Thailand: Human Rights Watch Letter on UN Human Rights Council Candidacy

October 18, 2014

Gen. Prayuth Chan-ocha
Prime Minister
Government House
Pitsanulok Road, Dusit
Bangkok 10300 Thailand

Re: UN Human Rights Council Candidacy

Dear Prime Minister,

Human Rights Watch is a nongovernmental organization that monitors and reports on human rights issues in more than 90 countries around the world. We have reported on Thailand for nearly three decades.

Thailand has decided to seek a seat on the United Nations Human Rights Council for 2015-2017. In keeping with the UN General Assembly resolution 60/251, which established the Human Rights Council, council members are supposed to “uphold the highest standards in the promotion and protection of human rights” and “fully cooperate with the Council.” We write in advance of the council elections to urge Thailand to take action to meet international human rights standards by publicly addressing the following major human rights issues in Thailand. 

Lift Martial Law and Disband the NCPO
The enforcement of the Martial Law Act of 1914 throughout the country since May 20 and the military coup by the National Council for Peace and Order (NCPO) on May 22 has had a devastating impact on human rights in Thailand. The provisions of the Martial Law Act place no restraints or limits on the military’s actions, providing the NCPO with wide-ranging and unchecked powers. Under the law the military, without judicial oversight, can prohibit any activity, censor the media at will, outlaw meetings and assemblies, search and seize any item,  and detain people without charge for up to seven days. There is no effective redress for harms caused since the law bars remedy or compensation to individuals or companies for any damage caused by military actions done in line with martial law authority.

Martial law has been in effect for more than four months. In Bangkok and across Thailand, the military authorities have summoned officials from government and state agencies, professional associations, and civil society groups to report to the military, at which time they were instructed not to defy regulations issued under martial law. According to the Martial Law Act, all civilian officials must strictly comply with the requirements of the military authority. Furthermore, the provisions of any law—including human rights protections—considered by the NCPO as inconsistent with martial law have been suspended.

So long as martial law is in effect, the rights of the Thai people are being undermined. The NCPO should immediately lift martial law across the entire country and take concrete steps to restore and enforce the provisions of law that protect human rights.

Since its establishment, the NCPO has severely repressed fundamental rights and freedoms that are central to democratic rule. Under the International Covenant on Civil and Political Rights (ICCPR), to which Thailand is a party, emergency measures that may lawfully restrict civil and political rights must be necessary to achieve legitimate aims and limited in duration, geographical coverage, and scope, so that they are proportional to the actual threat. However, the NCPO has not specified the precise nature, scope, and characteristics of the threats that it publicly asserts now requires the continuance of martial law. The NCPO has stated that martial law will remain effective across the country for “as long as necessary,” without providing any credible evidence of a public emergency that threatens the life of the nation, necessary for derogating from international human rights obligations.

As prime minister, you have repeatedly assured the Thai people and the international community that your government will accept democratic governance and respect human rights standards. A crucial first step in meeting those aims is abolishing the NCPO.

The NCPO functions without accountability and is the foundation for military dictatorship. The 2014 interim constitution permits the NCPO to carry out policies and actions without any effective oversight or accountability. The NCPO has wide discretion to issue orders and undertake acts the military authorities deem appropriate, regardless of the human rights implications.^[1] The interim constitution further provides that NCPO members and anyone carrying out actions on behalf of the NCPO “shall be absolutely exempted from any wrongdoing, responsibility and liabilities.”^[2] The NCPO filled the National Legislative Assembly and the National Reform Council with military personnel and others persons known to have close links to the military leadership. Since its formation, the assembly has operated as a rubber-stamp body for the NCPO rather than ensuring any checks or balances on arbitrary exercise of executive powers. It was not an encouraging sign when members of the National Reform Council were recently ordered not to present opinions outside the framework of the NCPO’s “reform agenda.”

End Censorship and Ensure Free Expression
Freedom of expression is essential for Thailand’s democratic development. But immediately after the May 22 coup, the NCPO used martial law powers to force satellite TV channels and community radio stations from all political factions off the air. Some were later allowed to resume broadcasting provided they excluded programs on political issues. The NCPO ordered print media not to publicize commentaries critical of the military. TV and radio programs were instructed not to invite guests who might give negative comments about the situation in Thailand. More than 200 websites, including Human Rights Watch's Thailand page, have been blocked by the NCPO as so-called threats to national security.

You gave a policy statement setting out that a top priority is to prosecute critics of the monarchy. Since the coup, at least 14 new cases of lese majeste (insulting the monarchy) have been brought to the Bangkok Military Court and criminal courts around Thailand. Persons charged with lese majeste, a serious criminal offense in Thailand, are routinely denied bail and held in prison for many months awaiting trial. In most cases, convictions result in harsh sentences.

The NCPO inexplicably perceives political discussions and difference in political opinions as a threat to stability and national security. On September 2, the NCPO ordered the cancellation of a panel discussion on the human rights situation after the coup at the Foreign Correspondents Club of Thailand. On September 18, the NCPO ordered a “Democracy Classroom” seminar at Thammasat University to be shut down, and police detained the speakers for several hours.  

The NCPO has also banned public gatherings of more than five people and prohibits anti-coup activities. Protesters who have peacefully expressed disagreement or defiance of the junta—such as by showing a three-finger “Hunger Games” salute, putting duct tape over their mouths, reading George Orwell’s novel 1984 in public, or playing the French national anthem, “La Marseillaise,” in public—have been arrested and sent to military courts, where they face up to two-year prison terms.

In light of the above actions, your government should immediately end martial law restrictions on the media and freedom of expression. The government should also amend the laws on lese majeste so that only the government can bring charges and private action is barred, since private individuals can easily use the law for political purposes. Past practice has shown that it is difficult for the authorities to reject such allegations filed by private individuals for fear of themselves being accused of disloyalty to the monarchy.

Cease Arbitrary and Secret Detention
Since the coup, the NCPO has detained more than 300 politicians, activists, journalists, and people that it accused of supporting the deposed government, disrespecting the monarchy, or being involved in anti-coup protests and activities. The NCPO continues to refuse to provide details about the release of detainees—many were held without charge—and has arrested and detained others.

The NCPO has held people in incommunicado lockup in military camps and violated their due process rights. Some have been held longer than the seven-day limit for administrative detention provided for under martial law. Soldiers arrested Kritsuda Khunasen, a United Front for Democracy against Dictatorship (UDD) activist, on May 27, in Chonburi province and held her incommunicado until June 24. Kritsuda alleged that soldiers beat her during interrogation and suffocated her with a plastic bag over her head until she lost consciousness. Despite repeated urging by Human Rights Watch and other international human rights groups, there still has not been any official inquiry into Kritsuda’s allegations or into other alleged torture and mistreatment in military custody.

The NCPO has forced persons released from military detention to sign an agreement that they will not make political comments, become involved in political activities, or travel overseas without the NCPPO’s permission—all clear violations of their human rights. Failure to comply could result in a new detention, a sentence of two years in prison, or fine of 40,000 baht (US$1,250).

Human Rights Watch strongly urges you to order the military authority to stop arbitrarily arresting individuals and detaining them in undisclosed locations. We also call upon you to immediately revoke the NCPO order that permits prosecution of civilians in military courts.

Accountability for Political Violence and Related Abuses
Human Rights Watch has repeatedly called on all sides of the political divide in Thailand to actively support and participate in credible, independent, and impartial inquiries into politically motivated violence and abuses. It is critical that the Thai government hold all those responsible for committing human rights abuses to account, provide justice for victims of abuses, and end the vicious cycle of violence and impunity that persists in Thailand.

From March to May 2010, Thailand experienced the most violent confrontations since pro-democracy protests against military rule in 1992. At least 90 people died and more than 2,000 were injured in the 2010 political confrontations between the then-government of Prime Minister Abhisit Vejjajiva and the UDD. Research by Human Rights Watch found that a number of factors contributed to these deaths and injuries, including excessive and unnecessary use of lethal force by government security forces, attacks by armed elements within the UDD, and incitement to violence by some UDD leaders.

The response of the government to hold those accountable has been politically influenced and skewed. While many protest leaders and UDD rank-and-file members have been charged with serious criminal offenses, successive governments have made very little progress in prosecuting soldiers and government officials implicated in abuses.

You personally have maintained that soldiers did not kill anyone during the confrontations, despite clear evidence and numerous eyewitness accounts that demonstrate soldiers did kill unarmed protesters. Successive Thai governments have also perpetuated these false claims instead of pursuing justice for victims of the violence and their families. Soldiers have been treated as witnesses in the investigations but inappropriately protected from any sort of criminal prosecution. As a result, no military personnel have been charged for the killings even though court inquests found soldiers shot dead 15 of the victims.

We urge the NCPO to act on recommendations of the Truth for Reconciliation Commission of Thailand, established by the Abhisit government to investigate and report on the 2010 political violence, by addressing violations of the law by all parties through fair and impartial proceedings in the justice system. In this light, there has been a failure to seriously investigate alleged human rights abuses and criminal offenses committed by pro-military groups, including the People’s Alliance for Democracy (PAD) and the People’s Democratic Reform Committee (PDRC). Cases of senior leaders and members of the PAD and the PDRC have stalled before reaching trial, as have efforts to seek compensation for damages caused by their protests.

As part of the process to promote justice and political reconciliation, the Thai government should provide prompt, fair, and adequate compensation for victims and their family members for human rights violations and misuse of force by state officials, as well as assistance to families who suffered injury or property loss due to demonstrations and government responses to demonstrators.

Finally, in considering the government’s reform agenda, it is important to address shortcomings of law enforcement agencies, and ensure they are capable of professionally handling public demonstrations in accordance with international standards, including the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. Such reforms should consist of providing necessary training and adequate remuneration so that the police can be responsible for internal security, including riot control and overseeing demonstrations, while also ensuring strict accountability for officers who commit abuses in the context of protest dispersal operations. We are deeply concerned that the draft Public Assembly Bill being considered by your government, and urge you to make amendments to make prevent the law from providing broad impunity to the security forces for abuses related to crowd control and dispersal operations.

Violence and Human Rights Abuses in the Southern Border Provinces
Since January 2004, Thailand’s southern border provinces of Pattani, Yala, and Narathiwat have been the scene of a brutal internal armed conflict that has cost over 6,000 lives. Civilians have accounted for approximately 90 percent of those deaths, which have come from both the ethnic Thai Buddhist and ethnic Malay Muslim populations. The Pejuang Kemerdekaan Patani insurgents in the loose network of BRN-Coordinate (National Revolution Front-Coordinate) have frequently attacked and killed civilians and instilled terror in the civilian population. The insurgents use violence to drive out the ethnic Thai Buddhist populations, keep ethnic Malay Muslims under control, and discredit the Thai authorities.

At the same time, the government’s counterinsurgency campaign has also resulted in numerous human rights violations, including extrajudicial killings, enforced disappearances, arbitrary arrest and detention, and torture. Elements within regular and volunteer security units have also engaged in tit-for-tat retaliation against civilians for insurgent attacks. But no member of the security forces has been successfully prosecuted for serious human rights abuses in the southern border provinces. To date, the Thai authorities have failed to satisfactorily resolve any of the enforced disappearance cases related to counter-insurgency operations in the southern border provinces—including the case of prominent Muslim human rights lawyer Somchai Neelapaijit, who was forcibly disappeared on March 12, 2004, more than 10 years ago.

Thai government and military tactics that condone human rights abuses have been counterproductive.  In fact, ongoing human rights violations by government personnel committed with impunity have been widely used by insurgent groups to justify their attacks and recruit new members.

To address the deteriorating situation in the southern border provinces, the Thai government should implement a comprehensive security strategy that fully complies with international human rights and humanitarian law. The Martial Law Act and the Emergency Decree on Public Administration in Emergency Situation, which give government officials and security personnel in the southern border provinces immunity from prosecution, should be revoked. The Thai government should recognize it is essential to that there should be prompt, credible and impartial investigations into allegations of abuses by security personnel and government officials, and prosecutions of those found responsible, regardless of rank.

In response to numerous credible complaints regarding abuses in detention, the Thai government should ensure that all persons detained by the security forces are held at recognized places of detention, and are not subjected to torture or cruel, inhuman, or degrading treatment or punishment. The detainees should be permitted regular contacts with family and unhindered access to legal counsel of their choice. In addition, the Thai government should promptly ratify and act in accordance with the Convention against Enforced Disappearance and the Optional Protocol to the Convention against Torture.

Protect Human Rights Defenders
The killing of human rights defenders and other civil society activists has been a serious blot on Thailand’s human rights record. More than 20 human rights defenders and civil society activists have been killed since 2001. However, investigations of these killings have suffered from inconsistent and sometimes shoddy investigations by the police, failures to provide adequate protection for witnesses, and the inability to tackle political influence connected to these crimes. Even in serious criminal cases involving the public interest that are referred to the Justice Ministry’s Department of Special Investigation (DSI), those responsible are rarely prosecuted. In one such case, a Buddhist monk, Phra Supoj Suwajano, was stabbed to death on June 17, 2005, in connection with his work to protect forests in Chiang Mai province from illegal land grabbing. In the case of Somchai Neelapaijit, the lawyer whom police forcibly disappeared in 2004, he had played a high-profile role in exposing police torture and other abuses related to counterinsurgency operations in the southern border provinces. Prominent ethnic Karen activist Por Cha Lee Rakchongcharoen, known as “Billy,” was forcibly disappeared after Kaengkrachan National Park officials arrested him on April 17, 2014 in Petchaburi province. There has been no progress in the police investigation to locate Billy and bring those responsible for his enforced disappearance to justice.

The military has increasingly used defamation lawsuits to silence human rights defenders and make it more difficult for victims to voice their complaints. On August 8, the Thai Army’s 41st Task Force in Yala province filed defamation suits against the Cross Cultural Foundation and its head, Pornpen Khongkachonkiet, for allegedly damaging the army’s reputation by publishing an open letter exposing torture of an ethnic Malay Muslim by a paramilitary unit. The government should order the army to withdraw this lawsuit.

Chutima Sidasathian and Alan Morison, journalists from the online newspaper Phuketwan, were put on trial on May 26 for criminal defamation and breach of the Computer Crimes Act (CCA) for publishing a paragraph from a Reuters special report on ethnic Rohingya boatpeople. The Thai Navy initiated the complaint because the article contained a passage implicating navy personnel in human trafficking. The trial is scheduled to resume in March 2015. The government should order the navy to withdraw its defamation complaint and urge the court to dismiss the CCA charge.

In line with the UN Declaration on Human Rights Defenders, the government should make a strong public commitment to protect people who dedicate themselves to promoting human rights or protecting the environment.

End Abusive Drug Suppression Policy
Human Rights Watch recognizes that drugs pose a serious problem for Thailand, but the Thai government should not repeat the mistakes or adopt the rights abusing policies of previous governments. The government should not pressure law enforcement officers and local administrative officials to meet arbitrary enforcement deadlines or fill quotas for arrests, which would encourage the killings and other abuses against suspected drug dealers that characterized the widely discredited 2003 “war on drugs” undertaken by the Thaksin Shinawatra government.

The 2007 Independent Committee for the Investigation, Study and Analysis of the Formulation and Implementation of Narcotic Suppression Policy (ICID) found that the policy formulation and assessment of the 2003 “war on drugs” was driven more by an all-out effort to achieve the campaign's political goals rather than by respect for human rights and due process of law. We urge your government to implement the ICID’s recommendations that there should be a further inquiry into the killings of 2,819 people during the “war on drugs” to bring the perpetrators to account, and end the cycle of abuse and impunity in drug suppression operations. The Thai government should also institute a policy to provide prompt, fair, and adequate compensation for the victims and family members of victims of human rights violations committed in the context of drug suppression operations.

The policies of previous governments that subjects drug users to compulsory treatment at facilities run by the military and the Interior Ministry is deeply problematic. Each year, 10,000 to 15,000 people are sent to drug treatment centers, where drug treatment is primarily based on boot-camp-style physical exercise. Most people sent to these facilities experience withdrawal from drugs with little or no medical supervision or medication. Upon release, many of them return to drug use. We recommend that the Thai government should take concrete steps to reduce drug users’ fear of seeking health services by publicly declaring that drug users seeking health services will not be penalized or forced into drug treatment based solely on their self-identification as drug users. In addition, the government should also repeal any policy that encourages law enforcement officers and local administrative officials to stop or arrest suspected drug users in order to meet predetermined targets for drug treatment enrollment.

Protect the Right to Seek Asylum and Prevent Refoulement
Thailand has not ratified the 1951 Refugee Convention relating to the Status of Refugees or its 1967 Protocol, and has no domestic asylum law. The Thai government should immediately ratify this convention and adjust its immigration laws to recognize refugee status. 

Asylum seekers, including ethnic Rohingya from Burma and ethnic Uighurs from China, who get arrested face long periods of detention until they are accepted for resettlement or agree to be repatriated at their own expense. Child migrants and asylum seekers are regularly held in squalid immigration facilities and police lock-ups. The Thai government should immediately devise alternatives to detention for children migrants and and asylum seekers, and release on their own recognizance all refugees recognized by the UN High Commissioner for Refugees (UNHCR) office. 

Human Rights Watch strongly urges your government to respect the international obligation not to forcibly return (refoule) any asylum seeker or refugee. In particular, the Thai government should publicly state that it will not seek to forcibly return more than 140,000 Burmese asylum seekers from camps on the Thai-Burmese border. In this connection, the government should also guarantee access to proper screening and status determination procedures by UNHCR for any asylum seeker, including those detained in immigration facilities, prior to deportation or forced return.  Meanwhile, in the absence of an effective state procedure for assessing the claims of asylum seekers, your government should allow UNHCR to resume Refugee Status Determination activities for all asylum seekers in accordance with its mandate to provide international protection to refugees.

Support Rights of Migrant Workers
Migrant workers continue to be mistreated with impunity by local police, civil servants, and employers in Thailand. In June 2014, over 200,000 migrant workers from Cambodia, Burma, and Laos fled Thailand fearing a crackdown by the NCPO.

To date, Thailand’s migrant worker registration schemes have done little to counter the exploitation that workers face on a day-to-day basis from local officials and employers. The poorly designed and implemented “nationality verification” registration has caused hundreds of thousands of migrant workers to lose their legal status, deepening their vulnerability. Female migrant workers are also vulnerable to sexual violence and trafficking, while male migrants facing extreme labor exploitation, including being trafficked onto fishing boats. Thailand has done remarkably little to combat human trafficking despite government commitments to do better made in connection to the US government’s downgrading of Thailand to tier 3 in its recent trafficking in persons report.

Human Rights Watch urges the Thai government to establish a special commission to independently and impartially investigate allegations of systematic violations of the basic rights of migrants by police and other authorities across the country. The commission should be empowered to make recommendations for criminal investigations in specific cases and for changes in laws, regulations, and policies that adversely affect the human rights of migrants.

We also urge your government to take all necessary measures to end ill-treatment of migrants in custody, end the detention of migrant children under age 18, and ensure that all allegations of abuses are promptly and thoroughly investigated and those responsible are appropriately prosecuted.

The Thai government should also amend articles 88 and 100 of the Labor Relations Act of 1975 to allow for persons of all nationalities to apply to establish a trade union and serve as a legally recognized trade union officer, and revise the Labor Relations Act to be in compliance with the standards set out in International Labor Organization Convention No. 87 (Freedom of Association).

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Human Rights Watch hopes that in advance of the Human Rights Council elections your government will make human rights commitments that are specific, credible, and measurable regarding the aforementioned human rights issues. I look forward to hearing from you about the steps you have taken in this regard.

Yours sincerely,
Brad Adams
Executive Director, Asia Division

Cc: Gen. Tanasak Patimapragorn, Minister of Foreign Affairs