Jun 5, 2020 | News
The ICJ today condemned the proclamation by the Sri Lankan president to establish a Presidential Task Force dominated by the security forces and called for the proclamation to be rescinded.
On June 2, 2020, Sri Lankan President Gotabaya Rajapaksa issued an extraordinary gazette establishing a 13-member “Presidential Task Force to build a Secure Country, Disciplined, Virtuous and Lawful Society.” The Task Force is composed entirely of military, intelligence and police officials. It is to be headed by Defence Secretary, Retired Major General Kamal Gunaratne.
“This Presidential Task Force constitutes another act of over-reach by a government seeking to take advantage of the COVID-19 pandemic to further expand its powers,” said Frederick Rawski, ICJ’s Regional Director for Asia and the Pacific. “Its mandate is overbroad, and it empowers its military and police membership – including alleged war criminals – at a time when strong, independent, civilian-led policy-making is what is needed.”
The Task Force is given a sweeping mandate which includes:
- “taking necessary immediate steps to curb the illegal activities of social groups which are violating the law”
- “taking measures for prevention of the drug menace…”
- “taking legal action against persons responsible for illegal and antisocial activities conducted in Sri Lanka while locating in other countries”
- “investigating and preventing any illegal and antisocial activities in and around prisons.”
The task force also has the power to “conduct investigations and to issue directions as may be necessary in connection with the functions entrusted to it.” This includes issuing instructions to government officials to comply with its directives or be reported to the President.
The ICJ raised concerns that the task force has not been established on proper legal foundations. It is apparently pursuant to the broad, but ill-defined presidential powers under Article 33 of the Constitution.
The ICJ said that the task force could effectively usurp the powers and functions normally reserved for civilian authorities, under rule of law principles and as established by the Constitution and relevant enabling legislations.
Article 42 (1) of the Constitution provides that the “Cabinet of Ministers shall be charged with the direction and control of the Government.” Law enforcement and public officials under the direction of the relevant Minister have been designated under existing laws to specifically address drug-related offences and any other illegal and/ or criminal activity that seemingly fall within the mandate of this Task Force. The independence of public officials will be compromised if they are compelled to report to a military-dominated body. The Gazette provides no detail on how this reporting process would operate, or the legal consequences of refusing to act as instructed.
“Few doubt that this task force will be used as another tool to suppress speech and target critics of the Sri Lankan government. It is disturbing that such a potentially consequential body has been formed pursuant to broad presidential powers, with no reference to judicial or parliamentary oversight,” said Rawski. “Vague and overbroad language such as ‘anti-social activities’ could effectively criminalize expression protected under international law. Such provisions are inconsistent with the rule of law and contravene the principle of legality.”
The task force’s military and police membership follows a pattern of recent military appointments to civil administrative positions by the incumbent President. The military personnel appointed include officials credibly accused of war crimes. Chairman Major General Kamal Gunaratne was the commander of the 53rd division and Major General Shavendra Silva was the commander of the 58th Division of the Sri Lankan Army. Both units were identified by multiple UN investigatory bodies as having been involved in the commission of serious crimes and human rights violations during the last stages of Sri Lanka’s decades-long armed conflict which ended in 2009.
The ICJ called upon President Gotabaya Rajapaksa to rescind the extraordinary gazette establishing the Presidential Task Force. The role of the military in public life must be strictly circumscribed and matters pertaining to civil administrcation should be executed by elected and public officials in respect of the rule of law and principles of democratic governance.
Contact
Frederick Rawski, ICJ’s Asia Pacific Regional Director, t: +66 2 619 84 77; e: frederick.rawski(a)icj.org
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: [email protected]
Kingsley Abbott, Coordinator of the ICJ’s Global Accountability Initiative, t: +66 94 470 1345; e: kingsley.abbott(a)icj.org
Oct 4, 2019 | Advocacy, News
Reform of the 1959 Defence Services Act is a necessary step to address ongoing military impunity. The case of Ko Par Gyi’s killing should be reopened to satisfy the State’s international law obligations and deter repetition of serious crimes by soldiers.
Five years after the death of journalist Ko Par Gyi, the ICJ calls on the Government of Myanmar to reform the 1959 Defence Services Act, which was used to shield soldiers from accountability for involvement in his killing.
“The case is emblematic of the 1959 Defence Services Act being used to enable impunity for human rights violations by soldiers throughout Myanmar, by transferring to military courts the authority to investigate and prosecute serious crimes against civilians,” said Frederick Rawski, Asia Pacific Region Director for the ICJ.
“Impunity for Ko Par Gyi’s death is another example of this law being used to shield soldiers from accountability for serious crimes,” added Rawski. “Legislators should reform the 1959 law to enable the public criminal prosecution of soldiers for serious crimes in all circumstances, and take other steps to address the accountability gap.”
After being detained by police in Mon State and transferred into military detention on 30 September 2014, Ko Par Gyi died four days later in the custody of Tatmadaw soldiers. Unceremoniously buried in a shallow grave, Ko Par Gyi’s death was hidden from his family and the public for weeks. Nobody has been held accountable for his death and his family lacks access to redress, including their right to know the truth.
A deeply flawed inquiry carried out secretly in military courts, pursuant to the 1959 Act, resulted in the acquittal of the soldiers allegedly involved. This effectively ended other efforts to hold the perpetrators accountable, including through an inquest at the Kyaikmaraw Township Court in Mon State. It also flouted the Myanmar National Human Rights Commission’s recommendation for a police investigation and public criminal trial to be undertaken by civilian authorities.
“Five years on, Myanmar authorities must finally initiate a thorough, independent and impartial investigation into the killing of journalist Ko Par Gyi,” said Sean Bain, legal adviser for the ICJ. “The truth must be established and recognized, and those responsible for his apparently unlawful killing need to be brought to justice in fair trials,” he added.
Several provisions of the 1959 Act are used to facilitate a transfer of cases involving military personnel from civilian to military courts, including for serious crimes against civilians. This has been used as a tool to avoid accountability in cases throughout Myanmar, such as its use to justify the early release of soldiers who were convicted by a military court in the killing of ten Rohingya civilians in Rakhine State in 2017.
International legal standards prohibit the use of military courts to try military personnel for gross human rights violations and crimes under international law. The detention and prosecution of journalists, based solely on their lawful activities undertaken while doing their job, violates the right to freedom of expression, and the rights to seek, receive and impart information and to participate in public affairs.
Myanmar authorities have an obligation to reopen the case of Ko Par Gyi with a view to establishing the circumstances of his death, as with any potentially unlawful killing by either State or non-State actors.
“By empowering civilian courts to oversee such cases, the NLD Government would send a powerful message to all justice sector institutions, including police, prosecutors and judges, that they can and should review potential crimes involving the military with independence and impartiality, in line with the rule of law,” added Bain.
The National League for Democracy (NLD)-led Government has the legislative authority to immediately reform the 1959 Act to align it with international standards. The ICJ has called for reform of this law, including by allowing the prosecution of soldiers for serious crimes to be undertaken under the jurisdiction of civilian courts.
See also:
ICJ, “The investigation and prosecution of potentially unlawful death: ICJ Practitioners’ Guide no. 14,” 14 September 2019, available here.
ICJ, “Achieving Justice for Gross Human Rights Violations in Myanmar – a baseline study,” 16 January 2018, available here.
Contact
Sean Bain, ICJ legal adviser, e: sean.bain(a)icj.org
Full statement with additional information, in English: Myanmar-Ko Par Gyi killing-Press-Releases-2019-ENG (PDF)
Full statement, in Burmese: Myanmar-Ko Par Gyi killing-Press-Releases-2019-BUR (PDF)
Jan 16, 2018 | News, Publications, Reports, Thematic reports
Myanmar’s government must take concrete action to counteract decades of military impunity for human rights violations, the ICJ concluded in a report published today.
The report Achieving Justice for Gross Human Rights Violations in Myanmar finds that gross human rights violations in Myanmar rarely go punished, particularly in conflict areas.
Justice remains elusive for victims and their families as a result of laws, institutions and investigative practices that protect members of security forces from prosecution, the ICJ says.
“Decades of denial of justice for victims of gross human rights violations in Myanmar, and impunity for the perpetrators, particularly when involving the military, have severely eroded the rule of law,” said Sam Zarifi, the ICJ’s Secretary General.
“The Myanmar government must now take concrete steps to combat impunity, especially for the military,” he added.
The release of the ICJ’s report follows last week’s statement from the Office of the Commander in Chief of the Tatmadaw, Myanmar’s military, acknowledging that security forces had participated in the killing of ten Rohingya Muslims in Rakhine State’s Inn Dinn Village.
It is the Tatmadaw’s first admission of serious crimes perpetrated by security forces during its ‘clearance operations’, which have resulted in mass displacement and human rights violations, following attacks on police posts by the Arakan Rohingya Salvation Army on 25 August 2017.
Military and security personnel in Myanmar seldom face justice for human rights violations, because they are protected by legal provisions of the 2008 Constitution, the 1959 Defence Services Act and the 1995 Police Force Maintenance of Discipline Law, which include immunities and special courts that shield soldiers, police and officials from public criminal prosecutions for serious crimes, the ICJ notes.
The ICJ’s report finds that investigations into allegations of rights violations rarely result in effective prosecutions or redress.
Eight case studies – from Kachin, Karen, Mon and Rakhine states – illustrate how victims and their families, as well as journalists and human rights defenders, lack access to justice and are even harassed for seeking it.
“Admission of culpability for this one incident is an important first step and must be followed by a full and proper investigation, and justice for the victims and their families,” said Zarifi.
“The dire human rights situation in northern Rakhine State, and in conflict areas such as in Shan and Kachin states, necessitates credible, independent and impartial investigations with a view to publicly prosecute those responsible for unlawful acts and their commissioning.”
“Options available to the parliament and to the executive include addressing barriers to accountability, by reforming laws that protect security forces involved in serious crimes, and by aligning investigative procedures with international standards,” he added.
Contact
Alex Conte, ICJ Global Accountability Coordinator (Geneva), t: +41 79 957 2733; e: alex.conte(a)icj.org
Frederick Rawski, ICJ Asia Pacific Regional Director (Bangkok), t: +66 6 4478 1121 ; e: frederick.rawski(a)icj.org
Background
Special inquiries commissioned by the Government of Myanmar into allegations of human rights violations generally fail the test of independence and impartiality, or are severely undermined by inadequate resources and or restricted mandates.
These inquiries rarely result in effective prosecutions or access to remedies and reparation.
Members of security forces, when prosecuted, usually appear in military or special police courts, which generally impose low or meaningless sanctions that are wholly inconsistent with penalties applicable in Myanmar’s Penal Code.
Laws governing military and police acts are inadequate for the victims of human rights violations because they do not contemplate the provision of remedies and reparation.
There is very limited precedent or established practice for the provision of effective remedies or reparation for victims of criminal acts in Myanmar, particularly when such crimes involve human rights violations by State actors.
Wittingly or unwittingly, relevant authorities routinely violate national laws that prescribe procedures for the conduct of criminal investigations and prosecutions, particularly in politically sensitive cases involving human rights violations.
Violations of basic fair trial rights, included in national laws, are commonplace.
State authorities continue to exert improper influence on politically-sensitive court cases including those involving allegations of gross human rights violations.
Courts tend to not intervene where human rights violations are occurring nor do they guarantee non-repetition where they have occurred.
Prosecutors rarely, if ever, accept petitions from victims of gross human rights violations to initiate criminal proceedings.
The judicial harassment of victims of human rights violations is commonplace in Myanmar when victims, their families or lawyers seek remedies or reparation through the courts or other mechanisms.
Defamation and unlawful association are among the criminal charges commonly instituted by authorities, including against journalists investigating human rights violations or working in conflict areas.
Overall, Myanmar’s prosecutors lack the independence to effectively prosecute acts involving human rights violations.
Interference with and intimidation of lawyers, particularly in politically sensitive cases involving human rights violations, undermines their to effectively represent clients and to pursue effective remedies and reparations.
Download
Myanmar-GRA Baseline Study-Publications-Reports-Thematic reports-2018-ENG (full report in English)
Myanmar-GRA-Baseline Study-Publications-Reports-Thematic-reports-2018-BUR (full report in Burmese)
Myanmar-Accountability Baseline report-News-Press releases-2018-BUR (Burmese translation)
Read also
Questions & Answers on Human Rights Law in Rakhine State
Reuters journalists detained in Myanmar: respect their rights, end their incommunicado detention