Mar 8, 2018 | News
The Sri Lankan government must act swiftly and in line with human rights to prosecute those responsible for recent communal violence.
Particularly for attacks against the minority Muslim community in Kandy district, while avoiding the abusive practices of the past, said the ICJ today.
Sri Lanka’s President, Maithripala Sirisena, proclaimed an island-wide state of emergency on 6th March 2018, following a curfew imposed in several areas since Monday.
The action came following a spate of attacks against members of the Muslim community that was spreading in the Kandy district, following attacks in Ampara last week, in Gintota in 2016, and Aluthgama in 2014.
“The government must show that it will bring to account those who have incited communal violence, particularly notorious figures who have been emboldened by the pervading impunity to preach hatred openly and publicly. The arrest of key suspects yesterday is a start and convictions must follow,” said Frederick Rawski, ICJ’s Asia director.
“But the government must ensure that its investigation is impartial and effective and follows due process of the law,” he added.
The ICJ called upon the government of Sri Lanka to swiftly prosecute those responsible for inciting and carrying out the communal violence using existing legal provisions in the Penal Code and the ICCPR Act, the latter of which prohibits advocating “national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.”
The ICJ is concerned that the Emergency Regulations issued by the President through powers under the Public Security Ordinance, confer excessively broad powers on the army and the police to search, arrest and investigate.
“Given Sri Lanka’s experience of Emergency Regulations, the government should ensure that these regulations are time-bound and comply with Sri Lanka’s international human rights obligations, including under the International Covenant on Civil and Political Rights,” said Rawski.
The government has further restricted access to selected instant messaging applications and social media platforms “as an extraordinary but temporary response to limit the increasing spread of hate speech and violence through social media websites and phone messaging applications.”
“Blocking social media and other communication channels, even with the best of intentions, typically has the negative effect of restricting affected persons from seeking assistance, journalists from reporting around the situation and may actually undermine efforts to counter violence and hate speech. Any such measures should be narrowly targeted and limited in time,” said Rawski.
“A better approach would be for the Sri Lankan government to aggressively push back against these hateful narratives by demonstrating in actions as well as its rhetoric that Sri Lanka is a diverse country in which all of its citizens’ rights are respected and protected equally,” he added.
Background
Chapter XVIII of the Constitution and the Public Security Ordinance of Sri Lanka empowers the President to make emergency regulations in the interest of ‘public security and the preservation of public order or for the maintenance of supplies and services essential to the life of the community.’ Sri Lanka has a history of governance using emergency powers, which in the past has posed a challenge for democratic governance and human rights, providing law enforcement with wide powers, circumventing ordinary checks and balances.
The President, while justifying circumstances that led to his proclamation of a state of emergency, has stated that he “has given special instructions the Police and the tri-forces to take action in terms of these regulations, in a lawful manner in good faith while ensuring minimum disturbance to the life and well-being of people, in conformity with Fundamental Human Rights of people.”
Mar 5, 2018 | Advocacy, Non-legal submissions
The ICJ today delivered an oral statement to the UN Human Rights Council, on transitional justice, prevention and impunity, highlighting the continuing problem of impunity in Nepal.
The statement, which was made during a clustered interactive dialogue with the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence and the Special Adviser of the Secretary-General on the Prevention of Genocide, read as follows:
“The International Commission of Jurists (ICJ) remains deeply concerned by continuing impunity for gross human rights violations in many parts of the world, which undermines the potential for transitional justice to contribute to prevention as outlined in the Joint Study (A/HRC/37/65).
For example, in Nepal, more than ten years after the civil war, political expediency has trumped calls for justice and accountability. There has been near absolute impunity for those responsible for serious crimes under international law.
Transitional justice mechanisms – the Truth and Reconciliation Commission (TRC) and Commission on Investigation of Disappeared Persons (CoID) – have fallen short of international standards, both in their constitution and their operation, despite repeated orders by the Supreme Court of Nepal to enforce the standards.
The Commissions’ deeply flawed mandates, among other problems, allow them to recommend amnesties for gross human rights violations. In addition, their non-consultative, uncoordinated and opaque approach to their work has also created distrust with all major stakeholders, including conflict victims and members of civil society.
The Government continues to flout its obligation, both pursuant to the Supreme Court’s orders and under international law, to enact domestic legislation to criminalize serious crimes in accordance with international standards.
As highlighted by in the Joint study, turning a blind eye on past atrocities signals that some perpetrators are above the law, which further discredits State institutions and “breeds a (long-standing) culture of impunity in which atrocities may become ‘normalized’, rendering prevention significantly more difficult.” (para 43)
That, indeed, is the experience in Nepal: continuing impunity for gross human rights violations perpetrated during the conflict is one of the major obstacles to the creation of a stable and legitimate democratic government and lies at the heart of the rule of law crisis in the country. Ending impunity is essential to preventing further violations.”
Video of the statement is available here:
The delegation of Nepal exercised its right to reply later in the day. Its reply is here:
The ICJ oral statement complements a related written statement by the ICJ at the session.
Dec 5, 2017 | News
Guatemalan indigenous and peasant communities are finally finding a measure of justice and recovering lands and territories that had previously been seized by authorities or private economic actors, including during the internal armed conflict that took place from 1960 to 1996.
The ICJ learned of these encouraging developments at a workshop it held jointly with the UN Office of the High Commissioner on Human Rights (OHCHR) at an International Workshop on strategic litigation in the defense of land and territory, in Guatemala City, between 9 and 10 November.
One of the successful stories, told by Don Pedro Herrera, a community leader from Tzalbal community, municipality of Nebaj, Department of Quiché (Northern Guatemala), concerns a favourable decision by a first instance judge in Nebaj, in August 2016, ordering the restitution of some 1485 hectares (33 caballerias in the old measurement system still in use in Central America) to the Tzalbal communities.
The decision is under appeal before Guatemala’s Constitutional Court, but the Workshop heard that it had already boosted morale and hope among members of local communities on prospects for restitution for violations of their land rights.
The 33 caballerias had been segregated from the rest of municipal and community land in around 1984, in the midst of the Guatemalan civil war and as part of the counter-insurgency plans drawn by the military rulers purportedly to create loyal villages in the frontline to combat insurgency.
Most members of the community at the time had fled their homes, fearing for their lives that were threatened by both the armed insurgency and State military forces.
The de facto local authorities were coerced into signing documents agreeing to the separation of the land, but much of the population had remained unconcerned with the operation.
However, in 2011 FONTIERRAS, the government land authority, revealed to the community that their land had in fact been registered as State property following the forced separation in 1984.
Since then, Tzalbal communities started to take concerted action to recover the lands that they considered to be lawfully theirs and were the places where they maintained their homes and livelihood.
Tzalbal communities have some 70 families with some 500 people of all ages. When they learned that the land they traditionally possessed was “legally” the property of the State of Guatemala, they approached the ICJ- to provide legal assistance.
An Amparo constitutional writ was filed on behalf of the Tzalbal communities requesting the court to protect the rights of property and due process under the Guatemalan Constitution and declare the entry of land property in favour of the State in the land register invalid.
In August 2016, the first instance judge ruled in favour of the communities and ordered the register to amend the entry into the land registry. However, the State representatives have appealed against the ruling and a public hearing on the case took place the first week of November 2017. A final decision on the case by the Constitutional Court is now awaited.
Land, territory and resources are crucial assets for the survival and well being of indigenous and other local communities in Guatemala and other countries. For indigenous peoples, there is also an inherent and special relationship with land and territory which many times acquires religious and cultural significance. At the Workshop on Strategic Litigation, several other groups explained how they carry on their fight for justice and in defense of their land and territory.
Several of those groups recognized the instrumental assistance from the Guatemala office of the UN High Commissioner for Human Rights, which through its Maya Programme provides advice and support to local communities in their defense of land and territory.
One case under discussion, still underway, concerns the legal challenge to the Environmental Impact Assessment carried out by the Island Oil Company pursuant an oil exploration and exploitation contract with the government involving five municipalities of El Petén department. El Petén is the location of the largest biosphere reserve in Guatemala, where, curiously, human settlements are not allowed but some oil companies are authorized to carry out operations.
The legal battle has been led by Qeqchi, Mopan and Itza peoples and supported by the Maya Programme. An administrative remedy known as opposition was filed before MARN, the national authority for the preservation of the environment, alleging the violation of rights such as lack of consultation and consent from local communities. The administrative authority ruled in favour of the plaintiffs and ordered the exploration to stop until regulatory requirements are fully complied with.
Over time, the work of the ICJ and other groups, taken in coordination with the UN human rights office in Guatemala, has begun to show results.
More and more communities are taking concrete steps to legally challenge the actions or laws that cause or perpetuate their dispossession of their traditional land and territory.
Oct 31, 2017 | News, Publications, Reports, Thematic reports
Effective measures to end impunity for crimes of torture in detention are needed to tackle the systematic recourse to torture and other ill-treatment of detainees in Tajikistan, the ICJ concluded in a report released today.
The ICJ report, Achieving Justice for Gross Human Rights Violations in Tajikistan, finds that although Tajikistan’s criminal procedure law is often in line with international law, including fair trial and other relevant guarantees, in practice it does not lead to effective protection of human rights.
The system is in practice unable to remedy or establish accountability for the serious human rights violations that occur systematically in detention, the report says.
Even where complaints of torture are made, it appears that very few lead to investigation, prosecution or conviction.
“The systematic recourse to torture and ill-treatment in detention undermines the integrity of the criminal justice system in Tajikistan, as well as notions of fairness and justice and the operation of the rule of law in the country,” said Temur Shakirov, Senior Legal Adviser at the ICJ’s Europe Regional Programme.
“Torture must always be treated as one of the most serious crimes. International human rights law requires that allegations of torture must be independently, promptly and thoroughly investigated and, where those responsible are identified, they must be brought to justice,” added Shakirov.
An effective system of prevention of torture and other ill-treatment in detention and for the provision of effective remedies and reparation for such violations is needed to tackle the systematic recourse to their use, the report finds.
The ICJ’s report identifies numerous factors that foster the widespread use of torture and other ill-treatment in Tajikistan, including:
- the lack of independence of the judiciary;
- the judges’ failure to uphold equality of arms between the defence and prosecution;
- the frequent failure by courts to inquire into allegations of torture or other ill-treatment raised by the defence;
- the tendency of courts to accept prosecution denials of such treatment without question; and
- courts’ regular failure to exclude evidence obtained by torture.
With heavy reliance by judges on self-incriminating statements made by suspects in the first hours of detention, the presumption of innocence remains to a large extent illusory, the report adds.
The report also demonstrates that a lack of guarantees for confidential lawyer-detainee meetings prevents detainees from effectively exercising their right to qualified legal assistance and to complain about ill-treatment if necessary.
“Systemic torture cannot be effectively eradicated unless lawyers are both individually and institutionally independent of the executive, are protected in carrying out their duties, and have unimpeded access to their clients in the first hours of detention, as required by international law and standards”, Shakirov said.
The report provides a comprehensive list of recommendations following a detailed analysis of applicable laws and practices in Tajikistan, including based on the findings and recommendations of different bodies of the United Nations human rights system.
Contact
Temur Shakirov, Senior Legal Adviser, Europe Programme, t: +41.22.979.3832; e: temur.shakirov(a)icj.org
Alex Conte, ICJ Global Redress and Accountability Initiative, t: +41.79.957.2733; e: alex.conte(a)icj.org
Tajikistan-GRA Baseline Study-News-Press-Release-2017-RUS (Press Release, Russian PDF)
Download
Tajikistan-GRA Baseline Study-Publications-Reports-Thematic reports-2017-ENG (full report in PDF, English)
Read also
ICJ Report ICJ Recommendations on the Independence of the Legal Profession in the Republic of Tajikistan (February 2016)
ICJ legal submission Alternative Report to the UN Human Rights Committee on the Second Periodic Report of Tajikistan under the International Covenant on Civil and Political Rights (June 2013)
Sep 27, 2017 | News
The ICJ has welcomed the recent decision of the African Commission on Human and Peoples’ Rights (ACHPR) on a recent decision found the Democratic Republic of Congo (DRC) responsible for the massacre of 70 people in Kilwa in 2004.
In its decision, the Commission not only urges the DRC State to pay 2.5 million US dollars compensation to eight victims and their families but also urges the DRC to prosecute Anvil Mining’s personnel involved in the massacre.
The African Commission also acknowledged the involvement of mining company Anvil Mining, an Australian-Canadian company (later bought by the Chinese company MinMetals) operating a copper and silver mine in Dikulushi, located 50 kilometers from Kilwa, that would
have provided logistical support to soldiers who bombarded civilians.
This decision sheds light on the corporate legal responsibility for human rights abuses, particularly in the extractive
industry sector, and suggests legal avenues for action against Anvil for alleged abuses.
Universal-KilwaMassacre-News-2017-ENG (full pdf ENG)
