Sep 27, 2018 | News
Today’s decision by the UN Human Rights Council to create an ‘independent mechanism’ to collect evidence of crimes in Myanmar, is a significant step toward accountability for gross human rights violations, the ICJ said.
“The creation of this evidence-gathering mechanism is a welcome concrete step towards justice,” said Matt Pollard, Senior Legal Adviser for the ICJ.
“But this is a stopgap measure, effectively creating a prosecutor without a court, that only underscores the urgent need for the Security Council to refer the entire situation to the International Criminal Court, which was created for precisely such circumstances,” he added.
The Council’s decision follows on conclusions and recommendations by the Independent International Fact-Finding Mission on Myanmar (FFM).
The FFM’s 444-page full report described large-scale patterns of grave human rights violations against minority groups in the country, particularly in Rakhine, Kachin and Shan States.
It also highlighted the need for criminal investigations and prosecutions for crimes under international law, something the FFM concluded that national courts and commissions within Myanmar could not deliver.
“National justice institutions within Myanmar lack the independence, capacity and often also the will to hold perpetrators of human rights violations to account, particularly when members of security forces are involved. The latest government-established inquiry in Rakhine State also seems designed to deter and delay justice,” Pollard said.
The Human Rights Council resolution did not create a new international court or tribunal.
Evidence held by the independent mechanism could be made available to international or national proceedings, whether at the International Criminal Court (ICC) or another ad hoc international tribunal, or to national prosecutors asserting jurisdiction over the crimes under universal jurisdiction or other grounds.
While there is no realistic prospect of effective national prosecutions within Myanmar in the near future, evidence held by the mechanism could also be available in future should national institutions eventually become sufficiently impartial, independent, competent, and capable to do so.
A preliminary examination of the situation of Rohingyas, being conducted by the ICC, may also lead to criminal proceedings but will likely be limited to those crimes that have partially occurred within Bangladesh, such as the crime against humanity of deportation.
Bangladesh is a State Party to the Rome Statute of the ICC whilst Myanmar is not.
The Security Council also has authority to refer the entire situation to the International Criminal Court.
“The Myanmar government should stop denying the truth and should work with the international community, and particularly the United Nations, to improve the horrific conditions facing the Rohingya and other ethnic minorities whose rights have been violated so brutally by the security forces, as documented by the Fact Finding Mission,” Pollard said.
“Myanmar’s international partners, including neighbours like India, China, and members of the Association of Southeast Asian Nations (ASEAN), should exercise their influence to help ensure that Myanmar addresses this serious threat to the stability of the country and the region, by ensuring respect, protection and fulfillment of the full range of civil, cultural, economic, political and social rights of the affected minorities,” he added.
The Council resolution makes several other substantive recommendations, including a call on the Government of Myanmar to review the 1982 Citizenship Law, and a recommendation for the United Nations to conduct an inquiry into its involvement in Myanmar since 2011.
Contact:
Matt Pollard, ICJ Senior Legal Adviser (Geneva), e: [email protected], +41 79 246 54 75.
Frederick Rawski, ICJ Asia Pacific Regional Director (Bangkok), e: [email protected]
Read also:
Why an IIIM and Security Council referral are needed despite the ICC ruling relating to Bangladesh (13 September 2018)
Government’s Commission of Inquiry cannot deliver justice or accountability (7 September 2018)
ICJ releases Q & A on crime of genocide (27 August 2018)
Myanmar: reverse laws and practices that perpetuate military impunity (16 January 2018)
Summary report of the Fact Finding Mission (12 September 2018)
Full report of the Fact Finding Mission (published 18 September 2018)
Text of the Resolution (unofficial version tabled in advance of the vote)
Myanmar-IIIM statement-Advocacy-2018-BUR (Full story in Burmese)
Sep 26, 2018 | Advocacy, Non-legal submissions
The ICJ today emphasised the continuing failure of domestic accountability mechanisms to ensure proper accountability for crimes under international law in Libya, speaking at the UN Human Rights Council in Geneva.
The statement, made during an Interactive Dialogue with the UN High Commissioner for Human Rights on her oral update on the situation in Libya, at the Human Rights Council in Geneva, read as follows:
“Mr President,
The International Commission of Jurists (ICJ) remains concerned by the scale and magnitude of the human rights violations that continue in Libya, and the failure of domestic accountability mechanisms to address them.
Impunity prevails for crimes under international law committed during and after the 2011 uprising, including extrajudicial killings, torture and other ill-treatment, and enforced disappearances. Broad amnesty laws allow those responsible to avoid prosecution.
Even in the rare cases where former officials of the Gadhafi regime have faced trial,[1] the integrity of the justice process has been compromised by failures to respect international fair trial standards, including the right to legal counsel and the right to call and examine witnesses.
On August 15, 2018, following an unfair mass trial, 99 defendants were convicted for the killing of 146 anti-Gaddafi protesters in Tripoli during the 2011 uprising.[2] 45 were sentenced to death, violating the right to life.
Such unfair trials and unlawful sentences not only violate the human rights of the accused: they deprive the victims of the crimes of the right to know the truth about the legacy of past violations and the legitimate and untainted justice to which they are entitled. New, fair trials are required.
Political and security instability in Libya undermines the ability of the judiciary to administer justice independently and impartially, including with a view to combating impunity. Judges and prosecutors are threatened, intimidated, abducted and in some instances killed, particularly when attempting to address crimes by members of armed groups.
The ICJ would like to ask the High Commissioner, how can other States and civil society help ensure that Libya, while fully cooperating with the International Criminal Court, implements an effective legal and practical framework to address crimes under international law and eradicate impunity?
Thank you.”
[1] Case 630/2012.
[2] https://www.hrw.org/news/2018/08/22/libya-45-sentenced-death-2011-killings.
Sep 18, 2018 | Events, Multimedia items, News, Video clips
The ICJ organized this side event today (Tuesday 18 September 2018), in cooperation with the Permanent Mission of the Netherlands, at the Human Rights Council.
https://www.facebook.com/ridhglobal/videos/1005764152964172/
Background
Particularly when crimes under international law are perpetrated on a large scale in situations of crisis, there is an urgent need to preserve evidence for use in eventual criminal proceedings, whether at the International Criminal Court or other national or international tribunals
Too frequently, obstacles prevent immediate direct recourse to international courts and prosecutors. One response has been the creation of mechanisms to collect and preserve the evidence in the meantime. Examples include the International Independent and Impartial Mechanism (IIIM) for Syria, and the Commission on Human Rights in South Sudan.
At the current session of the Human Rights Council, the Fact-Finding Mission on Myanmar has called for establishment of an IIIM pending referral to the ICC or an ad hoc tribunal.
Opening Remarks:
Ambassador Monique T.G. van Daalen, Permanent Mission of the Netherlands
Moderator:
Saman Zia-Zarifi, Secretary General, International Commission of Jurists
Panelists:
- Catherine Marchi-Uhel, Head, International, Impartial and Independent Mechanism (IIIM) for Syria
- Yasmin Sooka, Chairperson, Commission on Human Rights in South Sudan
- Sanji Monageng, former Judge/Vice-President of the ICC, and Commissioner of the ICJ
- Stephen Rapp, Chair, Commission for International Justice & Accountability (CIJA), Distinguished Fellow, US Holocaust Memorial Museum, and former United States Ambassador-at-Large for Global Criminal Justice
- Kingsley Abbott, ICJ Senior Legal Adviser (Global Accountability), formerly with the Extraordinary Chambers in the Courts of Cambodia and the Special Tribunal for Lebanon
Universal-ICJ-NL-Side event-News-events-2018-ENG (flyer of the event in PDF)
Sep 11, 2018 | Events, News
The ICJ will organize this side event, in cooperation with the Permanent Mission of the Netherlands, at the Human Rights Council on Tuesday 18 September 2018 from 15:30 – 16.30 in Room XXII of the Palais des Nations.
Particularly when crimes under international law are perpetrated on a large scale in situations of crisis, there is an urgent need to preserve evidence for use in eventual criminal proceedings, whether at the International Criminal Court or other national or international tribunals
Too frequently, obstacles prevent immediate direct recourse to international courts and prosecutors. One response has been the creation of mechanisms to collect and preserve the evidence in the meantime. Examples include the International Independent and Impartial Mechanism (IIIM) for Syria, and the Commission on Human Rights in South Sudan.
At the current session of the Human Rights Council, the Fact-Finding Mission on Myanmar has called for establishment of an IIIM pending referral to the ICC or an ad hoc tribunal.
The various options for accountability, and how to take these and related initiatives forward will be discussed.
Opening Remarks:
Ambassador Monique T.G. van Daalen, Permanent Mission of the Netherlands
Moderator:
Saman Zia-Zarifi, Secretary General, International Commission of Jurists
Panelists:
- Catherine Marchi-Uhel, Head, International, Impartial and Independent Mechanism (IIIM) for Syria
- Yasmin Sooka, Chairperson, Commission on Human Rights in South Sudan
- Sanji Monageng, former Judge/Vice-President of the ICC, and Commissioner of the ICJ
- Stephen Rapp, Chair, Commission for International Justice & Accountability (CIJA), Distinguished
Fellow, US Holocaust Memorial Museum, and former United States Ambassador-at-Large for Global Criminal Justice
- Kingsley Abbott, ICJ Senior Legal Adviser (Global Accountability), formerly with the Extraordinary Chambers in the Courts of Cambodia and the Special Tribunal for Lebanon
Universal-ICJ-NL-Side event-News-events-2018-ENG (flyer of the event in PDF)
Dec 8, 2017 | News
The South African government should reconsider its move to withdraw from the ICC, said the ICJ, the Southern Africa Litigation Centre and Lawyers for Human Rights, local, regional and international human rights advocacy organizations.
This will be the second attempt by South Africa to withdraw from the Rome Statute, after the first attempt in 2016 was declared unconstitutional by the High Court after being successfully challenged by several parties including the Southern Africa Litigation Centre.
This week Minister Michael Masutha announced the government’s intention to pursue withdrawal from the ICC in a speech at the Assembly of State Parties of the ICC in New York.
The Minister was critical of Pre-Trial Chamber ruling of the ICC, which found that South Africa was obliged to arrest and detain Sudanese President Omar Al-Bashir.
He claimed that South Africa’s continued membership on the ICC would undermine “its ability to carry out its peace-making mission efforts in Africa” and “fulfill its role as mediator for peace”.
“The pursuit of justice and the pursuit of peace are complementary and mutually reinforcing objectives that South Africa will best achieve by remaining party to the Rome Statute of the ICC,” said Kaajal Ramjathan-Keogh, Executive Director of the Southern Africa Litigation Centre.
“Protecting heads of state from justice compromises efforts at trying to establish peace. South Africa’s refusal to arrest Bashir is an affront to Darfur victims,” she added.
Arnold Tsunga, the ICJ’s Africa Director said: “The notion that South Africa needs to embrace impunity in order to help peace is irrational and at odds with experience around the world. Greater accountability, for instance through international mechanisms, assists the rule of law, development efforts and respect for human rights. It is vital that South Africa projects itself as a leader in anti-impunity efforts in the region.”
“Withdrawing from the ICC would destroy a pillar of African efforts to tackle impunity which would be an unfortunate move for South Africa and the international community,” he added.
Masutha did not outline how the withdrawal will take place in compliance with South African law, indicating only that he would “shortly serve on Parliament” notice of withdrawal.
The African National Congress (ANC), South Africa’s ruling party, has indicated that it will discuss the issue of withdrawal at its policy conference scheduled for later this month.
According to a High Court judgment handed down earlier this year, however, the executive has no legal authority to withdraw South Africa from the ICC.
The High Court held “South Africa can withdraw from the Rome Statute only on approval of parliament and after the repeal of the Implementation Act”.
If notice were given to Parliament, it would have to independently consider the merits of withdrawal.
Under South African law the public should then be given an opportunity to participate in this process, which would involve the repeal of the Implementation Act.
“There is the added danger of an impunity gap should South Africa pull out of the ICC without putting in place any other mechanisms to ensure accountability for international crimes. There are currently no other regional or international fora to prosecute serious crimes under international law,” said Jacob van Garderen, Director of Lawyers for Human Rights.
Contact
Arnold Tsunga, ICJ’s Africa Director, t:+27 716405926, e: [email protected]
Tim Fish Hodgson, ICJ Legal Adviser, t:+27 828719905, e: [email protected]
Contact at Southern Africa Litigation Centre: Kaajal Ramjathan-Keogh [email protected] / +27 84514 8039
Contact at Lawyers for Human Rights: Jacob van Garderen, [email protected] / +27 828203960
Background
Burundi left the ICC on 27 October 2017. South Africa has declared its intention to be the second African country to leave.
Gambia, which a year ago, had also indicated its intention to withdraw, spoke at the Assembly of State Parties of its pride to remain with the ICC and of its re-commitment to the ICC.
The South African government appeared before the Pre-Trial Chamber of the International Criminal Court in April 2017 to defend its failure to cooperate with an ICC request to arrest and surrender President Omar al Bashir of Sudan when he attended an African Union Summit in June 2015.
The Pre-Trial Chamber issued its ruling on 6th July 2017 which confirmed that South Africa did in fact fail to cooperate with a request from the ICC in violation of its international law obligations. The Chamber did not, however, issue any sanction for this non-compliance.
Read also
ICJ Briefing submitted to the Portfolio Committee on Justice and Correctional Services.
High Court judgment on withdrawal from the ICC.
ICC ruling on South Africa’s failure to arrest President Omar Al-Bashir.
Opening Statement of Minister of Justice Michael Masutha at Assembly of States Parties of the ICC.
