Mar 20, 2014 | News
Thailand’s caretaker government must remove emergency measures throughout the country following the lifting of the Emergency Decree in the capital Bangkok and its surrounding provinces this week, the ICJ said today.
On 18 March, the caretaker government voted to lift the Emergency Decree (effective 19 March) that had been in place in Bangkok and surrounding provinces since 21 January 2014 in response to protests led by the People’s Democratic Reform Committee (PDRC).
At least 20 people have died in protest-related violence and hundreds have been injured.
The Emergency Decree was replaced by the Internal Security Act (ISA), which also does not fully comply with international standards, but provides better remedies for victims of human rights violations than the Decree.
“The imposition of the Emergency Decree creates an environment conducive to abuse of power and human rights violations such as arbitrary arrest and detention, torture and enforced disappearance,” said Sam Zarifi, ICJ’s Regional Director for Asia and the Pacific. “Lifting the Emergency Decree in Bangkok is a positive step, but it is crucial that the authorities remove the Emergency Decree and other measures of emergency rule, including martial law, that are in force in all or parts of at least 30 of Thailand’s 77 provinces.”
These measures should be replaced by law and action that are consistent with international human rights standards, Zarifi said, adding that martial law should not be used as a political tool.
The caretaker government must respond to demonstrations, unrest and emergencies in a manner which complies with its obligations under the International Covenant on Civil and Political Rights (ICCPR), and other international standards, including the Code of Conduct for Law Enforcement Officials, adopted by the UN General Assembly in 1979, and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the UN Congress on the Prevention of Crime and Treatment of Offenders in 1990.
These standards set out the circumstances in which resort to necessary and proportional force may be lawfully exercised. Article 8 of the Basic Principles on the Use of Force and Firearms states that “exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any departure from these basic principles.”
In order to safeguard the rule of law and enhance the protection of human rights in Thailand, the ICJ calls on the caretaker government to repeal the Emergency Decree and other emergency measures including martial law, and to ensure accountability for violent acts through the thorough and effective investigation of criminal acts and prosecution of those reasonably suspected of committing them, in the course of fair, human rights-compliant criminal proceedings.
CONTACT: Sam Zarifi, ICJ Asia-Pacific Regional Director, (Bangkok), t:+66 807819002, e-mail: sam.zarifi(a)icj.org
Craig Knowles, ICJ Media & Communications, (Bangkok), t:+66 819077653, e-mail: craig.knowles(a)icj.org
For further reading on ICJ’s work on emergency laws in Thailand see: Thailand’s Internal Security Act, Risking the Rule of Law? (2010) https://www.icj.org/thailands-internal-security-act-risking-the-rule-of-law/ Implementation of Thailand’s Emergency Decree (2007) https://www.icj.org/thailand-implementation-of-thailand%C2%B4s-emergency-decree/ More Power, Less Accountability: Thailand’s New Emergency Decree (2005) https://www.icj.org/more-power-less-accountability/
Mar 7, 2014 | News, Publications, Reports
A new ICJ report criticizes the Thai Government’s failure to take the steps necessary to establish the fate and whereabouts of missing lawyer Somchai Neelapaijit, saying it illustrates the challenges of achieving justice in cases of serious human violations in Thailand.
In the report, Ten Years Without Truth: Somchai Neelapaijit and Enforced Disappearances in Thailand, the ICJ documents the tortuous legal history of the case.
It highlights several key problems, such as poor use of forensic evidence, failure to follow and develop leads, unduly restrictive interpretation of national and international law, and above all, a lack of political will to resolve a case that remains emblematic of the culture of impunity in Thailand.
“Over the past 10 years, this case has taken many unexpected turns, including the disappearance of a prime suspect, admissions of Somchai’s death from officials while the courts have rejected such a finding, and most recently, a statement from the Department of Special Investigations that it had lost, and then found, the case files,” said Sam Zarifi, ICJ’s Regional Director for Asia and the Pacific.
“The Royal Thai Government has not exhausted all potential areas of inquiry and it must continue this investigation. There is no statute of limitations on an enforced disappearance and Somchai’s case is not forgotten in Thailand or around the world.”
Somchai, a lawyer and human rights defender, was stopped at a Bangkok roadside on March 12, 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.
Ten years later, Somchai’s wife, Angkhana Neelapaijit, and her family are no closer to knowing the truth about what happened to him.
“Somchai’s enforced disappearance, and the failure of the Royal Thai government to provide accountability or even basic information about his fate are emblematic of the challenges of achieving justice in cases of serious human rights violations in Thailand,” said Zarifi. “Enforced disappearance is not only a serious human rights violation but also a crime under international law.”
Thailand signed, but has not yet ratified, the Convention Against Enforced Disappearance in January 2012. Pending the ratification, Thailand must desist from any acts that would defeat the objective and purpose of the convention, which places an obligation on State Parties to make enforced disappearance a criminal offence and treat family members of a ‘disappeared’ person as victims in their own right.
The ICJ has followed Somchai’s case closely and worked with Angkhana Neelapaijit since 2004.
“The Royal Thai government’s failure to shed any more light on the enforced disappearance of Somchai Neelapaijit, despite providing compensation for his family and finding him to be ‘disappeared’, contradicts multiple past declarations of its commitment to seeking justice, or at least truth, including by several former Prime Ministers, Attorneys General, and officials,” the report says.
“It also contradicts official commitments before the United Nations Human Rights Council in March 2008.”
The ICJ’s report calls on the Royal Thai government to prioritize and advance the investigation into Somchai’s disappearance in a manner that conforms to its international obligations. It also recommends that Thailand:
–Ratify the Convention Against Enforced Disappearance;
–Enact legislation that makes enforced disappearance a specific crime in Thai domestic law, together with penalties that recognize its extreme seriousness;
–Amend existing Thai law to conform to the Convention Against Enforced Disappearance, as well as the State’s obligations, including with respect to effective remedy and reparation, under the ICCPR and CAT;
–Provide Angkhana Neelapaijit and her family with effective remedy and full reparation, in particular knowledge and clarification of the facts leading to the enforced disappearance and the progress and results of the Department of Special Investigations, and;
–Address the recommendations the ICJ made to the DSI in its letter of February 4, 2014 with respect to its investigation.
CONTACT
Sam Zarifi, ICJ Asia-Pacific Regional Director, (Bangkok), t:+66 807819002, e-mail: sam.zarifi(a)icj.org
Craig Knowles, ICJ Media & Communications, (Bangkok), t:+66 819077653, e-mail: craig.knowles(a)icj.org
Download the full report in PDF:
Ten Years Without Truth- Somchai Neelapaijit and Enforced Disappearances in Thailand – report – 2014
Thailand-Ten Years Without Truth-Publications-Reports-2014-THAI
May 5, 2013 | News, Op-eds
An opinion piece by Benjamin Zawacki, Senior Legal Adviser for Southeast Asia at the International Commission of Jurists.
Thailand’s government recently passed up an opportunity for a new approach to the deep South, by declining to replace the Emergency Decree, which violates international standards on human rights, with the somewhat less heavy-handed Internal Security Act (ISA).
Equally concerning is why the government has not looked beyond the South in reconsidering the use of its other extraordinary security legislation: no fewer than 31 of Thailand’s 77 provinces are at least partially under Martial Law.
International law is clear that the extraordinary powers under security laws like the Emergency Decree and Martial Law may only be invoked under a strict set of circumstances, none of which is even arguably applicable in Thailand outside of the southern insurgency (four of the 31 provinces).
Martial Law may be invoked in Thailand “when a situation arises that makes it necessary to maintain law and order and to defend against the danger of attack”, or “when there is an outbreak of war or unrest”. All of Thailand’s provinces that are situated on one of the country’s four international borders are under Martial Law in whole or in part (including the 27 not in the deep South). Among them is Phitsanulok, whose shared border with Laos is roughly only 50km.
This province featured in Thailand’s last war, a three-month affair with Laos that ended in 1988.
Otherwise, Thailand’s border challenges are well-known: trafficking in persons, drugs, and weapons; landmines; refugees and migrants; smuggling of logs, oil, and other contraband; demarcation disputes. While doubtless all of these call for robust law enforcement, only the dispute with Cambodia over the Preah Vihear temple even arguably involves defending against the danger of armed attack.
Several minor but deadly skirmishes with Cambodian forces, as well as considerable mutual saber-rattling, have occurred in several districts of Si Sa Ket province since 2009. It is not credible to claim that Thailand needs to impose Martial Law because of external threats.
A more likely explanation is that Martial Law’s expansive application in Thailand is due to what is common to most security legislation around the region, namely vague language that lends itself to broad interpretation and granting wide powers to the military.
The Martial Law term “law and order”, in addition to more typically applying to civilian law enforcement agencies than to the military, could apply to any situation in which a law is implicated – which is nearly all situations. “Order” and “unrest” are particularly ill-defined.
Moreover, “maintain” suggests law and order need only be threatened to invoke Martial Law, rather than be lost and in need of being restored.
What constitutes an “attack” and the likelihood of such required for Thailand to be in “danger” are also essentially judgment calls. And when is an attack (or a series of attacks) tantamount to an “outbreak of war”?
A second and related reason that Martial Law is so pervasive in Thailand is the large number of military personnel empowered to invoke the law, coupled with, inversely, the difficulty in revoking it later.
While order by royal decree is required for invoking Martial Law on the first set of grounds, even local military commanders can invoke Martial Law in the area under their control on the second set (“when there is an outbreak of war or unrest”), affording them enormous discretion and authority.
In contrast, any and all revocations of the law require order by royal decree, a level of involvement as centralized and bureaucratic as a district military commander’s invocation is local and simple.
Martial Law’s use in Thailand historically supports the analysis that imprecise grounds combined with bureaucratic inertia account for the wide geographical application of the law.
Twice in the past 22 years, orders by royal decree referencing “law and order” have imposed Martial Law on the whole of Thailand, both times via coups d’état in 1991 and 2006.
On only three occasions after the 1991 coup (twice later the same year and once in 1998) was Martial Law lifted in some but not all of Thailand’s provinces. On the eve of the 2006 coup, it was still in effect in all or part of 18 provinces.
Similarly, following the blanket invocation of Martial Law on the whole country in 2006, on only two occasions since (in January 2007 and 2008, respectively) has an order by royal decree revoked the law in 46 of Thailand’s 77 provinces. Why not everywhere?
International law requires that extraordinary security legislation be invoked only in response to an exceptional situation.
Powers granted to security forces and any derogation from human rights must be strictly necessary and proportionate to the situation, and must have a time limitation attached to them.
None of these elements is met in the case of Thailand’s application of Martial Law to its international borders.
Indeed, Martial Law in Thailand allows security forces to arrest people without a warrant, and to detain them for seven days prior to charging them.
Critically, it does not require that detainees be promptly brought before a judge, in flagrant violation of Thailand’s legal obligations under the International Covenant on Civil and Political Rights (ICCPR).
This leaves detainees particularly vulnerable to torture or other ill-treatment at the hands of the security forces, which Thailand has also agreed to prevent and punish as a party to the ICCPR and the Convention against Torture.
In cases under Martial Law of alleged misconduct by security forces, victims are unable to institute a criminal prosecution (though they may initiate a civil action) or to choose their own lawyer; only a military prosecutor is entitled to institute a criminal charge. No appeal can be lodged against judgments or orders of military courts during this period.
The Thai government should reconsider its decision to keep the Emergency Decree in place throughout most of the deep South.
At the same time, it should take the long overdue step of lifting an equally heavy-handed Martial Law everywhere else.
Feb 1, 2013
“This Act contains certain provisions in relation to the restriction of rights and liberties of persons, in respect of which section 29, in conjunction with section 33, section 35, section 36, section 41 and section 43 of the Constitution of the Kingdom of...
Nov 19, 2012 | Agendas, Events
The ICJ is holding the second part of a seminar on Human Rights and the Rule of Law in a Cross-Cultural Setting from 22 – 23 November 2012 in Bangkok, Thailand. The first part was held last June 2012.
This seminar is organized in collaboration with the Department of Rights and Liberties Protection of the Ministry of Justice Thailand. It is aimed at mid-level government officers so that they may develop a deeper knowledge of the Rule of Law and human rights. This seminar also aims to encourage Thai civil servants across the justice sector to effectively address conflict and crisis within Thailand through a Rule of Law-based approach.
Speakers include Mr. Colin McLean, former Chief Inspector from the Police Service of Northern Ireland, and Mr. Ciaran O’Maolain, former head of policies of the Northern Ireland Human Rights Commission.
