Feb 1, 2024 | Advocacy, News
As the absolute military rule enters its fourth year with an extension of the state of emergency, widespread and systematic human rights violations continue to be perpetrated daily against large number of peoples in communities throughout Myanmar with impunity, the International Commission of Jurists (ICJ) said today.
Arbitrary arrests and detentions and unsound convictions
Widespread gross human rights violations, many of which amount to crimes under international law, have taken place in a climate of near absolute impunity, with rampant arbitrary arrests, torture, detention and convictions for political reasons.
“Respect for human rights and the rule of law has disappeared three years after the coup d’état,” said Melissa Upreti, ICJ Regional Director for Asia and the Pacific. “The military junta has continued committing gross human rights violations, including by arbitrarily arresting, detaining, torturing and summarily executing those who have dared to oppose their illegitimate regime.”
The military junta has effectively weaponized its all-encompassing control over the legal and administrative system, with main targets including real or perceived political opponents, such as former government officials, human rights defenders, lawyers, journalists and ethnic and religious minorities.
Credible information indicates that at least 25,000 individuals have been arbitrarily arrested and detained since the start of the coup, often solely in relation to their exercise of their right to freedom of expression, peaceful assembly and association. Around 8,000 have been convicted based on spurious charges, and at least 119 political prisoners remain on death row.
These figures are a grim reminder of the extent to which the rule of law has completely collapsed in Myanmar. The convictions of people for political reasons have taken place in proceedings that flagrantly violate the essential fair trial and due process guarantees established under international law:
- Many have been summarily tried and convicted in closed-door proceedings either in civilian courts located in prisons, or in military courts;
- Lawyers have been obstructed from meeting and representing detainees, and have themselves been subject to arbitrary arrests and detention in relation to their work;
- Convictions are typically based on spurious and unsubstantiated charges, and “confessions” that were reportedly obtained through torture and cruel, inhuman or degrading treatment have been unlawfully relied on in these convictions; and
- Other violations include the suspension of habeas corpus; and particularly for closed-door military tribunal proceedings, violations of the right to be present at one’s trial, the right to be represented by counsel and the right to appeal.
Prison conditions and treatment of detainees
“Detainees are being held in prisons and detention facilities in horrific conditions that run afoul of international law and standards governing the treatment of prisoners. Violence, much of which amounts to torture, is a daily reality for detainees, with women and LGBT detainees being subjected to targeted forms of cruelty and abuse, as a form of punishment and to instill fear. Unlawful deaths in custody are a common occurrence and remain unaccounted for,” added Upreti.
There is credible evidence that detainees are being subjected to severe beatings with sticks, wire ropes and guns, electrocution, mock execution, and burying alive. Women and LGBT detainees have reported cases of rape, invasive strip searches, sexual harassment and mutilation of genitalia.
Furthermore, reports have emerged of the severe overcrowding, poor hygiene and sanitation, lack of access to healthcare and insufficient food in detention facilities. There are also credible reports of religious minorities being prohibited from practicing their religion while in detention.
Continued failure to restore democratic institutions and violence against civilians
These widespread systematic human rights violations are taking place against the backdrop of the military extending its unlawful declaration of a state of emergency on 31 January 2024 and prolonging its unlawful, arbitrary and abusive exercise of authority. This reneges on its promise to hold national elections in August 2023, which, even if they had been carried out, would likely have been shambolic amidst the ongoing crackdown on perceived political opponents.
Numerous separate armed conflicts continue to rage within the country, involving the Tatmadaw (Myanmar’s army) and anti-military armed groups. In carrying out its military operations, the military has unlawfully attacked civilians taking no part in hostilities, including direct, indiscriminate or disproportionate attacks on civilians and civilian objects from aerial bombings; mass extrajudicial executions of civilians and detained combatants and large-scale and intentional burning of civilian homes and buildings, including religious infrastructure. As noted by the Independent Investigative Mechanism for Myanmar (IIMM), these constitute “strong evidence indicating that serious international crimes are being inflicted against the people in Myanmar”.
Recommendations
“For Myanmar to return to the path of establishing itself as society based on rule of law, human rights and democracy, the first step is to end the state of emergency and all of the unlawful actions of the military regime that flow from it, including the prevailing impunity,” stressed Upreti. “The military regime and its members must be held accountable, the complicity that enables them must end and the human rights of all people in Myanmar must be fully restored.”
The ICJ reiterates its calls on the military to:
- Return the country to a civilian government and restore democracy;
- Immediately cease systematically violating the rights of persons for political reasons, including by releasing all people arbitrarily arrested and detained, and allowing the country’s institutions to function independently and impartially; and
- Immediately cease all practices of torture, extrajudicial killings, arbitrary detention, and flagrant fair trial violations.
The ICJ urges all UN Member States to:
- Keep up its pressure for the peaceful transfer of power to a democratically elected government;
- Increase support for coordinated documentation and accountability efforts by ensuring that the IIMM, Special Rapporteur on the situation of human rights in Myanmar and Office of the United Nations High Commissioner for Human Rights are given adequate resources to continue their important functions as effectively as possible; and
- Hold perpetrators of serious crimes under international law accountable, including by exercising universal jurisdiction over these crimes in domestic courts.
Contact
Melissa Upreti, ICJ Regional Director for Asia and the Pacific, e: melissa.upreti@icj.org
Daron Tan, ICJ Associate International Legal Adviser, e: daron.tan@icj.org
Further Reading
ICJ, “Myanmar: Two years after the coup, country further than ever from democracy and the rule of law”, 2 February 2023
ICJ, “Myanmar: A year after military takeover, no rule of law or judicial independence”, 10 February 2022
Jan 19, 2024 | News
On 15-16 January 2024, the International Commission of Jurists (ICJ), in cooperation with ARTICLE 19, organized a workshop in the province of Chiang Mai where over two dozen civil society actors and human rights defenders considered how to invoke and apply international law and standards related to land. The goal was to advocate for better protection of the human rights of affected individuals and communities across Thailand.
“Access to, use of, and control over land can have direct and indirect implications for the enjoyment of a range of human rights, particularly those under the International Covenant on the Economic, Social and Cultural Rights (ICESCR) to which Thailand is a party,” said Seree Nonthasoot, Member of the United Nations Committee on Economic, Social, and Cultural Rights (CESCR).
Thailand has a long-standing track record of failing to meet its human rights obligations related to land, especially concerning Indigenous Peoples, peasants, and other traditional communities, many of which have a material and spiritual relationship with their ancestral lands. Violations include the failure to ensure the security of tenure and meaningful and effective participation of communities in land-related decision-making processes.
Large-scale forced evictions conducted in violation of international law, inadequate and inconsistent compensation provided to affected communities and individuals due to land-related policies, and displacement of entire communities that are consequently struggling to access livelihoods without adequate support from the State have also been reported.
“When the social, cultural, spiritual, economic, environmental, and political value of land for communities is systematically disregarded by domestic law, international law and standards become important tools for victims and civil society to use in their advocacy for the protection of human rights. International mechanisms also offer crucial avenues for exposing serious human rights violations and seeking accountability,” added Sanhawan Srisod, ICJ’s Legal Adviser.
The workshop aimed to build participants’ documentation skills, strengthen their advocacy and promote networking. Further, the training explored different approaches and the benefits of engaging with UN human rights mechanisms for the protection of human rights in relation to land. The workshop provided a space for participants to discuss how civil society actors can utilize the outputs of these mechanisms in their activities, as well as how to effectively communicate with such mechanisms to ensure that their engagement is strategic and productive.
Background
Speakers included:
- Pairoj Ponpesh, Adviser, National Human Rights Commission of Thailand
- Pratubjit Neelapaijit, National Human Rights Officer, OHCHR’s Regional Office for Southeast Asia
- Sanhawan Srisod, Legal Adviser, ICJ
- Seree Nonthasoot, Member of the United Nations Committee on Economic, Social, and Cultural Rights
Unofficial translations of key CESCR’s jurisprudences into Thai were also provided and shared with the participants. These included:
For more information regarding the legal framework, policies, and practices related to land in the context of the establishment and development of special economic zones (SEZs) against international law and standards, available in English and Thai.
Contact:
Sanhawan Srisod, Associate International Legal Adviser, ICJ Asia Pacific Programme; e: sanhawan.srisod@icj.org
Dec 15, 2023 | Advocacy, News
On the 11-year anniversary of the enforced disappearance of Lao civil society leader Sombath Somphone, we, the undersigned civil society organizations and individuals, strongly condemn the Lao government’s continued failure to provide necessary information as to his fate and whereabouts and reiterate our calls to the authorities to deliver truth, justice and reparations to his family.
International concerns over Sombath’s case, expressed by international civil society, United Nations (UN) human rights experts, and UN member states on last year’s anniversary of Sombath’s enforced disappearance, have been ignored by the Lao government.
On 25 September 2023, in a submission to the UN Human Rights Committee as part of its follow-up review of Laos under the International Covenant on Civil and Political Rights, the Lao government repeated previous misleading statements and miserably failed to provide any additional information on the steps it said it had taken to find Sombath. The government claimed it “never stopped trying to find the truth” about Sombath’s fate “in order to bring the offender(s) to justice.” In reality, the Lao authorities have continued to disregard Sombath’s wife, Shui Meng Ng, and have not provided her with any updates on her husband’s case since 2017. The government then made the extraordinary assertion that its Task Force’s investigation had been “carried out on the basis of transparency, impartiality and accountability, including the use of modern investigative techniques consistent with international standards by the capable inquiry officials.” It concluded that the case of Sombath needed “more time for investigation” and added that the Task Force was “still active in the investigation” and had “not yet closed the case.”
These government statements are unequivocally false in suggesting any degree of transparency. Existing evidence is clear that the Lao government has been engaged in a continuous cover-up of the facts of Sombath’s case since he was forcibly disappeared in 2012, including providing misleading information about its actions to his family, the Lao public, and the international community, as stated above.
We deplore the unmistakable pattern of inaction, negligence, and obfuscation that various Lao authorities have repeatedly engaged in for more than a decade and we continue to resolutely stand in solidarity with Sombath’s family and all other victims of enforced disappearances in Laos.
We reiterate our calls on the Lao authorities to take real and effective measures to establish the fate or whereabouts of Sombath and all other victims of enforced disappearances in the country, identify the perpetrators of such serious crimes, and provide victims with an effective remedy and full reparations. We also urge the government to immediately ratify without reservations the International Convention for the Protection of all Persons from Enforced Disappearance, which it signed in 2008, and to fully implement it into national law, policies, and practices.
As upcoming chair for the Association of Southeast Asian Nations (ASEAN), Laos will be placed in a strategic position to lead the regional efforts to strengthen, promote, and protect human rights. However, its continued failure to act on Sombath’s enforced disappearance sends a message of inadequacy to head the regional bloc and to fulfill ASEAN’s purpose under Article 1(7) of the ASEAN Charter, which is to strengthen democracy, enhance good governance, and the rule of law and to promote and protect human rights and fundamental freedoms.
We will continue to seek justice and accountability for Sombath. Until the truth is found and justice is delivered to his family, we will not stop demanding answers from the Lao government to the same question we have been asking for the past 11 years: “Where is Sombath?”
Background
Sombath Somphone, a pioneer in community-based development and youth empowerment, was last seen at a police checkpoint on a busy street of Vientiane on the evening of 15 December 2012. Footage from a traffic CCTV camera showed that police stopped Sombath’s vehicle at the checkpoint and that, within minutes, unknown individuals forced him into another vehicle and drove him away in the presence of police officers. CCTV footage also showed an unknown individual arriving and driving Sombath’s vehicle away from the city center. In December 2015, Sombath’s family obtained new CCTV footage from the same area and made it public. The video shows Sombath’s car being driven back towards the city by an unknown individual.
For further information, please visit: https://www.sombath.org/en/
List of Signatories
Organizations:
- Alternative ASEAN Network on Burma (ALTSEAN-Burma)
- Amnesty International
- Armanshahr Foundation | OPEN ASIA
- ARTICLE 19
- Asia Democracy Network (ADN)
- Asia Europe People’s Forum
- Asian Cultural Forum on Development (ACFOD)
- Asian Forum for Human Rights and Development (FORUM-ASIA)
- AWAM Pakistan
- Banglar Manabadhikar Suraksha Mancha (MASUM)
- Boat People SOS
- Cambodian Human Rights and Development Association (ADHOC)
- Cambodian League for the Promotion and Defense of Human Rights (LICADHO)
- Campaign Committee for Human Rights (CCHR)
- Campaign for Popular Democracy (CPD)
- Center for Prisoners’ Rights (CPR)
- Centre for Civil and Political Rights
- CIVICUS: World Alliance for Citizen Participation
- Commission for the Disappeared and Victims of Violence (KontraS)
- Committee of the Relatives of the May 1992 Heroes
- Community Resource Centre (CRC)
- Cross Cultural Foundation (CrCF)
- Dignity-Kadyr-kassiyet
- FIDH – International Federation for Human Rights
- Focus on the Global South
- Fortify Rights
- Fresh Eyes
- Front Line Defenders
- Hawai’i Institute for Human Rights
- Human Rights Alert
- Human Rights and Development Foundation (HRDF)
- Human Rights Commission of Pakistan (HRCP)
- Human Rights in China
- Human Rights Lawyers Association (HRLA)
- Human Rights Watch
- Indonesia Legal Aid Foundation (YLBHI)
- INFORM Human Rights Documentation Centre Sri Lanka
- Informal Sector Service Center (INSEC)
- International Campaign for Tibet (ICT)
- International Coalition Against Enforced Disappearances (ICAED)
- International Commission of Jurists (ICJ)
- International Rivers
- Internet Law Reform Dialogue (iLaw)
- Judicial System Monitoring Program (JSMP)
- Karapatan Alliance Philippines
- Kazakhstan International Bureau for Human Rights and Rule of Law (KIBHR)
- Korean House for International Solidarity (KHIS)
- Lao Movement for Human Rights
- Law and Society Trust Sri Lanka
- League for the Defence of Human Rights in Iran (LDDHI)
- Madaripur Legal Aid Association (MLAA)
- Malaysians Against Death Penalty and Torture (MADPET)
- Maldivian Democracy Network
- Manushya Foundation
- MARUAH
- National Commission for Justice and Peace (NCJP)
- Odhikar
- Pakistan Kissan Rabita Committee
- People’s Solidarity for Participatory Democracy (PSPD)
- People’s Watch
- Perhimpunan Bantuan Hukum Indonesia (PBHI)
- Philippine Alliance of Human Rights Advocates (PAHRA)
- Progressive Voice
- Pusat Komas
- Refugee and Migratory Movements Research Unit (RRMRU)
- Solidarity for People’s Education and Lifelong Learning (SPELL)
- Stiftung Asienhaus
- Suara Rakyat Malaysia (SUARAM)
- Task Force Detainees of the Philippines (TFDP)
- Thai Lawyers for Human Rights (TLHR)
- Think Centre
- Transnational Institute
- Vietnam Committee on Human Rights (VCHR)
- WOREC Nepal
- World Organisation Against Torture (OMCT)
Individuals:
- Anne-Sophie Gindroz
- David JH Blake
- Nico Bakker
- Randall Arnst
- Shui Meng and Sombath’s family, Vientiane
Dec 7, 2023 | Events, News
On 5 – 6 December 2023, the International Commission of Jurists (ICJ) co-organized a workshop, with the Department of Justice (DOJ) of the Philippines, on ensuring the protection of human rights in the online sphere under international human rights law.
The workshop was aimed at enhancing the capabilities of public prosecutors to integrate into their work the relevant international human rights law and standards pertaining to human rights in the online space.
“More than forty percent of our time each day is now spent connected to the internet. This has changed our lives. New technologies have also engendered new challenges for the fulfilment of human rights,” stressed Santiago Canton, ICJ Secretary General, during his opening remarks. “International human rights law provides the framework for us to better understand and respond to these new developments.”
Expert international and Filipino participants reaffirmed the pivotal role that public prosecutors play in protecting and promoting human rights in the digital sphere.
“This workshop was scheduled to coincide with the National Human Rights Consciousness Week in the Philippines, and the inauguration of the DOJ’s Human Rights Office, as part of our efforts to integrate human rights-based approaches into our prosecutorial work,” said Prosecutor Hazel C. Decena-Valdez, OIC Senior Deputy State Prosecutor, Department of Justice, noting the particular timeliness of the workshop in her opening remarks.
Participants raised concerns about human rights violations and abuses perpetrated in digital spaces, including the particular risks experienced by individuals from certain groups, such as children and women.
“The risks of violations or abuses of children’s rights in the digital environment include exposure to unlawful or harmful contents, and online bullying, threats, attacks, punishment, censorship and digital surveillance,” highlighted ICJ Commissioner Mikiko Otani, Former Chair of the UN Committee on the Rights of the Child. “The role of prosecutors in securing the rights of the child in digital environments is very important, by holding perpetrators of violations accountable, and protecting child victims from secondary victimization.”
The participants discussed the numerous challenges they face when prosecuting cases impacting human rights in the digital space, and mapped out how to better integrate international human rights law and standards into their investigatory and prosecutorial work in order to ensure access to justice and effective remedies.
Some of these challenges include how to: handle criminal cases based on domestic laws that conflict with international human rights law; ensure that there is accountability for violations and abuses of human rights online; and prevent biases and stereotyping, such as those based on gender, when investigating and prosecuting cases.
“Prosecutors should ensure that they develop protocols to help eradicate structural gender bias, and ensure gender-responsive approaches to their work. This includes preventing revictimization and ensuring confidentiality when handling cases,” underscored Melissa Upreti, ICJ Regional Director for Asia and the Pacific. “Online violence should not be distinguished as a lesser crime, and the human rights implications of online gender-based violence must be fully recognized.”
Contact
Melissa Upreti, ICJ Regional Director, Asia and the Pacific, e: melissa.upreti@icj.org
Daron Tan, ICJ Associate International Legal Adviser, e: daron.tan@icj.org
Caleen Obias, ICJ National Legal Consultant, e: caleen.obias@icj.org
Background
The workshop was attended by 22 public prosecutors from the Department of Justice.
The key thematic issues discussed during the workshop were:
- The right to online freedom of expression and information;
- Domesticating international human rights law;
- Protecting children’s rights online;
- Protecting women’s rights online; and
- Court technologies, access to justice and impacts on the right to a fair trial.
The speakers at the workshop were:
- Santiago Canton, Secretary General, ICJ;
- Prosecutor Hazel C. Decena-Valdez, OIC Senior Deputy State Prosecutor, Department of Justice;
- Justice Adolfo Azcuna, ICJ Commissioner; Justice, Supreme Court (Ret.); Chancellor Emeritus, Philippine Judicial Academy;
- Mikiko Otani, ICJ Commissioner; Member and Former Chair, UN Committee on the Rights of the Child;
- Melissa Upreti, Regional Director for Asia and the Pacific, ICJ; and
- Atty. Oliver Xavier Reyes, Senior Lecturer, University of the Philippines College of Law.
Dec 6, 2023 | Advocacy, News
The second revision of Law No. 11 of 2008 on Electronic Information and Transactions (ITE Law), which was passed on 5 December 2023, does not comply with international human rights law and standards on freedom of expression and information, said the International Commission of Jurists (ICJ) today.
On 5 December 2023, the Indonesian House of Representatives passed the bill for the second revision of the ITE Law into law.
The ICJ is gravely concerned that the revised ITE Law fails to rectify the main flaws of its previous iteration, which has been used to wrongly criminalize and restrict free expression in online spaces. The criminal provisions contained in the revised law are inconsistent with international human rights law and standards, with added provisions having the potential to exacerbate repression of online expression.
“The retention of overbroad criminal provisions in the revised ITE Law signals the continuing failure of Indonesia to comply with its international human rights obligations to respect and protect the right to freedom of expression,” said Melissa Upreti, ICJ Regional Director for Asia and the Pacific. “The revision process lacked transparency, and important recommendations made by civil society to remove the ITE Law’s fatally flawed provisions have been disregarded.”
The ICJ is also concerned that the drafting process for the second revision was opaque, with public feedback on the draft having been ignored. The lack of transparency in the drafting process contravenes Indonesia’s obligation to ensure the effective exercise of the right to participate in public affairs, as guaranteed under article 25 of the International Covenant on Civil and Political Rights (ICCPR).
“The second revision of the ITE Law failed to capitalize on the opportunity for the Indonesian authorities to strengthen the protection of online freedom of expression and to reaffirm its commitment to respecting and protecting human rights in the online space. It is imperative that the revised law repeals or substantially amends the overbroad criminal provisions that have been used with concerning frequency to arbitrarily suppress online freedom of expression and create a climate of fear,” said Upreti.
In light of these concerns, the ICJ calls for the repeal or substantial amendment of the revised ITE Law to bring it in line with Indonesia’s human rights obligations to respect and protect the right to freedom of expression and information, through a transparent process that involves the effective participation of civil society.
Criminalization of free expression online
The revised ITE Law retains the overbroad and vague provisions criminalizing “contents that violate propriety” (article 27(1)); criminal defamation (article 27A); and “content that incites, persuades or influences” others that “causes feelings of hatred or hostility” based on protected characteristics (article 28(2)). A violation of these offences may result in imprisonment and criminal fines if found convicted (articles 45 and 45A).
Additionally, the revised law incorporates a new provision that imposes criminal liability for intentionally disseminating content that a person “knew contained false statements that cause public unrest” (article 28(3)), which may result in imprisonment if found convicted (article 45A(3)).
Any restriction on the right to freedom of expression and information must comply with the elements of legality, legitimate purpose, necessity and proportionality required under article 19(3) of the ICCPR. This means that any restriction on the right to freedom of expression must be based on law that is precisely worded, and be necessary for and the least restrictive measure to respond to a legitimate aim. The only aims identified as legitimate in article 19(3) are ensuring respect of the rights or reputations of others; or for the protection of national security, public order, public health or morals.
The criminal provisions in the revised law are unnecessary for any legitimate government purpose and risk making criminals of large numbers of ordinary internet users, and chilling many others from speaking online. They are clearly inconsistent with Indonesia’s obligations under article 19 of the ICCPR to guarantee the right to freedom of expression and information. They threaten unwarranted criminal sanctions for acts that are based on vague and overbroad language, which could be applied to unduly interfere with the rights of individuals and disproportionately impact those from disadvantaged and marginalized groups.
For instance, article 27(1) of the revised ITE Law threatens criminal sanctions for disseminating content that violates “propriety”, defined as “displaying nudity, genitalia, and sexual activity that contravenes with the values existing in society […]”. While the law now includes an exemption for public interest and self-defence (article 45(2)), this definition for “propriety” is vague and overbroad, having the potential to be weaponized to unjustly sanction any form of expression by individuals from marginalized groups, such as LGBTI-related content. Further, it could enable legal reprisals against victims/survivors of gender-based violence and lead to revictimization.
Defamation should never be subject to criminal, as opposed to civil, sanctions. The UN Human Rights Committee, which authoritatively interprets the ICCPR, has called on States to end the use of the criminal law for such purposes and affirmed that “imprisonment is never an appropriate penalty [for defamation]”. While the revised ITE law now incorporates a public interest exemption, the retention of criminal defamation will continue to have a chilling effect on online freedom of expression and information. Indeed, the previous criminal defamation provision in article 27(3) of the ITE Law, has already been applied to target expression critical of the government.
The criminalization of disseminating content that incites “feelings of hatred or hostility” in article 28(2) cannot be used to justify the application of criminal law. While States must act under the ICCPR article 20 to protect against actual incitement to violence and discrimination, provoking mere “feelings” of ill-defined conceptions of “hatred or hostility” stands well below the threshold of actual acts of violence or discrimination. In any event, the use of the criminal law is a plainly disproportionate measure to address any legitimate objective. The ICJ notes that the previous criminal hate speech provision in the ITE Law has been applied in an arbitrary manner to charge journalists and convict forms of expression that do not give rise to substantial harm.
The addition of article 28(3) in the revised ITE Law to criminalize disseminating “false statements” that causes “public unrest” is vague, overbroad and imprecise, which is inconsistent with the legality principle. Authorities may not rely on the prevention of “public unrest”, vaguely defined as “conditions that disturb public order […]”, to justify the disproportionate threat of criminal sanctions, especially imprisonment. The ICJ notes how other criminal provisions sanctioning disinformation, based on colonial-era regulations, have been used to arbitrarily sanction legitimate expression protected under international human rights law, including public interest reporting or critical opinions concerning public officials.
This press release can be downloaded in Bahasa Indonesian here.
Contact
Melissa Upreti, ICJ Regional Director for Asia and the Pacific, e: melissa.upreti@icj.org
Daron Tan, ICJ Associate International Legal Adviser, e: daron.tan@icj.org
Yogi Bratajaya, ICJ Legal Consultant, e: yogi.bratajaya@icj.org
Further reading
Dictating the Internet: Curtailing Free Expression, Opinion and Information Online in Southeast Asia
Indonesia: ICJ asks court to ensure that defamation and “false information” laws not be used to silence and criminalize human rights defenders
Indonesia: Law No. 12 of 2022 on Sexual Violence Crimes and Online Gender-Based Violence Against Women
Silenced But Not Silent: Lesbian, Gay, Bisexual and Transgender Persons’ Freedom of Expression and Information Online in Southeast Asia
Dec 4, 2023 | Events, News
The conclusion drawn at a workshop hosted by the International Commission of Jurists (ICJ) and Thailand’s Ministry of Justice on 30 November and 1 December 2023, in Ayutthaya province, was that Thailand should step up efforts to provide real access to justice for victims of corporate human rights abuses involving Thai companies abroad. This is imperative to make sure that Thailand meets its international legal obligations and fulfills the commitment it made in adopting a National Action Plan on Business and Human Rights Phase 2 (NAP), aimed at regulating the conduct of Thai companies abroad.
The workshop advanced a crucial component of the set of action points outlined in the NAP, engaging nearly 30 members from the justice sector, relevant authorities across various departments, academics, lawyers, and civil society actors.
“This workshop holds particular importance as it contributes to the global initiative aimed at addressing the lack of human rights regulation and the accountability of transnational corporations, a significant gap in human rights protection,” remarked Santiago A. Canton, ICJ’s Secretary-General in an opening statement.
“The state’s obligation to prevent human rights abuses committed by the companies it may influence does not stop at the border. The adoption of the Maastricht Principles in 2011 revealed evidence of State obligations to protect economic, social, and cultural rights beyond its borders, including in the context of corporate conduct, and this obligation binds the judiciary of the State. These principles have subsequently been confirmed by several jurisprudences of the UN treaty bodies,” said Sandra Epal Ratjen, ICJ’s UN Senior International Legal Adviser.
During the workshop, participants discussed existing challenges, covering areas such as corporate veils, conflicts of law, jurisdictional issues, statutes of limitations, and remedies.
“When an abuse occurs, the legal separation of corporate entities often allows parent companies and their representatives to evade responsibility for human rights abuses committed by them, leaving victims with no means to enforce compensation awards,” said Sanhawan Srisod, ICJ’s Legal Adviser.
“Courts in the parent company’s home country may serve as an alternative forum for claims seeking remedy or reparation. However, affected foreign citizens generally encounter greater barriers than Thai citizens in accessing justice due to several reasons, including language barriers, lack of understanding of the Thai legal system, financial constraints, short statutes of limitation, and the unavailability of access to legal aid, local lawyers, and internal corporate documents,” added Srisod.
Proposals from the participants included amending laws to shift the burden of proof, especially when critical facts or documents necessary to resolve a claim reside exclusively within the knowledge of the corporate defendant. This involves considering the potential influence parent companies exert over their subsidiaries in relevant actions. Other recommendations involved extending the statute of limitations for cases involving victims of transnational corporate human rights abuses, acknowledging the existence of corporate veils under Thai law, strengthening the enforcement of foreign judgments against parent companies in Thailand.
Effective measures aimed at ensuring remedies could include requiring businesses to obtain insurance coverage or establishing preventive remedial funds for Thai businesses before embarking on overseas investment. The eligibility criteria of existing funds and grievance mechanisms could be widened within Thailand to explicitly allow affected persons outside the country access to such remedies and mechanisms. There were also suggestions to explicitly broaden the scope of duties of the National Human Rights Commission of Thailand (NHRCT) to investigate and reconcile abuses occurring abroad.
Further recommendations included establishing standards for remedies with a human-centered approach and exploring the implementation of social sanction measures.
Participants considered how best to implement measures through bodies such as the Securities and Exchange Commission (SEC) and the Board of Investment (BOI), whose representatives attended the Workshop. This encompassed proposals for sustainable disclosure of corporate information to both the SEC and BOI. Additionally, there were suggestions to strengthen the BOI’s role or assign a permanent mandate to the NAP Committee for overseeing Thai investments abroad. Participants also explored the idea of incorporating human rights challenges faced in foreign investment as mandatory disclosure points in the SEC’s One-Report, which listed companies are required to submit annually. Furthermore, there were discussions regarding the Stock Exchange of Thailand (SET) assuming a more influential role in regulating transnational corporations.
Background
Thailand’s National Action Plan on Business and Human Rights Phase 2 (2023-2027) outlines various activities within the Action Plan on Cross Border Investment and Multinational Enterprises.
Its Action Point 1.3 designates the Ministry of Justice, supported by the Ministry of Foreign Affairs and the Office of the Attorney General, with the responsibility of conducting a study. This study aims to offer recommendations for amending laws or establishing measures aimed at ensuring access to the justice system and effective civil, criminal, and administrative remedies for communities, both locally and overseas, affected by the operations of Thai companies or state enterprises abroad.
This workshop was the second of its kind. The first meeting was conducted on 10 and 11 September 2022 by the ICJ and Thailand’s Ministry of Justice.
Speakers at the Workshop included:
- Darunee Paisanpanichkul, Deputy Dean, Faculty of Law, Chiang Mai University
- Ruangsak Suwaree, Director-General, Rights and Liberties Protection Department, Ministry of Justice
- Sandra Epal Ratjen, Senior International Legal Adviser and UN Representative, ICJ
- Sanhawan Srisod, Legal Adviser, ICJ
- Santiago A. Canton, Secretary-General, ICJ
- Sayamol Kaiyoorawong, National Human Rights Commissioner of Thailand
- Teerachai Sanjaroenkijthaworn, Co-ordinator, Extra-Territorial Obligation Watch Coalition
Contact
Sanhawan Srisod, ICJ Associate International Legal Adviser, e: sanhawan.srisod@icj.org
Further reading
Thailand: Barriers persist in access to justice for victims of human rights abuses involving Thai transnational corporations abroad – ICJ report
