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
Nov 22, 2023 | Advocacy, Joint Statement
In light of credible allegations of ongoing violations of international humanitarian law arising from the protracted armed conflict in Israel and the Occupied Palestinian Territory, in particular in the Gaza Strip, the International Commission of Jurists (ICJ), Amnesty International (AI), and Human Rights Watch (HRW) support the call by a number of High Contracting Parties to the 1949 Geneva Conventions addressed to Switzerland, in its capacity as the depository of the four Geneva Conventions, to convene an urgent Conference of High Contracting Parties to the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (“the Fourth Geneva Convention”).
This call is based on Common Article 1 to the four Geneva Conventions, which states that “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances”. Underscoring the continued relevance of this body of law, the ICJ, AI, and HRW recall operative paragraph 1 of the UN Security Council Resolution 2712 on the situation in the Middle East, including the Palestinian question, of 15 November 2023 demanding “that all parties comply with their obligations under international law, including international humanitarian law, notably with regard to the protection of civilians, especially children.” In the same vein, our organisations recall operative paragraph 2 of the UN General Assembly, entitled Protection of civilians and upholding legal and humanitarian obligations, of 26 October 2023 demanding “that all parties immediately and fully comply with their obligations under international law, including international humanitarian law and international human rights law, particularly in regard to the protection of civilians and civilian objects, as well as the protection of humanitarian personnel, persons hors de combat, and humanitarian facilities and assets”.
The ICJ, AI, and HRW call on all High Contracting Parties to uphold the fundamental principle of international law that treaties must be executed in good faith, and fulfil their obligations under Common Article 1 “to ensure respect” for the Fourth Geneva Convention by participating in the Conference and acting collectively to prevent further violations of international humanitarian law in the Occupied Palestinian Territory and Israel.
The ICJ, AI, and HRW consider that in the circumstances currently prevailing in Israel and the Occupied Palestinian Territory, including, in particular, the Gaza Strip, ensuring respect for international humanitarian law requires, at a minimum, a suspension of arms transfers to the parties to the conflict; ensuring accountability for serious violations of international humanitarian law; supporting and cooperating with the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, and with the International Criminal Court’s ongoing Palestine investigation; and supporting other pathways to accountability including through the principle of universal jurisdiction.
Contact:
Said Benarbia, Director, ICJ Middle East and North Africa Programme, email: said.benarbia@icj.org
Katherine Iliopoulos, Legal Adviser, ICJ Middle East and North Africa Programme, email: katherine.iliopoulos@icj.org
Nov 17, 2023
Photo by Amir Shiri on Unsplash
LEGAL BRIEFER: States’ Duty to Prevent Genocide under the 1948 Genocide Convention
This legal briefer focuses on States’ duty to prevent genocide under international law. However, the International Commission of Jurists (ICJ) notes that there are credible allegations of other serious crimes under international law having been committed in the course of the ongoing hostilities in Israel and the Occupied Palestinian Territory, including the Gaza Strip.
Given the scale and severity of Israel’s ongoing attacks on Gaza, reports that Israel has now killed over 11,000 civilians, including over 4,000 children, in the Gaza Strip since 7 October 2023 and recent warnings, including by a group of independent United Nations human rights experts on 16 November that, “grave violations committed by Israel against Palestinians in the aftermath of 7 October, particularly in Gaza, point to a genocide in the making”, the ICJ urges States to fulfil their international legal obligations, including in particular under the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 (hereafter the Genocide Convention), and take immediate action to prevent acts of genocide in Gaza.
Acts of Genocide
Article II of the Genocide Convention defines the crime of genocide outlining its two main elements:
(1) specific underlying acts, namely, the material elements of the crime; and
(2) specific intent, namely, the mental state required of the person committing the material elements of the crime.
The Genocide Convention and the Rome Statute of the International Criminal Court (ICC) outline the following five specific underlying acts, any one of which may be constitutive of the crime of genocide:
- Killing members of a national, ethnical, racial or religious group;
- Causing serious bodily or mental harm to members of the group;
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
- Imposing measures intended to prevent births within the group; and
- Forcibly transferring children of the group to another group.
The ICC Elements of Crimes define the term “conditions of life” as including but not limited to “deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic expulsion from homes.”
The ICJ considers that the complete blockade of Gaza – coupled with depriving civilians of water, food, medicine, electricity and fuel – may constitute the specific underlying act of “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction”, as per the genocide definition set out above.
Some of the underlying acts of the crime of genocide may also simultaneously constitute the material elements of certain war crimes or crimes against humanity.
Specific Intent
The distinguishing feature of genocide is that the perpetrator commits the specific underlying acts of the offence with the specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.
The Palestinian people constitute a national group for the purposes of the Genocide Convention. The Palestinians of the Gaza Strip constitute a substantial proportion of the Palestinian nation.
The ICJ is concerned that certain statements by senior officials and politicians in Israel disclose evidence of what may be characterised as intent to destroy Palestinians of the Gaza Strip.
For example, on 9 October, the Israeli Defence Minister Yoav Gallant said, “I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed. We are fighting human animals and we act accordingly.” On 10 October, the head of the Israeli Army’s Coordinator of Government Activities in the Territories (COGAT), Maj. Gen. Ghassan Alian, addressed a message directly to Gaza residents: “Human animals must be treated as such. There will be no electricity and no water, there will only be destruction. You wanted hell, you will get hell”. On 13 October, the Israeli Defence Minister said: “Gaza won’t return to what it was before. We will eliminate everything.”
The ICJ is concerned that such statements by officials responsible for Israel’s ongoing military offensive in Gaza, with their expressed emphasis on siege on the Gaza Strip, on depriving the population of essential needs, on the total destruction and elimination of everything and everyone in the Gaza Strip and on evacuation – taken together with well-documented patterns of reported crimes under international law in Gaza, such as indiscriminate bombardment of densely populated areas, including airstrikes resulting in extensive civilian casualties, attacks on medical units, transports and personnel, refugee camps, evacuation routes, humanitarian corridors and other vital civilian infrastructure, collective punishment and the forced transfer of over one million Palestinians from northern Gaza to the south – disclose evidence sufficient to trigger the duty of each State to take reasonable action to seek to prevent acts of genocide in Gaza.
The Duty to Prevent
Notwithstanding individual criminal liability for acts of genocides outlined above, under international law, States have a duty to prevent acts of genocide.
It is not necessary for a definitive determination that genocide is taking place. As the International Court of Justice (“the Court”) held in Bosnia v Serbia, a “State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.” The ICJ considers, based on the above, that such threshold has been reached in Gaza, triggering States’ duty under international law to take measures to prevent acts of genocide.
The totality of destruction by Israeli forces against Palestinians in Gaza, as documented in numerous open sources, should guide an assessment by the international community and individual States as to whether genocide is underway or whether there exists a serious risk of genocide, triggering the corresponding duty to prevent it. States’ legal obligation to prevent genocide is not a passive obligation, but rather, according to the Court in Bosnia v Serbia, “implies that each State party must assess whether a genocide or a serious risk of genocide exists”.
When the Court issued its order for provisional measures in The Gambia v. Myanmar in January 2020, it held that there was no requirement of demonstrating violations of obligations under the Genocide Convention, but rather that “the acts complained of … are capable of falling within the provisions of the Genocide Convention”.
The Genocide Convention imposes a minimum legal obligation on States to each take reasonable action to contribute toward preventing genocide, a duty that extends extraterritorially and applies regardless of whether any one State’s actions alone are sufficient to prevent genocide. The Court in Bosnia v. Serbia held that States with strong political links to the State concerned have a greater duty to use their influence in this regard, as the duty to prevent varies from State to State depending on its:
“capacity to influence effectively the action of persons likely to commit, or already committing, genocide. This capacity itself depends, among other things, on the geographical distance of the State concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events”.
The Court also held that, “if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent, it is under a duty to make such use of these means as the circumstances permit”. Third State responsibility may be incurred if a State manifestly fails to take all measures that are within its power to prevent acts of genocide, and that might contribute to preventing such acts.
Recommendations
In light of the above, the ICJ calls upon States who have a position of influence with the Government of Israel – particularly the United States – to take all reasonable measures within their power to prevent genocide in Gaza, including by calling for a ceasefire, taking steps to ensure the lifting of the siege and preventing the displacement of Palestinians outside the Gaza Strip, and to discontinue any military assistance, including arms sales, that would enable or facilitate genocide, and other crimes under International law.
The ICJ urges other States to immediately act under article VIII of the Genocide Convention, by calling on the competent organs of the United Nations, including the UN Security Council, and particularly the UN General Assembly, to take urgent action under the UN Charter appropriate for the prevention and suppression of any acts of genocide in Gaza, including calling for an immediate ceasefire.
The ICJ also calls on UN Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, and the Office of the Prosecutor of the ICC, to rapidly expand their investigations in relation to the situation in Palestine to include genocide.
Contact:
Said Benarbia, Director, ICJ Middle East and North Africa Programme, email: said.benarbia@icj.org
Katherine Iliopoulos, Legal Adviser, ICJ Middle East and North Africa Programme, email: katherine.iliopoulos@icj.org
Nov 7, 2023
Yesterday, the International Commission of Jurists (ICJ) and Amnesty International (AI) jointly submitted an amicus curiae legal brief to the Bangkok South Civil Court in a class-action lawsuit filed by two residents of Cambodian villages, representing at least 23 families out of a potential class of more than 700 affected families in the Oddar Meanchey Province, Cambodia, against Mitr Phol Sugar Corporation Ltd., a Thai company.
This lawsuit, based on Thai and Cambodian tort laws, alleges human rights abuses committed by Mitr Phol’s apparent subsidiary in Cambodia, Angkor Sugar Co. Ltd.
In 2008, Angkor Sugar Co. Ltd. was granted an economic land concession to operate an industrial sugar plant in Oddar Meanchey Province. The complaint alleges that after the concession was granted, Angkor Sugar Co. Ltd. colluded with local authorities to forcibly seize land held by individuals from local communities, resulting in the destruction of their houses, the burning of villages and crops, and physical harm to some villagers.
This marks the first-ever class-action lawsuit filed in Thai courts by plaintiffs from another country for abuses committed by a Thai company outside of Thailand.
Today, the Court held a session to examine the list of evidence submitted by both parties. The next appointment date will be on 27 March 2024 for the examination of evidence, after which the court will set the witness examination date.
The ICJ/AI amicus brief sets out the principal applicable international human rights law and standards, and comparative jurisprudence for the Thai court to consider in resolving this case. The organizations submit that the human rights responsibilities of a parent company, such as Mitr Phol, extend beyond its own conduct to include the activities of subordinate entities. To this end, Mitr Phol has a duty to exercise due diligence in monitoring and controlling their subsidiaries in Cambodia, whose conduct they may influence. Failure to carry out this due diligence should result in liability as a consequence of the actions of their subsidiaries.
The brief also highlights that under international standards, business enterprises have a responsibility to respect all internationally recognized human rights wherever they operate, such as the right to adequate housing.
The Thai court itself also has a duty that extends beyond the national borders of Thailand to ensure access to justice, effective remedy, and reparation for individuals from communities living in proximity to the operations of Thai companies and their subsidiaries in other countries when their rights are violated.
The need to apply international human rights standards is recognized by the government of Thailand, as evidenced in the adoption of its National Action Plan on Business and Human Rights, and is also recognized by Mitr Phol through the company’s Code of Conduct.
Background
Victims of corporate human rights abuses face multiple barriers in holding companies to account and securing access to justice.
Although this case is the first of its kind in Thai courts, in recent years, other cases involving human rights abuses committed by Thai state-owned enterprises abroad were brought to Thai courts by Thai citizens, but they ended with limited success. These cases included an unsuccessful lawsuit brought by Thai villagers against Thai governmental agencies regarding the construction of the Xayaburi Dam in Lao PDR and its transboundary environmental destruction affecting communities in Thailand.
The limitations identified encompass the legal nature of corporations, evidentiary challenges, conflict of laws, and statutes of limitation.
Despite calls from CSOs to initially address the weak implementation of the first NAP, Thailand’s Second National Action Plan on Business and Human Rights (2023-2027) was endorsed by the Thai Cabinet on 25 July 2023.
The NAP identifies ‘cross-border investment and multinational enterprises’ as one of the four key priority issues in the NAP. The Second NAP includes an action point that requests the Ministry of Justice to “study and recommend amendments to the laws or propose measures to ensure access to justice and effective civil, criminal and administrative remedies for local and overseas communities within the areas where companies or Thai state-owned enterprises operate and are affected by such operations.”
The submission in English can be downloaded here
The submission in Thai can be downloaded here
Further reading
Thailand: Barriers persist in access to justice for victims of human rights abuses involving Thai transnational corporations abroad – ICJ report
Contact
Sanhawan Srisod, ICJ Associate International Legal Adviser, e: sanhawan.srisod@icj.org
