Sep 13, 2019 | News
The ICJ, in collaboration with the Judicial Service Commission (JSC) of the Republic of Zimbabwe, has concluded a two-day Judicial Symposium on the theme ‘Core-Skilling: Towards a Human Rights Jurisprudence’, organized to mark the end of the second judicial term in the Zimbabwe judicial calendar.
In his remarks at the opening of the symposium, ICJ’s Africa Regional Director, Mr Arnold Tsunga, noted that the theme of the symposium had been carefully chosen to enhance discourse on national transformation in an atmosphere of respect for the rule of law and international human rights. He noted further that the symposium was to critique the concept of transformative adjudication and explore its relevance to applying the Constitution of Zimbabwe as an instrument and framework for national transformation.
Noting that the ICJ appreciated its on-going partnership with the JSC in Zimbabwe, Mr Tsunga expressed the hope that the training and symposium would enhance the effectiveness of the judiciary with a view to improving access to justice for all, especially victims of human rights violations, women, marginalized and vulnerable groups and contributing to attainment of the United Nations Sustainable Development Goals number 16 and 5.
On his part, in his opening remarks the Chief Justice of the Republic of Zimbabwe, the Hon. Chief Justice Malaba, noted that the ICJ-JSC organized symposia have provided a platform for continuous improvement of judicial work and networking amongst judges.
Chief Justice Malaba observed that these meetings have enabled judges to dialogue on how to improve the effectiveness and efficiency in the justice delivery system. He noted that this year’s theme on human rights jurisprudence lies at the heart of an independent and effective judiciary.
He further noted that the current Constitution of Zimbabwe has a better framework and potential for the protection of human rights than previous constitutions. Accordingly, he expressed the view that the judiciary has a more important role to play in protecting and safeguarding human rights.
He highlighted that the judiciary’s commitment to the protection of human rights is evidenced in local jurisprudence in respect to human rights cases, where several important judgments have been given by all the courts.
Chief Justice Malaba used the opportunity to give updates on developments which were taking place within the JSC, particularly in its research centre, in the High Court, in the Fiscal and Tax Appeals Division, amendments to the Judicial Laws which were gazetted on the 9th of September 2019.
Chief Justice Malaba stated that in performance appraisal, the JSC has constituted a Performance and Training Committee led by the Deputy Chief Justice to come up with a system that enables accurate measurement of the performance of judges.
Responding to issues of accountability raised by the Chief Justice, ICJ’s Mr Tsunga urged the JSC to develop and adopt a system to track, monitor, document and communicate results arising from these trainings, as the results would help the ICJ, and international development partners to evaluate the usefulness of the trainings and efforts at justice sector reforms.
This year’s symposium was attended by 16 female and 27 male judges from the Constitutional Court, Supreme Court, High Court, Labour Court and Administrative Court of Zimbabwe.
Sep 9, 2019 | News
The ICJ today called on the South African government to take immediate measures to prevent, investigate and bring to justice those responsible for all discriminatory violence that has occurred in the country, particularly against people based on nationality or national origin.
The authorities should make clear that the rights in the South African Constitution’s Bill of Rights and under international law apply to everyone in South Africa and to take demonstrable measures to protect everyone in South Africa from violence, including discriminatory violence, such as targeted xenophobic violence.
“The hard-fought rights in the Bill of Rights of our Constitution apply to everyone who lives in South Africa without exception. Whatever concerns people have must be resolved through listening and through dialogue. The prevailing violent attacks which seem to target people because they are not South African are cruel and inhuman. They can never be justified and must be condemned in the strongest terms possible”, said ICJ Commissioner Justice Yvonne Mokgoro, a former judge of the South African Constitutional Court.
The ICJ further called on the African Union Member States to take immediate measures to stop the retaliatory attacks against South Africans and South African groups and businesses in those countries where they have taken place, including the Democratic Republic of Congo and Nigeria.
“The current xenophobic attacks in South Africa targeting African immigrants as well as retaliatory violence against South Africans living in the affected African countries is highly regrettable. We call upon the leadership of the affected countries to exercise maximum restraint. We further urge them to take urgent measures to guarantee the security and rights of all immigrants and minorities within their borders, as they are duty bound to do so, under their constitutions and instruments against all forms of discrimination and xenophobia”, said ICJ Commissioner Justice Kathurima M’Inoti of the Kenyan High Court and Director of the Kenyan Judicial Education Institute.
The call by the ICJ comes after South Africa experienced a week of widespread looting and attacking of businesses, perceived to be owned by foreign nationals that saw at least 10 killings and many others injured and displaced from homes. The violence began in Jeppestown, a Johannesburg suburb, on Sunday evening and spread to other parts of Johannesburg including the Johannesburg CBD, Malvern, Tembisa, Alexandra and Katlehong.
The ICJ recalls that the African Charter on Human and Peoples Rights, the International Covenant on Civil and Political (ICCPR) and other universal and African regional human rights treaties to which South Africa is party, require that the rights be guaranteed equally to all persons without regard to citizenship or other status.
This is not the first time that South Africa has been gripped with xenophobic attacks. They have occurred periodically and with impunity over the past decade, with spikes in 2008 and in 2015. In 2008 more than 60 people were killed in a wave of violence against foreign nationals. Another significant flare of xenophobic violence also occurred in 2015 receiving widespread civil society condemnation and response though the perpetrators of such violence operated with some degree of impunity. Civil society will once again proceed with a mass protest on the 14th of September in strong opposition to the increasing climate of fear and xenophobia.
“Impunity for acts of violence, particularly xenophobic violence, is a matter of extreme concern. As a Zambian professor teaching at a leading university in South Africa, I am fearful of the lasting impact that continued xenophobia in South Africa has on the human rights of everyone especially non-nationals living in the country. These xenophobic attacks have the potential to destabilize the unity of Africa around human rights values and create a spiral of violence and impunity across the continent. Xenophobic violence is a threat to the observance of human rights on the continent.” said ICJ Commissioner and Professor Michelo Hansungule, of the Centre for Human Rights at the University of Pretoria.
A number of African countries, including Tanzania, Mozambique, Zambia and Nigeria have responded strongly to such xenophobia, including by suspending flights to South Africa and boycotting South African based events, illustrating the seriousness of the xenophobia. Though the South African government has previously presented such incidents to the world as isolated instances of naked criminality without discriminatory intent, in this instance South African Foreign Minister Naledi Pandor has said that “Afrophobia” can no longer be denied.
In responses to violence in South Africa, in Nigeria, protesters in Lagos and Abuja have targeted South African businesses, some hurling rocks and burning tyres outside their premises, with some explicitly indicating that the acts are retribution for violence against Nigerians in South Africa. In the Democratic Republic of the Congo, protesters also attacked and looted South African-owned businesses, some going on to attack the South African consulate in Lubumbashi. Read the full story here: South Africa-surge in xenophobia-news-webstory-2019-ENG
Contact Details:
Arnold Tsunga (Director): c: +26 37 7728 3249 e: arnold.tsunga(a)icj.org
Solomon Ebobrah (Senior Legal Adviser): c: +23 48 0349 27549 e: solomon.ebobrah(a)icj.org
Tim Fish Hodgson (Legal Adviser): c: +27 82 871 9905 e: timothy.hodgson(a)icj.org
Sep 8, 2019 | News
At a training event for senior prosecutors hosted by the Union Attorney General’s Office (UAGO) on 7 September 2019 in Yangon, Nay Pyi Taw, the ICJ made presentations on the international standards and legal obligation on unlawful killings.
Representing each of Myanmar’s 14 states and regions, some 30 law officers attended the activity, which was a capacity-building training hosted by the UAGO. This is part of the ICJ’s ongoing engagement with authorities in Myanmar as well as in neighboring countries on the Minnesota Protocol on the investigation of potentially unlawful death (the Minnesota Protocol).
The Minnesota Protocol provides guidance on the State’s implementation of its duty under international law to investigate potentially unlawful killings, including when State actors may have been involved. It applies to deaths under custody, suspicious deaths, and enforced disappearances. Myanmar has experienced widespread incidents of such deaths, including in recent years those constituting serious crimes under international law.
ICJ Associate Legal Adviser, Jenny Domino, introduced salient points of the Minnesota Protocol and shared relevant examples from experience promoting and protecting human rights in the Philippines. She highlighted the significance of the State’s duty to investigate potentially unlawful killings in upholding the right to life under international human rights law.
ICJ Legal Researcher, Ja Seng Ing, shared the case of Laotian activist Sombath Somphone, who was subjected to enforced disappearance on 15 December 2012 with the apparent consent or acquiescence of State agents. To date, Laotian authorities have failed to conduct effective investigations with a view to revealing the fate or whereabouts of Somphone. ICJ has repeatedly called for accountability on the issue.
Participants discussed these cases in relation to the comparative remedies and practical challenges related to the conduct of investigations in Myanmar, where police and prosecutors both have roles to play in the conduct of investigations.
First published in 1991 and subsequently revised in 2016 under the auspices of the United Nations Office of the High Commissioner for Human Rights, the Minnesota Protocol includes guidelines on conducting investigations to ensure that they are prompt; effective and thorough; impartial and independent; and transparent.
Since December 2017, the ICJ has co-hosted several regional workshops in Asia focused on this topic, with lawyers, academics, and State authorities from Thailand, Cambodia, Nepal, India, and Myanmar attending the events.
See also:
https://www.icj.org/thailand-launch-of-the-revised-minnesota-protocol/
https://www.icj.org/myanmar-reverse-laws-and-practices-that-perpetuate-military-impunity-new-icj-report/
Sep 4, 2019 | News
The announcement that the remains of Pholachi “Billy” Rakchongcharoen, a Karen rights activist, have been located, brings a sad end to years of uncertainty for his family, said the ICJ and Amnesty International today.
This development should lead to a renewed focus on identifying the perpetrator(s) of his apparent enforced disappearance and bringing them to justice.
On 3 September 2019, the Thai Ministry of Justice’s Department of Special Investigations (DSI) announced it had located bone fragments, which they had identified as likely belonging to Billy inside an oil tank submerged in water near a suspension bridge inside Kaeng Krachan National Park in Phetchaburi province.
“The DSI should redouble its efforts to identify the perpetrator(s) of Billy’s killing and bring them to justice,” said Frederick Rawski, Asia Regional Director of the ICJ. “If, based on an assessment of the evidence, it is found that Billy was the victim of enforced disappearance, then the perpetrators, including those with command responsibility, should be charged with the appropriate, serious offences in accordance with Thailand’s obligations under international law – not only with lesser crimes that do not reflect the gravity of the offense.”
Billy was last seen on 17 April 2014 in the custody of Kaeng Krachan National Park officials.
“This case highlights the serious risks activists and human rights defenders face in Thailand, including assaults, enforced disappearance and killings,” said Nicholas Bequelin, Amnesty International’s interim Regional Director of Southeast Asia and the Pacific. “It underscores the long-overdue need for the Thai government to make enforced disappearance a crime under national law. A failure to do so results in the lack of an independent, impartial and effective mechanism to investigate the cases, exacerbating the current climate of impunity.”
The DSI stated that the recovered bones contain DNA inherited from Billy’s mother, which suggests they belong to a person who was related to her. However, the DSI declined to disclose the name of any suspect(s) and requested more time to investigate the case and examine the remains.
Background
Thailand 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). Freedom from enforced disappearance is protected under both these treaties, as enforced disappearance will always constitute violations of some or more of the following rights: the right to life; freedom from torture and other cruel, inhuman, or degrading treatment or punishment; the right to liberty; and the right to recognition as a person under the law. These are in addition to violations of the rights of members of the disappeared person’s family through suffering deliberately inflicted on them through the imposition on them of uncertainty about their love one’s fate and whereabouts.
Thailand has also signed, but not yet ratified, the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED). The ICPPED affirms the absolute right not to be subject to enforced disappearance and places an obligation on states to investigate acts of enforced disappearance, to make it a criminal offence punishable by appropriate penalties that take into account its “extreme seriousness” and to take necessary measures to bring those responsible to justice.
The Government has stated it will not ratify the Convention until its provisions are incorporated in domestic law. However, efforts to pass the Draft Prevention and Suppression of Torture and Enforced Disappearance Act (draft Act) stalled after it was dropped by the National Legislative Assembly (NLA) prior to the 2019 national election. The draft Act is currently pending the consideration of the President of the National Assembly. Under international law of treaties, as signatory to the ICPPED, still is bound to desist from any acts which would defeat its object and purpose.
Thailand has a binding obligation under international law to conduct prompt, effective and thorough, independent and impartial, and transparent investigations into all suspected cases of unlawful death and enforced disappearance.
According to the ICPPED and the revised Minnesota Protocol (2016), which contains the international standards on the conduct of investigations into unlawful death and enforced disappearance – and which Thailand launched in May 2017 – records that investigations “must seek to identify not only direct perpetrators but also all others who were responsible for the death, including, for example, officials in the chain of command who were complicit in the death.” (para 26)
Download
Thailand-Discovery of Billy remains-news-webstory-2019-THA (full story in PDF)
Further reading
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
For ICJ: Frederick Rawski, ICJ Asia-Pacific Director, t: +66 64 478 1121; e: frederick.rawski(a)icj.org
Sep 2, 2019 | News
On 30 August 2019, on the occasion of the International Day of the Disappeared, the ICJ co-hosted an art exhibition, a closed-door round table discussion and a public forum titled “Enforced Disappearance and the Absence of a Law” to commemorate individuals who were subject to apparent enforced disappearance and whose fates remains unknown.
The closed-door round table discussion provided an opportunity for victims’ voices to be heard on challenges faced in gaining access to justice and redress. Relatives spoke about the challenges they face, mostly about the poor progress of investigations into the allegations of enforced disappearance against their relatives.
Sanhawan Srisod, the ICJ’s Legal Adviser, during the closed-door round table discussion, gave a briefing about the latest developments on the Draft Prevention and Suppression of Torture and Enforced Disappearance Act. The legislation had been dropped by the National Legislative Assembly (NLA) prior to the 2019 national elections, but is currently before the President of the National Assembly, pending his consideration to bring it before the House of Representative.
The public forum focused on the development and progress of the investigations into enforced disappearances and evaluated the progress in developing legislation in Thailand to address this critical issue.
During the public forum, Sanhawan Srisod highlighted that the Draft Act would, if adopted, fail to bring the law into full compliance with Thailand’s international human rights obligations. The key concerns include:
- Incomplete definitions of the crimes of enforced disappearance;
- The continuous nature of the crime of enforced disappearance that was not recognized in the Draft Act;
- Inadequacy of provisions on the command responsibility;
- Possibility that the military court may have power to try and adjudicate enforced disappearance cases; and
- Insufficient safeguards against enforced disappearances.
Background
Thailand has signed but has yet to ratify the International Convention for the Protection of All Persons from Enforced Disappearance.
According to their 2018 annual report, the UN Working Group on Enforced or Involuntary Disappearances has recorded 86 outstanding cases of alleged enforced disappearance in Thailand.
The Thai government, through the recently set up Committee Managing Complaints for Torture and Enforced Disappearance Cases, says it is currently conducting investigations in connection with this list.
Closed-door round table discussion session included the following speakers: Ms. Phinnapha Phrueksaphan, wife of Mr. Porlajee Billy Rakchongcharoen; Ms. Angkhana Neelapaijit, wife of Mr. Somchai Neelapaijit; Ms. Pranee Danwattananusorn, wife of Mr. Surachai Danwattananusorn; Mr. Adisorn Pho-Arn, son of Mr. Thanong Pho-Arn; Ms. Kanya Theerawut, mother of Mr. Siam Theerawut; Ms. Suphab Kamlae, wife of Mr. Den Kamlae; Mr. Prasert Laosophapan, brother of Mr. Kamon Laosophapan; Ms. Shui-Meng Ng, wife of Mr. Sombath Somphone from Lao PDR; Mr. Truong Son Nguyen, Regional Campaigner, Amnesty International Vietnam; Representatives, indigenous Lahu Community, Chiang Mai province; and Ms. Sanhawan Srisod, Legal Adviser, International Commission of Jurists
Public forum session included the following speakers: Ms. Shui-Meng Ng, representative of Asian Federation Against Involuntary Disappearances; Ms. Angkhana Neelapaijit, wife of Mr. Somchai Neelapaijit; Ms. Phinnapha Phrueksaphan, wife of Mr. Porlajee Billy Rakchongcharoen; Mr. Angsukate Wisutwattanasak, Director of Security Cases Department 1, Department of Special Investigation (DSI); Ms. Nongporn Roongpetchwong, Human Rights Expert, Rights and Liberties Protection Department, Ministry of Justice; and Ms. Sanhawan Srisod, Legal Adviser, International Commission of Jurists. The opening session included remarks from Mr. Giuseppe Busini, Deputy Head of Mission of the Delegation of the European Union to Thailand, and Mr. Surapong Kongchantuk, President of the Cross-Cultural Foundation. The closing session included remarks from Mr. Badar Farrukh, Human Rights Officer, OHCHR Regional Representative for South East Asia.
See Also:
Summary of the ICJ analysis of the Draft Act (PDF)
Thailand: ICJ submits recommendations on draft law on torture and enforced disappearance amendments
