by Rishi Gulati and Matthew Nelson*
The decision of the United Kingdom Supreme Court in Iraqi Civilians v. Ministry of Defence (No. 2)  UKSC 25 (“Iraqi Civilians”) demonstrates how public and private international law concepts interact and affect the rights of individuals allegedly subjected to grave breaches of rights to access a remedy before courts of law.
Iraqi Civilians: Background
The claimants, hundreds of Iraqi civilians represented by 14 lead claimants, brought claims under the Human Rights Act 1998 and in tort against the UK Ministry of Defence, for damages arising out of alleged unlawful detention and/or physical maltreatment by British soldiers between 2003 to 2008 in Iraq. After the cessation of the major combat operations in May 2003, the UK became an occupying power and began exercising the powers of the Iraqi Government on a temporary basis.
The Supreme Court’s brief decision, delivered by Justice Sumption, concerned the application of limitations to the claimants’ suits that operated as a matter of Iraqi law. Accepting, as the parties did, that Iraqi law applied in relation to questions of the Ministry’s liability in tort, the claimants were, by operation of Article 232 of the Civil Code of Iraq (the “Civil Code”), barred from commencing their applications (though their rights were not extinguished) by virtue of the operation of limitation periods to claims of this kind. Consequently, the claimants sought to invoke an order of the Coalition authorities, Coalition Provisional Authority Order 17 (the “Order”), that operated to suspend the taking of proceedings in Iraqi courts against the UK Government, such that it conferred state immunity on the UK Government from legal process in Iraqi courts. It is this order, the claimants’ argued, that had the effect of suspending the limitation periods, as envisaged in Article 435 of the Civil Code. Continue reading
by Vani Sathisan and Sean Bain*
“The scale and severity of human rights violations in Kachin State is one of the worst in Myanmar,” a lawyer told the International Commission of Jurists during a meeting in Myitkyina last month.
Visitors walk along the riverbank at the Myitsone in Kachin State in December 2015. (Wa Lone / The Myanmar Times)
Illegal large-scale land grabbing, harassment of landowners by government and business officials, and a lack of access to justice were the central complaints heard by the ICJ during the discussions with human rights defenders and civil society groups in Kachin State.
Senior state-level judicial officials signalled increased readiness to discuss ways to improve the effectiveness and independence of the courts. Yet meaningful reform also requires revising laws to bring them in line with international human rights standards, respecting judicial independence by government officials, and securing corporate legal compliance through consistent application of the law and access to fair and effective judicial review.
The conflict in Kachin State and northern Shan State, where over 100,000 people remain displaced since fighting between the government and ethnic armed groups re-started in 2011, is partly fuelled by the abundant natural resources.
Eighty percent of Myanmar’s mining operations are located in Kachin State and neighbouring Sagaing Region. Timber, rubies and gold are plentiful. A report by international watchdog Global Witness estimated the value of illegal jade mining at around US$31 billion in 2014 alone. Yet hazardous mining practises are rampant while law enforcement is haphazard. Continue reading
By Vani Sathisan (International Legal Advisor, International Commission of Jurists) and Bobbie Sta. Maria (Senior Researcher for Southeast Asia, Business & Human Rights Resource Centre)
While SEZs are supposed to be a driver for Myanmars economic growth, their impacts on the rights of affected communities indicate that this growth is reserved for businesses and investors.
This is a long form version of this article published by Reuters on 1st April 2016.
More than half a century of military rule ostensibly comes to a close on April 1, when Daw Aung San Suu Kyis National League for Democracy (NLD) officially takes over Myanmars government and the first civilian President since 1962 starts leading the nation. Despite these extraordinary developments, daunting challenges remain in Asias second poorest country. Myanmars military still controls key governmental functions; the country is barely emerging from decades of civil conflicts; rule of law and institutions are weak; the economy is fragile and dominated by crony companies; corruption, and human rights abuses remain stubbornly persistent.
The outgoing government initiated a number of significant changes, including efforts to encourage economic development through foreign trade and investment. This strategy included heavily promoting foreign investment through three major special economic zones (SEZ): a Japanese supported zone focused on manufacturing in Thilawa, near Yangon; a Thai supported zone initially focused on heavy industry including petrochemicals in Dawei in the south; and a Chinese supported zone in Kyaukphyu in the northwest, envisioned as a trade corridor connecting the Chinese, Indian and ASEAN economies. These were said to build on Myanmar’s strategic location and low-cost production base for export destinations in the region.
The NLD recently announced that while it supports the zone in Thilawa, it will reconsider the continuation of the Dawei and Kyaukphyu SEZs, study commitments made by the former government to investors, and speak with relevant stakeholders. This is a crucial process and many hope that the NLD does not lose sight of its commitments in its Election Manifesto, including encouraging foreign investment in line with the highest international standards, and laying down paths for economic cooperation that can bring sustainable long-term mutual benefits. Continue reading
by William A. Schabas*
Alongside yesterday’s very important judgment of the International Criminal Tribunal for the former Yugoslavia was a rather more pathetic manifestation of the fight against impunity. While the judgment was being issued, Security officials of the Tribunal, with the apparent assistance of the Dutch police, arrested French journalist Florence Hartmann. She is now in detention at the Tribunal’s prison. For a photo of her arrest, look here.
Florence Hartmann served as press officer at the Tribunal about a decade ago, When she left, she published a memoir entitled Paix et châtiment. The book referred to decisions of the Tribunal’s Appeals Chamber that were supposed to have remained confidential. After being tried and convicted of contempt of court, she was sentenced to pay a €7,000 fine. When she failed to pay the fine, the Tribunal converted the sentence into one of seven days’ imprisonment. She now has six more days to go, that is, unless the Tribunal applies its policy of early release after service of two-thirds of the sentence.
All of the international tribunals have wasted a lot of resources on prosecuting so-called ‘offences against the administration of justice’. The time and money these matters have consumed could have been usefully devoted to more serious cases involving genocide, crimes against humanity and war crimes.
It doesn’t have to be this way. In the early 1990s, the International Law Commission conceived of an international court that would not concern itself with issues like contempt of court, perjury and tampering with witnesses, leaving thus to the national courts. If Florence Hartmann, or the others, really committed an offence against the administration of justice, it would make a lot more sense for them to be dealt with by domestic justice systems. Continue reading
By Daniel Aguirre and Vani Sathisan*
Recent political discussion in Myanmar revolves around the formation of a new government and selection of a president, but not enough attention is focused on the position of the attorney general, who holds a critical function in upholding rule of law and respect for human rights.
Students arrested in a police crackdown on their peaceful protests against the education law in March 2015 arrive for a court hearing on May 12, 2015. Lawyers and activists complain the trial is taking too long. Photo: Aung Myin Ye Zaw / The Myanmar Times
The attorney general is Myanmars most powerful legal officer: As a member of the executive, the AG provides legal advice to the President and the hluttaw, analyses international treaties, drafts and amends laws, and represents the government in judicial proceedings. The attorney general also directs the prosecutors office and ensures that cabinet actions are legally valid, in line with the constitution and international human rights law.
The International Commission of Jurists (ICJ), international donors and development partners discussed the attorney generals powerful role on the sidelines of the launch for the Union Attorney General Offices (UAGO) Strategic Plan 2015-19 in Nay Pyi Taw last week. All expressed hope that the incoming National League for Democracy (NLD) government will appoint an attorney general committed to reform, the rule of law and human rights, in line with their election manifesto promise to ensure that executive and judicial systems support the rule of law. Continue reading
Japan’s most recent and controversial apology to the government of South Korea for sexual slavery committed by its military against “comfort women” during WWII has raised important questions about apologies for crimes and serious human rights violations during armed conflict. What is the proper role of an apology for such massive crimes against humanity? What can apologies do and what should they not be meant to do for survivors and victims?
The latest Japanese apology, which some have seen as part of a strategic geopolitical deal struck between Japan and South Korea, has led to protests among the 46 surviving South Korean victims as well as the victims in other countries occupied by Japan during the war.
After working for 15 years on reparations for victims in over 50 countries, ICTJ has found that many victims feel that an apology unaccompanied by other forms of reparation does not constitute justice, even as material reparations, such as compensation, without a meaningful acknowledgement of responsibility also falls short.
An estimated 200,000 women in Asia were forced into sexual slavery by the Japanese Imperial Army just prior to and during World War II. Japan systematically established an extensive network of “comfort stations” throughout its occupied territories, to which “comfort women” were trafficked and used as sexual slaves. Many of these “comfort women” were barely teenagers when they were enslaved and the surviving few are now of very advanced age and dwindling in numbers. Continue reading
by Vani Sathisan*
The world observes Human Rights Day on 10 December to mark the momentous strides in international human rights law since the adoption of the Universal Declaration of Human Rights (UDHR) in 1948. In Myanmar, recent political changes have been both momentous and transformative. Nonetheless, what was proclaimed by the UDHR as the “equal and inalienable rights of all members of the human family”, continue to be infringed upon by the arbitrary and highly subjective interpretation and application of laws, some of them dating back to British colonial times.
Successive governments in Myanmar have used overly broad or vaguely defined laws to curtail freedom of expression that is protected under international law. They often invoke the justification, typically inappropriately, of protecting national security, or to prevent public disorder or avoid outraging the religious feelings of a class. None of these efforts have served or can serve to address or respond to sectarian and religious violence.
On behalf of the International Commission of Jurists (ICJ), I have observed trials of those arrested and detained on criminal defamation charges for their Facebook posts that allegedly defame either the Tatmadaw or a political leader. One of the laws used to charge the accused is the Penal Code, first drafted in 1860.
The ICJ released a briefing paper last month highlighting how the enforcement of Myanmar’s defamation laws can result in violations of a number of international laws and standards protecting human rights, and also have an overall chilling effect on the freedom of opinion and expression and freedom of assembly in the country. Continue reading
By John Dugard*
The ruling African National Congress’s demand that the South African government should pull out of the International Criminal Court is defeatist, naïve and reactionary. African states have largely themselves to blame for the fact that the continent has been singled out by the court, and rather than withdraw they should use their political muscle to ensure that prosecutions are brought against non-African leaders too.
Africa occupies a key position in the International Criminal Court (ICC). It is the largest regional group with 34 member states; the present prosecutor of the court is an African woman Fatou Bensouda of The Gambia and four of the 18 judges on the court are from Africa, including the vice-president, Joyce Aluoch of Kenya. Africa is not therefore a marginal player in the ICC.
Despite this the ICC is more criticised in Africa than any other continent. In large measure this criticism comes from the leaders of non-member states, such as Zimbabwean President Robert Mugabe and Sudanese President Omar al-Bashir, who are themselves accused of committing international crimes.
But the leaders of member states, whose judges serve or have served on the court, have given support to the criticism and condemnation of the court. Perhaps the three most vocal leaders of this group are Kenyan President Uhuru Kenyatta, Ugandan President Yoweri Museveni and South African President Jacob Zuma. Continue reading
By Vani Sathisan*
To say that Facebook and other internet-based social media networks have revolutionized modern day communication would be an understatement. According to a report by the Human Rights Councils Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, the global number of internet users has reached more than two billion. One million log onto Facebook every month. Twitter claims 500 million users and YouTube is viewed about 4 million times per day. After ideas expressed online have had an instant viral spread, revolutions have unfolded .
And so have the prosecutions.
Judiciaries worldwide have had to struggle with what content is defamatory and what is self-expression.
The US Supreme Court, in Elonis v. United States , considered the case of a defendant who had written, and posted on Facebook, apparently violent rap lyrics, including I want to kill my wife while he was undergoing a divorce. The court had to weigh up whether convicting a man of threatening another person requires proof of subjective intent to threaten or whether it would suffice to show that a reasonable person would regard the statement as threatening. It ruled in favour of the defendant stating that negligence is not sufficient to support a conviction. The defendants lawyer argued that his client was exercising his First Amendment rights and that governments may not prohibit the expression of an idea simply because certain factions of society find it offensive. Continue reading
Compte-rendu dentrevue avec Me Philippe Larochelle
par Pascale Langlais*
En 2009, la justice pénale internationale a mis au monde un petit nouveau, une entité judiciaire bien spéciale et unique en son genre : le Tribunal spécial pour le Liban (ci-après « TSL »). Né de la résolution 1757 du Conseil de Sécurité des Nations Unies à la suite des attentats terroristes ayant coûté la vie à lancien premier ministre du Liban, Rafiq Hariri, en 2005, le TSL se distingue des autres juridictions internationales à plusieurs égards et semble parfois évoluer en orbite des autres tribunaux phares de la justice internationale. À ce sujet, on doit notamment souligner le fait quil sagit du premier tribunal international pénal à juger de crimes uniquement définis en droit national, à savoir le terrorisme selon le Code pénal libanais (pour plus dinformation). Il sagit également du premier tribunal international pénal à prévoir dans son Statut la possibilité de tenir des procès in absentia, donc en labsence de laccusé. Autre innovation, le TSL est aussi le premier tribunal en son genre à se reconnaître une compétence en matière de responsabilité de personnes morales.
Malgré toutes ces caractéristiques que certains considèrent comme une avancée du droit international pénal, il nen demeure pas moins que le TSL essuie son lot de critiques non seulement en ce qui a trait à sa légitimité et à son fonctionnement, mais également en rapport avec la place quil occupe dans la sphère de la justice internationale pénale. Ses détracteurs sont nombreux, tant dans la société libanaise que dans la communauté internationale. Parmi ceux-ci, on peut notamment citer Philippe Larochelle, avocat de la défense fort dune grande expérience devant les tribunaux internationaux. Me Larochelle se montre très dubitatif quant à lexistence de ce tribunal et porte un regard très critique sur la justice internationale pénale de manière générale. Il a dailleurs su exposer ses opinons très tranchées sur la question lors dune conférence présentée à lUniversité Laval le 28 mai 2015 dans le cadre de la première édition de lÉcole dÉté sur la Justice internationale. Il a plus amplement précisé sa pensée lors dune entrevue accordée à la suite de cette conférence. Continue reading