January 14, 2016
Gen. Prayut Chan-ocha
Royal Thai Government
RE: End Enforced Disappearances, Ratify Convention
Dear Prime Minister Prayut Chan-ocha,
Human Rights Watch writes to you to express our grave disappointment regarding the failure of the Thai government to address the serious problem of enforced disappearances in the country.
Enforced disappearance is defined under international law as the arrest or detention of a person 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. “Disappeared” people are often at high risk of torture, a risk even greater when they are detained outside of formal detention facilities. In addition to the harm done to the person, enforced disappearances cause continued suffering for family members.
Enforced disappearance violates a range of fundamental human rights protected under the International Covenant on Civil and Political Rights, to which Thailand is a party, including prohibitions against arbitrary arrest and detention; torture and other cruel, inhuman, or degrading treatment; and extrajudicial execution.
Since 1980, the United Nations Working Group on Enforced or Involuntary Disappearance has recorded 82 cases of enforced disappearances in Thailand. In March 2007, Human Rights Watch published a 69-page report that detailed 22 cases of enforced disappearance in Thailand.[i] These cases strongly implicated the Thai police and security forces. To date, none of these cases have been successfully resolved.
Human Rights Watch also believes that the actual number of enforced disappearance cases in Thailand is underreported because many families of victims and witnesses keep silent due to fears of reprisal and the government’s lack of an effective witness protection system.
The case of prominent human rights lawyer Somchai Neelapaijit, who “disappeared” in March 2004, is the only enforced disappearance case that has been brought to court. But over the past 11 years since his disappearance, Thai authorities have failed to explain his fate or whereabouts.
On December 29, 2015, the Supreme Court acquitted five police officers charged in the March 2004 disappearance of prominent human rights lawyer Somchai Neelapaijit despite the admission by then-Prime Minister Thaksin Shinawatra that the police were responsible and substantial evidence implicating specific police officials. Because Thailand’s penal code does not recognize enforced disappearance as a criminal offense, which is a major shortcoming that goes against international rights standards, prosecutors only filed charges of robbery and coercion against the five officers in Somchai’s case. The acquittal was due in part to shoddy police work in investigating the crime and collecting evidence.
The court also ruled that Somchai’s family could not act as a co-plaintiff because there was no concrete evidence that he was dead or incapable of bringing the case by himself. This court verdict sets a bad precedent that places the burden of proving enforced disappearance on the disappeared person himself – which is effectively impossible. This situation does not comply with international standards because it entrenches impunity for government officials involved in disappearing persons.
In addition, Human Rights Watch is deeply concerned by your government’s ongoing use of secret military detention – both under section 44 of the 2014 interim constitution against political dissenters and suspects in national security cases and under the 1914 Martial Law Act against insurgent suspects in the southern border provinces.
Human Rights Watch has repeatedly urged Thai authorities to take all necessary steps to stop the practice of enforced disappearances. In a much-publicized attempt to demonstrate its commitment to human rights and the rule of law, the previous government of Prime Minister Yingluck Shinawatra signed the International Convention for the Protection of All Persons from Enforced Disappearance in January 2012. Since then Thailand has yet to ratify this important treaty and make changes to the penal code to make enforced disappearance a criminal offense.
To fulfill your public pledges made at the United Nations General Assembly in September 2015 to promote and protect human rights in accordance with Thailand’s international obligations, Human Rights Watch considers it essential that you immediately take measures to end the heinous crime of enforced disappearance and hold accountable all those found responsible for such crimes.
Specifically, Human Rights Watch calls on your government to undertake the following steps:
- Promptly ratify the International Convention for the Protection of All Persons from Enforced Disappearance (the “Convention”).
- Urgently adopt all necessary legislation, regulations and other measures to fully comply with the Convention. Critically, these legislative changes should include making enforced disappearance a criminal offense. The offense should apply to anyone who commits, orders, solicits or induces the commission of, attempts to commit, is an accomplice to or participates in an enforced disappearance. It should also hold criminally responsible officials and commanders who knew or should have known of enforced disappearances committed by their subordinates and did not take all necessary and reasonable measures to prevent the disappearance or hold those responsible to account.
- Ensure all government officials act in ways that accord with the objectives and purpose of the Convention in the period before formal ratification of the Convention and amendment of the penal code to comply with the Convention.
- Ensure that the police and prosecutors conduct prompt, competent, and impartial investigations into all allegations of enforced disappearances. Consistent with the Convention, ensure that persons suspected of having committed an offense of enforced disappearance are prevented from negatively influencing or impeding the progress of an investigation by means of pressure or acts of intimidation or reprisal aimed at the complainant, witnesses, relatives of the disappeared person or their defense counsel, or at persons participating in the investigation.
- Make a public commitment to promptly and impartially investigate all known cases of enforced disappearances. Continually provide updated public information on the status of investigations and ensure that family requests for information about the status of investigations of their missing loved one are promptly and thoroughly answered.
- Suspend and remove from operational duties any and all persons against whom credible allegations of responsibility or involvement in enforced disappearances are made, and ensure that suspension continues until a thorough investigation is completed.
- Prosecute all officials regardless of rank who are found to be responsible for enforced disappearances and other rights abuses, including those ordering enforced disappearances or who knew or should have known about such abuses but took insufficient action to prevent or prosecute them.
- Ensure that all persons detained by the police and the military are held at recognized places of detention, and are not subjected to torture or cruel, inhuman or degrading treatment. Upon detention, the whereabouts of those detained should immediately be made known to family and legal counsel. Persons in detention should be allowed contact with family and unhindered access to legal counsel of the detainee’s choice. When a case of enforced disappearance has been reported, the relevant police or military units should immediately make known the whereabouts or circumstances of the detainee.
- Provide prompt, fair, and adequate compensation for the victims and family members of those who have disappeared or were otherwise arbitrarily detained.
- Strengthen the independence and capacity of the Justice Ministry, prosecutors, the National Human Rights Commission, and the Southern Border Provinces Administration Center to ensure more thorough and effective investigations and public reporting of allegations of enforced disappearances and other human rights abuses. The government should recognize that it is vital that each of these agencies is able to act independently and have the resources and security to perform their respective functions.
- Invite the UN special rapporteur on torture, the UN special rapporteur on extrajudicial, summary or arbitrary executions, and the UN Working Groups on Enforced and Involuntary Disappearances and on Arbitrary Detentions to Thailand to investigate and report on the situation. Recommendations of these special rapporteurs to the government should be implemented in a timely manner.
We would be happy to discuss these concerns with you directly. Thank you for your consideration of our views. I look forward to your response.
Human Rights Watch
1 “‘It Was Like Suddenly My Son No Longer Existed’: Enforced Disappearances in Thailand’s Southern Border Provinces,” March 2007, available at https://www.hrw.org/en/reports/2007/03/19/it-was-suddenly-my-son-no-longer-existed-0.