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 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
Oct 19, 2023 | News
The International Commission of Jurists (ICJ) condemns the strike on al-Ahli hospital in the Gaza Strip on 17 October 2023, which according to the Palestinian Health Ministry killed more than 500 Palestinian civilians, mainly women and children, and injured hundreds more.
“Civilians and hospitals must be protected at all times”, said Said Benarbia, Director of the ICJ’s MENA Programme. “Intentional attacks on hospitals may amount to war crimes under international humanitarian law and must cease immediately”, added Benarbia.
Palestinian sources have said that the massacre was caused by an Israeli air strike. The Israeli Defence Forces have denied any responsibility, claiming that it was caused by a failed rocket launch by Palestinian armed groups.
Under the Geneva Conventions and customary international humanitarian law, States have an obligation to investigate war crimes with a view to bringing alleged perpetrators to justice.
The ICJ calls on the Office of the Prosecutor of the International Criminal Court (ICC) to allocate the necessary resources to respond to the escalating situation in Israel and Gaza with a view to investigating and establishing criminal responsibility for alleged war crimes and other violations of international humanitarian law committed by both parties.
According to the ICC Prosecutor Karim Khan, the ICC has jurisdiction over potential war crimes committed by Palestinian armed groups in Israel and Israelis in the Gaza Strip, even though Israel is not a State party. In 2015, Palestine acceded to the ICC Statute. In 2021, the Court ruled that its jurisdiction “in the Situation in Palestine extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.”
On 12 October the Israel Defence Forces (IDF) ordered the entire population of northern Gaza, that is, more than 1 million people, to evacuate to southern Gaza within 24 hours in advance of a likely military ground offensive.
On 14 October, the World Health Organization (WHO) strongly condemned Israel’s repeated orders for the evacuation of 22 hospitals in the Gaza strip, and called on Israeli authorities to protect health facilities, health workers, patients and civilians.
“The Israeli evacuation order was issued in the absence of safe passage or a safe destination. It may amount to a transfer of parts of the population of the occupied territory, a war crime under the ICC Statute and a serious violation of international humanitarian law”, said Benarbia.
Under international humanitarian law, hospitals and other medical facilities are considered to be protected civilian objects. Unless they are used for military purposes, they shall be protected at all times and may not be the object of attack.
Under international humanitarian law, all parties to an armed conflict have an obligation to distinguish between military and civilian targets and to take all feasible precautions to protect civilians from attacks and from the effects of military operations. Indiscriminate attacks on civilians and civilian objects, including those perpetrated using weapons that are indiscriminate by nature, amount to breaches of international humanitarian law. Intentionally directing attacks against civilians amounts to war crimes under the under the Statute of the ICC and customary international law.
Furthermore, the ICJ is deeply concerned by reports of the use of white phosphorus by Israel in other military operations in Gaza and Lebanon.
“Israel must refrain from using white phosphorus, and any other means and methods of warfare that are inherently indiscriminate or that cause superfluous injury or unnecessary suffering”, added Benarbia.
White phosphorus has the potential to cause civilian harm due to the severe burns it causes and its lingering long-term effects on survivors. While it is not per se a prohibited weapon under international humanitarian law, its use in densely populated areas, such as the Gaza Strip, is prohibited as it violates the international humanitarian law requirement that parties to the conflict take all feasible precautions to avoid civilian injury and loss of life.
The ICJ also condemns the continued detention by Palestinian armed groups of approximately 200 hostages.
“Hostage-taking is prohibited under international humanitarian law, and those detained must be released immediately”, said Benarbia.
The ICJ also reiterates calls by the United Nations Secretary General, WHO and others for the establishment of a humanitarian corridor to enable humanitarian aid to enter the Gaza Strip.
Contact:
Said Benarbia, Director of the ICJ’s Middle East and North Africa Programme, email: said.benarbia(at)icj(dot)org
Oct 13, 2023 | News
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 | 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
