Jan 29, 2019 | News
On the second anniversary of the killing of prominent lawyer U Ko Ni, in public view at Yangon International Airport, the ICJ repeats its calls for a thorough and impartial investigation with a view to establish the facts, to deliver justice and to deter the repetition of similar crimes.
“This brazen killing of a prominent democracy advocate demands a rigorous State response to show this type of crime will be fully punished,” said Frederick Rawski, the ICJ’s Director for Asia and the Pacific.
Despite an official investigation and reports of more than 100 court hearings, nobody has been held accountable for U Ko Ni’s death – criminally or otherwise – and the circumstances have not yet been satisfactorily explained.
“Myanmar simply cannot satisfy its international law obligations without conducting an impartial and independent investigation that is free of military influence. Such an investigation is a pre-requisite for conducting an effective prosecution in a fair trial setting,” added Rawski.
U Ko Ni was well known as a vocal advocate for human rights and democratic reform in Myanmar. As an adviser to the National Legal of Democracy party, he was involved in creating the position of State Counselor, which formalized a leadership role for Daw Aung San Suu Kyi, despite a constitutional provision barring her from the Presidency.
At the time of his death, it is understood that U Ko Ni was working on proposals to replace Myanmar’s 2008 Constitution, the source of law underpinning military power.
“A credible justice process is required not only for U Ko Ni and his family, but to demonstrate the State will protect the right to life of all people including democracy advocates,” said Sean Bain, legal adviser for the ICJ.
“A crime of this nature stifles participation in the democratic process and so an effective justice process is imperative to deter its repetition,” Bain added.
Myanmar has a particular obligation to ensure that lawyers and others acting as human rights defenders are protected in carrying out their work.
Any justice process must be timely, effective and shed light on the facts.
The investigation into U Ko Ni’s killing has been beset by obstacles, including the unknown whereabouts of a primary suspect, the incorrect identification of a deceased individual as a suspect and the arrest of a person with the same name, and reported military involvement in the police investigation. Lines of inquiry related to the political motivations for the killing, particularly considering the military links of many suspects, do not appear to have been pursued satisfactorily, nor impartially, given military involvement in the investigation.
Criminal proceedings in Yangon’s Northern District Court, and related proceedings in the Yangon High Court, have been sluggish. Observing lawyers and individuals including from the ICJ have noted multiple instances of admission into evidence of testimony that appears to be irrelevant, failures of key witnesses to appear, and the long drawn out process of court proceedings whereby weeklong delays are common while continuances over successive days are rare.
These issues are emblematic of challenges in Myanmar’s justice system previously identified by the ICJ in which police, prosecutors and courts generally lack the independence and or will to effectively administer justice, particularly in politically sensitive cases.
“Two years is an incredibly long time to get to the position we are in now, and in our experience this highlights broader problems with the administration of justice in Myanmar,” added Bain.
Contact
Frederick Rawski, ICJ Asia Pacific Region Director, e: frederick.rawski(a)icj.org
Sean Bain, ICJ Legal Adviser, e: sean.bain(a)icj.org
Download:
Myanmar-Ko Ni Statement-News-web stories-2019-ENG (full story with background information, PDF)
Myanmar-Ko Ni Statement-News-web stories-2019-BUR (full text in Burmese, PDF)
Read also:
Myanmar: reverse laws and practices that perpetuate military impunity – new ICJ report
Killing of lawyer U Ko Ni must be promptly and impartially investigated
Nov 15, 2018 | News
The ICJ and the Alternative Law Groups (ALG) today called on the Government of the Philippines to take immediate and effective action to addressing the apparently unlawful killing of Benjamin ‘Ben’ Ramos, a prominent lawyer and a founder of the National Union of People’s Lawyers (NUPL).
Benjamin Ramos was shot by two unidentified men in the public plaza of Barangay 5, Kabankalan City on 6 November 2018.
The ICJ and ALG call on the Government of the Philippines to conduct a thorough, prompt, impartial, and independent investigation into the killing of Benjamin Ramos.
Benjamin Ramos, in his work with the NUPL, had previously provided legal assistance to the families of the victims of the ‘Sagay 9 massacre’, which involved the killing of nine sugarcane farmers from the National Federation of Sugar Workers by unidentified armed men on 20 October 2018 in Negros Occidental, a province in the central part of the Philippines.
Given the sensitive nature of the work of Benjamin Ramos, which involved confronting powerful interests, it is important that any investigation consider the suspected links between that work and his killing.
“It is essential for the proper and effective functioning of the administration of justice that lawyers are kept safe as they fulfill their duties to protect the rights of their clients and promote the cause of justice,” said Emerlynne Gil, ICJ’s Senior International Legal Adviser.
As affirmed by the UN Basic Principles on the Role of Lawyers, governments must ensure that lawyers are able to perform all their professional functions without “intimidation, hindrance, harassment or improper interference.” In addition,“[w]here the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities”.
The organizations note that there have been at least thirty-four (34) lawyers killed since 2016, under the administration of President Rodrigo Duterte.
“The rising number of killings of lawyers is very concerning and alarming; it is an attack not only on individual lawyers but on the justice system as whole. The Philippine government must take immediate and proactive measures to ensure the safety of lawyers as they conduct their professional duties,” said Maria Generosa Mislang, National Coordinator of ALG.
Contact:
Emerlynne Gil, ICJ Senior International Legal Adviser, t: +662 619 8477 (ext. 206) ; e: emerlynne.gil(a)icj.org
Sep 24, 2018 | Feature articles, News
On October 16, 1998, the former dictator of Chile Augusto Pinochet was arrested in London on a warrant from a Spanish judge. Reed Brody participated in the subsequent legal case.
Reed Brody went on to apply the “Pinochet precedent” in the landmark prosecution of the former dictator of Chad, Hissène Habré, who was convicted of crimes against humanity in Senegal in 2016.
He now works with victims of the former dictator of Gambia, Yahya Jammeh. The ICJ interviewed Brody about the Pinochet case and its legacy.
What was your role in the Pinochet case?
My role started when Pinochet was arrested in London. The case began long before that, of course, in the early years of Pinochet’s dictatorship when brave human rights activists documented each case of murder, and “disappearance.”
The ICJ worked with those advocates to produce a seminal 1974 report on those crimes, just six months after Pinochet’s coup. Shut out of Chile’s courts, even after the democratic transition of 1990, victims and their lawyers pursued a case against Pinochet in Spain under its “universal jurisdiction” law and when Pinochet traveled to London, Spanish Judge Baltasar Garzón requested and obtained his detention.
When Pinochet challenged his arrest in court claiming immunity as a former head of state, I went to London for Human Rights Watch, and we and Amnesty International were granted the right to intervene with teams of lawyers in the proceedings at the judicial committee of the House of Lords, then Britain’s highest court.
The Lords cited our research in rejecting Pinochet’s immunity.
You famously described the Lords’ Pinochet decision as a “wake-up call” to tyrants everywhere. Looking back, do you think it was?
Actually no, I think one would be hard pressed to discern a change in the behavior of dictators. Mugabe didn’t quake in his boots, Saddam didn’t clean up his act.
The more important and more lasting effect of the case was to give hope to other victims and activists. When the Lords ruled that Pinochet could be arrested anywhere in the world despite his status as a former head of state, the movement was in effervescence.
As a human rights lawyer, I was used to being legally and morally right, but still losing. In the Pinochet case, not only did we win, but we upheld the detention of one of the world’s most iconic dictators.
The Pinochet case inspired victims of abuse in country after country, particularly in Latin America, to challenge the transitional arrangements of the 1980s and 1990s, which allowed the perpetrators of atrocities to go unpunished and, often, to remain in power.
These temporary accommodations with the ancien régime didn’t extinguish the victims’ thirst to bring their former tormentors to justice.
How did you go from Pinochet to Habré?
With Pinochet, we saw that universal jurisdiction could be used as an instrument to bring to book people who seemed out of the reach of justice.
Together with groups like Amnesty, the FIDH, and the ICJ (which wrote an important report on the Pinochet case and its lessons), we had meetings on who could be the “next Pinochet.”
That’s when Delphine Djiraibe of the Chadian Association for Human Rights asked us to help Habre’s victims bring him to justice in his Senegalese exile.
I was excited at the prospect of persuading a country in the Global South, Senegal, to exercise universal jurisdiction, because there was a developing paradigm of European courts prosecuting defendants from formerly colonized countries.
It took us 17 years, but Habré became the first prosecution ever of a former head of state using universal jurisdiction, and indeed the first universal jurisdiction trial in Africa.
1998 was a high water mark for international justice with the adoption of the ICC Rome Statute and Pinochet’s arrest. Neither the ICC nor universal jurisdiction have quite lived up to their expectations. Why?
International justice doesn’t operate in a vacuum, it’s conditioned by the global power structure. Each case, whether at the ICC level or the transnational level, is a product of the political forces which must be mobilized, or fended off, to allow a prosecution to proceed.
Those forces, particularly since September 11, 2001, have been hostile to human rights enforcement in general and to justice in particular. Universal jurisdiction has been subject to the same double standards as the ICC.
The Belgian and Spanish universal jurisdiction laws, which were the broadest in the world, were both repealed when they were used to investigate superpower actions.
But many of the most successful cases have been those in which the victims and their activist supporters have been the driving forces, have compiled the evidence themselves, built an advocacy coalition which placed the victims and their stories at the center of the justice struggle and helped create the political will in the forum state.
I’m thinking not just of Habré, but the genocide prosecution in Guatemala of the former dictator Efraín Ríos Montt, the case in Haiti of “President for Life,” Jean-Claude “Baby Doc” Duvalier, the Liberian cases brought around the world by Civitas Maxima and its partners, the Swiss cases initiated by TRIAL International, and the Syria litigation by ECCHR and others.
These cases were brought before domestic courts either of the country in which the atrocities took place (Guatemala, Haiti) or of foreign countries based on universal jurisdiction, rather than before international courts.
Most of these cases took advantage of legal regimes which allowed victims directly to participate in the prosecutions as “parties civiles,” or “acusación particular” rather than play passive or secondary roles in cases prosecuted solely by state or international officials.
How do victim-driven prosecutions look different than institutional cases?
When it’s the victims and their allies who get the cases before a court, who gather the evidence, and who have formal standing as parties, the trials are more likely to live up to their expectations.
In the Rios Montt case, for instance, the Asociación Para la Justicia y Reconciliacion (AJR) and the Centro Para la Acción Legal en Derechos Humanos (CALDH) mobilized the victims, developed the evidence, defined the narrative and, essentially, determined the outlines of the case and chose the witnesses who would testify for the prosecution.
In the Habré case, we spent 13 years building the dossier, interviewing hundreds of victims and former officials and uncovering regime police files. The victims’ coalition always insisted that any trial include crimes committed against each of Chad’s victimized ethnic groups, and that is exactly was happened.
In contrast, a distant prosecutor, disconnected from national narratives and inherently not accountable to the victims or civil society, can be tempted to narrowly tailor prosecutions in the hopes of securing a conviction or avoiding political resistance.
This was the case with the ICC in the Democratic Republic of the Congo, for instance, where, as Pascal Kambale has persuasively argued, it betrayed the victims’ hopes.
Millions of civilians died in the DRC and Luis Moreno Ocampo only went after two local warlords. I think the current prosecutor is paying more attention to local realities.
The inspiration from victim-driven cases is also greater, and they are to some degree replicable. As Naomi Roht-Arriaza has written, these cases “stirred imaginations and opened possibilities precisely because they seemed decentralized, less controllable by state interests, more, if you will, acts of imagination.”
When I showed Chadian victims video clips of the Ríos Montt trial, they saw in those images exactly what they were trying to do.
Just as the Chadians came to us in the Habré case seeking to do what Pinochet’s victims had done, our hope in getting the Habré case to trial was that other survivors would be inspired by what Habre’s victims had done and say, “you see these people, they fought for justice and never gave up. We can do that too.”
And indeed, Liberian victims and Gambian victims have patterned their campaigns for justice on what Habre’s victims did. So, the Pinochet case continues to be an inspiration.
Jul 30, 2018 | News
The killing of Serbian defense lawyer Dragoslav Ognjanović must be independently, promptly, and thoroughly investigated and the perpetrators brought to justice, the ICJ said today.
Dragoslav Ognjanović (photo), a prominent lawyer who had defended Slobodan Milosovic and had also represented defendants in cases of organized crime, was shot dead outside his home in Belgrade late on Saturday 28 July.
“Safety of lawyers is essential to the fair operation of the justice system and to protection of the rule of law. The Serbian authorities now need to take urgent steps to re-establish confidence that they can ensure the safety of lawyers who may be under threat, and to investigate and bring to justice the perpetrators of this crime,” said Justice Radmila Dragicevic-Dicic, of Serbia’s Supreme Court, Vice-President of the ICJ.
“Investigation and prosecution of this case will be a significant test for the Serbian authorities and the legal system,” she added.
The Serbian and Belgrade bar associations have called a week-long suspension of work by lawyers in order to express their concern at the risk of violence against lawyers.
Serbian authorities have blamed an ongoing turf war between organized crime groups competing to control the narcotics trade.
“The concerns of the Serbian legal profession should be taken seriously by the government and the prosecution service, and the bar associations should be consulted on means to ensure the safety of lawyers,” said Róisín Pillay, Director of ICJ’s Europe Programme.
Additional information
International human rights law, including the European Convention on Human Rights to which Serbia is a party, requires that states take steps to protect the life and physical integrity of persons who they know or ought to know are at real risk of violence.
In addition, the right to life, protected under Article 2 of the European Convention as well as under other international law standards, requires states to ensure an independent, prompt and effective investigation into killings, with a view to bringing to justice those responsible.
According to the UN Basic Principles on the Role of Lawyers, governments must ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference (principle 16). The UN Basic Principles specify that “[w]here the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities” (principle 17).
Jun 6, 2018 | News
On 5 June 2018, the ICJ co-organized an academic seminar addressing the right to life under international law and the State’s duty to effectively investigate alleged violations.
The event happened on the eve of the post mortem decision to be delivered by Chiang Mai Provincial Court in the case of Chaiyaphum Pasae.
The Lahu youth activist was killed by a military official who was attempting to arrest him as an alleged drug suspect in Chiang Dao district of Thailand’s northern Chiang Mai province in March 2017.
Officials claimed Chaiyaphum had resisted arrest and was subsequently shot in “an act of self-defence”.
On 6 June 2018, Chiang Mai Provincial Court ruled that the bullets shot by the military official had caused the death of Chaiyaphum Pasae.
In its decision, the court made no finding of fault and no finding as to whether Chaiyaphum Pasae had resisted arrest before his death.
The decision by Chiang Mai Provincial Court will now be sent on to the Public Prosecutor and inquiry officers, who will in parallel continue criminal investigations into the case.
The Public Prosecutor is expected thereafter to make a decision regarding any indictment of the military official who shot at Chaiyaphum Pasae.
Participants in the seminar, which was held at Chiang Mai University’s Art Center, included Chaiyaphum Pasae’s family members, interested members of the public, media representatives, students and academics.
Kingsley Abbott, ICJ Senior Legal Adviser, addressed the seminar on the right to life and the international law and standards that apply to investigating potentially unlawful deaths, including the rights of victims and family members, referring to the standards set out in the revised Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), which was launched in Thailand on 25 May 2017.
The event follows the ICJ’s first regional workshop on the investigation of potentially unlawful deaths and enforced disappearance in Asia, held last week in Bangkok for authorities from Thailand, Cambodia, Myanmar and Nepal.
Other speakers at the Workshop included Ratsada Manuratsada and Sumitchai Hattasarn, lawyers from Human Rights Lawyers Association (HRLA) who represented the family of Chaiyaphum Pasae, and Songkran Pongbunchan, a lecturer from Chiang Mai University’s Faculty of Law.
The Discussion was conducted in collaboration with Legal Research and Development Center Chiang Mai University (LRDC); Center for Protection and Revival of Local Community Rights (CPCR); Center for Ethnic Studies and Development Chiang Mai University (CESD); Human Rights Lawyers Association (HRLA); Protection International (PI); Holding Hands Group; Inter Mountain Peoples’ Education and Culture in Thailand Association (IMPECT); Cross Cultural Foundation (CrCF); Maayimstudio; Save Lahu Group; Lanyim Creative Group; Dinsorsee Creative Group; Northern Activist Community (CAN); and Tonkal Network.
This seminar is part of an ongoing engagement between the ICJ and Chiang Mai University’s Faculty of Law.
Contact
Kingsley Abbott, Senior Legal Adviser, ICJ Asia Pacific Regional Office, t: +66 94 470 1345, e: kingsley.abbott(a)icj.org