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 30, 2023 | Advocacy, Analysis briefs, News
The International Commission of Jurists (ICJ), in an amicus curiae brief submitted today, has requested the East Jakarta District Court to give effect to Indonesia’s international legal obligations concerning freedom of expression and information in their adjudication of a case concerning criminal charges against two human rights defenders, Haris Azhar and Fatia Maulidiyanti.
Nov 24, 2023 | Events, News
“The law governing the development of Thailand’s Eastern Economic Corridor (EEC) must be evaluated and revised to address concerns raised by local communities, and align with Thailand’s international human rights obligations,” concluded participants at a dialogue hosted by the International Commission of Jurists (ICJ), Land Watch Thai, EEC Watch, ENLAW Thai Foundation, and Thai Public Broadcasting Service (Thai PBS) in Bangkok, on 22 November 2023.
Participants shared recommendations aimed at improving the Eastern Special Development Zone Act B.E. 2561 (2018) (‘EEC Act’), which governs the operation of the EEC, to better serve the rights and interests of persons in affected communities. These suggestions will be compiled by the organizers and submitted as part of the official consultation process during the 2024 evaluation by the Office of the Eastern Special Development Zone Policy Committee (‘EEC Office’).
The EEC is a special economic zone in Thailand being developed in the eastern coastal provinces of Rayong, Chonburi, and Chachoengsao, along the Gulf of Thailand. Its objective is to promote investment in next-generation industries utilizing innovation and high technology.
“The EEC Act, however lofty are its stated aim, fails to incorporate adequate protection of human rights. While the EEC Act nominally acknowledges international human rights standards such as the United Nations Guiding Principles on Business and Human Rights’ protect, respect, and remedy framework, as well as the principle of promoting and protecting human rights in policy preparation, it fails to provide for adequate means to ensure implementation of these and other human rights standards,” said Sanhawan Srisod, ICJ’s Legal Adviser.
“According to Thai law, the evaluation must achieve goals that include aligning the law with Thailand’s international obligations under international law. Therefore, the EEC Office cannot complete the evaluation process without thoroughly addressing current gaps in compliance,” added Srisod.
The ICJ recommendations presented include the need to incorporate safeguards against forced eviction, in accordance with international human rights law, and to recognize the social, cultural, spiritual, economic, environmental, and political value of land for communities, with special emphasis on the significance for tenant farmers and small-scale food producers. Responsible land-based investments and implementing human rights due diligence are also critical elements.
A survey conducted before the dialogue with 44 affected individuals in Chonburi and Rayong provinces revealed a pattern of practices that fail to comply with Thailand’s international human rights obligations. They include:
- Lack of adequate participation of residents in the consultation process of the EEC Act.
- Absence of representation of locally affected individuals/communities in the Committee overseeing the EEC, primarily composed of governmental authorities and representatives from business sectors.
- The EEC Committee and Office hold overly broad powers without adequate checks and balances.
- The absence of effective grievance and compliance mechanisms within the EEC Office.
- Disregard for the impact of activities on local livelihoods during policy implementation.
- Ineffectiveness and inadequacy of remedies provided for individuals affected by EEC operations.
Participants suggested amending the EEC Act to address these concerns and ensure real participation, inclusiveness, adequate livelihood, a healthy environment, effective remedies, and other human rights of communities in the area.
Additionally, it addressed ongoing litigation initiated by communities challenging town planning within the EEC, specifically challenging the re-designation of agricultural, natural, and environmental reserved zones to industrial zones, which is currently pending before the Central Administrative Court.
Background
The participants comprised 30 affected individuals living in the areas of the EEC and civil society actors. This is the second dialogue following the initial one in June 2023, addressing the same topic.
According to the Act on Legislative Drafting and Evaluation of Law B.E. 2562 (2019), all Thai laws must undergo outcome evaluation at least every five years.
Speakers at the dialogue included:
- Chanchao Chaiyanukit, Former Permanent Secretary of the Ministry of Justice
- Pornpana Kuaycharoen, Land Watch Thai
- Sanhawan Srisod, ICJ
- Saowaruj Rattanakhamfu, Thailand Development Research Institute (TDRI)
- Somnuck Jongmeewasin, EEC Watch
- Sondhi Kodchawat, Environmental Researcher
- Sumitchai Hattasan, Center for Protection and Revival of Local Community Rights
- Supaporn Malailoy, ENLAWThai Foundation
- Sutthikiat Kodchaso, ENLAWThai Foundation
Contact
Sanhawan Srisod, ICJ Associate International Legal Adviser, e: sanhawan.srisod@icj.org
Further reading
Thailand: laws governing development of Eastern Economic Corridor and Special Economic Zones fail to adequately protect human rights – ICJ report
Nov 16, 2023 | Advocacy, News
The International Commission of Jurists (ICJ) strongly condemns the Government of Pakistan’s decision to expel over 1.4 million Afghan nationals, including unregistered refugees, forcibly removing them to a country where many, especially women and girls, have a well-founded fear of persecution. The organization is deeply concerned for the safety and well-being of people who have been left with no choice but to flee under threats of arrest or deportation, as cases of arbitrary arrests and detention, and instances of ill-treatment, are reported.
“The forcible removal of Afghans is particularly egregious considering the ongoing humanitarian crises in Afghanistan and the current political climate following the Taliban takeover. Returning anyone there, especially women and girls, is fraught with risks. The expulsion of refugees and asylum seekers violates the principle of non-refoulement under international law, which prohibits the forcible removal of anyone to a country or place where they would have a well-founded fear of persecution, such as a real risk of being tortured or otherwise ill-treated or other serious human rights violations”, said Melissa Upreti, ICJ Asia Director.
Estimates indicate that there are over 1.4 million undocumented Afghans in Pakistan, in addition to some 1.3 million registered Afghan refugees. On 3 October 2023, the Government of Pakistan announced its plans to repatriate “illegal foreigners.” This was followed by a circular stating that Afghan Citizen Cardholders and those with Proof of Registration would be exempted. The deadline for Afghan nationals to leave Pakistan was 1 November, and has recently been extended to 31 December 2023, following significant international pressure. However, there have been reports of these exemptions not being applied and Afghans facing increasing harassment and pressure from local authorities.
UN agencies have called attention to the possibility of a serious escalation in human rights violations resulting from the separation of families and deportation of minors as the Pakistani authorities implement their plans. Since August 2021, the UN High Commissioner for Refugees has urged States not to return Afghan nationals to Afghanistan given that the country continues to be affected by recurrent conflict, instability and climate-induced disasters.
The ICJ and its partners have documented detailed evidence of gender-based persecution of women and girls in Afghanistan, as a direct result of the mounting draconian restrictions on their human rights and freedoms since the Taliban takeover in August 2021, in a joint report released earlier this year with Amnesty International. In light of the gravity and systematic nature of the restrictions and prohibitions that women and girls face in Afghanistan, the two human rights organizations recommended that all Afghan women and girls outside Afghanistan should be considered prima facie refugees and granted international protection.
“There is no evidence of a change in the de facto authority’s mode of governance, which centres on the oppression of women and girls and severe deprivation of their fundamental rights. If anything, there is evidence that the situation for women and girls in Afghanistan has become worse. Expelling Afghan nationals from Pakistan, especially women and girls, along with their families and forcing them back to Afghanistan puts them at a real risk of persecution or other forms of serious harm for which no legal recourse is available in Afghanistan,” added Upreti.
Citing concerns about a breach of international law obligations by Pakistan, a number of UN Special Rapporteurs have said in a joint letter that, “the lack of domestic asylum laws and procedures does not absolve States of their obligations to uphold the principles of non-refoulement under international human rights and customary law.”
Pakistan’s National Commission for Human Rights (NCHR) has urged the Government to refrain from conducting the deportations and called for adherence to relevant provisions in national and international law pertaining to refugees.
Thousands of Afghans have already crossed the border and with the recent postponement of the deadline to leave the county, the fate of over a million Afghans hangs in the balance. The ICJ calls on the Government of Pakistan to immediately:
- Rescind the expulsion order, cease further deportations and harassment of Afghans and comply instead with its international law obligations,
- Create pathways for women, girls and their families who have been forced to leave under the order to safely return.
- Consult with civil society, members of the Afghan community living in Pakistan, the NCHR, and relevant international organizations in the development of appropriate policies.
Contact:
Raquel Saavedra, ICJ Legal Adviser, e: raquel.saavedra@icj.org
Nov 7, 2023
An opinion piece by Mathuri Thamilmaran, National Legal Advisor – Sri Lanka at the International Commission of Jurists
Recently, the Mauritius Supreme Court ruled that a 185-year-old law criminalizing consensual same-sex sexual conduct was unconstitutional. This latest ruling adds Mauritius to the growing number of States where, in the past few years, consensual same-sex sexual relations have been decriminalized, either through the adoption of specific legislation or as a result of judicial decisions. It is anticipated – and very much hoped – that Sri Lanka will join this global wave of change in the coming months.
Like Sri Lanka, most of these States had laws criminalizing consensual same-sex sexual conduct originally imposed on them as a result of colonial rule. The British introduced the Penal Code in 1833, when Sri Lanka (Ceylon) was still a British colony. The Sri Lankan Penal Code was modeled on the Indian Penal Code of 1860. While three colonial powers – the Portuguese, the Dutch and the British – had ruled Sri Lanka, it was the British who codified the criminalization of consensual same-sex sexual conduct through the introduction of criminal provisions proscribing “unnatural offences”, namely, “carnal intercourse against the order of nature” (section 365) and “gross indecency” (section 365A) in the Sri Lankan Penal Code. None of these terms has been defined in the law but, in practice, they have been interpreted and applied to those who engage in consensual same-sex sexual conduct or are perceived to do so.
Sri Lanka gained independence from the British in 1948. But, 140 years since their enactment, these penal provisions continue to be in place with a few amendments and, while rarely enforced, they have been used as a tool of harassment, blackmail and persecution against lesbian, gay, bisexual, transgender (LGBT) and non-binary persons by State and non-State actors alike. Criminalizing same-sex sexual conduct between two consenting individuals only serves to perpetuate discrimination, violence and stigma motivated in whole or in part by ignorance of, prejudice and hatred against real or imputed same-sex sexual orientation.
Human Rights violations and abuses against LGBT and non-binary persons in Sri Lanka have been documented by many Sri Lankan civil society organizations throughout the years. For example, criminalization of consensual same-sex sexual conduct has been shown to lead to instances of extortion by both public and private actors. Another documented detrimental impact of criminalization relates to the right of access to health care of the individuals concerned, while raising more broadly public health concerns. Branded “criminals” by the law, LGBT and non-binary persons are less likely to access health services due to fear of being outed, discrimination, stigma and opprobrium, thus making it harder for them, for example, to receive vital messages about safe sexual conduct and HIV/ AIDS prevention.
Sri Lanka is a State party to all core international human rights treaties and to some of their protocols and it is thus bound by international human rights law. The latter enshrines the principle of non-discrimination and guarantees to everyone the right to equality before the law and equal protection of the law without discrimination in law and in practice. The UN Human Rights Committee has called upon States to ensure that their domestic law comply with the prohibition against discrimination, including the obligation not to discriminate against a person on prohibited grounds such as “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. In Young v. Australia (2003) the Committee held that the prohibition against discrimination under Article 26 of the ICCPR Covenant comprises also discrimination based on sexual orientation.
In 2022, while addressing the Human Rights Committee, the Sri Lankan government stated that Article 12 of the Constitution of Sri Lanka included non-discrimination on the basis of sexual orientation. Such a statement is contradicted by the criminal provisions proscribing consensual same-sex sexual conduct, and by the documented human rights violations and abuses committed against LGBT and non-binary persons over the years. The Committee, in its Concluding Observations published in April 2023, expressed concern that “lesbian, gay, bisexual and transgender persons continue to face criminalization under sections 365, 365A and 399 of the Penal Code and discrimination on a daily basis, including in accessing health care, employment and housing” and that they are “victims of arbitrary arrests and detention and are subjected to forced anal examinations in an attempt to gather evidence for prosecutions for same-sex conduct.” The Committee called upon the government to repeal the aforesaid legal provisions, to protect LGBT persons from discrimination of any kind, and to combat negative stereotypes and prejudice against them through training and awareness programmes.
Further, in 2023, during its Universal Periodic Review (UPR) at the Human Rights Council, Sri Lanka stated that a number of criminal proceedings had been revisited on grounds of non-discrimination based on sexual orientation. The Working Group of the UPR subsequently made recommendations to decriminalize same-sex sexual conduct. Unfortunately, Sri Lanka did not explicitly accept such recommendations and instead only took note of them. The UPR recommendations echo the recommendation made by the UN Committee on the Elimination of Discrimination against Women (CEDAW Committee) in 2022 that the criminalization of consensual same-sex sexual conduct between women under section 365A of the Penal Code violated their right to non-discrimination and therefore Sri Lanka should decriminalize consensual same-sex sexual conduct between women. In light of this, the continued criminalization of consensual same-sex sexual relations puts Sri Lanka at odds with its international human rights law obligations and erodes its credibility on the global stage.
In May 2023, the Supreme Court of Sri Lanka published its Special Determination on the constitutionality of the Penal Code (Amendment) Bill of 2023, whose stated objective is to repeal “provisions that make sexual orientation a punishable offence”. The recognition, for the first time, by the country’s highest court that the criminalization of homosexuality was an affront to the rights of equality and non-discrimination, dignity and privacy of a person, among others, was a watershed moment for human rights activists who had worked with LGBT persons in pursuit of this outcome. The Supreme Court’s determination also put to rest unsubstantiated rhetoric depicting homosexuality as a threat to society. On the strength of the Supreme Court’s determination that the Bill is constitutional, the Penal Code (Amendment) Bill now requires a simple majority in Parliament to pass and become law.
Parliament is expected to vote on the Bill in the coming months. It is a private member’s Bill tabled in Parliament by parliamentarian Premnath Dolawatte. Under the Bill, section 365 of the Sri Lankan Penal Code of 1883 will be repealed and replaced with reference only to “bestiality” as an “unnatural offence”, while section 365A will be fully repealed.
It is heartening to witness States around the globe reconsider and rectify outdated laws that stigmatize and criminalize consensual same-sex sexual relations. Sri Lanka should not hesitate to follow suit and finally take that vital stride towards a more just and inclusive society. Decriminalization of consensual same-sex sexual conduct would send a powerful message that Sri Lanka recognizes and respects the autonomy of individuals to choose their partners and live their lives authentically. The Supreme Court has taken the first step in that direction, it is now time for the Sri Lankan Parliament to ensure that the Bill is passed.
