Mar 1, 2019 | News
On 28 February and 1 March, the ICJ met with senior officials of the Myanmar Police Force (MPF) and the Union Attorney General’s Office (UAGO) in Nay Pyi Taw.
The purpose of these talks was to promote the conduct of effective investigations into potentially unlawful deaths and enforced disappearance in accordance with international human rights law and standards, particularly the Minnesota Protocol on the Investigation of Potentially Unlawful Deaths (“Minnesota Protocol”).
Under customary international law, the right to life, and the right to be free from torture and other ill treatment, is not to be restricted even during an armed conflict or declared public emergency. All States are obliged to investigate, prosecute and punish acts that constitute violations of the right to life, and to provide effective remedies and reparations to victims.
Published by the United Nations Office of the High Commissioner for Human Rights, the Minnesota Protocol provides guidance to authorities on investigating acts amounting to human rights violations, including when State actors may have been involved. Drawing upon international law and standards, including in relation to the rights of victims and their families, the Protocol includes detailed guidelines on crime scene investigation, interviews, exhumations and autopsies.
Since December 2017, the ICJ has co-hosted four regional workshops in Thailand focused on this topic. Attendees have included lawyers, academics and State authorities from Thailand, Cambodia, Nepal, India and Myanmar.
Frederick Rawski, Director for Asia and the Pacific, Sean Bain, Legal Adviser, and Ja Seng Ing, Legal Researcher, composed the ICJ delegation in Myanmar’s capital.
Frederick Rawski proposed opportunities to continue these discussions on international standards into investigative procedures and processes. The ICJ Team also provided updates about related activities undertaken regionally and in Myanmar.
The ICJ has worked with the UAGO since 2014 to provide assistance on prosecutorial independence and human rights in the context of Myanmar’s broader democratic and legal reforms. This was the third meeting with the MPF over the last twelve months to discuss the conduct of investigations inline with international human rights law and standards.
Members of UAGO and MPF received copies of the Minnesota Protocol and indicated these would be shared with officials involved in the conduct of investigations or in setting the standards for them under national law in Myanmar.
Jan 3, 2019 | Advocacy, News, Non-legal submissions
On 30 December 2018, the ICJ and the International Service for Human Rights (ISHR) jointly submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee) directed against Thailand.
They did this as a State Party to the Optional Protocol to the UN Convention on the Elimination of All Forms of Discrimination against Women (the CEDAW Convention) on behalf and with the consent of Angkhana Neelapaijit, regarding the alleged enforced disappearance of her husband, Somchai Neelapaijit.
Somchai Neelapaijit, a prominent lawyer and human rights defender, disappeared after being stopped on a road in Bangkok on 12 March 2004 and pulled from his car by a group of men. He has not been seen since. More than 14 years after his alleged enforced disappearance, Somchai’s fate and whereabouts remain unknown.
Prior to his disappearance, Somchai had been defending clients from Thailand’s southern border provinces and had been doing extensive work to advocate for the rights of persons accused of terrorism, and to highlight the treatment of Malay-Muslims in the region.
The joint communication by ICJ and ISHR to the CEDAW Committee submits that Thailand has breached Articles 2(b)(c)(f), 5(a)(b), 15(1) and 16(1)(c)(d) of the CEDAW Convention, which relate to the rights of women to substantive equality and protection from all forms of discrimination, including in all matters relating to marriage and family relations, as well as to their right to an effective remedy for violations of the abovementioned provisions.
The communication further highlights the impact of enforced disappearance on family members of a disappeared person, noting its disproportionate impact on wives and female relatives, as most cases of enforced disappearance in Thailand involve male victims.
In addition to the CEDAW Convention and its Optional Protocol, Thailand is a party to a number of other international human rights instruments, including the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In January 2012, Thailand also signed the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), thereby committing itself to refrain from acts that would defeat the object and purpose of that treaty, namely the prevention and prohibition of the crime of enforced disappearance.
The ICJ has consistently called upon the Thai authorities to comply with their obligations under international human rights law to independently, impartially and effectively investigate the case of Somchai Neelapaijit and all other reported cases of enforced disappearance, and provide the families of the victims in such cases with access to effective remedies and reparations, including regular updates on the status of the investigations.
The ICJ has also submitted recommendations to the Thai authorities on the current Draft Prevention and Suppression of Torture and Enforced Disappearances Act, highlighting the crucial need for a domestic law to define and criminalize enforced disappearance and torture in line with Thailand’s international obligations.
Thailand-Communication to CEDAW-Advocacy-2019-ENG (full submission, in PDF)
Contact
Livio Zilli, ICJ Senior Legal Adviser & UN Representative, email: livio.zilli(a)icj.org
Read also
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Thailand: pass legislation criminalizing enforced disappearance, torture without further delay
On the 10th anniversary of Somchai Neelapaijit’s alleged disappearance, the ICJ released a report ‘Ten Years Without Truth: Somchai Neelapaijit and Enforced Disappearances in Thailand’ documenting the legal history of the case.
Nov 28, 2018 | News
The Egyptian authorities must drop the charges against nine detainees arrested on 1 November 2018 and immediately and unconditionally release them and at least 31 others arrested and in some cases “disappeared” since late October 2018, or otherwise charge them with a recognizable crime consistent with international law, the ICJ said today.
Those arrested in the present sweeps include human rights defenders (HRDs), lawyers, and political activists and persons otherwise providing support to political detainees. Reports indicate that at least some of those detained are connected to the Muslim Brotherhood. The ICJ is concerned that many if not all of these detainees are being held solely for political reasons.
On Wednesday 21 November, nine detainees held since 1 November 2018—Hoda Abdel Moneim, Mohamed Abu Hurayra, Bahaa Auda, Aisha Al Shater, Ahmed El Hodeiby, Mohamed El Hodeiby, Somaya Nassef, Marwa Madbouly and Ibrahim Atta—were interrogated by the State Security Prosecution, who ordered they be held in pre-trial detention for 15 days.
According to information available to the ICJ, the prosecution charged the nine with joining and funding a terrorist organization and incitement to harm the national economy under Egypt’s Counter-Terrorism Law No. 94/2015 (Case No. 1552/ 2018).
Lawyers representing the detainees were not permitted to access the case files, nor were they allowed to speak with the defendants in private. One of the detainees interrogated on 21 November was also interrogated on 19 November 2018 without the presence of a lawyer. It is unclear when the State Security Prosecution ordered their pre-trial detention.
At least three other detainees also appear to have been interrogated on 24 November 2018, including Ahmed Saad, Ahmed Ma’touk and Sahar Hathout. No information is known about whether an order for their pre-trial detention has been issued.
“These arbitrary arrests and trumped up charges are yet another example of the relentless assault by the military and government on the exercise of the rights to freedom of expression and association and to take part in political activity,” said Said Benarbia, ICJ’s MENA Programme Director. “Targeting anyone having any connection to opposition groups under the government’s ‘war on terrorism’ erodes the rule of law in Egypt, undermines human rights, and means there’s now very little, if any, room to carry out human rights work.”
According to public reports, at least 31 others were arrested by Egyptian authorities in raids in late October or early November 2018. Despite repeated calls on the authorities to provide information regarding their location, their whereabouts remain unknown, raising serious concerns for their health and safety. After human rights lawyer Hoda Abdel Moneim—one of the nine now charged—was held incommunicado for 21 days, her family issued a statement expressing concern about her “dire [physical and psychological] health condition.”
It is well established that the Egyptian authorities engage in the widespread and systematic use of torture. Although Egypt’s Constitution, Criminal Procedure Code and Penal Code require that detainees be held in official places of detention with judicial oversight and prohibit torture and other mistreatment, these safeguards have proven ineffective in practice.
The United Nations Committee Against Torture previously reported on the torture of hundreds of people disappeared by the Egyptian authorities. The ICJ is concerned about the high probability that these detainees have been tortured.
“The authorities should unconditionally and immediately release those arrested solely for exercising their human rights and fundamental freedoms, bring any others immediately before a judge to review whether there is any lawful basis for their detention and for any charges brought, and ensure that all those deprived of their liberty are protected against torture and other ill-treatment,” said Said Benarbia.
Contact:
Said Benarbia, Director of the ICJ Middle East and North Africa Programme, t: +41-22-979-3817; e: said.benarbia(a)icj.org
Background
Among those arrested in late October and early November 2018 were human rights lawyer and former spokesperson of the ECRF, Mohammed Abu Hureira, and his wife, Aisha al-Shater, daughter of imprisoned deputy chairman of the Muslim Brotherhood, Khairat al-Shater, as well as human rights lawyer Hoda Abdelmoniem, a former member of the National Council for Human Rights, who was arrested at her home after it was raided without warrant. At least eight of the 40 arrested are women. Reports from local human rights lawyers and organizations suggest that the number of persons arrested and arbitrarily detained could be higher.
The arrests are part of Egypt’s orchestrated crackdown on human rights work, in which human rights defenders and critics are arbitrarily arrested and detained, subjected to enforced disappearance, prosecuted in unfair trials, and sometimes sentenced to death. Two other members of the ECRF, including its Executive Director, were arrested in March 2018 and forcibly disappeared in September after an Egyptian Court ordered their release. Following the latest arrests, the ECRF—which documents enforced disappearances and Egypt’s increasing application of the death penalty—suspended its operations in protest.
On 10 September 2018, the Cairo Criminal Court convicted 739 defendants for their participation in the Raba’a Al Adaweyya square protests in August 2013 after a grossly unfair trial, sentencing 75 defendants to death and 658 defendants to life or five to 15 years’ imprisonment.
On 24 April 2018, following an unfair trial, the Cairo military court convicted former judge and former head of the Central Auditing Authority, Hisham Geneina, to five years in prison for “publishing false information harmful to the national security.”
The arrests place Egypt in breach of its international legal obligations, including under the International Convention on Civil and Political Rights (ICCPR). Article 9 of the ICCPR protects freedom from arbitrary arrest and detention and imposes an obligation on States to ensure a number of protections in respect of detention.
These include the requirement that detainees be brought promptly before a judge so their detention can be reviewed; have the right independently to challenge the lawfulness of their detention; and have the right to access legal counsel. Article 14 of the ICCPR also requires states to ensure detainees have access to legal counsel. Judicial oversight of detention is particularly necessary to protect detainees from torture and cruel, inhumane and degrading treatment.
Articles 19, 22 and 25 of the ICCPR also protect the rights to freedom of expression, to freedom of association and to participate in public affairs. Articles 5-8 of the United Nations Declaration on Human Rights Defenders similarly protects such rights exercised by HRDs and Article 12 requires states to protect HRDs from violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action for the lawful exercise of such rights.
Under Egyptian Law, Article 56 of the Constitution and Articles 41-42 of the Criminal Procedure Code require that detainees be held in official places of detention and subject to judicial supervision, including judicial power to inspect places of detention and review each detainee’s case. Articles 51-52 and 55 of the Constitution, Article 40 of the Criminal Procedure Code and Article 126 of the Penal Code prohibit torture and other mistreatment.
In June 2018, the ICJ expressed its concerns about Egypt’s repeated renewals of the State of Emergency since April 2017, and the use of the state of emergency to suppress the activities of and persecute students, human rights defenders, political activists, union members and those suspected of opposing the government.
Egypt-November Arrests-News-Web Story-2018-ARA (PDF in Arabic)
Nov 16, 2018 | News
The South Cairo Criminal Court’s conviction and sentencing on 11 November 2018 of Assistant Detective Mohamed Sayed Abdel Halim and Police Officer Mohamed Ahmed Salem to three years and six months’ imprisonment respectively for conduct involving the torture and killing of 22-year-old Mohamed Abdel-Hakim Mahmoud does not amount to justice for the crimes against him, the ICJ said today.
The ICJ called on prosecutors to consider options for appeal or new charges that could hold the perpetrators properly to account for serious crimes, with sanctions appropriate to the gravity of their conduct and in line with international law.
The two officers apparently unlawfully arrested Mohamed Abdel-Hakim Mahmoud, otherwise known as “Afroto,” on 5 January 2018 and subjected him to severe beatings and other torture, as a result of which he died.
The Court convicted Abdel Halim of “beating that led to death,” a crime that carries a sentence of three to seven years’ imprisonment under Article 236 of the Egyptian Penal Code, and Salem of “light beating.”
“The low sentences imposed by the Court are completely disproportionate to the conduct of the perpetrators, who beat Afroto, threw him into a cell and then beat him again when he complained he was unable to breath. The perpetrators should have been held accountable for their true criminal conduct, which included torture and murder in police custody,” said Kate Vigneswaran, Senior Legal Adviser of the ICJ MENA Programme.
“The Egyptian authorities’ consistent efforts to immunize public officials from real accountability denies the victims and their families their right to redress and reinforces the Egyptian people’s increasing lack of trust in the Egyptian government and judicial system,” she added.
The definition of torture under Article 126 of the Egyptian Penal Code only establishes liability for torture for the purpose of obtaining a “confession” against a suspect, falling far short of the standard required by the Egyptian Constitution and the Convention Against Torture (CAT), which contemplate torture being undertaken for any number of purposes. The Penal Code also imposes penalties—hard labour and the death penalty—inconsistent with human rights, including for torture and murder.
“Egypt should amend the Penal Code to prohibit all forms of torture and abolish the death penalty and hard labour,” said Kate Vigneswaran.
“The authorities are obligated under international law to ensure effective justice for crimes committed by public officials by charging them with crimes and imposing sentences reflecting their criminal conduct. Legislative reform is needed to both ensure accountability for victims and uphold the rights of perpetrators,” she added.
Contact:
Kate Vigneswaran, Senior Legal Adviser, ICJ Middle East and North Africa Programme, m: +31 624894664, e: kate.vigneswaran@icj.org
Egypt-Afroto Verdict-News-2018-ENG (full story with additional information, in PDF)
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.
