In recent weeks, there have been troubling reports from pro-democracy protesters alleging that their peers have been kidnapped by security officers and held incommunicado.
These include Sirichai “New” Nathuang, a 21 year-old Thammasat University student who was arrested at night and held incommunicado for several hours, and Free Guards volunteer members Thosathep “Art” Duangnate, who was held for over fifty hours and received ill-treatment at the hands of the police.
While the cases of abduction and mistreatment have been disputed by the police and the Internal Security Operations Command (ISOC) denies any involvement, any grain of truth to these allegations is disturbing. As Thai Lawyers for Human Rights senior researcher Sunai Phasuk tweeted, holding someone without informing their families, confiscating their cell phones, and denying their right to a lawyer constitutes a wrongful arrest. It may even amount to state-enforced disappearance, contravening international principles.
State-enforced disappearance is defined by Amnesty International as a crime under international law by which a person is arrested or detained by state officials or their agents followed by a refusal to acknowledge the deprivation of liberty, or to reveal the person’s fate or whereabouts. It often comes with torture and death, as with Field Marshal Thanom Kittikachorn’s shameful “Red Drum” killings of communist suspects during the Cold War.
The harm in enforced disappearances lies not only in the victim itself, but also in the psychological damage done to the victim’s families, who often spend the rest of their lives searching for the victims. It also spreads uncertainty and fear among the community to silence critics.
A Troubled Past
Thailand has a bitter history of enforced disappearances, with the UN Working Group of Enforced or Involuntary Disappearances citing 86 outstanding cases in its 2018 annual report. Notably, human rights champion and Muslim lawyer Somchai Neelapaijit disappeared during Thaksin Shinawatra’s administration. Karen-ethnic activist Pholachi “Billy” Rakchongcharoen disappeared in 2014 after the Prayut Chan-ocha coup, only for the fragments of his charred remains to be found in an oil drum and scattered across a lake. Foreign activists also disappeared in Thailand, including Laos Democracy activist Od Sayavon and Vietnamese blogger Truong Duy Nhat.
These cases have risen to prominence in recent years, with the disappearance of numerous activists and human rights defenders both inside Thailand and in neighbouring countries. Just to name a disturbing few, Ittipon Sukpaen or “DJ Zunho” disappeared in 2016, and Wuthipong Kachathamakul or “Ko Tee” in 2017. Surachai Danwattananusorn or “Surachai Saedan” and two of his close aides went missing from Laos, only for their corpses to be discovered in the Mekong River (two of the corpses were identified as his aides, while the third body, as reported by witnesses, went missing). Human Rights Watch has also called upon the Thai government to disclose the whereabouts of three critics exiled to Vietnam but reportedly extradited to Thailand in 2019: Chucheep Chivasut “Uncle Sanam Luang”, Siam Theerawut “Comrade Khaoneaw Mamuang”, and Kritsana Thapthai “Comrade Young Blood.”
And of course, this topic is incomplete without the mention of Wanchalearm Satsaksit, whose disappearance in Cambodia last year sparked the recent protests that rocked Thailand.
Thus, the reason that the recent abductions are so concerning is that it recalls Thailand’s tragic involvement with similar disappearances not that long ago. Any arbitrary detention – the period of time notwithstanding – is a violation of a right that brings great risks upon the victims, their families, and their community.
The Law (or lack thereof)
It does not help that enforced disappearance is not yet a legal offence in the Thai penal code, nor has Thailand ratified the International Convention for the Protection of All Persons from Enforced Disappearances pending domestic legislation. As Thailand’s Appeals Court ruled, a dead body is required to convict someone for murder, and the victim’s relatives cannot bring a case without proving that the victim is incapable of doing so. However, the very definition of enforced disappearances entails that the victim is missing– thus a body cannot be produced, nor can they bring a case. One does not need to be a legal expert to know that this is convoluted.
The government has acknowledged this, to its credit. The Prayut administration is attempting to remedy this legal loophole with the Prevention and Suppression of Torture and Enforced Disappearance Bill. However, the International Commission of Jurists have expressed concerns over delays as well as inadequate legal provisions on torture and enforced disappearances that do not meet international standards.
Be that as it may, Thailand is still bound by relevant domestic and international laws and principles. Thailand must uphold the rights to liberty, fair trial, legal counsel, equal protection and presumption of innocence – all of which are violated by enforced disappearances. Thailand is bound by the International Covenant on Civil and Political Rights and the Convention against Torture, meaning that Thailand is bound it investigate crimes of torture and enforced disappearances. Thailand is also bound by international customary law, in which many obligations are enshrined. This includes the principle of non-refoulement, meaning that Thailand must ensure that no one will be returned to a country where they risk facing torture.
Given all these frameworks, the Thai criminal justice system can do better. Regardless of the law allegedly broken, each and every Thai has rights that must not be arbitrarily taken away. These disappearances stained our institutions with its failure to provide access to justice for the victims and accountability to those involved.
The government was right when it reaffirmed its duty to protect its citizens from human rights violations, and when they told the international community that they take these cases seriously. Respecting due process with regards to the student activists should be the first step to fulfilling this pledge. Passing the Bill and ratifying the Convention is the next.