Waiting for answers in Thailand

Editorial board, article 2

Scant respect for the physical integrity of human beings remains one of the major obstacles to the realisation of human rights in Asia. This is manifest by the routine torture, extrajudicial killings and disappearances that take place after arrest in countries throughout the region. However, the recent death of a large number of persons already under army custody in Thailand is a marked example of how these practices persist, and also of the bewildering official explanations that typically follow such events.

What went wrong?
At least 85 persons are known to have died after army and police violently broke up protesters outside a police station in Tak Bai, Narathiwat province, near the border with Malaysia, on October 25. Six were killed outside the police station, 78 while being transported in army trucks after arrest under martial law provisions; one died in hospital of injuries sustained outside the police station. There are reports that another three bodies were fished from a nearby river.

The crowd had assembled to demand the release of six persons detained for almost two weeks on relatively minor weapons charges; all of them bailable. Since the tragedy, the six men have in fact been freed. However, their detention came at a point of intense friction in the far south of Thailand, caused by heavy-handed police and military actions in the border provinces. The protest occurred during a time when hundreds of southerners have been killed and disappeared, and an unknown number have tortured in police and army custody. The gathered crowd, therefore, had genuine cause for concern over the wellbeing of the men being kept in the police station.

Although the security forces had stated that they had fired over the heads of the protesters, at least nine persons in hospital are reported to have had gunshot wounds. Government officials had also initially stated that protesters had been under the influence of unknown drugs; however, medical examinations found no evidence to support this allegation.

The 78 protesters who died in custody were among over 1300 persons arrested out of a crowd of an estimated 3000. They were loaded into army trucks like logs, and most are reported to have died from suffocation and the effects of tear gas, although witnesses have claimed that many were severely beaten before being loaded into the trucks. The army has said that there were not enough vehicles to transfer the detainees to a distant army camp, and therefore they were loaded in this manner.

This explanation is as shocking as the incident itself. If animals were transported in this way, it would be regarded as cruelty to animals. However, it does not seem to have been of any concern to those responsible to treat humans in this manner. Even up to now, those responsible for this action have not been arrested, and it seems very unlikely that anyone will be brought before courts on serious charges of mass murder.

At every point in the events of October 25, somebody made decisions, and somebody is responsible for those decisions. To arrest a very large number of people, in this case around 1300, a decision had to be made. And because of the large number, there had to have been some discussion, which should have led to the question, “Where are we going to keep the detainees?” In order to arrest people there must first be a place to keep them. The arresting officers have an obligation to establish the place and means of detention. This is a very important element in this case; if it was not discussed and planned in advance, there is something radically wrong and someone must be held responsible.

Even supposing that the army arrested the protestors first and only then realised they had such a large number of people, the next obvious question would have been, “What are we going to do now?” At that stage alternatives should have been considered. Maybe it would have been prudent to take the details of most of the detained persons and release them pending further inquiries, holding only those who were suspected of criminal wrongdoing. That decision could have been made, thereby saving a great deal of anguish and lives lost. Who made the decision that led to the fatal outcome?

That most of the people fortunate to survive were subsequently released without any further consequences speaks to the fact that they could have been freed in the first instance. The responsibility for the decision to keep or release those arrested must have lain with the field commanders in consultation with their superiors. If these officers did not consider the alternatives to simply arresting everyone and trying to figure out what to do with them later, it must raise even more serious questions over the management of the entire operation.

The shortage of vehicles is also a key element in the case. The arresting officers would have known that the persons being arrested would have to be sent to detention, and therefore vehicles would be necessary to transport them. This matter should have been considered in detail already, but under any circumstances, the military can hire nearby private vehicles at short notice, and under martial law they can even take them. For the army to find transportation for 1300 people is not a big deal, and it was the duty of the officers in charge to have secured the necessary vehicles by the time they made the arrests. Clearly no such measures were taken before the arrest. What is the excuse for this? Can it be accepted that the military, acting on behalf of the government, did not think of it? The explanation given so far that the whole thing was an accident caused by an oversight regarding the number of trucks available, defies public belief. It is hard to accept that the military chain of command was so ineffectual that even the most rudimentary thinking about moving the detainees from place to place was absent.

Who decided to pack the detainees one on top of the other? Was it a decision made by one person on the scene, or by an operations command? Who has the authority to give such an order? Did not the drivers of the trucks even point out that the people could not live long in that condition? Did the soldiers at that stage still not consider the natural consequences of their actions? Or did they act as they did with the anticipated outcome of mass deaths? Indeed, some survivors reported that the soldiers stomped on them and told them to ‘go to hell’ when they cried out in the crush. Finally, why was it that the journey to the camp took many hours longer than it should have? Where were the trucks all that time? There must be rational answers to these questions: ordinarily, these are to be found in routine internal records. Do such records exist, and what can they tell of what happened?

All of these questions point to very serious failures for which people must be held criminally liable. If the arrests were not thought out properly beforehand and only after the persons were arrested was there the realisation that the situation was larger than anticipated, emergency steps should have been taken to avoid causing harm to the detainees. Again, the conclusion must be that decisions had to have been made that led to these deaths, and therefore that somebody is criminally responsible.

Why no answers yet?
Normally after a military operation like this it is the role of military intelligence and other internal agencies to examine the matter immediately, establish the facts clearly, and then make reports to the supreme military command and prime minister. However, nothing has been told to the public yet. So to whom can the public turn to in the hunt for answers?

After a state signs the International Covenant on Civil and Political Rights (ICCPR), it is expected under article 2 to have the means to investigate human rights violations. This means having an agency or agencies take down complaints quickly and thoroughly, investigate and collect evidence, hold the perpetrators liable and offer redress to the victims.

Does such an agency exist in Thailand? This question is increasingly relevant not only because of this latest mass killing in the south–the second this year–but also since the extrajudicial killings of thousands of alleged drug traffickers in 2003. It is the first and most important question for anyone interested in securing the rights guaranteed under the ICCPR in Thailand, keeping in mind that Thailand has ratified the Covenant and recently submitted its first report to the Human Rights Committee.

At this stage the National Human Rights Commission (NHRC) must be excluded from consideration. The NHRC is not the kind of body envisaged to secure these rights by the ICCPR. It is only a subsidiary body; it does not have the legal power required to enforce these rights. In fact, in some countries in Asia, a human rights commission is used as a proxy instead of a judicial inquiry to quieten critics and allow the perpetrators to escape judicial actions. An investigation by a human rights commission or equivalent is no substitute for criminal investigations, which is what is anticipated by the ICCPR. This means having a body inside the government overlooking other authorities, with powers to act legally against perpetrators.

Both local and international laws have obligations pertaining to the minimum standards of treatment of detainees. In particular, article 26 of the 1997 Constitution of Thailand states that, “In exercising powers of all State authorities, regard shall be had to human dignity, rights and liberties in accordance with the provisions of this Constitution.” Minimum standards of treatment for detainees are laid out in articles 7, 9 & 10 of the ICCPR. There must be an investigating authority to ask these questions, and by now there should have been some answers. If they are not forthcoming, it is partly because the questions that need to be asked are not being asked.

One of the most serious questions to be asked is what are the duties of the public prosecutor under the law of Thailand in this instance? Section 148 of the Criminal Procedure Code of Thailand stipulates that when a government agent causes the death of a person, the rights of the victim are upheld by way of a post mortem autopsy and investigation into the cause of death. Under section 150, three agencies are involved: the forensic doctor, police, and public prosecutor. With the autopsy completed and report submitted, it is then the job of the public prosecutor to approach the court in order that it carry out an inquest and rule on the cause and surroundings of the death, with a view to entering into criminal proceedings if necessary. This process, from inquiring doctor to public prosecutor to the court, should under no circumstances be delayed, such as by reason of a politically appointed inquiry also being under way. It is the role of the public prosecutor to investigate and prosecute all crimes, including those committed by government officers, without regard to other factors. There is no substitute for this role.

After October 25, what has happened? Four doctors from the Forensic Science Institute conducted partial examinations of the 78 victims removed from army trucks, and took samples for further testing. Their role was critical in exposing the scale of the tragedy at a time that the military might have preferred to conceal it. However, full autopsies were not conducted, nor were officials from the police or public prosecutor reported to be present. Questions then arise as to the consequences of this investigation, and its significance for the role of the public prosecutor.

A commonly held excuse by public prosecutors in many countries in Asia is that where autopsies are botched or police investigations inadequate, they are unable to proceed with the case due to procedural failings or lack of evidence, thereby permitting the perpetrator to escape criminal liability. But this is no excuse. It is the constitutional requirement of a public prosecutor to pursue investigations, obtain the compliance of other necessary agencies, and take the matter into the courts. Failure to do this amounts to failure to do the job altogether. Why have a public prosecutor who does not prosecute?

So what is the public prosecutor doing in this case? Has an investigation been opened? Have the reports been sought from the forensic doctors? If there is confusion about the procedure relating to the autopsies, have steps been taken to deal with this as quickly and expediently as possible? In short, are the necessary questions being asked to bring criminal proceedings against those persons responsible for the deaths of October 25? It is the job of the public prosecutor to address these questions and to take a leading role in the business of obtaining answers without further delay.

What comes next?
As the victims of the killings all belong to a religious minority, being Muslims, and predominantly ethnic Malay, this latest misadventure by the army is bound to have tremendously negative long-term consequences, as amply demonstrated by other similar events in Asia. Close studies of violence perpetrated on individuals by state agencies in Asia have demonstrated that it is both unnecessary and counterproductive. Armed groups with political objectives grow directly from fears created among those who would have otherwise engaged in peaceful democratic politics. They are the products of misused political power, which acts violently and therefore demands violence in response. Torture, extrajudicial killings, disappearances and other gross violations of human rights give rise to similar reactions, from which springs the bloodshed that causes social instability, and sometimes leads to permanent social divisions.

The enormous cruelty that may stem from this incident would be hard for most people in Thailand to imagine, as indeed it was for people in Sri Lanka before events of the 1980s there turned the country upside down. What has today become known as an ‘ethnic’ conflict there can be traced to the growth and consolidation of a separatist movement due to a series of tragic mistakes by the military not unlike what has recently occurred in the south of Thailand. These killings caused moderates to lose leadership, and allow more militant leaders to take over. The general public lost morale, and withdrew from active attempts to stop the society from slipping into insanity. Normal controls were lost, and finally a primitive condition of justifying killings as the best defence became the order of the day. Once the violence passed a certain point, there was hardly anything that anyone could do to stop it. The abyss widened and swallowed up everybody with it. It would be advisable for the people of Thailand to pause and take a good look at what happened in Sri Lanka before proceeding with any further poorly considered actions.

After the earlier massacre at the Krue Se Mosque in April, it was already obvious that the events of that day would have a long-lasting impression on all the citizens and law enforcement agencies of Thailand. Whether this impression would be that large-scale killings could be tolerated, or the contrary, depended very much on how the matter was handled. Unfortunately, rather than treating a detailed report by a fact-finding commission into that event with the respect and weight it deserved, the administration brushed it aside with casual remarks about compensation and letting bygones be bygones. It ignored calls for independent judicial inquiries into the killings, and dealt with matters through internal procedures. The consequences of that inadequate response have now been realised at Tak Bai. The lack of resolute action taken to deal with those responsible for the atrocities committed earlier has left the door wide open to further gross violations of human rights.

The same cannot afford to be done today. It would be very foolish for anyone to understate, let alone try to justify, what happened on October 25. The enlightened among Thai society, the families of the victims, and anyone who cares strongly for the future of human rights in Thailand must now resist all attempts to cover up what has happened. Failure to do otherwise will mean that any remaining threads of faith that the minority in the south may still have in the majority of the country will be severed completely. After such a colossal event, purely artificial gestures at reconciliation will compound the calamity. At such times, the only way forward is to face the truth, feel genuine remorse, and make the necessary changes in the military and civilian institutions to prevent its recurrence and punish those responsible.

Appendix: Letter by the Asian Legal Resource Centre to the UN High Commissioner for Human Rights

28 October 2004

Ms Louise Arbour
High Commissioner for Human Rights
OHCHR-UNOG
8-14 Avenue de la Paix
1211 Geneva 10
SWITZERLAND

Fax: +41 22 917-9012
Pages: 10

Dear Ms Arbour

RE: CALL FOR IMMEDIATE INTERNATIONAL INTERVENTION TO ADDRESS CRISIS SITUATION IN NARATHIWAT PROVINCE, THAILAND

You will no doubt have heard of the tragic incident in Narathiwat province, southern Thailand, of this October 25, in which at least 85 persons are now known to have died, 78 of them inside army vehicles, six outside a police station, and one at hospital. Another 16 persons in hospital are believed to be in critical condition. Please find attached a list of the names of victims that have been made public.

According to the Royal Thai Army, 1292 persons at this time remain in detention at an army camp in a neighbouring province, without access to visitors. Their names have not yet been made available. However, outside sources have to date been able to compile a list of 224 names from victims’ families, which we also attach.

Additionally, there are differing accounts of numbers of disappeared persons. The names of those attached are from a list compiled by the Royal Thai Army. The circumstances of their disappearances and how the list has been compiled are not yet known.

The tragedy occurred after a protest had assembled to demand the release of six persons who had been detained for almost two weeks on weapons charges, at a time that hundreds of persons in the south of Thailand have been killed and disappeared. An unknown number have been tortured. The Asian Legal Resource Centre (ALRC), an organisation with General Consultative Status at ECOSOC, and its sister organisation the Asian Human Rights Commission (AHRC) have already raised deep concern over the case of five men who were seriously tortured by the police in the same province earlier this year. Four of them are still in detention, and their lawyer, Mr Somchai Neelaphaijit, has been forcibly disappeared. Five police have been charged in connection with his disappearance; all have been released on bail. No action has been taken against the police accused of torture.

The ALRC is troubled by how it is possible that so many persons could have died from suffocation in army vehicles. There are now deep contradictions emerging from various accounts. According to Dr Pornthip Rojanasunand, deputy director of the Forensic Science Institute, most of the 78 persons who died were packed into the front of army trucks and had no serious injuries. However, a government spokesperson said that some in the trucks had died of injuries sustained outside the police station. Dr Pornthip also suggested that all of the victims had died at around midnight on Monday. This corresponds to the time that the army says the victims were in transit to the camp in the neighbouring province, 120kms away. How could all have died around the same time in the course of such a long journey, in more than one vehicle? And how is it that they would have not sustained injuries while convulsing or suffocating, and that the drivers of the trucks and other security personnel would have not heard anything, let alone done something about it? Why is it that the journey is reported to have taken some six hours? According to media reports, Dr Pornthip has not ruled out the possibility that the victims were deliberately suffocated, although this has not been confirmed due to limitations in conducting of autopsies. Meanwhile, senators, senior community members in the south, and victims’ families have all cast serious doubts on the explanations being offered.

It should be added that earlier statements by Thai government officials that troops had not shot at protesters, and that protesters had been under the influence of drugs, are now being proven unfounded. At least nine of the 33 persons in hospital are reported to have gunshot wounds. Medical examinations of the six persons killed at the site of the protest are also understood to have failed to uncover any evidence of drug usage.

The whole event throws into relief Thailand’s obligations to its citizens both under its own constitution and under international law. Without regard to other factors, once the victims were in custody of the Royal Thai Army, its personnel had a duty of responsibility and care for them. The custodial deaths of such a large number of persons raise serious questions about the failure of the security personnel concerned to exercise those obligations.

The ALRC notes with regret that Thailand has not signed or ratified the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, although it has indicated for some time that it will do so. However, the ALRC avers that the deaths of the 78 persons in the trucks fall under the definition of cruel and inhuman treatment under that Convention. The ALRC also asserts that the actions of the Government of Thailand in this instance have violated its obligations under the International Covenant on Civil and Political Rights, by exceeding its provisions beyond “the extent strictly required by the exigencies of the situation”, as provided in article 4.

The ALRC is also worried for the very large number of persons still in custody. No reasons have been given by the Royal Thai Army as to why they are being detained up to this time, other than that they are being held for questioning. Given the number of persons involved and the very deep public concern arising from this incident, the ALRC opines that the Government of Thailand must do more to provide answers and give access to these detainees, or release them. Failure to do so will only create many more questions about why these persons are still in detention, what they may have witnessed, and what the military is trying to achieve by prolonging the crisis in this manner.

The Prime Minister, Dr Thaksin Shinawatra, has now indicated that an inquiry will be established to probe the events in Narathiwat. However, early indications suggest that a committee may be hastily established under the control of regional administrative officials with instructions to dispose of the matter as quickly as possible. This would be a far cry from the full independent judicial and legislative inquiries at the highest levels that are now absolutely essential.

The ALRC believes that given the scale and nature of the killings, the Government of Thailand must be prepared to admit a role for international bodies in uncovering the truth and finding a way forward. Accordingly, it is today calling upon all relevant mechanisms under the mandate of the High Commissioner for Human Rights to approach the Government of Thailand to this end. The chairperson of the National Human Rights Commission has indicated publicly that he believes there should be international involvement in inquiries.

In particular, given the gravity of the event, the ALRC urges you in your capacity as High Commissioner to engage the Government of Thailand immediately and unequivocally regarding the recent events in Narathiwat province as a matter of extreme concern. The Asian Legal Resource Centre and Asian Human Rights Commission strongly believe that the prevailing circumstances in Thailand warrant your direct and personal involvement. It is to be hoped that quick intervention on a large scale by international agencies, notably the Commission for Human Rights, will create strong awareness within the Government of Thailand of the extremely serious attention being paid to its handling of the outcome of this tragedy from abroad.

Yours sincerely

Basil Fernando
Executive Director

Copies to:

1. Dr Thaksin Shinawatra, Prime Minister, Government of Thailand
2. Dr Bhokin Bhalakula, Minister of Interior, Government of Thailand
3. Mr Pongthep Thepkanjana, Minister of Justice, Government of Thailand
4. Professor Saneh Chamarik, Chairperson, National Human Rights Commission
5. Mr Dej-Udom Krairit, President, Law Society of Thailand
6. Wan-Hea Lee, Action Regional Representative, Asia Pacific, UNESCAP
7. Mr Diego Garcia-Sayan, Chairperson, UN Working Group on enforced or involuntary disappearances
8. Ms Manuela Carmema Castrillo, Chairperson, UN Working Group on arbitrary detention
9. Mr Philip Alston, UN Special Rapporteur on extrajudicial, summary, or arbitrary executions
10. Professor Theo van Boven, UN Special Rapporteur on the question of torture
11. Mr Abdelfattah Amor, Chairperson, UN Human Rights Committee

(Attachment: List of persons so far reported dead, injured, disappeared and detained arising from incident at Tak Bai police station, Narathiwat province, Thailand, 25 October 2004)

 

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