Cambodia: UN Human Rights Council urged to respond to human rights and rule of law crisis

Cambodia: UN Human Rights Council urged to respond to human rights and rule of law crisis

The International Commission of Jurists (ICJ) called the Human Rights Council’s (HRC) attention to the entrenched pattern of human rights violations in Cambodia, and called on the HRC to adopt a resolution to extend the Special Rapporteur’s mandate and ensure it has adequate resources and support.

Oral statement of the International Commission of Jurists (ICJ) during the Interactive Dialogue with the Special Rapporteur on the situation of human rights in Cambodia

“Madam Vice President,

The International Commission of Jurists (ICJ) concurs with the Special Rapporteur’s assessment that Cambodia has largely failed to implement the 20 human rights-related benchmarks proposed in his previous report to this Council.

In the lead-up to the national elections, there was a rapid escalation of the human rights and rule of law crisis in Cambodia. Human rights defenders and political opponents were convicted based on non-human rights compliant laws for exercising their right to freedom of expression, both online and offline, with new draconian laws on cybercrime and cybersecurity being drafted and considered.

The authorities have arbitrarily revoked licenses and blocked online access to independent media outlets without due process. The government at the highest level has employed rhetoric, reproduced online, to threaten and incite violence against political opponents with impunity, with credible reports of actual physical violence as an apparent consequence.

This systematic disregard for Cambodia’s international human rights obligations has been further exacerbated by the absence of an independent and impartial judiciary. The convictions of human rights defenders and political opponents were frequently accompanied by massive fair trial violations, including the effective application of a presumption of guilt.

It is imperative that the Council responds decisively to reverse this entrenched pattern of human rights violations in Cambodia by adopting a resolution to extend the Special Rapporteur’s mandate and ensuring it has adequate resources and support.

Thank you.”

Contact

Sandra Epal Ratjen, ICJ UN Representative and Senior Legal Adviser, e: sandra.epal@icj.org

Daron Tan, ICJ Associate International Legal Adviser, e: daron.tan@icj.org

Cambodia: Ministries should withdraw draft cybersecurity law which would threaten human rights and expose people to increased cyber threats

Cambodia: Ministries should withdraw draft cybersecurity law which would threaten human rights and expose people to increased cyber threats

The International Commission of Jurists (ICJ) and Access Now sent a joint letter and an accompanying legal analysis to Cambodia’s Ministry of Post and Telecommunications and Ministry of Justice, calling for the withdrawal or substantial amendment of its Draft Law on Cybersecurity to bring its provisions in line with international human rights standards.

The draft law, if adopted, would likely undermine the rights to privacy and freedom of expression, while also risking personal security and exposing people to increased cyber threats.

“The Draft Law would require government licenses of cybersecurity services – an excessive provision that would hamper the ability of people and businesses in Cambodia from being able to secure themselves against intrusion into their networks and safeguard their data,” said Golda Benjamin, Asia Pacific Campaigner at Access Now. “Cambodia wants this draft law to deal with malicious cyber activities but in its current form, it will only create a new problem of having a cybersecurity landscape that imposes unreasonable administrative burdens to organizations, including small and medium enterprises and civil society.”

In the legal analysis attached to the joint letter, Access Now and ICJ point out that the vaguely worded and sweeping provisions in the Draft Law may be abused to allow government cybersecurity inspectors overbroad access to private data. It fails to provide for safeguards, but instead would grant a newly created body of cybersecurity inspectors immense power to investigate, observe, monitor, prevent and respond to cybersecurity threats and incidents. The Draft Law also fails to make provision to ensure that cybersecurity inspectors are properly qualified.

“These proposed arrangements are a recipe for executive abuse, especially given that the bill fails to provide for any independent or effective oversight or remedial mechanism to serve as check on governmental conduct and safeguard against any potential overreach,” said Ian Seiderman, Legal and Policy Director at the ICJ. “If this legislation is put forward for adoption, it needs to amended to correct these deficiencies and comply with Cambodia’s international legal obligations and rule of law principles.”

Access Now and ICJ urge Cambodia to strengthen their cybersecurity landscape to deal with malicious cyber activities and ensure that any law, policy, or practice to implement this goal complies with the country’s international human rights obligations. Effective cybersecurity requires a human-centric and human rights respecting approach.

Download

Read the joint letter here, and the joint legal analysis of the Draft Law on Cybersecurity here.

Contact

Daron Tan, ICJ Associate International Legal Adviser, e: daron.tan@icj.org

Sri Lanka: Proposed Online Safety Bill would be an assault on freedom of expression, opinion, and information

Sri Lanka: Proposed Online Safety Bill would be an assault on freedom of expression, opinion, and information

The ICJ is concerned that the newly proposed Online Safety legislation, if adopted in its present form, would serve to crush free expression and further contract an already shrinking civic space in Sri Lanka.

On 18 September 2023, the Ministry of Public Security gazetted a bill titled “Online Safety” intended to dramatically regulate the content of online communication, including by the general public.

The ICJ considers that several provisions of the bill would serve to undermine the exercise of human rights and fundamental freedoms in the country, including freedom of information and expression.  Of particular concern are provisions related to the setting up, appointment and functions of an Online Safety Commission and other experts, the vague and overbroad wording of conduct designated as punishable offences and unnecessary and disproportionate punitive sanctions.

“While the spread of online hate-speech and disinformation need to be tackled, this bill is deeply flawed in its design and would be open to abuse by the Sri Lankan government, which has persistenty failed to uphold freedom of expression,” said Ian Seiderman, ICJ’s Legal and Policy Director. “It risks being used to suppress important public debate regarding  the conduct of the government and matters of public policy,” he added.

The Bill would establish an “Online Safety Commission” that would act to: “prohibit online communication of certain statements of fact; prevent the use of online accounts and inauthentic online accounts for prohibited purposes;  make provisions to identify and declare online locations used for prohibited purposes in Sri Lanka and to suppress the financing and other support of communication of false statements,” as well as other unspecified matters.

The Bar Association of Sri Lanka has called for the immediate withdrawal of the bill and for the adoption of a process of meaningful consultations with all relevant stakeholders prior to gazetting bills which ‘have a serious impact on the community at large.’

“The current draft fails to adhere to the principles of legitimacy, necessity and proportionality required for any State activity that restrict rights. It must be withdrawn or amended to be brought in line with Sri Lanka’s international human rights obligations guaranteeing freedom of expression, opinion, and information.” Seiderman added.

The ICJ considers that the Bill should not be evaluated in a vacuum, but instead must be read in conjunction with existing and proposed legislation that threaten human rights. Such laws include the extremely misused ICCPR Act of 2005, the Prevention of Terorrism Act (PTA), the Bureau of Rehabilitation Act, and the proposed Anti-Terrorism law which seeks to replace the PTA. This body of legislation, taken together, fosters a chilling effect on the exercise of fundamental freedoms restricting civil society while unduly expanding the reach of the security state.

Article 14 (1) (a) of the Sri Lankan Constitution gurantees the freedom of speech and expression. Article 19 of the International Covernant on Civil and Political Rights, to which Sri Lanka is a party, affirms the right to freedom of expression and opinion.

In July 2018, the UN Human Rights Council adopted by consensus a resolution  affirming that “the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice, in accordance with articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.”

Contact: Ian Seiderman, Legal & Policy Director, e: ian.seiderman@icj.org

See annexed below a summary analysis of some problematic aspects of the Online Safety Bill.  

Sri Lanka: Selected flaws in the Online Safety Bill

  • Wide ranging and overly broad powers of the Online Safety Commission and appointed Experts

The bill provides for the establishment of a five-member ‘Online Safety Commission’ that is to be appointed on the sole discretion of the President (clause 5). This is in contrast to other notionally independent commissions in Sri Lanka, the appointments to which require the consent of the Constitutional Council by way of nomination or ratification. This bill would give the president unfettered discretion where both appointment and removal is concerned.

The Commission would also be vested with a wide range of powers, some of which encroach into the functions of the judiciary. It essentially acts as sole arbiter of matter of fact and is entitled to issue notices or directives against any person, internet service provider (ISP) or internet intermediaries who/which is alleged to have communicated a prohibited or false statement. The bill does not specify the process through which the Commission would arrive at this decision.

Moreover, the Commission is granted authority to block websites and instruct ISPs to restrict access to specific online locations. This may result in undue government overreach and censorship and impermissible limitations on the exercise of the right to information protected by Article 14A of the Constitution and international law.

Further clause 37 allows for the Minister to appoint ‘Experts’ to assist police officers in investigations. The experts are private individuals who can accompany police officers during search procedures, but are also given the power upon authority granted by a police officer above the rank of a sub-inspector to require a person to hand over any documents or device, provide traffic data or be orally examined (clause 37 (6)). Such excessive powers in the hands of unaccountable private individuals provide avenues for abuse.

The bill does not provide provide for judicial review of the Commission’s decisions or procedures. Instead clause 49 seeks to protect the Commission, its staff, or any expert appointed under clause 37 from being brought to court for any act or omission done in good faith.

  • Vague and overbroad offences

A particularly problematic aspect of the bill are provisions of vague and overbroad definitions of offences.

Article 19(3) of the ICCPR provides that the right to freedom of expression and opinion may be subject to certain restrictions, but that these restrictions must be provided by law and necessary for one of a limited numbers of legitimate purposes, namely to protect the rights and reputations of others, national security, public order or public health or morals.  The measure of limitation must be proportionate, using the least restrictive means possible to achieve the purpose. The requirement that any restrictive measure be provided by law means that they must comply with the principle of legality, by which the law must be stated with precision as to allow persons to be able to conform their conduct in compliance.

Similarly, Article 15 (2) of the Sri Lankan Constitution provides for possibility of  restriction of the right “as may be prescribed by law in the interests of racial and religious harmony or in relation to parliamentary privilege, contempt of court, defamation or incitement to an offence.”

The prohibitions listed in this draft legislation go beyond the restrictions allowed for under the  ICCPR and the Sri Lankan Constitution, as clause 12 states that “any person who poses a threat to national security, public health or public order or promotes feelings of ill-will and hostility between  different classes of people, by communicating a false statement, commits an offence.”

In addition, several acts that would constitute offence are only vaguely defined, if at all. This includes communicating a false statement “with the deliberate intention of wounding the religious feelings of any other person” (clause 16) or “outraging the religious feelings of any class of persons, insults or attempts to insult the religion or the religious beliefs of that class” (clause 17). These clauses are overbroad in that they would encompass expression that is protected under human rights law. Clause 14 makes it an offence to ‘wantonly giving provocation by false statement to cause riot’. This language is open to abuse by the authorities, as evidenced by practices arising from other legislation, including    the ICCPR Act  and the PTA.

Repeated mention of ‘religion’ in these provisions is a cause for concern as they come in a context where there is ongoing strife relating to contested religious sites between majority and minority religious communities, thus creating risk of selected application to silence expression by persons from minority religious communities.

  • Disproportionate Punishment

The draft bill prescribes unjustifiably hefty punishments of fines and a period of imprisonment ranging from one, two, three or five years for overbroad and ill-defined offences. It also states that “in the event of a second or subsequent conviction, such term of imprisonment or fine or both such imprisonment and fine may be doubled.”

Clause 25 of the bill, which refers to ‘failure to comply with the directives of the Commission’ would make it an offence to fails to comply with such directive within a period of 24 hours and makes the person liable to imprisonment for a term not exceeding five years or to a fine not exceeding one million rupees.

Thailand: Justice in the case of slain Karen activist “Billy” is again deferred as park officials are acquitted of responsibility for his killing

Thailand: Justice in the case of slain Karen activist “Billy” is again deferred as park officials are acquitted of responsibility for his killing

The ICJ is concerned at Thailand’s continued failure to bring justice to the loved ones of Karen activist Pholachi ‘Billy’ Rakchongcharoen, who was the victim of an apparent enforced disappearance in 2014, and apparent subsequent killing.

The ICJ calls on the responsible authorities to ensure that there is continuous effective investigation to determine definitively the fate of Billy and deliver justice to his family.

Today, Thailand’s Criminal Courts for Corruption and Misconduct Cases acquitted four Kaeng Krachan National Park officials, the last individuals seen with Billy, of murder-related charges, including premeditated murder and concealing the victim’s body. Only one of the accused, Chaiwat Limlikit-aksorn, former chief of Kaeng Krachan National Park, was convicted of charges and sentenced to three years in prison related to “malfeasance in office” for failing to hand Billy over to the responsible authorities after his arrest.

The Court, constituted of a panel of two judges, indicated that it did not believe that Billy had been released as claimed by the accused. Nevertheless, the Court concluded that there was not sufficient evidence to prove that the park officials orchestrated the killing.

“More than nine years of delays, including by inaction by the government until recently, and still no justice, is a blow to the victims. This constitutes yet another marker of Thailand’s consistent failure to hold accountable perpetrators of serious human rights crimes, potentially committed by State authorities,” said Sanhawan Srisod, ICJ Legal Adviser.

Billy was the victim of an apparent enforced disappearance, as he was last seen on 17 April 2014 in the custody of Kaeng Krachan National Park officials. The officials claimed they detained Billy for illegal possession of honey, but that they released him later the same day.

On 12 September 2019, the DSI located bone fragments, along with an oil tank submerged in water, which they identified as likely belonging to Billy. The subsequent DNA test indicated a maternal relation between the fragment and Billy’s mother, suggesting a blood relationship through the maternal line. However, the Court ruled today that there was insufficient evidence to establish that they belong to Billy, as opposed to other relatives who may have passed away during the same period.

This decision was made despite testimony from State forensic experts affirming the validity of the DNA test used in this case, which needed to be considered alongside other supporting facts. This includes testimonies given by the relatives and cultural expert about the absence of known blood relatives who had passed away without knowledge, and the Karen practice of not scattering the remains of the deceased in the river. Such testimony also aligns with the opinions of international forensic experts, specifically the Independent Forensic Expert Group established by the International Rehabilitation Council for Torture Victims, who were consulted by the prosecutors’ lawyers.

Enforced disappearance was recently made a specific crime under Thai law, following the adoption of the long-delayed Act on Prevention and Suppression of Torture and Enforced Disappearance, which came into effect in February this year. Under the Act, and international law, enforced disappearance is a continuous crime, which is not completed until the fate or whereabouts of the victim becomes known. Therefore, to the extent that there is any doubt that the discovered remains belonged to Billy, the crime must be considered to be ongoing and the law is applicable to Billy, even if it was not in force when he first “disappeared.”

Nevertheless, the Prosecution did not attempt to charge the accused with enforced disappearance, and the Court consistently rejected any reference to the crime made by the prosecution during the proceedings. This includes the rejection of expert witnesses proposed by the prosecutor’s lawyers who intended to testify about international law and standards governing enforced disappearance, following the rejections made by the accused.

“It is also unfortunate that the Thai court did not take into consideration the specific nature of the crime of enforced disappearance, often accompanied by very limited circumstantial evidence, which may be the only available means of establishing the crime. Such a crime also normally includes the powerlessness of the victim in the hands of the authorities, the use of state power to destroy direct evidence in an attempt at total impunity or to create the illusion of a perfect crime, all factors that have been taken into consideration in many cases in various jurisdictions worldwide when assessing the possible involvement of the suspects in crimes of this nature,” added Srisod.

During the trial, pursuant to the Act on Establishment of the Criminal Court for Corruption Cases B.E. 2559 (2016), the Court also used the so-called inquisitorial system, which is new to both lawyers and public prosecutors accustomed to the accusatorial style of the usual Thai court system. In this regard, lawyers voiced complaints that the judge on several occasions cut short the follow-up questions that the lawyers had planned to ask, citing that these issues had already been covered during their own examinations and other written submissions.

Background

Chaiwat Limlikit-aksorn was convicted under section 157 of the Criminal Code and section 123 of the Organic Act on Counter Corruption B.E. 2542 (1999).

Thailand has signed but not yet ratified the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) and is a State Party to the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The latter two treaties prohibit conduct making up enforced disappearance, and the crime is recognized as violation of both treaties.

The National Human Rights Commission of Thailand and local Thai Civil Society Organizations continue to receive complaints of alleged human rights violations at the hands of security forces constituting serious criminal conduct, including extraterritorial killings, torture and other ill-treatment, and enforced disappearances.

Between 1980 and August 2023, the UN Working Group on Enforced or Involuntary Disappearances also recorded and transmitted 93 cases of alleged enforced disappearance to Thailand. Currently, 77 of these cases remain unresolved.

Unfortunately, the number of cases in which these allegations have been investigated, let alone perpetrators prosecuted, remains low, as are instances where there has been access to effective remedies and provision of reparations for victims. In several instances, alleged victims of torture and other ill-treatment or the families of those who died as a result of these abuses have received some monetary payments falling short of full reparation, but the perpetrators have not yet been brought to justice.

This case also follows the acquittal of five police officers charged with the robbery and coercion of the “disappeared” human rights lawyer Somchai Neelapaijit in December 2015 due to a lack of evidence.

Further reading

Thailand: Indictment of park officials for killing of “Billy” is a significant step towards justice

Thailand: discovery of “Billy’s” remains should reinvigorate efforts to identify perpetrator(s)

Thailand: special investigation into apparent enforced disappearance of “Billy” welcome, but much more is needed

Thailand: ICJ submits recommendations on draft law on torture and enforced disappearance amendments

Justice for Billy: Time for Thailand to Account for Activist’s Disappearance

Contact

Sanhawan Srisod, Associate International Legal Adviser, ICJ, e: sanhawan.srisod@icj.org

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