Oct 13, 2023 | Human Rights Council, News, Statements, Work with the UN
Geneva, 13 October 2023
In this statement, the International Commission of Jurists (ICJ) looks back at five weeks of consideration of a wide range of country situations and human rights thematic concerns, and at intense negotiations during the 54th session of the United Nations Human Rights Council (HRC) that ended today in Geneva.
This session resulted in some positive actions for the protection and promotion of human rights and for accountability for grave human rights violations. However, States also failed to address the dire human rights situation in a number of countries. They also failed to support unanimously a number of important initiatives towards the greater enjoyment of human rights for all without discrimination.
Welcoming the renewal of a number of Special Procedures’ mandates
The ICJ welcomes the renewal of a number of Special Procedures’ mandates on both country situations and themes. In particular, the mandates on the situation of human rights in Afghanistan, Cambodia and Russia have been extended. With regard to thematic mandates, the ICJ particularly salutes the adoption of resolutions enabling the continuation of the work of the UN Special Rapporteur on Truth, Justice, Reparation and Guarantees of Non-Recurrence, as well as of the Working Group on Enforced or Involuntary Disappearances. With respect to this, the ICJ considers it very positive that the resolution on Enforced or Involuntary Disappearances explicitly encourages States to participate in the upcoming world congress to promote the ratification of the International Convention for the Protection of All Persons from Enforced Disappearance in 2024.
Continued intergovernmental negotiations on the issue of private security companies
The ICJ is actively engaged in supporting the elaboration of new standards to enhance human rights protection in respect of the activities of private military and security companies. In this context, the ICJ has followed the HRC’s thematic debates on both the use of mercenaries and the work of the intergovernmental working group tasked with the elaboration of a new regulatory framework on private military and security companies. In light of this, the organization welcomes the renewal of the mandate of the intergovernmental working group to negotiate such standards.
Celebrating the creation of a new investigative mechanism on the situation in the Sudan
The ICJ applauds the creation of a robust independent international fact-finding mission on the human rights and humanitarian crises resulting from the ongoing armed conflict in the Sudan. The ICJ had joined a group of 120 civil society organizations that sent a letter to States, on 1 September 2023, in advance of the HRC session, urging the creation of such an independent investigative mechanism.
Adoption of important thematic resolutions
The ICJ also considers that the adoption of a new resolution providing more capacity for the Office of the UN High Commissioner for Human Rights (OHCHR) to support States in the realization of economic, social and cultural rights (ESCR) is a positive step.
However, the ICJ urges States to ensure:
• respect for the independence of the OHCHR in carrying out additional work in this area;
• that ESCR be treated on an equal footing with other human rights; and
• that any new work builds upon the existing work carried out by the HRC and by the OHCHR for several decades in this area.
After intense negotiations, the HRC eventually adopted the resolution on preventable maternal mortality and morbidity and the one on the question of the death penalty. Fortunately, all amendments aimed at weakening human rights protections in both texts were defeated.
However, the ICJ deplores the persistence of ploys intentionally engineered during the negotiations of these two resolutions, which, if successful, would have been detrimental to the enjoyment of women and girls’ human rights, including to sexual and reproductive health and comprehensive sexuality education. In addition, purported concern over States’ sovereignty negatively impacted a number of debates and threatened to impair progress in the protection of universal human rights.
Regretting the inability of the HRC to address key situations
These controversies took place at a very polarized HRC session and reflect the broader geopolitical realities and ideological tensions worldwide.
In this regard, the ICJ regrets that the HRC failed to continue the mandate of the International Commission of Human Rights Experts on Ethiopia. This commission was established to respond to the dramatic human rights situation after the conflict between the Federal Government and the Tigray People’s Liberation Front (TPLF) broke out in 2020. Since then, widespread violations of human rights and serious violations of international humanitarian law have been committed in Tigray, Amhara and Afar in northern Ethiopia. As the situation is deteriorating even further, the failure of the HRC to renew the mandate of the Commission terminates the international independent investigation of atrocity crimes committed in the context of this conflict and is an abject dereliction of duty on the part of Member States of the HRC.
With regard to Afghanistan, while the extension of the mandate of the Special Rapporteur on the human rights in the country, with additional resources to carry out his work, is an important measure towards monitoring the dire human rights and humanitarian situation, the ICJ deeply regrets that the HRC was not able to give a response commensurate with the gravity of the situation and failed to create a robust independent accountability mechanism to investigate, collect and preserve evidence of the widespread and systematic human rights violations and atrocities crimes committed in the country.
Last but not least, the ICJ regrets that the Council could not take action on the violations of international human rights law and international humanitarian law committed by all parties in Israel and the OPT since the attacks in Israel by Palestinian armed groups started on 7 October 2023.
https://www.icj.org/israel-occupied-palestinian-territory-immediately-end-attacks-on-civilians/
Oct 10, 2023 | News
The prosecution of the rights defender and businessman Osman Kavala and four codefendants in connection with mass protests a decade ago has been unfair and essentially a political show trial from the beginning, a group of nine non-governmental organizations including the International Commission of Jurists (ICJ) said today, ahead of an October 12 urgent debate calling for Kavala’s release at the Parliamentary Assembly of the Council of Europe. The five have been punished for the legitimate exercise of their rights to freedom of expression, association and peaceful assembly.
On September 28, 2023, Turkey’s Court of Cassation, its top appeals court, upheld the convictions, notwithstanding that the European Court of Human Rights has previously found no basis for detention or trial, and ordered Kavala’s immediate release.
“By ignoring these judgments and Turkey’s human rights obligations, the Court of Cassation is doubling down on the deep injustice of this case that dramatically demonstrates how far Turkey has deviated from the rule of law,” said Helen Duffy of the Turkey Human Rights Litigation Support Project. “The trial has not only led to grave violations of the rights of Kavala and the others, but it provided a chilling example of how Turkey’s justice system has become a tool of political repression.”
Although President Recep Tayyip Erdogan and Turkish government officials repeatedly state that Turkish courts are independent, the trial of Kavala and his codefendants exposes those claims for the falsehood they are, and demonstrates how in key cases of interest to the president, prosecutors and courts blatantly do his bidding.
Kavala was sentenced to life in prison without parole, convicted of attempting to overthrow the government on false allegations that he organized and financed the 2013 Istanbul Gezi Park protests against a government urban development project. Four codefendants – Çiğdem Mater, Can Atalay, Mine Özerden and Tayfun Kahraman – received 18-year sentences for allegedly aiding Kavala, while the court quashed the 18-year sentences of Mücella Yapıcı, Hakan Altınay and Yiğit Ekmekçi, and ordered Yapıcı and Altınay’s release pending retrial.
“This trial cynically opened six years after the Gezi Park protests with the malevolent intent of casting them as the outcome of a grand conspiracy by one man, Osman Kavala,” said Hugh Williamson, Europe and Central Asia director at Human Rights Watch. “To achieve this the prosecution and the courts blatantly had to ignore all the evidence of spontaneous mass protests in which the vast majority of protesters committed no violence and exercised their lawful rights to freedom of expression and assembly.”
The Court of Cassation’s 78-page verdict simply reiterates the prosecution’s allegations in the February 2019 indictment, though the European Court of Human Rights ruled twice that the indictment offered insufficient evidence to justify Kavala’s detention, prosecution or conviction, and by inference, the other defendants’.
Notably, in a striking rebuke to the European Court of Human Rights, Council of Europe, and Turkey’s human rights obligations, the Court of Cassation makes no reference to the repeated findings against Turkey in this case. In December 2019, the European Court ordered Kavala’s immediate release, and in February 2022, the Committee of Ministers of the Council of Europe, the body responsible for overseeing implementation of European Court judgments, took the almost unprecedented step of triggering infringement proceedings against Turkey for its refusal to comply.
This led to a second European Court of Human Rights judgment condemning Turkey’s failure to carry out the first, and the failure of the Turkish court convicting Kavala and others on April 25, 2022, to recognize the European Court of Human Rights’ judgment. The Court of Cassation decision doubled down on that rejection of the European Court’s role, with no mention of that judgment.
Turkey’s European and international allies, both unilaterally and through intergovernmental organizations, including the Council of Europe, the European Union, and the United Nations, should address this injustice as a matter of urgency. They should treat the case as a priority human rights matter in their mutual relations with Turkey, and push for the swift and full implementation of the European Court’s’ judgments, including for the defendants’ immediate release.
They should firmly condemn the abuse of criminal law against activists, human rights defenders, journalists and others in politically motivated cases. Robust efforts are essential to ensure that Turkey respects and abides by its human rights obligations and rule of law principles, which are currently being flouted with impunity.
In turning a blind eye to the Strasbourg court’s rulings, the Court of Cassation is also ignoring its constitutional obligation to ensure that Turkey adheres to binding decisions of the European Court, which take precedence over rulings in Turkey’s domestic courts.
“In direct contravention of its legal obligations under international law, the Court of Cassation has chosen to maintain convictions despite the European Court of Human Rights judgment ordering Kavala’s immediate release,” said Temur Shakirov, ICJ Europe and Central Asia Director (ad interim). “By failing to adhere to its obligations, the Court of Cassation sets a precedent, eroding confidence in the legal system’s ability to act as an independent and impartial institution, separate from political influence and committed to upholding human rights and the rule of law.”
The Court’s Flawed Reasoning
In its September 29 decision, the Court of Cassation relies on a chronology of events from the February 2019 indictment that the prosecution argues constituted the preparation for the Gezi protests. This included making a short video with a group of actors in 2011 called “Rise up Istanbul,” production of a play in Istanbul about a dictator, which ran from 2012-13, and the 2012 establishment of the civil society platform, Taksim Solidarity, focused on the highly contested plan to develop Taksim Square and Gezi Park. The court fails to show any causality between these lawful activities and any crime or to provide any evidence that these activities showed that Kavala and the other defendants were involved in a conspiracy.
The court decision makes reference to the protests and popular uprisings in various Middle Eastern countries that predated the Gezi protests and came to be known as the Arab Spring, and nonviolent civil disobedience movements such as OTPOR in Serbia a decade earlier, without showing their relevance to the case.
The decision names civil society organizations and alleges they “supported and directed” the Gezi Park protests without providing any credible evidence. Chief among them are the Open Society Foundations, set up by the US financer and philanthropist George Soros, and the affiliated but independent (and now dissolved) philanthropic foundation in Turkey (Açık Toplum Vakfı). Kavala was a founding member of the group, and Altınay served for a period well before the Gezi Park protests as director of the board.
The court repeats a conspiracy theory, informed by antisemitic tropes, from the original indictment that Soros’s organizations aimed to overthrow governments in various countries by encouraging uprisings, and that the Turkish Open Society Foundation and Kavala were involved in this process under the guise of innocent-looking philanthropic activities.
Kavala’s own civil society group, Anadolu Kültür A.Ş., which supports the arts, was also named. The other defendants were linked to Kavala through their participation in that organization: film producer Çiğdem Mater, employed as an advisor, Mine Özerden, a member of the board, and Yiğit Ekmekçi, deputy head of the board. Taksim Solidarity is named as the group in which three defendants – lawyer Can Atalay, city planner Tayfun Kahraman and architect Mücella Yapıcı – participated actively.
The Court of Cassation endorses the indictment’s inclusion of Kavala’s contacts with bodies such as the European Commission, members of the European Parliament, diplomats, diplomatic missions and international human rights groups, as evidence of alleged efforts to influence international opinion against the Turkish government.
A section on the alleged protest financing cites the Open Society Foundations’ funding of the Turkish Open Society and Anadolu Kültür, but it omits that a formal investigation into the funding cited in the indictment (the MASAK report) found no evidence of unaccounted for money transfers. Instead, the court relies on examples drawn from wiretapped conversations, of Kavala once bringing people camped in the park a few bread rolls, talking about obtaining a plastic table for use in the park, and where to buy masks and goggles to protect from police tear gas.
The court decision also allows as admissible evidence a mass of random wiretapped conversations between the defendants and others that were illegally obtained. Far from revealing any criminal activity, the conversations show that the defendants were lawfully engaged in civil society organizations and nonviolent activism, and were exercising their rights to free speech, association, and assembly. Such activities are strictly protected under international law, including treaties to which Turkey is a party such as the European Convention of Human Rights and the International Covenant on Civil and Political Rights, as well as in Turkey’s own laws.
The decision rejects parliamentary immunity from prosecution for one of the defendants, Atalay, a lawyer and activist who won a seat in the May 2023 parliamentary elections on behalf of the Workers’ Party of Turkey. The Court of Cassation decided that he was not protected by parliamentary immunity under article 83 of Turkey’s Constitution in relation to this case confirming its own July 13 decision on the matter, and upheld his conviction. In reaching this conclusion, the Court of Cassation rejects the case law of the Constitutional Court, given under identical conditions, in judgments related to other jailed parliament members, Ömer Faruk Gergerlioğlu and Leyla Güven, which held that they do have immunity and that arresting, prosecuting, and detaining them constitute very serious violations of that immunity.
The nongovernmental organizations who signed the statement are:
- Amnesty International
- ARTICLE 19
- Human Rights Watch
- European Democratic Lawyers (AED)
- European Lawyers for Democracy and Human Rights (ELDH)
- International Commission of Jurists
- International Federation for Human Rights (FIDH)
- PEN International
- Turkey Human Rights Litigation Support Project.
Oct 10, 2023 | Advocacy, News
The International Commission of Jurists (ICJ) condemns the direct attacks against civilians in Israel, including deliberate killings of hundreds of civilians, the taking of hostages and the launching of indiscriminate rockets against civilians and civilian objects, perpetrated by Palestinian armed groups since 7 October 2023.
“I abhor the deliberate targeting of civilians and hostage-taking, and condemn the horrific escalation of violence in Israel and the Occupied Palestinian Territory,” said Santiago Canton, ICJ Secretary General. “These atrocities are crimes under international law and must stop immediately. Civilians held hostages should be released.”
The ICJ also condemns Israel’s retaliatory airstrikes against buildings in densely populated areas in Gaza, which have killed hundreds of Palestinian civilians, and the measures of collective punishment taken against civilians in Gaza, including a total siege on food, water, electricity and fuel.
“I urge the Israeli authorities to refrain from engaging in indiscriminate retaliations or any form of collective punishment against civilians and from using starvation as a method of warfare,” said Canton.
The ICJ calls on all parties to the conflict to respect their obligations under international humanitarian law to protect civilians caught up in the hostilities and for accountability for the crimes under international law that have been perpetrated.
The attack led by Palestinian armed groups began on 7 October 2023, with thousands of indiscriminate rockets fired on Israel as well as incursions in Israel of armed combatants shooting civilians en masse and taking hostages to Gaza.
Israel retaliated with attacks against the Gaza strip through waves of airstrikes targeting several residential buildings and a mosque.
The death toll reported as of this morning, 10 October, was of at least 900 Israelis and at least 700 Palestinians, with more than 2,600 Israelis and 3,700 Palestinians injured.
While Israel has already cut off electricity and fuel supplies to Gaza, on 9 October the Israeli Defence Minister announced a complete siege of Gaza, including food and water, adding “we are fighting human animals and we are acting accordingly.” On the same day, Hamas threatened to execute an Israeli captive for every Israeli bombing of a civilian building without warning.
Background
Israel has imposed an air, land and sea blockade on the Gaza Strip since 2007.
The ICJ has documented Israel’s systematic human rights violations against the Palestinians in the Occupied Palestinian territory, such as forced evictions and displacement, restrictions on freedom of movement and arbitrary deprivations of life and liberty.
The ICJ has further documented attacks by Israeli forces and Palestinian armed groups in the Gaza strip in violation of the prohibition against deliberate or indiscriminate attacks against civilians, including as a result of the launch by Palestinian armed groups of thousands of indiscriminate rockets into Israel.
In February 2023, the ICJ called on the Israeli authorities to stop all actions amounting to the war crime of collective punishment of the Palestinian people in the West Bank and East Jerusalem, including house and property demolitions, arbitrary revocation of residency and citizenship rights and forcible deportation of Palestinians from the Occupied Palestinian Territory.
The ICJ recalls that willful killing, willfully causing great suffering or serious injury to body or health, unlawful deportation and taking of hostages committed against civilians and members of armed forces placed hors de combat, as well as extensive destruction of property not justified by military necessity and carried out unlawfully and wantonly, are grave breaches of the Fourth Geneva Convention and Additional Protocol I to the Geneva Conventions and amount to war crimes under the Rome Statute and customary international law. Intentionally directing attacks against the civilian population and civilian objects and intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions, as well as measures of collective punishment against protected persons, also amount to war crimes.
Contact:
Said Benarbia, Director of the ICJ’s Middle East and North Africa Programme, email: said.benarbia(at)icj(dot)org
Oct 5, 2023 | News
The ICJ condemns the recent prosecution of two lawyers, Dalila Msadek and Islem Hamza, who act as defence counsel in a high-profile case involving political opposition figures. On 29 September 2023, the Public Prosecutor of the Tunis Court of First Instance initiated criminal proceedings against Dalila Msadek and Islem Hamza, who are members of the legal team defending a number of political opponents of the regime of Tunisia’s President, Kais Saied, some of whom have been detained since February 2023 for their alleged involvement in the so-called conspiracy case based on charges related to “terrorism” and “State security”.
البيان باللغة العربية على هذا الرابط
The ICJ further condemns the prosecution of Ayachi Hammami, also acting as defence counsel in the “conspiracy case”, who is scheduled to appear before the investigating judge of the “counter-terrorism” specialized judicial unit on 10 October 2023. Ayachi Hammami was informed that he was being prosecuted in the “conspiracy case” on 3 May 2023.
The prosecutions of Dalila Msadek, Islem Hamza and Ayachi Hammami are emblematic illustrations of a pattern of judicial harassment of lawyers representing individuals involved in political cases in Tunisia where the lawyers themselves are targeted solely because of their legitimate professional activities, ultimately underming their ability to defend their clients’ human rights, free from intimidation, hindrance, harassment or improper interference.
“This growing pattern of judicial harassment of lawyers solely for their legitimate discharge of their professional duties violates their human rights, including to liberty and security of person, fair trial, work and freedom of expression, as well as their clients’ right to a fair trial, including the right to defend themselves and to legal representation and assistance,” said Said Benarbia, ICJ MENA Director.
Dalila Msadek and Islem Hamza face charges of “spreading fake news with the aim of threatening public security through audio-visual media”, pursuant to article 24 of Decree-law 2022-54 of 13 September 2022, and of “processing of personal data relating to criminal offences, their investigation, criminal proceedings, penalties, preventive measures or criminal records”, pursuant to articles 13 and 87 of Organic Law No. 2004-63 on the protection of personal data. Dalila Msadek and Islem Hamza are being prosecuted in connection with statements they made on the radio on 28 and 29 September 2023 in which they mentioned having requested that the investigating judge of the ”counter-terrorism” specialized judicial unit should hear the diplomats whom their clients allegedly met as part of the “conspiracy” of which the prosecution accuses them.
Since June 2023, Islem Hamza has also been prosecuted in a separate case, under article 24 of Decree-Law 54, following a statement she made on the radio, in her capacity as a defence lawyer of arrested political opponents, denouncing the conditions of transfer of detainees as inhumane. Similarly, Ayachi Hammami has been prosecuted since January 2023 in a distinct case pursuant to Decree-Law 54 based on a statement he made in his capacity as a defence lawyer of the dismissed judges.
The ICJ considers that, to prosecute Islem Hamza, Dalila Msadek and Ayachi Hammami, the prosecution authorities have latched onto statements that Islem Hamza, Dalila Msadek and Ayachi Hammami made in the legitimate discharge of their professional duties as lawyers towards their clients. In addition, their statements constitute the protected exercise of their right to freedom of expression and, as such, cannot be subject to criminal prosecution under general principles of criminal law and international human rights law and standards.
Islem Hamza, Dalila Msadek and Ayachi Hammami are not isolated cases: Abdelaaziz Essid is also being prosecuted based on a statement he made as a defence lawyer in the “conspiracy case”. Moreover, Ghazi Chaouachi and Rhida Belhaj, who were representing other defendants in the “conspiracy case”, are being prosecuted in that very same case before the “counter-terrorism” specialized judicial unit.
“After arbitrarily detaining peaceful political opposition members, the authorities are increasingly using the criminal law to harass and intimidate defence lawyers and disrupt the legitimate discharge of their professional duties,” said Said Benarbia. “In so doing, they are sending the chilling message that any lawyers who represent defendants in political cases expose themselves to the risk of being prosecuted on spurious criminal charges.”
The ICJ calls on the Tunisian authorities to drop all criminal charges against all lawyers currently prosecuted solely for the legitimate discharge of their professional duties and the peaceful exercise of their right to freedom of expression and to immediately end all practices that hinder the work of lawyers.
Background
Since 2022, State authorities have increasingly targeted Tunisian lawyers for their legitimate defence work and for exercising their human rights. On 26 May 2023, several mandate holders of the UN Human Rights Council Special Procedures expressed concern over some of these cases.
According to information available to the ICJ, at least 27 lawyers are facing or have faced criminal prosecutions since 2022 based on charges related to, among others, “terrorism” and “State security”, or based on public statements critical of the executive. Among these, three – Noureddine Bhiri, Ghazi Chaouachi and Rhida Belhaj, who began a hunger strike on 2 October 2023 along with other detainees in the “conspiracy case” – are currently in detention; three other defence lawyers – Abdelrazak Kilani, Mehdi Zagrouba and Seifeddine Makhlouf – have been tried and imprisoned by military courts; and 15 others have been banned from traveling, including Lazhar Akermi following his release from pre-trial detention.
Lawyers, like any other person, enjoy the right to freedom of expression, as protected under human rights treaties to which Tunisia is party. These include the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights.
The UN Basic Principles on the Role of Lawyers and the African Commission on Human Peoples’ rights’ Principles and Guidelines on the Right to a Fair Trial in Africa reaffirm this principle and state that governments shall ensure that lawyers are able “to perform all of their professional functions without intimidation, hindrance, harassment or improper interference”, and “to travel and to consult with their clients freely both within their own country and abroad.”
The UN Special Rapporteur on the Independence of Judges and Lawyers has urged public prosecutors “ to closely monitor situations and cases in which lawyers might be criminalized for performing their duties. When such circumstances arise, appropriate orders should be issued to prevent public prosecutors from maliciously prosecuting members of the legal profession who criticize State officials and institutions in the exercise of their independence and freedom of expression.”
Sep 28, 2023 | News
The ICJ is concerned at Thailand’s continued failure to bring justice to the loved ones of Karen activist Pholachi ‘Billy’ Rakchongcharoen, who was the victim of an apparent enforced disappearance in 2014, and apparent subsequent killing.
The ICJ calls on the responsible authorities to ensure that there is continuous effective investigation to determine definitively the fate of Billy and deliver justice to his family.
Today, Thailand’s Criminal Courts for Corruption and Misconduct Cases acquitted four Kaeng Krachan National Park officials, the last individuals seen with Billy, of murder-related charges, including premeditated murder and concealing the victim’s body. Only one of the accused, Chaiwat Limlikit-aksorn, former chief of Kaeng Krachan National Park, was convicted of charges and sentenced to three years in prison related to “malfeasance in office” for failing to hand Billy over to the responsible authorities after his arrest.
The Court, constituted of a panel of two judges, indicated that it did not believe that Billy had been released as claimed by the accused. Nevertheless, the Court concluded that there was not sufficient evidence to prove that the park officials orchestrated the killing.
“More than nine years of delays, including by inaction by the government until recently, and still no justice, is a blow to the victims. This constitutes yet another marker of Thailand’s consistent failure to hold accountable perpetrators of serious human rights crimes, potentially committed by State authorities,” said Sanhawan Srisod, ICJ Legal Adviser.
Billy was the victim of an apparent enforced disappearance, as he was last seen on 17 April 2014 in the custody of Kaeng Krachan National Park officials. The officials claimed they detained Billy for illegal possession of honey, but that they released him later the same day.
On 12 September 2019, the DSI located bone fragments, along with an oil tank submerged in water, which they identified as likely belonging to Billy. The subsequent DNA test indicated a maternal relation between the fragment and Billy’s mother, suggesting a blood relationship through the maternal line. However, the Court ruled today that there was insufficient evidence to establish that they belong to Billy, as opposed to other relatives who may have passed away during the same period.
This decision was made despite testimony from State forensic experts affirming the validity of the DNA test used in this case, which needed to be considered alongside other supporting facts. This includes testimonies given by the relatives and cultural expert about the absence of known blood relatives who had passed away without knowledge, and the Karen practice of not scattering the remains of the deceased in the river. Such testimony also aligns with the opinions of international forensic experts, specifically the Independent Forensic Expert Group established by the International Rehabilitation Council for Torture Victims, who were consulted by the prosecutors’ lawyers.
Enforced disappearance was recently made a specific crime under Thai law, following the adoption of the long-delayed Act on Prevention and Suppression of Torture and Enforced Disappearance, which came into effect in February this year. Under the Act, and international law, enforced disappearance is a continuous crime, which is not completed until the fate or whereabouts of the victim becomes known. Therefore, to the extent that there is any doubt that the discovered remains belonged to Billy, the crime must be considered to be ongoing and the law is applicable to Billy, even if it was not in force when he first “disappeared.”
Nevertheless, the Prosecution did not attempt to charge the accused with enforced disappearance, and the Court consistently rejected any reference to the crime made by the prosecution during the proceedings. This includes the rejection of expert witnesses proposed by the prosecutor’s lawyers who intended to testify about international law and standards governing enforced disappearance, following the rejections made by the accused.
“It is also unfortunate that the Thai court did not take into consideration the specific nature of the crime of enforced disappearance, often accompanied by very limited circumstantial evidence, which may be the only available means of establishing the crime. Such a crime also normally includes the powerlessness of the victim in the hands of the authorities, the use of state power to destroy direct evidence in an attempt at total impunity or to create the illusion of a perfect crime, all factors that have been taken into consideration in many cases in various jurisdictions worldwide when assessing the possible involvement of the suspects in crimes of this nature,” added Srisod.
During the trial, pursuant to the Act on Establishment of the Criminal Court for Corruption Cases B.E. 2559 (2016), the Court also used the so-called inquisitorial system, which is new to both lawyers and public prosecutors accustomed to the accusatorial style of the usual Thai court system. In this regard, lawyers voiced complaints that the judge on several occasions cut short the follow-up questions that the lawyers had planned to ask, citing that these issues had already been covered during their own examinations and other written submissions.
Background
Chaiwat Limlikit-aksorn was convicted under section 157 of the Criminal Code and section 123 of the Organic Act on Counter Corruption B.E. 2542 (1999).
Thailand has signed but not yet ratified the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) and is a State Party to the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The latter two treaties prohibit conduct making up enforced disappearance, and the crime is recognized as violation of both treaties.
The National Human Rights Commission of Thailand and local Thai Civil Society Organizations continue to receive complaints of alleged human rights violations at the hands of security forces constituting serious criminal conduct, including extraterritorial killings, torture and other ill-treatment, and enforced disappearances.
Between 1980 and August 2023, the UN Working Group on Enforced or Involuntary Disappearances also recorded and transmitted 93 cases of alleged enforced disappearance to Thailand. Currently, 77 of these cases remain unresolved.
Unfortunately, the number of cases in which these allegations have been investigated, let alone perpetrators prosecuted, remains low, as are instances where there has been access to effective remedies and provision of reparations for victims. In several instances, alleged victims of torture and other ill-treatment or the families of those who died as a result of these abuses have received some monetary payments falling short of full reparation, but the perpetrators have not yet been brought to justice.
This case also follows the acquittal of five police officers charged with the robbery and coercion of the “disappeared” human rights lawyer Somchai Neelapaijit in December 2015 due to a lack of evidence.
Further reading
Thailand: Indictment of park officials for killing of “Billy” is a significant step towards justice
Thailand: discovery of “Billy’s” remains should reinvigorate efforts to identify perpetrator(s)
Thailand: special investigation into apparent enforced disappearance of “Billy” welcome, but much more is needed
Thailand: ICJ submits recommendations on draft law on torture and enforced disappearance amendments
Justice for Billy: Time for Thailand to Account for Activist’s Disappearance
Contact
Sanhawan Srisod, Associate International Legal Adviser, ICJ, e: sanhawan.srisod@icj.org
