The unprecedented waves of protests over the past few months have rocked Thailand’s national consciousness. The protesters’ demands to “Resign, Rewrite, Reform” – for Prayut to resign; for the constitution to be rewritten; and for the monarchy to be reformed – left the government with the difficult choice of weighing how to respond.
The latest in the series of escalations occurred just last week on November 17 outside Parliament, when the Royal Thai Police used water cannons laced with chemical irritants against the People’s Movement demonstrators in quick retaliation against smoke bombs.
Local and international media reported at least 55 injured, six from gunshot wounds. The next day, the “Royal Thai Police” sign outside of national police headquarters was drenched with paint in response to police use of force and in protest against Parliament’s rejection of iLaw’s constitutional reform proposal.
Police, to their credit, did not intervene.
However, on November 19, Prayut stated that the protests have gone too far and the state will enforce all laws stringently against protesters. This includes the lese majeste law, which His Majesty the King had previously requested the government not to use.
Interestingly enough, in the same statement, Prayut affirmed that the government will press charges against protesters in national judicial proceedings, which are in accordance with international standards.
With mounting controversy over police tactics, it seems increasingly doubtful that this standard is being followed.
Stephane Dujarric, a spokeswoman for the United Nations Secretary-General stated on November 18 that it is “disturbing to see the repeated use of less-lethal […] weapons against peaceful protesters” in Thailand.
She reminded the Thai Government to refrain from the use of force against the people who were exercising their fundamental right to peaceful protest. Despite this, the government maintained that, contrary to concerns voiced by United Nations human rights experts, its actions are in accordance with international law.
A run down of police actions and its applicable international standards, then, may be helpful.
While not explicitly covered in Prayut’s statement, “international standards” refer to Thailand’s obligations under international human rights law. Thailand has the obligation to respect and protect against human rights abuses in its jurisdiction. This is found in customary law as well as treaties in which Thailand is a party to: the 1948 Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. These rights include the right to freedom of opinion and expression (Article 19 UNDHR and ICCPR) and right to peaceful assembly (Article 21 ICCPR).
The most detailed guidance on appropriate government response to public disorder can be found in the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and the Guidance on Less-Lethal Weapons in Law Enforcement (the “Guide”), which aims to ensure that law enforcement use force only to the extent that is necessary and proportionate; the legality of state use of force depends on strict adherence to these principles.
Law enforcement must, at all times, respect the people’s fundamental freedoms. Thus the Royal Thai Police should be able to answer to the people it is supposed to serve as to whether their use of water cannons and other forms of crackdown is truly necessary and proportionate.
The use of force must also be non-discriminatory (Article 2.11 of the Guide). This is especially concerning given reports of preferential treatment of pro-establishment protesters, who were reported to pass police barricades peacefully while the police deferred pro-democracy protesters with water cannons.
The Guide says that law enforcement officials when conducting arrests, hold a greater responsibility to protect the detainee’s rights, especially the right to life and physical integrity (Article 3.9). The legality of their arrest aside, evidence indicates that the police’s abhorrent treatment of protest leaders contravene this principle as well. According to Thai Lawyers for Human Rights, Panupong “Mike” Jadnok, fainted after being placed in a chokehold prior to release. Parit “Penguin” Chiwarak was injured with several glass fragments following a scuffle with the police. This shows that not did the police failed to fulfil their responsibility by international standards, but that they actively violated it.
The Guide also provides an outline relevant to police conduct in the protests on November 17, the date of the most violent protest thus far. Chemical irritants (i.e. tear gas) must be launched at a distance and from a high angle due to the risk of death or serious injury from impact trauma. Interestingly enough, tear gas is listed as a chemical weapon banned in war by the 1925 Geneva Protocol, but is shamefully and controversially still permissible for law enforcement use as seen in protests across the globe. The Guide allows for its lawful use only when there is an imminent threat of injury, where “imminent” is defined as a split second, or at most a matter of seconds.
It cannot be used against nonviolent demonstrators.
The government’s view is that they have exercised restraint by allowing the protests to go ahead. Piya Tavichai, the deputy head of Bangkok police, stated that protesters were breaking through the barriers and that police must act in order to keep members of parliament safe. However, it is difficult to imagine that this meets the requirement of “imminent threat,” especially since the protests have been largely peaceful.
Similarly, water cannons cannot be used at short range and only in situations of serious public disorder with a significant likelihood of loss of life, serious injury, and widespread destruction of property. It is subject to the same necessity and proportionality requirement.
Human Rights Watch called the Government’s use of water cannons “unnecessary.” Even worse is, according to Associate Professor Weerachai Phutdhawong at Kasetsart University, the water cannons were laced with not one, but five different types of chemical irritants. Indeed, the chemicals were so potent that it was causing rust in the water trucks – one can only imagine its effect on human skin. It is even more impossible to imagine how this can possibly meet the stringent international requirements of necessity and proportionality.
Kinetic Impact Projectiles
Kinetic Impact Projectiles (i.e. bullets) must only be used in response to an imminent threat of injury and not targeted at the head, face or neck. Although police denied the use of bullets, the demonstrators’ injuries are self-evident; if the police were not the perpetrators then they have, at the very least, failed in their responsibility to ensure the people’s safe assembly.
Rights of Children
Lastly, the UN Convention on the Rights of the Child is relevant; this Convention calls for state parties, including Thailand, to protect children and young people as well as their freedom of expression. This is because the movement largely comprises high school and university students. Notably, UNICEF issued a statement calling for Thailand to uphold its obligations in this regard. However, it is quite clear that the government has yet to achieve this, given that the police has called for two “Bad Students” protest leaders to answer charges of violating the Emergency Decree by their public gathering on October 15. Even more controversially, photos have emerged of children as young as kindergarten-aged being inflicted with tear gas.
The struggle in finding balance between public order and freedom of assembly is a universal problem that the Thai government is facing and failing. Instead of countering international organisations’ concerns, it would be wise for the government to take some of their advice. Instead, what we are witnessing are symptoms of a society that failed to allow for healthy discourse and a “democracy” where citizens cannot articulate their opinions without fear of reprisal.
In addition to the demonstrators’ demands, police reform is one more necessary task Thailand needs to achieve. If the government is truly genuine in its affirmation to uphold its obligations not only in the constitution it wrote but also in international law as it repeatedly stated, then it should respect the people’s right to freedom of expression and assembly by ensuring a safe space for demonstrations.
Ultimately, this means the police must refrain from acts of violence and respect the human dignity of the people they are sworn to protect. Only then can Thailand find the right balance that a healthy democracy needs.