The ICJ called today on the Spanish Supreme Court to move expeditiously to revise and quash the conviction of Judge Baltasar Garzon for abuse of power and to reinstate him in the judiciary, after the UN Human Rights Committee found that the convictions in two trials against him were in breach of his fair trial rights.
The Colombian Commission of Jurists (CCJ) and the ICJ invite you to a discussion on the strengths and challenges that the System and its institutions face. The event takes place Thursday, 19 September 2019, at 11:00 – 12:00, room XXI, in the Palais des Nations.
One of the essential elements of the peace agreement between the Colombian government and the FARC-EP was the creation of an Integral System of Truth, Justice, Reparation and Non-Repetition. This System contains a set of transitional mechanisms to protect and guarantee victims’ rights. It comprises three institutions: a tribunal called the Special Jurisdiction for Peace (JEP), a Truth commission, and a Unit to search for the missing persons. A year ago, after some delays, the three institutions have entered into operation. They all have made significant advances in fulfilling victims’ rights. However, there are still several challenges they must face to be considered successful transitional justice mechanisms.
The panel will feature:
Moderator:
Speakers:
Printed copies of the ICJ report “Colombia: Jurisdicción Especial para la Paz, análisis a un año y medio de su entrada en funcionamiento” will be available. (Full version in Spanish and Executive Summary in English)
A flyer for the event is available here.
Today at the UN Human Rights Council, the ICJ emphasised the importance of effective investigations capable of leading to truth and justice, highlighting recent developments in Manipur, India as an example.
The statement read as follows:
“Justice processes in situations of conflict or transition require fighting impunity and re-establishing public trust.[1] An example is the new prospects for justice in relation to 1528 alleged extrajudicial killings cases in Manipur, India, which would make an important contribution to a transition out of the long-standing conflict.
In July 2016, in response to a petition filed on behalf of the victims, the Indian Supreme Court stated that “there is no concept of absolute immunity from trial…”,[2] opening the door to ending impunity. As of August 2018, the Central Bureau of Investigation has registered 29 complaints against security forces.[3] Recent reports suggest that the Government is also considering amending the Armed Forces Special Powers Act (AFSPA) to remove or restrict existing overbroad authorizations for use of lethal force.[4]
These are welcome developments. However, concerns remain, as the investigation status of the majority of the cases is unknown. Two UN Special Rapporteurs in July 2018 also affirmed that justice must be done in all cases.[5]
The ICJ calls on India to ensure independent, impartial and thorough investigations into all cases in Manipur, amend AFSPA, and to uphold the right to truth of victims and society about acts committed and the identity of perpetrators, in line with its international and national legal obligations, including as a party to the International Covenant on Civil and Political Rights.”
[1] Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, A/HRC/39/53 (25 July, 2018), http://www.undocs.org/A/HRC/39/53.
[2] Para 163, Extra Judicial Execution Victim Families Association (EEVFAM) & Anr. v. Union of India & Anr. Writ Petition (Criminal) No. 129/2012.
[3] TNN, “Army Major named in FIR for killing 12-yr-old in fake Manipur encounter”, Times of India, August 3, 2018, https://timesofindia.indiatimes.com/city/imphal/army-major-named-in-fir-for-killing-12-yr-old-in-fake-manipur-encounter/articleshow/65252258.cms.
[4] “In AFSPA, Government Considering Crucial Changes”, NDTV, September 13, 2018, available at https://www.ndtv.com/india-news/in-afspa-government-considering-crucial-change-sources-1915706.
[5] Special Rapporteur on extrajudicial, summary or arbitrary executions and Special Rapporteur on the situation of human rights defenders, “India: UN experts call for urgent progress in investigation of hundreds of ‘fake encounter’ killings” (4 July 2018), https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23323&LangID=E .
South Asian states can only address the tens of thousands of cases of enforced disappearances by recognizing enforced disappearance as a serious crime in domestic law, said the ICJ today.
On the eve of the International Day of the Victims of Enforced Disappearances, the ICJ 58-page report No more ‘missing persons’: the criminalization of enforced disappearance in South Asia analyzes States’ obligations to ensure that enforced disappearance constitutes a distinct, autonomous crime under national law.
It also provides an overview of the practice of enforced disappearance, focusing specifically on the status of the criminalization of the practice, in five South Asian countries: India, Pakistan, Bangladesh, Sri Lanka and Nepal.
For each State, the report briefly examines the national context in which enforced disappearances are reported, the existing legal framework, the role of the courts; and the international commitments and responses to recommendations concerning criminalization.
“It is alarming that despite the region having some of the highest numbers of reported cases of disappearances in the world, enforced disappearance is not presently a distinct crime in any South Asian country,” said Frederick Rawski, ICJ’s Asia Director.
“This shows the lack of political will to hold perpetrators to account and complete apathy towards victims and their right to truth, justice and reparation,” he added.
In Nepal and Sri Lanka, draft legislation to criminalize enforced disappearance is under consideration.
Though the initiatives are welcome, the draft bills in both countries are flawed and require substantial improvements to meet international standards.
In the absence of a clear national legal framework specifically criminalizing enforced disappearance, unacknowledged detentions by law enforcement agencies are often treated by national authorities as “missing persons” cases.
On the rare occasions where criminal complaints are registered against alleged perpetrators, complainants are forced to categorize the crime as “abduction”, “kidnapping” or “unlawful confinement”.
These categories do not recognize the complexity and the particularly serious nature of enforced disappearance, and often do not provide for penalties commensurate to the gravity of the crime.
They also fail to recognize as victims relatives of the “disappeared” person and others suffering harm as a result of the enforced disappearance, as required under international law.
“Like torture and extrajudicial execution, enforced disappearance is a gross human rights violation and a crime under international law,” said Rawski.
“South Asian States must recognize that they have an obligation to criminalize the practice with penalties commensurate with the seriousness of the crime–filing “missing” person” complaints in cases of disappearance is not enough, and in fact, it trivializes the gravity of the crime,” he added.
Other barriers to bringing perpetrators to account are also similar across South Asian countries: military and intelligence agencies have extensive and unaccountable powers, including for arrest and detention, often in the name of “national security”; members of law enforcement and security forces enjoy broad legal immunities, shielding them from prosecution; and military courts have jurisdiction over crimes committed by members of the military, even where these crimes are human rights violations, and proceedings before such courts are compromised by their lack of independence and impartiality.
Victims’ groups, lawyers, and activists who work on enforced disappearance also face security risks including attacks, harassment, surveillance, and intimidation.
A comprehensive set of reforms, both in law and policy, is required to end the entrenched impunity for enforced disappearances in the region – criminalizing the practice would be a significant first step, said the ICJ.
Contacts:
Frederick Rawski (Bangkok), ICJ Asia Pacific Regional Director, e: frederick.rawski(a)icj.org
Reema Omer, ICJ International Legal Advisor (South Asia) t: +923214968434; e: reema.omer(a)icj.org
Thyagi Ruwanpathirana, ICJ National Legal Advisor (Sri Lanka), e: thyagi.ruwanpathirana(a)icj.org
Background
Under international law, an enforced disappearance is the arrest, abduction or detention by State agents, or by people acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the detention or by concealing the fate or whereabouts of the “disappeared” person which places the person outside the protection of the law.
The UN General Assembly has repeatedly described enforced disappearance as “an offence to human dignity”.
South Asia-Enforced Disappearance-Publications-Reports-Thematic Reports-2017-ENG (full report in PDF)
The ICJ has made an oral statement to the UN Human Rights Council on a range of measures needed to ensure truth, justice, reparations and non-repetition of past violations, in Nepal.
The statement read as follows:
TRUTH, JUSTICE, REPARATION, AND GUARANTEES OF NON-RECURRENCE IN NEPAL
10 March 2017
Mr. President
Without effective measures to ensure truth, justice, reparation and guarantees of non-recurrence, countries in situations of transition or post-conflict fail victims and put future reconciliation, peace and stability at risk. One example is Nepal.
Nepal’s Truth and Reconciliation Commission and Commission of Investigation on Disappeared Persons have not been effective. Changes are needed to bring their legal frameworks and operations in line with international standards and Supreme Court jurisprudence. These bodies require adequate resources. Trust-building measures including consultation processes must address the perspectives and needs of victims and for victims to feel ownership over the transitional justice process in Nepal.
Nepal must ensure prompt, independent and impartial investigation and prosecutions for serious human rights violations, including those committed during the armed conflict.
It must ensure justice and reparation for victims, including as provided for in the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation.
It must criminalize serious crimes under international law in a manner that is consistent with international law, to help prevent such violations ever occurring again.
Nepal should also issue a standing invitation to all thematic special procedures of the Council.
Thank you, Mr. President.
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