Sep 11, 2017 | Advocacy, Non-legal submissions
The ICJ today delivered an oral statement at the UN Human Rights Council, on the need for criminalisation and other effective measures against enforced disappearances in Asia.
The statement, which was delivered in an interactive dialogue with the Working Group on Enforced or Involuntary Disappearances, read as follows:
“Mr President,
The ICJ echoes the Working Group’s recommendation that States should criminalize all acts of enforced disappearance, including enforced disappearances of migrants, which should be punished by appropriate penalties, taking into account their extreme seriousness.
As noted in the recent ICJ publication, “No more ‘missing persons’: the criminalization of enforced disappearance in South Asia”, despite the region having some of the highest numbers of reported cases of disappearances in the world, enforced disappearance is not presently a distinct crime in any South Asian country.
This is a major obstacle to ensuring justice in cases of enforced disappearance.
In Southeast Asia, the ICJ has highlighted the failure of authorities to effectively investigate cases of alleged enforced disappearance in the absence of national laws criminalizing enforced disappearance, for example with respect to emblematic cases of Sombath Somphone in Lao PDR and Somchai Neelapaijit and Porlajee “Billy” Rakchongcharoen in Thailand.
Where there is no clear national legal framework specifically criminalizing enforced disappearance, unacknowledged detentions by law enforcement agencies are often treated by national authorities as “missing persons” cases.
On rare occasions where criminal complaints are registered against alleged perpetrators, complainants are forced to categorize the crime as “abduction”, “kidnapping” or “unlawful confinement”.
These categories do not recognize the complexity and the particularly serious nature of enforced disappearance, and often do not provide for penalties commensurate to the gravity of the crime.
They also fail to recognize as victims relatives of the “disappeared” person and others suffering harm as a result of the enforced disappearance, as required under international law.
Finally, the ICJ welcomes the Working Group’s migration study; we note that the ICJ Principles on the Role of Judges & Lawyers in relation to Refugees and Migrants, published earlier this year, includes key safeguards that could help prevent disppearances in this context.
Thank you.”
The statement is available in PDF format in English, in Thai and Laotian.
Aug 30, 2017 | News
On 30 August, the ICJ co-hosted an event in Bangkok, Thailand, named “International Day of the Victims of Enforced Disappearance: Human Rights Defenders & the Disappeared Justice”.
The event began with opening remarks by South-East Asia’s Regional Representative of the United Nations Office of the High Commissioner for Human Rights (OHCHR) Cynthia Veliko.
Thereafter, Kingsley Abbott, ICJ Senior International Legal Adviser, spoke in a panel discussion about enforced disappearances in Thailand, highlighting the need for Thailand to comply with its human rights obligations under international law.
This panel discussion also included Ms. Oranuch Phonpinyo, Community Representative, forensics expert Dr. Pornthip Rojanasunan and former National Human Rights Commissioner Dr. Niran Pitakwatchara.
In a second panel discussion held during the event, speakers included Ms. Phinnapha Phrueksaphan, Victim Representative, Ms. Angkhana Neelapaijit, National Human Rights Commissioner and Victim Representative, Ms. Nareeluc Pairchaiyapoom from Thailand’s Ministry of Justice and prominent human rights lawyer Mr. Somchai Homlaor.
The event focused on the lack of progress in Thailand with regard to investigating cases of apparent enforced disappearance and called for the Royal Thai government to amend and pass legislation criminalizing torture, ill-treatment and enforced disappearance without further delay.
Thailand is a State party to the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and has signed, but not yet ratified, the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED).
The other organizers of the event were OHCHR’s South-East Asia Regional Office, the Cross Cultural Foundation (CrCF), Human Rights Lawyers Association (HRLA), the Esaan Land Reform Network, Amnesty International Thailand, Thailand’s Ministry of Justice and the Association for the Prevention of Torture (APT).
Copies of an open letter sent by the ICJ and other human rights groups to the Royal Thai government on 30 August were distributed to the event’s participants.
Contact
Kingsley Abbott, ICJ Senior International Legal Adviser for Southeast Asia, kingsley.abbott(a)icj.org
See the full open letter here in English and Thai
Read also
Ten Years Without Truth: Somchai Neelapaijit and Enforced Disappearances in Thailand
Aug 29, 2017 | News, Publications, Reports, Thematic reports
South Asian states can only address the tens of thousands of cases of enforced disappearances by recognizing enforced disappearance as a serious crime in domestic law, said the ICJ today.
On the eve of the International Day of the Victims of Enforced Disappearances, the ICJ 58-page report No more ‘missing persons’: the criminalization of enforced disappearance in South Asia analyzes States’ obligations to ensure that enforced disappearance constitutes a distinct, autonomous crime under national law.
It also provides an overview of the practice of enforced disappearance, focusing specifically on the status of the criminalization of the practice, in five South Asian countries: India, Pakistan, Bangladesh, Sri Lanka and Nepal.
For each State, the report briefly examines the national context in which enforced disappearances are reported, the existing legal framework, the role of the courts; and the international commitments and responses to recommendations concerning criminalization.
“It is alarming that despite the region having some of the highest numbers of reported cases of disappearances in the world, enforced disappearance is not presently a distinct crime in any South Asian country,” said Frederick Rawski, ICJ’s Asia Director.
“This shows the lack of political will to hold perpetrators to account and complete apathy towards victims and their right to truth, justice and reparation,” he added.
In Nepal and Sri Lanka, draft legislation to criminalize enforced disappearance is under consideration.
Though the initiatives are welcome, the draft bills in both countries are flawed and require substantial improvements to meet international standards.
In the absence of a clear national legal framework specifically criminalizing enforced disappearance, unacknowledged detentions by law enforcement agencies are often treated by national authorities as “missing persons” cases.
On the rare occasions where criminal complaints are registered against alleged perpetrators, complainants are forced to categorize the crime as “abduction”, “kidnapping” or “unlawful confinement”.
These categories do not recognize the complexity and the particularly serious nature of enforced disappearance, and often do not provide for penalties commensurate to the gravity of the crime.
They also fail to recognize as victims relatives of the “disappeared” person and others suffering harm as a result of the enforced disappearance, as required under international law.
“Like torture and extrajudicial execution, enforced disappearance is a gross human rights violation and a crime under international law,” said Rawski.
“South Asian States must recognize that they have an obligation to criminalize the practice with penalties commensurate with the seriousness of the crime–filing “missing” person” complaints in cases of disappearance is not enough, and in fact, it trivializes the gravity of the crime,” he added.
Other barriers to bringing perpetrators to account are also similar across South Asian countries: military and intelligence agencies have extensive and unaccountable powers, including for arrest and detention, often in the name of “national security”; members of law enforcement and security forces enjoy broad legal immunities, shielding them from prosecution; and military courts have jurisdiction over crimes committed by members of the military, even where these crimes are human rights violations, and proceedings before such courts are compromised by their lack of independence and impartiality.
Victims’ groups, lawyers, and activists who work on enforced disappearance also face security risks including attacks, harassment, surveillance, and intimidation.
A comprehensive set of reforms, both in law and policy, is required to end the entrenched impunity for enforced disappearances in the region – criminalizing the practice would be a significant first step, said the ICJ.
Contacts:
Frederick Rawski (Bangkok), ICJ Asia Pacific Regional Director, e: frederick.rawski(a)icj.org
Reema Omer, ICJ International Legal Advisor (South Asia) t: +923214968434; e: reema.omer(a)icj.org
Thyagi Ruwanpathirana, ICJ National Legal Advisor (Sri Lanka), e: thyagi.ruwanpathirana(a)icj.org
Background
Under international law, an enforced disappearance is the arrest, abduction or detention by State agents, or by people acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the detention or by concealing the fate or whereabouts of the “disappeared” person which places the person outside the protection of the law.
The UN General Assembly has repeatedly described enforced disappearance as “an offence to human dignity”.
South Asia-Enforced Disappearance-Publications-Reports-Thematic Reports-2017-ENG (full report in PDF)
Mar 30, 2017 | Advocacy
The ICJ submitted information to the UN Human Rights Council Working Group on the Universal Periodic Review (UPR) in advance of its review of Sri Lanka under the third cycle of the UPR mechanism during its 28th session in November 2017.
The ICJ submission focuses on concerns about Sri Lanka’s respect for its human rights obligations relating to ongoing issues of:
- Transitional justice;
- Enforced disappearance;
- Torture and other ill-treatment;
- Detention;
- Counter-terrorism; and
- Impunity.
SriLanka-UPR Submission March17-Advocacy-non legal submissions-2017-ENG (full text in PDF)
Mar 12, 2017 | Events, News
A side event to the UN Human Rights Council, Tuesday 14 March, 16.00 – 17.00, Palais des Nations room XXI.
TORTURE AND ENFORCED DISAPPEARANCE IN THAILAND
THE STATE RESPONSE
Tuesday 14 March/16.00-17.00
room XXI
Panelists:
Angkhana Neelapaijit, National Human Rights Commissioner and family victim of enforced disappearance
Yuval Ginbar, Amnesty International legal advisor
Moderated by Matt Pollard, ICJ Senior Legal advisor
The event follows the Human Rights Committee’s examination of Thailand’s second periodic report on its implementation of the International Covenant on Civil and Political Rights on 13 and 14 March 2017.
The event will focus on the measures Thailand has taken to implement its international human rights obligations with respect to the prohibition of enforced disappearance, torture and ill-treatment – with a particular focus on the draft Prevention and Suppression of Torture and Enforced Disappearance Act (Draft Law).
Background
Eighty-two cases of enforced or involuntary disappearance in Thailand were reported to the Working Group on Enforced or Involuntary Disappearances between 1980 and 2016. Civil society has also issued several reports containing allegations of torture by security forces, particularly in the restive deep South. These allegations were made against a culture of impunity which pervades Thailand.
In October 2016, after 11 years and three months of investigation, the Department of Special Investigation (‘DSI’) declared the emblematic enforced disappearance case of Somchai Neelapaijit closed, saying no culprits had been found. In January 2017, the DSI further announced it would not investigate the apparent enforced disappearance of Pholachi “Billy” Rakchongcharoen, a Karen minority human rights defender. These cases underscore the difficulties victims face in obtaining justice under the current legal framework in Thailand.
For several years, Thailand has pledged its commitment to ratifying the International Convention on Enforced Disappearance (ICCPED) and passing domestic legislation criminalizing torture and enforced disappearance. In May 2016, the Cabinet approved a Draft Law, which was subsequently transmitted to Thailand’s legislature, the National Legislative Assembly (NLA). However, last month, the NLA announced it would send the Draft Law back to the Cabinet for further consultation, effectively ending the possibility of it being enacted in the foreseeable future.
For further information on recent developments concerning this piece of legislation, please see: https://www.icj.org/thailand-prioritize-the-amendment-and-passage-of-legislation-on-torture-and-enforced-disappearances/.
A flyer for the event may be downloaded here.
