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
Nov 30, 2023 | Events, News
On 29 November 2023, the ICJ co-hosted a dialogue among Thai lawyers, academics, and Santiago A. Canton, Secretary General of the ICJ to exchange best practices from Latin America, specifically focusing on insights from the Inter-American Court of Human Rights and domestic courts in the region – to address ongoing challenges in litigating cases involving suspected enforced disappearances within Thai courts.
The Dialogue involved challenges encountered in litigating cases of enforced disappearances, particularly in terms of accessing, collecting, and admitting evidence within Thai courts. These challenges are notably complex, especially when the crimes have occurred beyond Thailand’s borders.
Additionally, participants discussed the difficulties related to establishing the responsibility of individuals for these serious crimes and how courts have handled evidence submitted in previous enforced disappearance cases. This included instances where evidence, such as telecommunications, as well as various forensic evidence like biological evidence and DNA evidence, was dismissed, and the failure to identify the perpetrator in cases where the victims’ bodies or remains could not be located.
“The crime of enforced disappearance completely eradicates any trace of the victim, with no acknowledgment by the authorities and no effective investigation. The requirement to locate the disappeared individuals’ bodies and remains contradicts the very nature of the crime of enforced disappearance,” said Santiago A. Canton, Secretary General of the ICJ.
While highlighting that the criteria for evaluating evidence within the Inter-American Court of Human Rights (IACtHR) are less formal compared to domestic criminal legal systems, Canton noted IACtHR’s jurisprudence relevant to the admissibility of circumstantial and indicative evidence, which was particularly instructive as enforced disappearances typically involve deliberate attempts by state officials to destroy direct evidence, aimed at securing impunity.
“The standard of proof in the Inter-American Court of Human Rights allows lawyers, under certain circumstances, to only establish a demonstrable ‘practice’ of enforced disappearances at the time of a specific case. When combined with circumstantial evidence, this can result in a judicial presumption of enforced disappearance,” said Canton.
Participants also discussed the ‘continuous nature’ of enforced disappearance crimes, which are recognized under Thai law and enable cases from the past, where the fate and whereabouts of victims remained unknown, to be prosecutable before the court, notwithstanding the fundamental principle of non-retroactivity.
Closing remarks by Angkhana Neelapaijit, a Member of the UN Working Group on Enforced or Involuntary Disappearances, whose husband Somchai Neelapaijit was a victim of enforced disappearance, detailed the role of the Working Group and the steps taken globally to address the crime.
Background
More than 20 Thai experts, lawyers, and academics, who represent or have experience researching cases of enforced disappearances in Thailand, participated in the discussion.
Thailand’s Act on Prevention and Suppression of Torture and Enforced Disappearance became effective in February 2023. However, its implementation has been slow. The majority of cases involving suspected torture, ill-treatment, and enforced disappearances are still in the investigation phase, and not yet moved into the adjudication phase. Limited information about its progress has been made available to the public.
Prior to the enactment of this new law, only two cases of apparent enforced disappearances reached Thai courts: the case of prominent Muslim lawyer Somchai Neelapaijit and Karen activist Pholachi ‘Billy’ Rakchongcharoen. Unfortunately, these cases concluded with limited success, mainly due to challenges surrounding the evidence submitted to the court.
Contact
Sanhawan Srisod, ICJ Associate International Legal Adviser, e: sanhawan.srisod@icj.org
Further reading
Thailand: a report on the criminal trial and investigation of the enforced disappearance of the Thai human rights lawyer, Somchai Neelapaichit
Ten Years Without Truth: Somchai Neelapaijit and Enforced Disappearances in Thailand
Nov 30, 2023 | Advocacy, Analysis briefs, News
The International Commission of Jurists (ICJ), in an amicus curiae brief submitted today, has requested the East Jakarta District Court to give effect to Indonesia’s international legal obligations concerning freedom of expression and information in their adjudication of a case concerning criminal charges against two human rights defenders, Haris Azhar and Fatia Maulidiyanti.
Nov 28, 2023 | Cases, News
FOR IMMEDIATE RELEASE
Berlin, November 28, 2023 – A German court in the city of Celle is expected to deliver a verdict on November 30, 2023, in the first trial in Germany for crimes committed in The Gambia, Gambian and international civil society groups said today in releasing a question and answer document about the trial.
The groups are: the African Network against Extrajudicial Killings and Enforced Disappearances (ANEKED), the European Center for Constitutional and Human Rights (ECCHR), the Gambian Center for Victims of Human Rights Violations, Human Rights Watch, the International Commission of Jurists, Reporters Without Borders (RSF), the Rose Lokissim Association, the Solo Sandeng Foundation, and TRIAL International.
This trial is possible because Germany recognizes universal jurisdiction over certain serious crimes under international law, allowing for the investigation and prosecution of these crimes no matter where they were committed and regardless of the nationality of the suspects or victims.
The trial concerns Bai L., an alleged member of the “Junglers,” a paramilitary unit also known as the “Patrol Team,” which was set up by then-president Yahya Jammeh in the mid-1990s. Jammeh’s 22-year rule was marked by systematic oppression and widespread human rights violations, including torture, extrajudicial killings, enforced disappearances, and sexual violence against actual and perceived opponents.
German prosecutors accuse Bai L. of being a Junglers driver involved in the attempted murder of Ousman Sillah, a lawyer; the murder of Deyda Hydara, a journalist; the attempted murder of Ida Jagne and Nian Sarang Jobe, who worked with the independent newspaper Hydara; and the murder of a former Gambian soldier, Dawda Nyassi
The verdict in the Bai L. case represents a major step in the search for justice for years of abuses committed under Jammeh’s rule in The Gambia, the groups said. The Bai L. trial reinforces the role that governments like Germany can play in advancing justice for atrocities committed abroad under the principle of universal jurisdiction.
Civil society groups will hold a news conference online on Thursday, November 30 after the verdict is issued – scheduled for 3:30 pm CET – at the following link: https://us06web.zoom.us/j/81236784593?pwd=tvLgbtT3I8N9rF2Db2XTIRyH3Kn1gv.1
To read the question-and-answer document, please see the attached PDF:
Questions and Answers on first German trial for serious crimes
For more information, please contact:
For Reporters Without Borders, in Dakar, Sadibou Marong (English, French): +221-70-960-40-92 (mobile); or smarong@rsf.org. Twitter: @cheikhsadbu
For TRIAL International, in Geneva, Babaka Mputu (English, French, German): +41-775-07-04-56 (mobile); or media@trialinternational.org. Twitter: @Trial
For Human Rights Watch, in New York, Elise Keppler (English, French): +1-917-687-8576 (mobile); or kepplee@hrw.org. Twitter: @EliseKeppler
For Solo Sandeng Foundation, in Germany, Fatoumatta Sandeng (English, German, Mandinka, Wollof): +49-163-174-7519 (mobile); or solosandengfoundation@gmail.com. Twitter: @solosandengfound
For ANEKED, in New York, Nana-Jo Ndow (English, French, Spanish, Portuguese): +1-929-684-5734 (mobile); or nanajo.ndow@aneked.org. @theANEKED
For Reporters Without Borders, in Berlin, Nicola Bier (German, English, French, Spanish, Italian): +49-160-9957-6073 (mobile); or nicola.bier@reporter-ohne-grenzen.de. Twitter: @ReporterOG
Lawyer for Baba Hydara and Omar and Modou Nyassi, in Celle, Patrick Kroker (German, English, French): +49-170-813-6258 (mobile); or info@patrickkroker.net. Twitter: @pkroker2
For International Commission of Jurists, in New York, Reed Brody (English, Spanish, French, Portuguese): +1-917-388-6745 (mobile); or reedbrody@gmail.com. Twitter: @reedbrody
Nov 24, 2023 | Events, News
“The law governing the development of Thailand’s Eastern Economic Corridor (EEC) must be evaluated and revised to address concerns raised by local communities, and align with Thailand’s international human rights obligations,” concluded participants at a dialogue hosted by the International Commission of Jurists (ICJ), Land Watch Thai, EEC Watch, ENLAW Thai Foundation, and Thai Public Broadcasting Service (Thai PBS) in Bangkok, on 22 November 2023.
Participants shared recommendations aimed at improving the Eastern Special Development Zone Act B.E. 2561 (2018) (‘EEC Act’), which governs the operation of the EEC, to better serve the rights and interests of persons in affected communities. These suggestions will be compiled by the organizers and submitted as part of the official consultation process during the 2024 evaluation by the Office of the Eastern Special Development Zone Policy Committee (‘EEC Office’).
The EEC is a special economic zone in Thailand being developed in the eastern coastal provinces of Rayong, Chonburi, and Chachoengsao, along the Gulf of Thailand. Its objective is to promote investment in next-generation industries utilizing innovation and high technology.
“The EEC Act, however lofty are its stated aim, fails to incorporate adequate protection of human rights. While the EEC Act nominally acknowledges international human rights standards such as the United Nations Guiding Principles on Business and Human Rights’ protect, respect, and remedy framework, as well as the principle of promoting and protecting human rights in policy preparation, it fails to provide for adequate means to ensure implementation of these and other human rights standards,” said Sanhawan Srisod, ICJ’s Legal Adviser.
“According to Thai law, the evaluation must achieve goals that include aligning the law with Thailand’s international obligations under international law. Therefore, the EEC Office cannot complete the evaluation process without thoroughly addressing current gaps in compliance,” added Srisod.
The ICJ recommendations presented include the need to incorporate safeguards against forced eviction, in accordance with international human rights law, and to recognize the social, cultural, spiritual, economic, environmental, and political value of land for communities, with special emphasis on the significance for tenant farmers and small-scale food producers. Responsible land-based investments and implementing human rights due diligence are also critical elements.
A survey conducted before the dialogue with 44 affected individuals in Chonburi and Rayong provinces revealed a pattern of practices that fail to comply with Thailand’s international human rights obligations. They include:
- Lack of adequate participation of residents in the consultation process of the EEC Act.
- Absence of representation of locally affected individuals/communities in the Committee overseeing the EEC, primarily composed of governmental authorities and representatives from business sectors.
- The EEC Committee and Office hold overly broad powers without adequate checks and balances.
- The absence of effective grievance and compliance mechanisms within the EEC Office.
- Disregard for the impact of activities on local livelihoods during policy implementation.
- Ineffectiveness and inadequacy of remedies provided for individuals affected by EEC operations.
Participants suggested amending the EEC Act to address these concerns and ensure real participation, inclusiveness, adequate livelihood, a healthy environment, effective remedies, and other human rights of communities in the area.
Additionally, it addressed ongoing litigation initiated by communities challenging town planning within the EEC, specifically challenging the re-designation of agricultural, natural, and environmental reserved zones to industrial zones, which is currently pending before the Central Administrative Court.
Background
The participants comprised 30 affected individuals living in the areas of the EEC and civil society actors. This is the second dialogue following the initial one in June 2023, addressing the same topic.
According to the Act on Legislative Drafting and Evaluation of Law B.E. 2562 (2019), all Thai laws must undergo outcome evaluation at least every five years.
Speakers at the dialogue included:
- Chanchao Chaiyanukit, Former Permanent Secretary of the Ministry of Justice
- Pornpana Kuaycharoen, Land Watch Thai
- Sanhawan Srisod, ICJ
- Saowaruj Rattanakhamfu, Thailand Development Research Institute (TDRI)
- Somnuck Jongmeewasin, EEC Watch
- Sondhi Kodchawat, Environmental Researcher
- Sumitchai Hattasan, Center for Protection and Revival of Local Community Rights
- Supaporn Malailoy, ENLAWThai Foundation
- Sutthikiat Kodchaso, ENLAWThai Foundation
Contact
Sanhawan Srisod, ICJ Associate International Legal Adviser, e: sanhawan.srisod@icj.org
Further reading
Thailand: laws governing development of Eastern Economic Corridor and Special Economic Zones fail to adequately protect human rights – ICJ report
Nov 16, 2023 | Advocacy, News
The International Commission of Jurists (ICJ) strongly condemns the Government of Pakistan’s decision to expel over 1.4 million Afghan nationals, including unregistered refugees, forcibly removing them to a country where many, especially women and girls, have a well-founded fear of persecution. The organization is deeply concerned for the safety and well-being of people who have been left with no choice but to flee under threats of arrest or deportation, as cases of arbitrary arrests and detention, and instances of ill-treatment, are reported.
“The forcible removal of Afghans is particularly egregious considering the ongoing humanitarian crises in Afghanistan and the current political climate following the Taliban takeover. Returning anyone there, especially women and girls, is fraught with risks. The expulsion of refugees and asylum seekers violates the principle of non-refoulement under international law, which prohibits the forcible removal of anyone to a country or place where they would have a well-founded fear of persecution, such as a real risk of being tortured or otherwise ill-treated or other serious human rights violations”, said Melissa Upreti, ICJ Asia Director.
Estimates indicate that there are over 1.4 million undocumented Afghans in Pakistan, in addition to some 1.3 million registered Afghan refugees. On 3 October 2023, the Government of Pakistan announced its plans to repatriate “illegal foreigners.” This was followed by a circular stating that Afghan Citizen Cardholders and those with Proof of Registration would be exempted. The deadline for Afghan nationals to leave Pakistan was 1 November, and has recently been extended to 31 December 2023, following significant international pressure. However, there have been reports of these exemptions not being applied and Afghans facing increasing harassment and pressure from local authorities.
UN agencies have called attention to the possibility of a serious escalation in human rights violations resulting from the separation of families and deportation of minors as the Pakistani authorities implement their plans. Since August 2021, the UN High Commissioner for Refugees has urged States not to return Afghan nationals to Afghanistan given that the country continues to be affected by recurrent conflict, instability and climate-induced disasters.
The ICJ and its partners have documented detailed evidence of gender-based persecution of women and girls in Afghanistan, as a direct result of the mounting draconian restrictions on their human rights and freedoms since the Taliban takeover in August 2021, in a joint report released earlier this year with Amnesty International. In light of the gravity and systematic nature of the restrictions and prohibitions that women and girls face in Afghanistan, the two human rights organizations recommended that all Afghan women and girls outside Afghanistan should be considered prima facie refugees and granted international protection.
“There is no evidence of a change in the de facto authority’s mode of governance, which centres on the oppression of women and girls and severe deprivation of their fundamental rights. If anything, there is evidence that the situation for women and girls in Afghanistan has become worse. Expelling Afghan nationals from Pakistan, especially women and girls, along with their families and forcing them back to Afghanistan puts them at a real risk of persecution or other forms of serious harm for which no legal recourse is available in Afghanistan,” added Upreti.
Citing concerns about a breach of international law obligations by Pakistan, a number of UN Special Rapporteurs have said in a joint letter that, “the lack of domestic asylum laws and procedures does not absolve States of their obligations to uphold the principles of non-refoulement under international human rights and customary law.”
Pakistan’s National Commission for Human Rights (NCHR) has urged the Government to refrain from conducting the deportations and called for adherence to relevant provisions in national and international law pertaining to refugees.
Thousands of Afghans have already crossed the border and with the recent postponement of the deadline to leave the county, the fate of over a million Afghans hangs in the balance. The ICJ calls on the Government of Pakistan to immediately:
- Rescind the expulsion order, cease further deportations and harassment of Afghans and comply instead with its international law obligations,
- Create pathways for women, girls and their families who have been forced to leave under the order to safely return.
- Consult with civil society, members of the Afghan community living in Pakistan, the NCHR, and relevant international organizations in the development of appropriate policies.
Contact:
Raquel Saavedra, ICJ Legal Adviser, e: raquel.saavedra@icj.org
