to try genocide, war crimes, and crimes against humanity committed since 2002, but only when national courts are unable or unwilling to investigate and prosecute.

Since the court’s treaty opened for signature in 1998, 124 countries have become members.

Zambia signed the ICC’s Rome treaty on July 17, 1998, the day it opened for signature, and ratified the treaty on November 13, 2000.

The ICC faces many challenges in meeting the expectations of victims of mass atrocities and member countries, the organizations said.

Its inability to reach crimes committed in some powerful countries and their allies is a cause for deep concern, even as claims that the ICC is targeting Africa are not supported by the facts.

The court’s reach is limited to crimes committed on the territories of countries that have joined the court or offered the court authority on its territory, absent a referral by the United Nations Security Council.

The majority of ICC investigations in Africa have arisen in response to requests or grants of authority by governments in the countries where the crimes were committed – as in Central African Republic, Côte d’Ivoire, Democratic Republic of Congo, Mali, and Uganda – or through referrals by the UN Security Council – as in Darfur, Sudan and Libya.

The ICC has faced backlash from some African leaders since it issued arrest warrants for Sudanese President Omar al-Bashir for alleged genocide, war crimes, and crimes against humanity in Darfur in 2009 and 2010.

In 2016, evidence of the backlash reached new heights when South Africa, Burundi, and Gambia announced they would withdraw from the court, the first countries to take such action.

Gambia has rescinded its withdrawal and South Africa is also re-examining withdrawal, making Burundi the only country to have maintained its withdrawal.

Under the ICC Statute, withdrawal goes into effect one year after the state party submits a notification to the UN Secretary-General.

In the wake of the announced withdrawals, many African countries – including Botswana, Burkina Faso, Côte d’Ivoire, Democratic Republic of Congo, Ghana, Lesotho, Mali, Malawi, Nigeria, Senegal, Sierra Leone, Tanzania, and Tunisia – have affirmed their commitment to remain in the ICC and to work for any reform as ICC members.

The organizations encourage Zambia to reaffirm its support for the court, particularly in the absence of any functioning regional criminal court that can hold perpetrators to account.

The groups expressing support for Zambia’s continued ICC membership are:
Africa Legal Aid
Africa Centre for International Law and Accountability–Ghana
Centre for Accountability and Rule of Law–Sierra Leone
Centre for Democratic Development–Ghana
Centre for Human Rights and Rehabilitation (Malawi)
Civil Resource Development and Documentation Centre (Nigeria)
Coalition for the International Criminal Court
Fédération Internationale des Droits de l’Homme
Human Rights Watch
Institute for Security Studies
International Commission of Jurists
JEYAX Development and Training (South Africa)
Kenya Section of the International Commission of Jurists
Kenya Human Rights Commission
Nigerian Coalition for the ICC
Parliamentarians for Global Action
Southern African Centre for the Constructive Resolution of Disputes (Zambia)
Southern Africa Litigation Centre (South Africa)

South Africa appears before ICC for failure to arrest Sudanese President Bashir – The ICJ observes the hearing

South Africa appears before ICC for failure to arrest Sudanese President Bashir – The ICJ observes the hearing

South Africa is to appear before a scheduled hearing at the International Criminal Court on 7 April 2017 (ICC) in The Hague for a hearing on its failure to arrest Sudanese President Omar Hassan Ahmad al Bashir when he visited South Africa in June 2015.

The hearing, before the pre-trial Chamber of the ICC will consider whether South Africa was in breach of its obligations under the ICC Rome statute when it failed to effect the ICC arrest warrant on President Bashir.

The ICJ, represented by South African Justice Johann Kriegler, will be attendance observing the proceedings.

President Bashir has been indicted by the ICC on charges of genocide, war crimes and crimes against humanity in relation to atrocities committed from 2003 to 2008 in Darfur.

“The case is critical for ensuring the effectiveness of the ICC as an institution. The only means the ICC has of enforcing its orders is through the cooperation of States,” said Sam Zarifi the Secretary General of the ICJ.

“The failure to arrest President Bashir and the subsequent efforts to withdraw from the ICC Rome statute raise important questions about South Africa’s commitment to the fight against impunity in Africa and globally,” Zarifi added.

South Africa gave notice last October that it intended to leave the ICC, but this notice has been withdrawn, at least pending debate in Parliament.

The ICJ had filed a brief with the South African Parliament calling on South Africa to remain with the ICC Rome statute.

The brief was signed by retired South African Constitutional Court Justices Laurie Ackermann, Richard Goldstone, Johann Kriegler, Yvonne Mokgoro, Kate O’Regan and 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) and Wilder Tayler, then Secretary General of the ICJ.

Justice Zak Yacoob remarked that “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.”

Contact

Arnold Tsunga, ICJ Director for Africa, t +27716405926 ; e: arnold.tsunga(a)icj.org

Background

South Africa was among the first States to ratify 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 fulfill 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.

EU Court Opinion a major setback for human rights in Europe

EU Court Opinion a major setback for human rights in Europe

Today’s Opinion by the Court of Justice of the European Union (CJEU) in Luxembourg on the European Union’s (EU) accession to the European Convention on Human Rights (ECHR) is a regrettable setback for human rights in Europe, said Amnesty International, the ICJ and the AIRE Centre.

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