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Sri Lanka: Judges Around the World Condemn Impeachment of Chief Justice Dr Shirani Bandaranayake

2013-01-24T10:08:11Z

Senior judges and eminent jurists from around the world joined together, calling on the Government of Sri Lanka to reinstate the legal Chief Justice Dr Shirani Bandaranayake.

An open letter issued by the Centre for the Independence of Judges and Lawyers of the International Commission of Jurists (ICJ) was sent to the Honorable Speaker of Parliament Chamal Rajapakse and H.E. President Mahinda Rajapakse, condemning the removal of Chief Justice Dr Shirani Bandaranayake as unconstitutional and in contravention of international standards on judicial independence.

The letter emphasized that an independent and impartial judiciary is essential for the protection of human rights, the rule of law, good governance and democracy.

It says: “The irremovability of judges is a main pillar of judicial independence. Judges may be removed only in the most exceptional cases involving serious misconduct or incapacity. And in such exceptional circumstances, any removal process must comport with international standards of due process and fair trial, including the right to an independent review of the decision.”

The impeachment process, and subsequent removal of the legal Chief Justice disregarded international standards of judicial independence and minimum guarantees of due process and fair trial.

“The Rajapakse Government has brought Sri Lanka on the path toward authoritarian rule, dismantling the system of checks and balances and eviscerating judicial independence,” said Wilder Tayler, ICJ Secretary General.

The Government’s conduct is a flagrant violation of the core values of the Commonwealth of Nations, notably the Latimer House Principles on the Three Branches of Government 2003.

The Latimer House Principles require the State to uphold the rule of law by protecting judicial independence and maintaining mutual respect and cooperation between Parliament and the Judiciary.

The Commonwealth Magistrates’ and Judges’ Association endorsed the letter.

In recent days, lawyers and advocates, opposing the impeachment have allegedly been sent threatening letters from a group identified as the Patriotic Taskforce.

The group has targeted the lawyers as traitors. Civil society groups have also been targeted in smear campaigns in the media. The Chief Justice has voiced concern for her and her family’s safety, calling on the international media to “…look after the three of us.”

“Sri Lanka must act immediately to guarantee the security of persons who have been the subject of threats or intimidation and must initiate prompt, thorough and impartial investigations into such allegations,” Tayler added.

The ICJ’s Centre for the Independence of Judges and Lawyers and the undersigned jurists urge H.E. President Mahinda Rajapakse and Speaker of Parliament Chamal Rajapakse to act immediately to restore the independence of the judiciary by reinstating the legal Chief justice Dr. Shirani Bandaranayake.

CONTACT:

Sam Zarifi, ICJ Asia-Pacific Regional Director, (Bangkok), t: +66(0) 807819002; email: sam.zarifi@icj.org

Sheila Varadan, ICJ Legal Advisor, South Asia Programme, (Bangkok), t: +66 857200723; email: sheila.varadan@icj.org

Sri Lanka-Impeachment Chief Justice-ICJ open letter-2012

Sri Lanka: New ICJ Report Documents 'Crisis of Impunity'

2012-11-01T11:24:34Z

The Sri Lankan government must immediately cease its assault on the independence of the judiciary, the ICJ said in a new report released today.

The 150-page report, Authority without Accountability: The Crisis of Impunity in Sri Lanka, documents how, and why, it has become nearly impossible for people who have suffered serious violations of their human rights to receive justice in Sri Lanka. Recent attacks on judicial officers and judges only highlight the systematic erosion of accountability mechanisms.

“Victims and survivors of major human rights violations do not receive redress, and perpetrators are not brought to justice. The absence of justice removes an important deterrent to future perpetrators,” said Sam Zarifi, ICJ’s Asia Director. “This situation is the very definition of a climate of impunity, and constitutes a serious breach of Sri Lanka’s international obligation to protect and promote human rights.”

The Crisis of Impunity describes how decades of Emergency rule and legal immunities granted to the President and other government officials weakened the checks and balances in the Sri Lankan government, while political interference—particularly in the conduct of the office of the Attorney-General—in practice led to a failure of justice in a number of key cases.

“The Sri Lankan government squandered a unique opportunity to reestablish accountability after its defeat of the Liberation Tigers of Tamil Eelam in 2009 through military operations fraught with violations. The Tamil Tigers also enforced their rule through horrific human rights abuses and significantly harmed the rule of law and respect for due process in the areas under their control in Sri Lanka,” Zarifi said.

“We recognize the right and duty of the Sri Lankan government to protect the security of its people. But the government’s actions, including counter terrorism efforts, must at all times respect human rights law and international humanitarian law,” Zarifi added. “There is no conflict between the State’s duty to ensure the security of individuals and to protect human rights. One of the crucial results of the lack of accountability in Sri Lanka has been that the abuses perpetrated by the government and the LTTE (as well as other armed groups) have not been properly accounted for in a court of law.”

The Sri Lankan government has sought to evade the domestic and international demands for justice for the serious violations of international law by both sides to the conflict, estimated to have killed or injured tens of thousands of civilians. The government created a Lessons Learned and Reconciliation Commission (LLRC) that was explicitly not an accountability mechanism, and was widely and rightly criticized as being faulty in its mandate, its membership, and its conduct, the ICJ points out.

Yet even the LLRC emphasized the need for an independent judiciary, a transparent legal process, and strict adherence to the rule of law, stating that these were necessary for establishing and maintaining peace and stability in the country. These recommendations remain unfulfilled to date, the ICJ stresses.

"The situation has gotten particularly bad in the past few months, as we've seen the attacks on the judiciary turn into acts of physical violence,” Zarifi said. “The Sri Lankan government must immediately act to reaffirm the independence of the judiciary and to protect judges and legal officers from violence."

On 7 October 2012, unidentified persons assaulted the Secretary of the Judicial Service Commission, Manjula Tillekaratne. In July 2012, Government Minister Rishad Bathiudeen threatened a Magistrate in Mannar and then allegedly orchestrated a mob to pelt stones and set fire to part of the Mannar courthouse.

This Report is the first in a series of national studies examining Authority without Accountability in South Asia. It calls on the Government of Sri Lanka to respect its international obligations to investigate human rights violations and bring the perpetrators to justice through prosecution and provide victims with effective remedies and reparations for their injuries. The ICJ also urged the Sri Lankan government to:

Repeal all statutes that protect State officials from prosecutions for human rights violations, ensuring that all persons against whom there are credible allegations of gross human rights violations, including crimes under international law, are brought to justice;
Repeal or amend Article 35(1) – (3) of the Constitution of Sri Lanka conferring immunity upon the President in respect of conduct in his or her private or personal capacity during office, so as to ensure that, as a minimum there is no immunity conferred for conduct constituting gross human rights violations or crimes under international law;
Ensure that executive and administrative regulations and orders issued by the President relating to emergencies are subject to judicial review;
Amend or repeal the 18th Amendment to the Constitution to restore the independent appointment process of the superior judiciary and other key public service posts, in line with international standards and guidelines; and
Establish an independent office of the prosecutor to handle the prosecution of State officials, including those who participate in gross violations of human rights law and crimes under international law.

Contacts:

Sam Zarifi, ICJ Asia-Pacific Regional Director, Bangkok, t: +66 26198477; m: + 66 807819002; email: sam.zarifi@icj.org

Sheila Varadan, International Legal Advisor, ICJ South Asia Programme, Bangkok, t: +66 26198477; m: +66 857200723; e-mail : sheila.varadan@icj.org

Ian Seiderman, ICJ Legal and Policy Director, Geneva, t: + 41 22 979 38 37 ; email: ian.seiderman@icj.org

NOTES:

Sri Lanka - Crisis of Impunity - report - 2012 (Download the full report, in PDF)

Read also Sri Lanka: ICJ deplores attack on the Secretary of the Judicial Services Commission on http://www.icj.org/?p=20375 and ICJ inquest observer finds flaws in investigation into killing of ACF aid workers on http://www.icj.org/?p=6737

(Photo © DR)

ICJ Launches New Brand, New Website

2012-09-12T13:14:51Z

The ICJ has launched its new website and visual identity.

In an effort to make the organisation more visible to a wider audience and ensure that its wealth of legal resources and advocacy work are made accessible, the ICJ undertook to modernise its visual identity and main communications tool in 2012; a year that coincides with the organisation’s 60th anniversary.

The new ICJ logo and visual identity has been developed by the well-known Swiss artist and designer Roger Pfund, who has shown his commitment to the protection of human rights through past collaborations with organisations such as Amnesty International (Switzerland), Human Rights Watch and the Geneva Call.

The new brand retains the flame and globe found within the ICJ’s previous logos, but gives them a more modern style. The new logo also reinforces the significance of the ICJ acronym.

The new ICJ website has been developed by HURIDOCS – an international NGO that supports human rights organisations by helping them efficiently utilise information technologies and documentation methods. The Atelier Roger Pfund worked on the design of the new website.

One of the main features of the new website is its sophisticated search tool, which allows visitors to easily filter and navigate through the vast collection of ICJ publications, submissions and other expert documents.

“The ICJ is extremely privileged to have worked with Roger Pfund and HURIDOCS. The result has fully met our expectations,” said Wilder Tayler, ICJ’s Secretary General. “Both partners have invested a lot of time and expertise in this collaboration and have carried out a significant proportion on a pro bono basis, for which we are very grateful.”

ICJ’s new visual identity will be progressively implemented until the organization’s 14th World Congress in December.

Contact: Olivier van Bogaert, ICJ Media & Communications;
T +41 22 979 3808, M + 41 79 269 01 93
E olivier.vanbogaert@icj.com

Syrian Human Rights Lawyer Mazen Darwish May Face Prosecution, Death Sentence

2012-08-09T09:52:26Z

The International Commission of Jurists is urging the Syrian authorities to immediately and unconditionally release Mazen Darwish, a prominent Syrian human rights lawyer and defender who serves as President of the Center for Media and Freedom of Expression (SCM), who was arrested with 16 of his co-workers by Officers from the Air Force Intelligence (AFI) on 16 February 2012.

While some of Mazen’s colleagues have been prosecuted before the Military Court of Damascus for “possessing prohibited materials with the intent to disseminate them”, Mazen Darwish has been subject to enforced disappearance. Since his arrest, the Syrian authorities have revealed nothing about his fate or whereabouts.

The ICJ has learned, however, that AIF informed the military judge presiding in the case of Mazen’s colleagues that since the SCM is an illegal organization, Mazen Darwish would be prosecuted before a Military Field Court.

Military Field Courts are established under Legislative Decree number 109 of 1968. They are composed of military judges and have jurisdiction over crimes committed during wartime and military operations.

Accused persons before these courts have no right to defence and proceedings are conducted in secret. These courts do not apply existing laws or procedures and their decisions are final, not subject to any form of appeal or review. Under Legislative Decree 109, Mazen Darwish may face the death penalty.

The ICJ calls upon the Syrian authorities to comply with their obligations under international law and to ensure the rights of Mazen Darwish to life, liberty and security of person, including by restoring his contact with the outside world.

“The reports that Mazen Darwish will be prosecuted before a Military Field Court are very disturbing and highlight, once again, the unlawful and relentless attacks of the Syrian regime against human rights lawyers and defenders,” said Said Benarbia, ICJ Senior Legal Adviser for Middle East and North Africa. “Military Field Courts are exceptional courts that don’t meet international standards of independence or fair trial. Syrian authorities must refrain from referring Mazen Darwish to these courts and immediately and unconditionally release him.”

For more information: Saïd Benarbia, Middle East & North Africa Senior Legal Adviser, ICJ, t +41 22 979 3817; e-mail: said.benarbia@icj.org

(Opinions voiced in this section do not necessarily reflect the opinions of The Global Journal.)

Egypt’s Transition: A Fundamentally Flawed Process

2012-07-05T15:17:15Z

In a paper published today in Geneva, Switzerland, the International Commission of Jurists (ICJ) sets out its concerns about measures taken by the transitional authorities in Egypt, in particular the Supreme Council of Armed Forces (SCAF), who have consolidated the powers of the SCAF free from any civilian oversight.

The SCAF has exercised comprehensive control over the constitution-making process, de facto extended the state of emergency and failed to address widespread and continuing human rights violations, the ICJ points out.

The paper further highlights the catalogue of opaque, rushed and non-consensual policies adopted by the SCAF throughout the transition process that have largely served - among other adverse consequences - to shield the armed forces from any form of accountability to - or oversight by - a civilian power.

“The unilateral promulgation by the SCAF of Constitutional Declarations, as well as the control it has exercised over the drafting of a new Constitution, has infringed the right of Egyptians to take part fully in the conduct of public affairs and to participate in the constitution-making process,” said Said Benarbia, Middle East & North Africa Senior Legal Adviser at the ICJ. “Such measures have failed to break with the policies and practices of the past and to establish a genuine democracy in Egypt.”

The ICJ notes that the transition process has been further undermined by the failure of the transitional authorities to undertake meaningful reforms, including by upholding the Rule of Law, ensuring the independence of the judiciary, and ending the cycle of impunity that has long prevailed in Egypt. While the declaration of the state of emergency was not formally renewed, the legal framework related to it remains in force.

“The ICJ calls on the transitional authorities to repeal Emergency Law 162/1958 and to dismantle the associated legal framework, including the use of military courts to try civilians,” Benarbia said. “Egyptian authorities must address the legacy of human rights violations in Egypt and provide for constitutional and other guarantees for the non-repetition of these violations, in particular by holding those responsible to account and providing for meaningful redress for victims.”

For more information:

Saïd Benarbia, Middle East & North Africa Senior Legal Adviser, ICJ, t +41 22 979 3817 ; e-mail: said.benarbia@icj.org

(Opinions voiced in this section do not necessarily reflect the opinions of The Global Journal).

Mazen Darwish: An Ordinary Syrian Story

2012-06-20T11:23:40Z

Opinion piece by Saïd Benarbia, Middle East & North Africa Senior Legal Adviser at the International Commission of Jurists (ICJ).

Mazen Darwish is one of the most prominent human rights lawyers and defenders in Syria and the Arab world. On 16 February 2012, officers from Air Force Intelligence (AIF), assisted by a group of plain-clothed armed men, carried out a raid on the Damascus offices of the Syrian Centre for Media and Freedom of Expression (SCM) arresting Mazen Darwish, the President of SCM, and 16 of his co-workers. Mazen is believed to be being held in incommunicado detention. His right to have access to a lawyer, family members and medical personnel continue to be denied.

Savagely tortured

Some of his co-workers were released while others were charged by a military prosecutor on 22 April 2012 for “possessing prohibited materials with the intent to disseminate them,” a criminal offence under the Syrian Criminal Code. Nothing has emerged about Mazen’s fate, except testimonies from detainees who were held with him in early March in the AIF detention centre in El Mezza, Damascus. They reported that he was savagely tortured.

Methods of torture in AIF detention facilities include whippings, severe beatings, electric shocks, threats of rape, rape, and genital and other forms of bodily mutilation. The last report of the independent international Commission of Inquiry on the Syrian Arab Republic documented some such cases, including the case of a child who was raped in front of his father.

Before his arrest, Mazen had been subjected to persistent and systematic harassment by Syrian security services. He was disbarred and prohibited from practicing law for life due to his human rights activities. He was subjected to a travel ban for more than four years, which prevented him from visiting his two children who reside abroad. When he established the SCM, he was ordered to report to the security services on an almost daily basis.

Irrespective of the persistent harassment he and others faced, Mazen always refused to leave Syria. He believed that the work of human rights defenders was crucial to bring about real change and reform in Syria and that, in spite of all of the brutalities and abuses, Syrians would join the cause of human rights and stand up for their right to live and die in dignity.

Attacks intensified

This hope for a new Syria appeared to materialize through the largely peaceful protests that erupted in Syria in March 2011. Syrians took to the streets of villages and cities after security officers in Dar’a tortured numerous children, subjecting them to severe beatings and whippings, and even pulling out their fingernails. To date, the uprising continues. Syrian authorities have consequently intensified their attacks on human rights defenders. Some of them are in prison while others had to go into hiding.

Crimes against humanity

Those of us who cared so much about his safety knew he would not listen to us and leave. He felt that someone had to remain. Someone had to witness and report on the ongoing human rights abuses. Most of the abuses that have been committed in Syria over the last 14 months by the security services, the army and the shabiha pro-regime militia are crimes under international law, including summary executions, torture and other ill-treatment, prolonged incommunicado and other arbitrary detentions, and enforced disappearances. Because these crimes have been committed in a widespread and systematic manner against the civilian population, they amount, prima facie, to crimes against humanity.

While the international community established the International Criminal Court (ICC) to address these crimes, victims or their relatives do not have direct access to this Court. Rather, only States, through being party to the ICC Statute, recognition of the jurisdiction of the ICC or referral via the UN Security Council without a veto by any of the five permanent members, can pave the way for the ICC Prosecutor to investigate and prosecute these crimes.

Even before the establishment of the ICC, the international community had entrusted the Security Council, under chapter VII of the UN charter, to take effective measures to protect peace and security in the world against state and non-state actors who threaten them. However, the UN charter requires that none of the five permanent members veto such measures.

Lack of efficient measures

Regrettably, the UN system is often paralyzed to act under its Chapter VII powers, as a small number of states, or even a single state, ultimately get to decide what constitutes a threat to the peace and security of the world and what does not. Decisions such as whether a situation is grave enough to be referred to the ICC or whether gross human rights violations are prevalent in a country are then typically based on rank political expediency, rather than on legal standards and empirical evidence. This reality perversely allows for the Syrian regime, which is clearly responsible for widespread criminal acts, to close the border of the country and to conduct mass killings in total impunity.

The international community has failed

Mazen and other Syrian lawyers realized from the beginning of the uprising that the international community would betray the “sacrifices” of the Syrian population in their fight for human rights and dignity. Mazen and his colleagues were right. The Security Council has failed so far to take any effective measure at its disposal to bring an end to the massacres. The international community as a whole has failed to support the aspirations of the Syrian people to freedom and dignity or to hold those responsible for human rights violations accountable, including by ensuring the rights of victims to an effective remedy and to reparation.

The Syrian population has been under the despotic rule of Al Ba’ath party for almost 50 years. No one expected the Syrian people to stand up against Al Ba’ath and the security services. Disgracefully, no one answered their cry for freedom when they did.

Some argue that any kind of strong, robust action by the Security Council would bring about a civil war. As though letting a pro-regime militia, founded in part on religious grounds, subjecting the civilian population, including people from other religious groups, to systematic human rights violations, would not. In fact, most of the reports coming from different Syrian cities and villages confirm that most of the elements of civil war are already present.

Others argue that this kind of action would destabilize neighboring countries. As though the international community is more concerned with containing the bloodshed within the borders of Syria than ending it.

Others also argue that the opposition is too weak and marginalized to lead a steady transition to democracy in Syria. As though 50 years of savage oppression and tyranny will strengthen the opposition. As though, ironically, the failure of the international community to end the massacres is a reward to the Syrian regime for its cynical enterprise to reduce any and all dissident voices to silence.

Other tragic stories

In a sense, Mazen’s story has become an ordinary Syrian story. Everyday we receive consistent and reliable reports about similar and no less tragic stories. A mother who had to bury her murdered son in a public garden because heavy machine-gun fire from the army prevented her from holding a proper funeral and burial. An activist whose songs and slogans electrified the rallies of protesters that was found dumped in a river after having his throat slashed by security forces. A woman raped in front of her children and husband. A man buried alive. A pregnant woman tortured with electric shocks. A 13-year old boy tortured to death, his skin scrawled with cuts, gashes, and bullet wounds, his feet, elbows, face, and knees deeply burned, his jaw and kneecaps shattered, his neck broken and his penis cut off.

On a daily basis

These stories are ordinary but not because of the crimes and human rights violations they involve. They are ordinary because these crimes are being committed on a regular and daily basis to the point that both Syrians and the rest of the international community are now used to them. How many victims should die before these crimes end? What is the threshold? No one seems to know. The stronger an outrage after a massacre is, the quicker it fades, until a new massacre occurs.

I've known Mazen for four years. We have had many endless discussions about Syria's fate, both before and after the start of the uprising. He has always been calm, composed, brave and gracious, in particular under pressure. His sense of humor, dark and unique, has been his strongest defense to fight against whatever the security services and life throw at him.

The last time I saw Mazen was in early October 2010. He gave me a ride to the airport after spending two days monitoring the trial of another Syrian human rights lawyer before the Damascus Military Court. He shared with me his bad feeling that we wouldn’t meet for a while, if ever. He survived serious illness, years of persecution, and a prison term. I hope he will survive El Mezza detention centre.

(Opinions voiced in this section do not necessarily reflect the opinions of The Global Journal.)