Jul 9, 2018 | News
Today, in advance of the second anniversary of the killing of political commentator and human rights defender, Kem Ley, the ICJ reiterates its call for the creation of a independent and impartial Commission of Inquiry to investigate his killing.
The ICJ remains deeply concerned at the apparent lack of progress in investigating the case, as well as the inadequacy of the investigation and prosecution of Oeuth Ang, the only person yet charged or convicted in relation to Kem Ley’s killing.
“The trial of Oeuth Ang left many unanswered questions about the investigation and the killing itself which Cambodia has an duty to resolve as part of the family and public’s right to know the truth,” said Kingsley Abbott, Senior Legal Adviser at the ICJ, who attended the trial.
“The fact that the killing occurred against the backdrop of escalating attacks against human rights defenders and the political opposition and in the context of a history of well-documented apparent extra-judicial killings makes the establishment of an independent and impartial Commission of Inquiry all the more pressing.”
On 7 July 2017, ahead of the one-year anniversary of Kem Ley’s killing, the ICJ and other organizations released a joint letter highlighting crucial concerns about the lack of progress in the investigation of his case, and calling on the Cambodian Government to establish a Commission of Inquiry to carry out an independent, impartial, effective and transparent investigation in line with international law and standards.
These include the International Covenant on Civil and Political Rights and the revised Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016).
Background
At approximately 08:30 on 10 July 2016, Kem Ley, a prominent political commentator and human rights defender, was shot and killed at a petrol station on Monivong Boulevard in Phnom Penh.
Soon afterwards, Cambodian police arrested a suspect approximately two kilometers from the crime scene. The suspect identified himself as “Chuob Samlab”, from Banteay Meanchey province. “Chuob Samlab” means “Meet to Kill” in Khmer.
In a leaked video, “Chuob Samlab” reportedly “confessed” to shooting Kem Ley over a debt the political commentator allegedly owed him – a fact reportedly disputed by Kem Ley’s widow and “Chuob Samlab”’s own wife.
“Chuob Samlab” was later identified as Oeuth Ang from Siam Reap province, according to identity records.
On 23 March 2017, the Phnom Penh Municipal Court found Oeuth Ang guilty of the premeditated murder of Kem Ley on 10 July 2016 and sentenced him to life imprisonment.
The ICJ observed the trial which took place on 1 March 2017, following which it identified eight significant gaps in the investigation which had not been adequately addressed at trial.
Following the verdict, Oeuth Ang’s lawyer told journalists the court had created a new case-file to investigate two men named Pou Lis and Chak who may be relevant to the killing of Kem Ley.
Very little information has been revealed publicly about these possible new case-files.
Oeuth Ang appealed his sentence and, on 4 May 2018, the Court of Appeal reportedly heard the appeal.
There are no reports yet of a judgment being delivered.
Pursuant to international law binding on Cambodia, including the International Covenant on Civil and Political Rights (ICCPR) to which Cambodia is a State Party, Cambodia has a duty to promptly, independently, impartially, and effectively investigate all deaths suspected of being unlawful.
Investigations must seek to identify not only direct perpetrators but also all others who may have been responsible for criminal conduct in connection with the death.
Principle 11 of the UN Principles on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions calls for the establishment of a Commission of Inquiry when ‘the established investigative procedures are inadequate because of lack of expertise or impartiality, because of the importance of the matter or because of the apparent existence of a pattern of abuse, and in cases where there are complaints from the family of the victim about these inadequacies.’
Read also
ICJ et al, ‘Cambodia: request to create a commission of inquiry into the killing of Kem Ley’
ICJ, HRW, Amnesty International, ‘Cambodia: Significant Questions Remain After Guilty Verdict in Kem Ley Trial’
ICJ, ‘Cambodia: Kem Ley’s killing demands immediate credible and impartial investigation’
Contact
Kingsley Abbott, ICJ Senior Legal Adviser, e: kingsley.abbott(a)icj.org
Jul 8, 2018 | News
As the government begins a process of consultations around proposed amendments to the transitional justice mechanisms, the ICJ and Human Rights Watch have called on authorities to ensure the amendments comply with international human rights standards.
The government must also take into account concerns of all stakeholders, the organizations said.
The current draft law fails to address the many gaps in Nepali law that make it difficult to prosecute, especially at senior levels, for international crimes such as torture and crimes against humanity.
The Nepal government has ensured an extension of its two transitional justice commissions while also committing to future amendments to comply with international standards and Supreme Court rulings, the groups said.
The government is holding consultations around a proposed Commission on the Investigation of Enforced Disappeared Persons (CEIDP) and the Truth and Reconciliation Commission (TRC) (Amendment) Bill.
“While Nepal has engaged in a transitional justice process over the last few years, with official commissions collecting complaints, holding meetings and generic consultations throughout the country, this is still without any tangible result, and victims say it has left them confused,” said Brad Adams, Asia Director at Human Rights Watch.
“For a successful, internationally accepted process, the authorities in Nepal should focus on providing justice to victims, and not engage in trying to get perpetrators off the hook,” he added.
Human Rights Watch and the ICJ issued the statement after the Nepal government shared a draft bill purportedly to amend flaws in the laws of the CEIDP and TRC Acts.
Ahead of submitting further analysis and recommendations in the consultative process, the organizations said that Nepal authorities should take into account concerns of all stakeholders, including the groups representing victims of serious crimes by all sides during the civil war, other civil society organizations, the National Human Rights Commission (NHRC) and the United Nations Office of the High Commissioner for Human Rights (OHCHR).
Nepal’s new government under Prime Minister Khadga Prasad Oli of the Nepal Communist Party promised that the Nepali law on transitional justice would be brought into conformity with international law and standards as had been directed several times by the Supreme Court.
After years of previous governments failing to comply with the Supreme Court rulings, the new attorney general had announced that reforms to the law were underway, which victims’ groups said gave new hope, and as explicitly requested by the United Nations Human Rights Council (UNHRC) and human rights organizations.
While positive changes are noticeable including in relation to reparations, the proposed law authorizes the two transitional justice commissions to authorize prosecutions without strengthening the commissions themselves, proposes a special court without clear guidelines on impartial investigations, and includes a section permitting non-custodial sentences for the most serious crimes.
These raise concerns that the proposed draft may not meet international standards of justice and accountability.
The two commissions, which experts say require crucial bolstering, have conducted country-wide hearings and gathered nearly 60,000 cases between them.
Victim groups complain that the process has been arbitrary and confusing.
The organizations also noted a number of continuing obstacles to justice, which the bill has not addressed.
These include the continued failure to incorporate specific crimes into Nepali law that are serious crimes under international law, including torture, enforced disappearance, war crimes, and crimes against humanity.
In addition, the bill provides for the wholly inadequate sanction of short-term community service as an alternative punishment for those convicted of serious crimes, which may constitute effective impunity.
Nor does the bill address the question of command and superior responsibility for such crimes, leaving doubt as to whether those at the highest levels of authority will be held accountable for these crimes.
The international organizations were invited to a meeting with the attorney general and other stakeholders on June 21 but did not have a translated draft available ahead of the discussion.
However, during the consultation, the groups stressed the need for meaningful consultations on the bill.
The organizations noted also that universal jurisdiction, which allows for any state to prosecute those believed to have engaged in torture, enforced disappearance, or other serious crimes under international law, will remain an available option for victims to seek justice in cases of serious abuses during the civil war.
“Without a justice process that meets international standards for prosecuting the most serious crimes, such as torture and enforced disappearances, anyone suspected of such crimes in Nepal risks arrest, extradition, and prosecution in the many countries that are committed to prosecuting such crimes,” said Ian Seiderman, ICJ Legal and Policy Director.
“It is very welcome that the Nepal government is finally looking to address longstanding demands of war victims and should use this opportunity to abide by its obligations, draw up security sector reforms, and pave the way to end impunity,” he added.
Full text in English (PDF): Nepal-ICJ-HRW-Transnational-justice-reform-News-Press-releases-2018-ENG
Jul 4, 2018 | News
Today the ICJ called on Thai prosecutorial authorities to immediately end the prosecution of five persons associated with academic activities in Chiang Mai. The five have been made subject to prosecution solely for exercising their rights to free expression and assembly.
Those subject to prosecution include Pakawadee Veerapatpong, an independent writer and translator; Chaipong Samnieng, a PhD candidate at Chiang Mai University; Nontawat Machai, an undergraduate student at Chiang Mai University; Teeramon Bua-ngam, a Masters student at Chiang Mai University and news editor; and Dr. Chayan Vaddhanaphuti, a Professor at Chiang Mai University.
The ICJ also called for the revocation or amendment of all laws, orders and announcements inconsistent with Thailand’s international human rights obligations.
Today, the Region V Public Prosecutor in Chiang Mai province formally notified the five individuals that they would be prosecuted for violating HNCPO Order No. 3/2558 (2015) (‘HNCPO Order 3’) for merely expressing their opinions at an academic forum at Chiang Mai University in July 2017.
HNCPO Order 3 prohibits the gathering of five or more persons for political purposes, carrying a penalty of imprisonment not exceeding six months and/or a fine not exceeding 10,000 Baht.
“The ongoing and abusive use of HNCPO Order 3 to stifle free expression in Thailand remains indefensible and an obstacle to the full restoration of the rule of law in Thailand,” said Kingsley Abbott, Senior Legal Adviser at the ICJ.
“The decision to indict these five individuals is clearly in breach of Thailand’s international human rights obligations and should be reversed immediately together with the termination of the proceedings and the revocation of HNCPO Order 3,” he added.
The Public Prosecutor’s decision to indict the five was made against a backdrop of recently increasing repression of fundamental freedoms in the country.
This year alone, at least 132 persons were reportedly charged under HNCPO Order 3 in 10 cases and six incidents in connection with a movement calling for elections to be held this year.
Twenty-seven of these individuals were also charged with a sedition-like offence, which carries a maximum penalty of seven years’ imprisonment.
Since the military coup of 22 May 2014, at least 378 persons have been reportedly charged in relation to 50 cases of violating the ban on political gatherings of five or more persons according to a report launched on 22 June 2018 by leading Thai NGO, Thai Lawyers for Human Rights (TLHR).
In March and June 2018, at the Human Rights Council, the ICJ called on Thailand to revoke or amend all laws, orders and announcements that are contrary to the rule of law and human rights protections.
“Four years have passed since the military coup resulting in numerous unjustifiable restrictions on fundamental freedoms – it is long past time for Thailand to undertake reform necessary to prevent the legal system from being misused to harass individuals who merely exercise their human rights,” said Abbott.
Contact
Kingsley Abbott, ICJ Senior International Legal Adviser, email: kingsley.abbott@icj.org
Background
The Region V Public Prosecutor’s decision in Chiang Mai province follows charges filed against the individuals by a military officer in 2017.
Pakawadee Veerapatpong, Chaipong Samnieng and Nontawat Machai had allegedly held up three A4-sized messages which read “an academic forum is not a military barracks” at the academic conference.
Teeramon Bua-ngam had reportedly taken a picture of himself standing next to the messages and posted the same on social media.
Dr. Chayan Vaddhanaphuti had reportedly watched the display of the messages without asking for them to be removed, despite being an organizer of the conference.
Thailand is a State party to the International Covenant on Civil and Political Rights (ICCPR). Articles 19, 21 and 22 of the ICCPR guarantee the rights to freedom of opinion and expression, freedom of peaceful assembly and freedom of association.
Since the military coup, the ICJ has expressed its concern about the use of a new legal framework and pre-existing laws to clamp down on the rights to freedom of expression, association and assembly, including criminal defamation (Articles 326-328 of the Thai Criminal Code), the Computer-Related Crime Act B.E.2550 (2007), a sedition-like offence (Article 116 of the Thai Criminal Code), and HNCPO Order 3.
Read also
ICJ and TLHR Joint Submission to the UN Human Rights Committee, 13 February 2017
ICJ and TLHR Joint Follow-up Submission to the Human Rights Committee, 27 March 2018
Thailand-Academics indicted-News-Web Story-2018-THA (story in Thai, PDF)
Jul 2, 2018 | News
Today, the ICJ, along with Amnesty International and Human Rights Watch, made a join statement about the special investigation of the apparent enforced disappearance of Karen activist, Pholachi “Billy” Rakchongcharoen.
The investigation of the apparent enforced disappearance of Karen activist, Pholachi “Billy” Rakchongcharoen, should genuinely seek to establish Billy’s fate and whereabouts, continually and fully inform his family on developments.
The investigation should also bring persons identified as responsible, irrespective of rank or status, to justice in a fair trial, the International Commission of Jurists (ICJ), Amnesty International and Human Rights Watch said today.
The organizations also called on authorities to expedite long overdue legal and administrative measures to provide better protection against enforced disappearance, in compliance with Thailand’s international human rights obligations.
On 28 June 2018, following a meeting of the Special Case Committee No. 1/2018, the Ministry of Justice’s Department of Special Investigations (“DSI”) made the welcome announcement that it had decided to recognize the apparent enforced disappearance of Pholachi “Billy” Rakchongcharoen an ethnic Karen activist, as a “Special Case” that must be “investigated in accordance with the Special Case Investigation Act, B.E. 2547 (2004)”, that is, by the DSI itself.
Pholachi “Billy” Rakchongcharoen was last seen on 17 April 2014 in the custody of Kaeng Krachan National Park officials in Thailand’s Phetchaburi province.
At the time of his apparent enforced disappearance, Billy had been working with ethnic Karen villagers and activists on legal complaints against the National Park officials for purportedly burning and destroying their houses, farms, and other properties.
The DSI’s announcement followed a long-standing request by Billy’s wife, Phinnapha Phrueksaphan, and years of advocacy by the ICJ, Amnesty International and Human Rights Watch calling on the DSI to assume jurisdiction over the case.
They are also calling the DSI to conduct a prompt, independent, impartial and effective investigation into his fate or whereabouts consistent with international law and standards, including the revised Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016), which was launched in collaboration with the Thai Ministry of Justice on 25 May 2017.
The revised Minnesota Protocol states that if investigators are unable to locate a body or remains, they should continue to gather other direct and circumstantial evidence which may suffice for identifying the perpetrator(s).
Despite the existence of a wealth of information relevant to the circumstances surrounding Billy’s apparent enforced disappearance, the four-year-old police investigation has been marked by a significant lack of progress.
At the same time, Thailand has yet to honor its repeated commitments to ratify the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), which it signed on 9 January 2012.
Thai authorities have failed to implement Thailand’s international legal obligations to provide justice for the victims of enforced disappearance and their families. Perpetrators are able to evade penalties, at least in part because Thai laws still do not make enforced disappearance a specific criminal offence.
The Convention affirms that “no one shall be subjected to enforced disappearance” and places an obligation on states to investigate acts of enforced disappearance, to bring those responsible to justice, and make it a criminal offence punishable by appropriate penalties that take into account its “extreme seriousness”.
On 10 March 2017, Thailand’s legislative body, the National Legislative Assembly (NLA), voted in favor of ratifying the ICPPED. However, on 6 September 2017, the ICJ was informed by Thailand’s Ministry of Foreign Affairs that a decision had been taken to delay the ratification of the ICPPED until legislation had been enacted to give domestic effect to the treaty.
Irrespective of ICPPED ratification, Thailand is also obliged to effectively investigate and prosecute the crime of enforced disappearance under the International Covenant on Civil and Political Rights (ICCPR) and the UN Convention against Torture (CAT).
Efforts to pass a law making torture, other acts of ill-treatment and enforced disappearance specific offences in Thai law have also stalled.
Thailand’s Ministry of Justice notes that a second round of public consultations on a Draft Prevention and Suppression of Torture and Enforced Disappearance Act (‘Draft Act’) has been concluded and that it is now in the process of evaluating the consultations.
The ICJ, Amnesty International and Human Rights Watch urge that this process be hastened.
The ICJ, Amnesty International and Human Rights Watch have reviewed several versions of the Draft Act and are seriously concerned that adoption of the Draft Act as it currently stands will fail to bring the law into compliance with Thailand’s international human rights obligations.
On 30 August 2017, 23 November 2017, and 12 March 2018, civil society organizations, including the ICJ, Amnesty International and Human Rights Watch, sent open letters to the Government, including to Thailand’s Minister of Justice, outlining amendments that would be necessary to bring the Draft Act in line with Thailand’s international human rights obligations.
Contact
Kingsley Abbott, Senior Legal Adviser, ICJ Asia Pacific Programme, t: +66 94 470 1345, e: kingley.abbott(a)icj.org
Full statement in English (PDF): Thailand-Special-investigation-Billy-News-Press-releases-June-2018-ENG
Full statement in Thai (PDF): Thailand-Special-investigation-Billy-News-Press-releases-June-2018-THA
Jun 24, 2018 | News
The proposed amendments to the Philippines’ Human Security Act of 2007 (HSA) would, if adopted, give government authorities a license to commit human rights violations, said the ICJ in its submission today to the House of Representatives.
The ICJ strongly urged the House of Representatives to reconsider these proposed amendments and in the interim to allow more time for full consultation and debate on revisions of the law.
In its submission to the House of Representatives’ joint Technical Working Group (TWG) of the Committees of Public Order and Safety and National Defense and Security, the ICJ stressed that certain proposed amendments to the HSA are clearly incompatible with international human rights.
It is also incompatible with laws and standards that prohibit unfettered surveillance power and arbitrary deprivation of the right to liberty and protect the rights to privacy, information, redress, and freedom of opinion and expression.
The ICJ also expressed deep concern that the law also gives military personnel responsibility in countering terrorism, specifically to conduct surveillance on, arrest, and detain persons who are suspected of acts of terrorism.
“The proposed amendments do not address the existing flaws of the HSA. For instance, the definition of acts of terrorism under the HSA is vague and ambiguous and the proposed changes do not in any way remedy that,” said Emerlynne Gil, Senior International Legal Adviser with the ICJ.
The ICJ also pointed out that the proposed amendments are likely to lead to violations of the right to freedom of opinion and expression.
The proposed amendments would also impermissibly lengthen to thirty (30) days the period within which an individual may be detained without judicial warrant.
“This is clearly incompatible with the Philippines international legal obligations and constitutes arbitrary deprivation of liberty,” said Gil.
The ICJ proposes to reduce the detention period to forty-eight (48) hours or less, in compliance with international human rights laws and standards.
“The Philippine government has the undeniable duty to protect people from acts of terrorism committed by non-State actors, but it cannot use as a pretext the serious nature of terrorist acts to avoid its obligations under international human rights law,” Gil added.
Contact:
Emerlynne Gil, Senior International Legal Adviser, t: +662 619 8477 (ext. 206) e: emerlynne.gil(a)icj.org.
Cover Letter ENG (PDF): Philippines-Amendments-to-HSA-Advocacy-Cover Letter-June-2018-ENG
Full Submission ENG (PDF): Philippines-Proposed-Amendments-to-HSA-Advocacy-non-legal-Submission-June-2018-ENG
