Mar 18, 2020
In amicus curiae observations submitted to the International Criminal Court (ICC) on 16 March 2020, the ICJ argued that the Court had competency to exercise its jurisdiction over the whole of the Palestinian territory, including the West Bank, East Jerusalem and Gaza.
The ICJ submitted that competing claims challenging Palestine statehood under international law and its sovereignty over the territory were without merit.
The ICJ emphasized that failure to accept jurisdiction in respect of the State of Palestine, a State Party to the Rome Statute of the ICC, would run counter to the Statute’s object and purpose of combatting impunity for serious crimes under international law.
The amicus observations were filed in response to the ICC Prosecutor’s request to the Court to rule on “the scope of the Court’s territorial jurisdiction in the situation of Palestine and to confirm that the ‘territory’ over which the Court may exercise its jurisdiction … comprises the West Bank, including East Jerusalem, and Gaza.”
“Palestine is a State under international law, satisfying recognized international law criteria for statehood, displaying and effectively exercising State authority over parts of the Palestinian territory and demonstrating capacity to enter into relations with other sovereign States and exercise treaty-making powers. Israel’s decades-long occupation of the Palestinian territory has no bearing over the ultimate question of Palestine’s sovereignty and statehood, and, thus, over the ICC’s jurisdiction,” said Said Benarbia, the ICJ’s MENA Programme Director.
The ICJ also submitted that moves by Israel to annex portions of Palestinian territory and thereby nullify the right of the Palestinian people to self-determination should not be accepted by the Court as a basis for determining Palestine’s statehood status.
The ICJ also urged the Court to reject claims that Palestine has no jurisdiction over “Area C” – which pursuant to the 1995 Oslo II Accord was placed under full Israeli control for security purposes – East Jerusalem, and Israeli citizens, and thus cannot validly delegate such jurisdiction to the Court.
“The Court can and should exercise jurisdiction over all individuals responsible for crimes under the Rome Statute committed in the Palestinian territory, irrespective of the nationality of the accused or the victims. By exercising such jurisdiction, the Court will fulfil its very raison d’être of combating impunity and holding those who bear responsibility for the most serious crimes under international law to account,” said Kate Vigneswaran, the ICJ’s MENA Programme Senior Legal Adviser.
Because the State of Palestine is a party to the Rome Statute, the ICC is entitled to exercise its jurisdiction over the serious crimes of genocide, crimes against humanity, and war crimes committed on its territory by persons of any nationality, including Israelis and Palestinians. Palestinian nationals also fall under its jurisdiction for any crimes committed anywhere in the world.
Contact:
Said Benarbia, Director, ICJ Middle East and North Africa Programme, t: +41-22-979-3817; e: said.benarbia(a)icj.org
Kate Vigneswaran, Senior Legal Adviser, ICJ Middle East and North Africa Programme, t: +31-62-489-4664; e: kate.vigneswaran(a)icj.org
Palestine-Amicus brief ICC-Advocacy-Legal submission-2020-ENG (Amicus brief, in PDF)
Palestine-ICC Amicus-News-Press releases-2020-ARA (Press release in Arabic, PDF)
Mar 12, 2020 | News
On 11 March 2020, the ICJ co-hosted a panel discussion and an exhibition entitled “Committed to Memory: The Disappeared and Those They Left Behind.”
The event was held to mark the 16th anniversary of the enforced disappearance of a prominent lawyer and human rights defender Somchai Neelapaijit and other individuals who were subject to apparent enforced disappearance and whose fates remain unknown.
The event was held at Bangkok Art and Cultural Centre (BACC). More than 100 participants attended the event.
Opening remarks were delivered by Jenni Lundmark, Programme Officer, Delegation of the European Union to Thailand, and Associate Professor Dr. Gothom Arya, Adviser of the Institute of Human Rights and Peace Studies at Mahidol University.
Jenni Lundmark highlighted the European Union’s commitment to address torture and enforced disappearance and urged the Thai Parliament to pass pending anti-torture and enforced disappearance legislation without undue delay. Associate Professor Dr. Gothom called on the public to preserve the memory of the Thai persons who were victims enforced disappeared as well as many others whose disappearance were not recorded. He also encouraged the establishment of a network of victims of enforced disappearances to strengthen their advocates’ ability.
The event also featured photos and personal belongings of victims or potential victims of enforced disappearance, including: Somchai Neelapaijit, Thanong Po-Arn, Porlajee “Billy” Rakchongcharoen, Kamol Laosophaphan, Jahwa Jalo, Surachai Danwattananusorn, Siam Theerawut and Den Khamlae. For some of these cases, there has been a failure of authorities to conduct a prompt, effective, impartial and independent investigation into their cases. During the event, family members of the victims described stories from photos and personal belongings of the “disappeared” that were exhibited.
The panel discussion focused on progress of the investigations into enforced disappearances and evaluated the progress in developing legislation in Thailand to address this critical issue. The speakers included Angkhana Neelapaijit, wife of Somchai Neelapaijit; Thipwimon Sirinupong, lawyer who is representing Porlajee “Billy” Rakchongcharoen’s family; and Sanhawan Srisod, ICJ’s legal adviser.
During the discussion, speakers expressed concern at the recurrent delays in the amendment and enactment of the law against torture and enforced disappearance which will be critical for ensuring accountability and justice for victims of enforced disappearance. They also regretted that the latest Draft Act, after several rounds of revisions and public hearings, still had not addressed many of the principal shortcomings which the ICJ and other stakeholders and experts have indicated need necessarily be amended in order to bring the law into line with Thailand’s international human rights obligations.
The key concerns include the incomplete definitions of the crimes of enforced disappearance, the absence of provisions concerning the continuous nature of the crime of enforced disappearance and statute of limitations for torture and enforced disappearance crimes, and the inadequacy of provisions concerning safeguards against enforced disappearances.
Background
Somchai was stopped at a Bangkok roadside on 12 March 2004 and pulled from his car by a group of men. He has not been seen since.
At the time, Somchai was defending clients from Thailand’s restive southern provinces who were accused of attacking a military base as part of the ongoing insurgency in the region. Somchai had alleged police tortured the Muslim suspects.
Since 19 July 2005, DSI has spent more than 14 years and eight months investigating the enforced disappearance of Somchai Neelapaijit. However, there is little information in the public domain regarding its progress.
From 1980 to May 2019, the UN Working Group on Enforced or Involuntary Disappearances has recorded and transmitted 90 cases of alleged enforced disappearance to Thailand. Currently, 79 cases remain outstanding.
Further reading
Ten Years Without Truth: Somchai Neelapaijit and Enforced Disappearances in Thailand
Thailand: continuing delay in the enactment of the draft law on torture and enforced disappearance undermines access to justice and accountability
Feb 13, 2020 | News
The ICJ convened two workshops in Guatemala City from 11 to 13 February for more than 30 lawyers and more than 30 representatives of victims’ organizations on the international law and standards that apply to the investigation of unlawful death and enforced disappearances.
The workshops were conducted as part of the project under the ICJ’s Global Accountability Initiative entitled, Promoting justice for extrajudicial killings and enforced disappearances in Colombia, Guatemala and Peru, and supported by the EU European Instrument for Democracy and Human Rights (EIDHR). The project promotes accountability of perpetrators and access to effective remedies and reparation for victims and their families in cases of extrajudicial killings and enforced disappearances.
The workshop for lawyers was inaugurated by the President of the Board of Lawyers of Guatemala, Ovidio Orellana. The workshop with representatives of victims organizations was inaugurated by the Chief of Cooperation of the European Union Alberto Cortezón.
Participants in the workshops emphasized that the Guatemalan public authorities must respect and effectively impolement the the revised Minnesota Protocol on the Investigation of Potentially Unlawful Death, and that there was a need to reinforce advocacy strategies for the respect of the Protocol by the Guatemalan Human Rights Institutions.
The Presidential Commission on Human Rights (COPREDEH) and the Ombudsman´s Office participated during the workshop with victims’ organizations. They committed themselves to take the necessary actions to incorporate into their work the principles and content of the Minnesota Protocol, as a complementary tool to other conventions and binding law.
Contacts:
Ramón Cadena, Regional Director of ICJ’s Central America Office, email: ramon.cadena@icj.org
Kingsley Abbott, Senior Legal Adviser & Coordinator of the ICJ’s Global Accountability Initiative, email: kingsley.abbott@icj.org
Carolina Villadiego Burbano, ICJ Legal and Policy Adviser, Latin America, and Regional Coordinator of the Project, email: carolina.villadiego@icj.org
Jan 25, 2020 | News
Recent steps taken by the government are a serious setback on Nepal’s transitional justice process, the ICJ, Amnesty International, Human Rights Watch and TRIAL International said today.
The organizations expressed concern about the decision to appoint commissioners to the two transitional justice commissions without adequate consultations, and without amending the legal framework to make it consistent with international human rights law and Supreme Court of Nepal rulings.
“Nepal’s political leaders know that a transparent process is essential to ensure justice and accountability for egregious rights violations during the conflict, but they keep trying to protect those responsible for the abuses,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “If the political leadership continues to evade responsibility, they leave little choice but for victims to approach courts outside the country.”
On January 18, 2020, a five-member committee formed by the government to recommend names for commissioners for the Truth and Reconciliation Commission (TRC) and the Commission on the Investigation of Enforced Disappeared Persons (CIEDP) submitted its nominations. The committee sent the names forward despite longstanding demands by victims’ groups and civil society for the government to first amend the transitional justice legal framework to ensure that it complies with Nepal’s international obligations and is responsive to victims’ concerns.
Instead, the Ministry of Law, Justice and Parliamentary Affairs on January 13 hastily convened provincial consultations on the transitional justice laws lasting just three hours, which allowed little time for meaningful participation by victims’ groups and civil society.
“The government’s decision to carry out another rushed and secretive set of consultations fails to give due respect to the long-standing demands of victims and civil society,” said Frederick Rawski, ICJ’s Asia-Pacific Director. “It also makes it very difficult to take seriously the statements of political leaders that they are committed to supporting a victim-centred and human rights compliant process.”
Victims’ groups and human rights organizations have rejected these appointments and consultations, and have reiterated that they will not support a transitional justice process that is opaque, non-consultative, and undermines the victims’ right to truth, justice and reparations.
In addition, in its secretariat meeting earlier this week, the Nepal Communist Party (NCP) nominated Agni Sapkota as the speaker of the Federal Parliament. Sapkota, a member of parliament and the party standing committee, has been accused of responsibility for the abduction and killing of Arjun Lama in 2005 in Kavre. The case is the subject of proceedings including before the Supreme Court of Nepal.
NCP should reconsider Sapkota’s nomination as speaker of the parliament until there is a thorough and independent investigation, the organizations said.
“Nepal authorities should not appoint to high office people that are under investigation for human rights abuses, when they could interfere with that investigation,” said Audrey Oettli, Program Manager at TRIAL International. “Such appointments are yet another illustration of the government’s unwillingness to demonstrate a basic commitment to holding perpetrators of conflict-era rights abuses accountable.”
In March 2008, the Supreme Court directed the police to register a case against Sapkota for abducting and killing Lama and to carry out an investigation. The police did not comply. In 2010, Australia and the US rejected visa applications from Sapkota in light of the allegations of serious human rights violations.
When Sapkota was appointed information communication minister in May 2011, the UN Office of the High Commissioner for Human Rights issued a statement expressing concern, saying that states have a responsibility “to ensure that the name of a person is fully cleared following a thorough investigation before any appointment to a high public office is announced.”
The ICJ, Amnesty International, Human Rights Watch and TRIAL International have repeatedly expressed concern about the transitional justice process. An effective transitional justice system requires strong legal foundations consistent with international law and standards, and the political will to address the demands of victims of the conflict, the organization said.
Concerns raised about the legal framework include: disparities between the definitions of specific crimes under international law and human rights obligations and violations under national, and international law; inadequate provisions to ensure that serious crimes under international law are subject to criminal accountability, including punishment proportionate to the seriousness of the crimes; and a reliance on compensation at the expense of other forms of reparation and remedy for conflict survivors and their families.
The government should amend the the 2014 Transitional Justice Act to make it consistent with the Supreme Court’s rulings and international human rights standards, the groups said. It should initiate a genuine consultative and transparent process for the appointment of commissioners. And it should conduct credible and impartial investigations instead of appointing people accused of conflict-era crimes to high public offices.
“The government and the political parties in Nepal are increasingly showing that they are unwilling and incapable to deliver truth, justice and reparations to the conflict victims domestically,” said Biraj Patnaik, South Asia Director at Amnesty International. “Their signal of impunity will further push the victims and activists to seek justice internationally under universal jurisdiction. Instead of putting those suspected of criminal responsibility into positions of power, the government should bring them to justice in fair trials.”
To download the statement in Nepali, click here.
Contact
- Frederick Rawski, ICJ Asia-Pacific Director, e: frederick.rawski(a)icj.org, +66 644781121
- Biraj Patnaik, Amnesty International, South Asia Director, e: biraj.patnaik(a)amnesty.org, t: +94 716123280
- Meenakshi Ganguly, HRW, South Asia Director, e: gangulm(a)hrw.org
- Audrey Oettli, TRIAL International, Program Manager, e: a.oettli(a)trialinternational.org
Jan 24, 2020 | News
The ICJ expressed alarm about comments made by Sri Lankan President Gotabaya Rajapaksa which offensively mischaracterized the situation of “missing persons” in Sri Lanka, many of whom have been the victims of the crime of enforced disappearances.
According to a statement released by the President’s office after President Rajapaksa’s meeting with UN Resident Coordinator, Hanaa Singer, on 17 January 2020, the President had “explained that these missing persons are actually dead” and that “most of them had been taken by the LTTE or forcefully conscripted. The families of the missing attest to it. However, they do not know what has become of them and so claim them to be missing.”
“It is appalling to hear such callous declarations from the Office of the President, particularly given that no credible investigations have been conducted into the cases of those who have gone missing during the armed conflict,” said Frederick Rawski, Asia Pacific Director for the International Commission of Jurists.
The fate and whereabouts of some 20,000 people were reportedly unaccounted for in the immediate aftermath of the armed conflict in Sri Lanka. Many of these people are suspected to have been subjected to enforced disappearance, unlawful killings and/or other crimes under international law.
The Report of the UN Secretary-General’s Panel of Experts on Accountability in Sri Lanka (2011) and the reports of the State-led Commissions of Inquiry on Lesson Learnt and Reconciliation (2011), and Presidential Commission of Inquiry into Complaints of Abductions and Disappearances (2015) found that at least some of those who had surrendered to the Sri Lankan military at the end of the war in 2009 remain unaccounted for to date, and that many cases remain unresolved.
According to the same statement, Rajapaksa further informed the UN Resident Coordinator that, “after necessary investigations, steps would be taken to issue a death certificate to these missing persons. Afterwards their families would be given the support they need to continue with their lives.”
Under international law and standards, allegations of enforced disappearances and unlawful killings must be investigated, promptly, thoroughly, impartially. Those responsible must be brought to justice in fair trials, and the victims and their families are entitled to effective remedy and reparation.
“The President’s statement appears to disregard the purpose of the Office of Missing Persons. Any attempt to provide ‘closure’ to the relatives of the missing without following the necessary legal procedure to establish the truth is unacceptable,” said Rawski. “Their families have waited for ten years or longer to find out the fate of their loved ones. The response of the State should be to help facilitate the existing process, not to disrupt or obstruct it,” he added.
The previous government adopted the Office of Missing Persons Act in August 2016 and established the Office of Missing Persons (OMP) in February 2018, in light of its commitments to the UN Human Rights Council under Resolution 30/1. According to Section 13 (1) (a) (ii) of the OMP Act, a certificate of death shall be issued only upon the conclusion of an investigation and the issuing of a report to the relative of such missing person to such effect. However, as an interim measure, the OMP is empowered to facilitate the provision of certificates of absence to family members of a missing person. A certificate of absence legally recognizes that a person is missing and allows the family to conduct transactions as though the person is dead.
The ICJ urges the Government of Sri Lanka to desist from any measures that would derail from the established legal procedure to search and trace the “disappeared” and other missing persons in Sri Lanka. ICJ instead calls upon the Government to support the Office of Missing Persons to speed up the investigation process in establishing the truth, accountability, and reparation.
Contact
Frederick Rawski, ICJ’s Asia Pacific Regional Director, t: +66 2 619 84 77; e: frederick.rawski(a)icj.org
