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Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
19. According to the report of the State party,
"When military and police officers or the officers of the administrative agencies kill a person, they are guilty of homicide under Section 288 or 289 of the Penal Code and shall be penalized accordingly like any ordinary citizen."(para. 147)
20. In practice, without regard to other circumstances, military and police officers in Thailand who commit killings -- or are engaged in organised killings of other persons - rarely face criminal sanction. The extrajudicial killing of at least 2500 alleged drug dealers, mass extrajudicial killings in the south, forced disappearances and targeted killings of human rights defenders all speak to this fact.
I. Extrajudicial killing of alleged drug dealers [3]
21. Between February and April of 2003 at least 2500 persons were killed after being accused of being drug dealers. For the most part, these persons were shot dead by "unidentified gunmen" after reporting to police stations undertaking a campaign to eradicate drug dealers in Thailand within a three-month period. The campaign was begun via a raft of orders issued by the Prime Minister, and was buoyed on by comments made throughout this period by him and his subordinates to the effect that the lives of alleged drug dealers are worthless.
22. Through a package of incentives and sanctions the administration motivated state officers to arrest or kill, or organise the killing of, persons accused of drug trafficking without regard to normal legal procedure. On 28 January 2003 the Prime Minister set the anti-drug crusade in motion via a series of orders. Extracts from two of those orders are contained in Annexe 3. The incentives were mainly financial, increasing bonuses to officers for drug hauls according to the size of the taking. Warnings to government officers included threats to transfer, demote or sack those failing to produce evidence of success. Incentives were boosted in two sets of regulations issued on February 11. One of those was the Prime Minister's Office Regulations on Bonuses and Rewards Relating to Narcotics (No. 3). This document amended two earlier reward regimes, and effectively endorsed the murder of drug suspects by providing grades of bonuses where the most efficient and expedient means for officials to be rewarded was simply to kill the accused:
"Article 18 of the Prime Minister's Office Regulations on Bonuses and Rewards Relating to Narcotics BE 2537 (1994), which had been amended by the Prime Minister's Office Regulations on Bonuses and Rewards Relating to Narcotics (No. 2) BE 2540 (1997)... shall be replaced by the following statements:
"Article 18: The bonus shall be given when officials proceed with a notified case leading to arrest according to the following rules and conditions:
3) In a case where both the alleged offender is arrested and the exhibited narcotics are seized, but the alleged offender loses his life during the arrest or thereafter, if the value calculated based on the quantity of narcotics exceeds 1000 Baht, the bonus shall be paid according to the quantity of narcotics when the Public Prosecutor has ceased the proceedings [italics inserted].
23. At later dates, rewards and sanctions were further increased. Informants and arresting officers could claim percentages of seized assets. The government also decided that drug-free villages would be entitled to additional state aid. Similarly, outstanding officials would be awarded medals. Provincial governors and police chiefs were ordered to meet a strict timetable. Their performance was measured by statistics on drug dealers 'removed' from society on a month by month basis. Underachieving provinces were announced publicly and senior officials openly threatened with the sack or transfers. An enormous amount of pressure was applied to meet unreasonable and arbitrary targets.
24. The death toll from the start of the campaign in February was dramatic. Dozens of people were killed daily. Annexe 4 to this report contains summarised details of some of those killings. Annexe 5 contains a list of names of over 800 persons reported killed in national and local newspapers and other public documents, most of which occurred in the month of February. An anonymous police colonel was reported as having said that his superiors had in fact ordered him to collect information on drug dealers and then kill the informants and track down and kill those named. As a symbolic gesture, a police station in the north piled a dozen coffins onto its doorstep. At the end of February, police in most places had already dealt with their key targets, but were under pressure to continue meeting monthly percentiles imposed on them by headquarters. Officers increasingly went after informants or persons with tenuous links to suspects who had already been 'removed' from the lists. Persons who had merely participated in drug control programmes were targeted. In some places, 'complaints boxes' and anonymous hotlines were set up for people to inform on one another. Police are alleged to have increasingly resorted to planting of evidence and coercion to obtain confessions from suspects.
25. Public language by the highest government officials enabled and encouraged the killing of alleged drug dealers. The Prime Minister consistently portrayed drug dealers as sub-humans deserving to die. He also played down the deaths relative to the apparent successes of the campaign, wondering aloud why the killing of thousands of people who had not yet been proven guilty of any crime should be worthy of public attention or scrutiny. In reiterating the official line, that most deaths were just cases of “bad guys killing bad guys”, or “killing to cut the link”, he stated that the government had no responsibility to protect undesirable citizens. It is also reported that privately he told senior officials that the ‘war’ would operate on a shoot to kill policy. The Prime Minister’s remarks were supported at all levels of government. The language used by the Prime Minister and his officials throughout the campaign also sought to evoke a feeling of being at war. Over time, this language found its way into policy documents, such as Prime Minister’s Order No. 60/2546, which states in its preamble that “the ‘Concerted Effort of the Nation to Overcome Drugs’ is specifically regarded as a state of war”.
26. Confusion was created through the use of lists linked to the killings. From the start, there were contradictory stories about how lists of alleged drug dealers were prepared, how many there were, and the implications of being on one. There appeared at times to be competing lists, and different ways of managing them in different provinces. They seem to have been drawn up from August 2002 by the police, village heads and local administrative bodies under the Interior Ministry, and the Office of the Narcotics Control Board. Whereas the police claim to have relied upon informants and leads, it appears that often they just added names from records of earlier convictions—some going back years. As for the lists prepared by local administrators, reports suggest that in many places the village or subdistrict chiefs simply called public meetings and asked people to inform on persons selling drugs in the neighbourhood, without any further investigation. The Ministry of Interior claims that lists were cross-checked before final definitive versions were sent out, however in some places police refused to rely on the Interior Ministry lists after criticism that too many innocent persons were being arrested or killed.
27. Although the manner of deaths varied across the country, the most commonly described pattern was as follows:
i. A victim's name would appear on a list. The list would be made public knowledge, by word of mouth, or other means.
ii. The victim would receive a letter or some other notice instructing her to go to the police station.
iii. At the police station, the victim would be coerced to sign something admitting guilt, or otherwise acknowledge guilt, with promises by the police that her name would be removed from the list.
iv.The victim would be shot on the way home, or within a few days, usually by a group of men in civilian clothes, in daylight and in a public place or at her house, often in front of and without regard to witnesses.
v. The police would fail to investigate the killing properly, and would concentrate on establishing the victim’s guilt as a drug dealer.
28. The number of reported killings changed throughout the campaign. In February, the Interior Ministry published a daily count of arrests, seizures and killings. As attention increasingly focused on the death toll, the government grew uneasy and accused journalists of misrepresenting the tally. By the end of February, public releases of statistics on killings were banned, in response to growing criticism. At the date of the last official tally, on February 26, 1140 persons had been murdered. However, later police did release statistics indicating that to April 16, 2275 persons were killed, 51 by their own agency in “self defence? By the end of the month the figure was estimated to be around 2400; however, by this stage the government was backing away from the statistic, arguing that perhaps half of the murders had been incorrectly recorded.
29. International standards were publicly disdained. With growing international unease over the killings, as talk grew of possible United Nations involvement, the Prime Minister reacted with annoyance and told his fellow citizens on February 15, “Don’t try too hard to live up to international standards. Our country already looks good in the eyes of the international community.?The Prime Minister also famously remarked to the media that “the United Nations is not my father? and made a personal and altogether unnecessary attack on the Special Representative of the Secretary General on human rights defenders when she raised concerns over the number of killings during a brief visit.
30. The killings weakened institutions designed to uphold the rule of law in Thailand and thereby realised the climate for further killings and other grave abuses to follow. From February 2003, the Asian Legal Resource Centre pointed to the fact that the effect of large-scale extrajudicial killings on Thailand would be more serious and dangerous than the effect of the drugs they were ostensibly aimed at eliminating. By orchestrating large-scale killings, the government of Thailand encouraged the perpetuation of feudal practices and thinking, where punishments were meted out at the wish of rulers without any references to limits imposed by law and morality. They applied the principle that operates behind the worst atrocities of history, that there exists a class of persons who can be eradicated simply because they are deemed socially undesirable in this case, alleged drug dealers.
31. The legitimacy of policing in Thailand was seriously damaged through direct or indirect involvement in the killings. A law enforcement agency that knows it has blood on its hands cannot think of itself with a sense of integrity. When there is such doubt in an organisation, it is difficult to control corruption. That task is made more difficult by the hardening of the nexus between criminals and police necessitated at the time of large-scale killings. The killings of alleged drug dealers involved specialised well-coordinated sharing of functions between police and criminals. The result inevitably was a strengthening of the bonds between the actual killers and the planners of the killings, including those in government. This in turn brought more secrecy and compromises: the police and government officers complicit in the killings necessarily denying responsibility for what has happened. Falsehood is thus made a normal part of communication, which in turn affects the nature of the institutions. Public relations are characterised by deception. The image of the police institution is worsened. Under such circumstances, it is inevitable that more and worse events are to follow.
II. Mass extrajudicial killings
32. While the south of Thailand has most recently been the subject of international attention after the devastating Indian Ocean tsunami, the region was punctuated with deaths throughout 2004, the result of increasingly aggressive policies to suppress regionalist aspirations. In the late 1990s, the government had achieved a measure of success in obtaining greater understanding with people in the south through negotiations and compromise. Regrettably, the last two years have seen a return to confrontation. As a consequence, violent incidents grew sharply in 2004 and have continued up to the present.
33. Among the killings in the south throughout 2004, two mass killings stand out sharply: the Krue Se mosque massacre in April, and the Narathiwat killings in October. As these have been reported widely, the facts are briefly restated here before turning to related questions.
34. The first mass killing occurred on April 28. It was spread across provinces where hundreds of lightly-armed young men attacked police and army outposts, but was centred on the Krue Se mosque, where the largest number were holed up. In total at least 107 were killed in the name of 'self-defence' by the security forces. However, within a short time many questions arose regarding the ruthless nature of the killings and extremely high death toll. Indications were that the security forces were anticipating the attacks, mostly by groups of teenage boys and young men wielding machetes. Yet rather than do something to avert bloodshed, the security forces lay in wait for their prey. Most of their victims were gunned down well short of their targets. At the Krue Se mosque, 32—who by that time were posing no threat—were killed in cold blood after a stand off that lasted for around nine hours. The Prime Minister was very quick to endorse the killings, and even suggested that the police and soldiers involved would be awarded for their service, thereby guaranteeing further bloodshed.
35. The second mass killing occurred on October 25, when at least 85 persons were killed in Narathiwat province, 78 of them while under army custody. The killings occurred after a group of protesters had gathered at the Tak Bai police station to demand the release of six men being held without charge on minor criminal offences.[4] There remain questions over the true number of killed, injured, and disappeared, due to the way in which the killing was handled by the administration. Video footage that shows security forces attacking protesters with a relentless barrage of gunfire makes it hard to believe official assertions that only six or seven were killed at the site of the protest itself. More recently, the government has tried to suppress distribution of video footage through threats of criminal prosecution on the spurious ground of national stability.
36. The 78 protesters who died in custody were among over 1300 persons arrested out of a crowd of an estimated 3000. 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. Many of the arrested persons, and those who died, were spectators who had gathered to watch the protest, but were not actively participating. The arrested persons 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 said that there were not enough vehicles to transfer the detainees to a distant army camp, and therefore they were loaded in this manner.
37. No judicial enquiries followed the mass killings. Although independent and public judicial enquiries were imperative after each of the killings, none was forthcoming. In both cases, the government appointed ad hoc enquiry committees, answerable directly to the Prime Minister. In neither case have the findings been made fully public. In each case, the senior-most officers identified as responsible for killings faced only minor disciplinary reprimands, by way of temporary transfer to inactive posts.
38. In the case of the April 28 killings, the fact-finding commission was restricted in its mandate to the deaths at the mosque alone. A short summary of its findings released to the media on August 3 revealed that it felt the killing of those inside the mosque was unjustified, and had resulted directly from the army commander in charge attacking with heavy weapons and ammunitions. While recommending compensation payments and the preparation of contingency plans to prevent future similar incidents, the fact-finding commission also observed that, “Investigations should be pursued through the appropriate organs within the judicial system for those officials involved claiming their actions were in fulfilment of their duties. Notwithstanding, the government chose to ignore this recommendation.
39. Again, in the case of the Narathiwat killings, the response of the government was to establish a fact-finding commission into the deaths answerable to the Prime Minister. This was despite the fact that the distinctive characteristic of these killings, compared to those in April, was that most had occurred in custody. Whereas the army officer responsible for the killings at Krue Se had public security as a pretext, those in Narathiwat could offer no such explanation for the large number of men who died packed like sardines in army trucks. Instead, bad planning was held as the cause of death, despite ample reports suggesting more to it than that. The outcome of the enquiry into the Narathiwat killings was virtually a facsimile of the Krue Se enquiry: however, it is understood not to have recommended criminal action against the three generals identified as primarily responsible. Again despite government promises, the full report has not been made public.
40. After the matter of the Narathiwat was turned over, with government approval, from the enquiry commission to the Ministry of Defence, it was dispatched within a short time. The three generals identified as having been primarily responsible for the killings were rebuked and transferred, but leniency was the watchword as they had ‘not intended?to kill anyone. This conclusion violates the Thai Penal Code and 1997 Constitution and flouts the State party’s obligations under the Covenant. The power to excuse the perpetrators of serious crimes from prosecution lies not in the hands of any one person or his office. It is a matter for the courts. The Thai authorities must stand accused of wanton failure to prosecute those responsible for the mass killing in Narathiwat in accordance with these provisions until such a day as they decide to take the proper and necessary steps to the contrary.
41. The United Nations was also denied a role in investigating the killings. On October 28, as the news was breaking of the Narathiwat killings after intervention by the deputy director of the Forensic Science Institute, the Asian Legal Resource Centre wrote to the High Commissioner for Human Rights calling for her immediate intervention. A copy of that letter is contained in Annexe 6. The High Commissioner expressed concern over the incident in the course of the same day, and urged that a “swift, independent and thorough?investigation follow “with results made public? Shortly thereafter, the Special Rapporteur on extrajudicial, arbitrary or summary executions requested permission to visit, but was publicly rebuffed by the Prime Minister. The Asian Human Rights Commission subsequently urged the government to reconsider the offer, and received a letter from the Minister of Justice dated 30 December 2004 to the effect that he had transmitted its concerns to the Prime Minister; however, it is unaware of any developments since.
42. The denial of proper impartial judicial enquiries into mass killings is offensive both to the letter and spirit of domestic law and the Covenant. When a death in custody occurs, a state agent must be held criminally responsible. Arguments to suggest that the deaths were accidental, were caused by poorly trained personnel, or were due to other extenuating circumstances are unacceptable. Article 4 provides that certain rights under the Covenant may be departed from only to “the extent strictly required by the exigencies of the situation? under any circumstances, the right to life is one from which no derogation is permitted. Without regard to other factors, once the victims were in custody of the army, its personnel had a duty of responsibility and care for them. Where those rights were violated, a remedy must be provided in accordance with article 2. However, no such remedy has been made available to the families of the victims in this instance.
43. Both domestic and international laws have obligations pertaining to the minimum standards of treatment of detainees. 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 Covenant. However, neither of these sets of standards has been applied with regards to the deaths in custody at Narathiwat.
44. The struggle over the truth of the mass killings in the south has in reality been a struggle between the people of Thailand and the military over who has control of society. The exoneration of military personnel and success in concealing the truth through pressure from the army, which objects to civilians scrutinising its activities, speaks to the continued entrenched power that this institution enjoys in Thailand. The effect has been to remove the control over procedures following gross human rights abuses further from the public.
45. In exonerating the three generals held largely responsible for the killings at Narathiwat, the army commander-in-chief also made a surprisingly frank and pertinent admission. “There is no disciplinary penalty for those holding the rank of general,?he is reported to have said. This statement again speaks to a feudal way of thinking among the governing elite. It reveals how far removed the thinking of top military officers in Thailand is from civilised ideas of what constitutes a modern society and its armed forces. The military principle of command responsibility is that the higher one’s rank the greater the onus when things go wrong. A high officer is more liable than a low one. In Thailand, however, it appears that the higher one goes the lesser one’s responsibility. And if one is promoted to general there is no responsibility at all. If the high-ranking officers in any armed forces are permitted to escape the consequences of their actions, let alone think in this manner, it is impossible to secure the rule of law. Under such circumstances, the State party’s subscription to the rights that are guaranteed under the Covenant is nothing more than pretence.
46. Equality before the law requires that all citizens be treated equally for their offences. The State party assures us in its submission that this principle is applied in Thailand. Regrettably, in this instance all indications are to the contrary. The gravity of the offence and not the rank of those who committed the crime should be the determining factor in taking action. That these crimes were committed by the military does not make them lesser crimes. The quality of citizenship is not a matter of military rank. A crime is a crime whether committed by the least important person in a society or the most important one.
47. Thus, the statement of the Thai commander-in-chief is offensive. It offends the ideal of equality before the law, and it offends the fundamentals of the rule of law and human rights as established under the Covenant. When large-scale killings under the command of senior officers are treated as mere trifles, the security forces and society alike are sent a message that they live by different standards. The deaths in Narathiwat last October lowered the esteem of the armed forces and law enforcement in Thailand both at home and abroad in the same manner as the large-scale killings of the year before did to the reputation of the police. When the highest military officer in the country then belittles the whole affair, it is unlikely to do anything other than further diminish the reputation of the military. It certainly will do nothing to diminish the daily escalating violence that has held the south of Thailand in its grip since the killings occurred last year.
48. Numerous questions remain unanswered. As the findings of the commissions of enquiry have not been made public and no proper independent judicial enquiries have been held, a great many questions arising from the killings—particularly those in Narathiwat—remain unanswered or unsatisfactorily answered. Among these, who made the decision to transport the arrested persons to a distant army camp? At the time of making such a large number of arrests, some 1300 in total, the question of where all the people would be held must have arisen. Somebody had the obligation to decide the place and means of detention. How was this decision reached? Where any alternatives discussed, or not? For instance, most of the arrested persons could have had their details recorded from identity cards and been released, with just the suspected ringleaders being held for questioning. That most of the people fortunate to survive were subsequently released without any further consequences speaks to the fact that this could have been done in the first instance. Was this option entertained? Was any other alternative discussed?
49. The shortage of vehicles is also cited as a key reason for the large number of deaths. The officers in charge should have considered how they were going to transport the large number of detainees before they arrested them. But even if they had not done so, the military can hire private vehicles at short notice, and under martial law can even take them by force. To find adequate transportation for 1300 people is not a big issue for an army, and under the circumstances, one of its basic duties. Why was this not done? The explanation that there were simply not enough vehicles available is as shocking as the incident itself. Can it be accepted that the military, acting on behalf of the government, simply did not think of this before arresting all those people? It is hard to believe that the chain of command was so ineffective that even the most rudimentary discussion on providing transport was absent from communications.
50. Who decided to stack the people in the trucks one on top of the other? Was it a decision made by one person on the scene, or by an operations command? Who had the authority to give such an order? Even if the procedure for arrests was not thought out properly before hand, the officers in charge should have taken measures to prevent harm coming to the detainees. Were animals loaded 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. Did not the truck drivers point out that the people could not live long being piled up like that? Did the soldiers not consider the natural consequences of their actions? Or, as some eyewitnesses have asserted, did they act as they did with expectation that people would die? Perhaps the explanation lies in the most recent concession by the army that some of the victims may already have been dead before being loaded on to the trucks; hence the need to load living people lying down also, in order to conceal the crime.
51. 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? What internal enquiries have been conducted, apart from what has been made known public? After such an operation, military intelligence and other agencies can be expected to investigate immediately, establish the facts clearly, and make reports to the top command. However, to date the public has been left in the dark, as the findings of the government-appointed enquiry have not been revealed.
III. Role of the Attorney General
52. Many of the preceding questions raise issues over the role of the Attorney General in Thailand. The report of the State party indicates that the Attorney General has the power to decide whether or not to prosecute in cases of extrajudicial killings by state agents under Section 143 of the Criminal Procedure Code (para. 152). However, in both the killings of alleged drug traffickers in 2003 and the mass killings in the south in 2004 the Attorney General was conspicuous by his absence, despite the numerous questions that remain to be answered by way of judicial enquiry.
53. Under section 148 of the Criminal Procedure Code of Thailand, when there is a death in custody, 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 must be involved: the forensic doctor, investigating officer, 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, with a view to entering into criminal proceedings if necessary. This process should under no circumstances be delayed, such as by reason of a politically appointed enquiry 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. However, in the case of the mass killings in 2004 the Attorney General did not play this role.
54. In a letter to the Minister of Justice of November 12, the Asian Human Rights Commission pointed to the absence of the Attorney General in investigating the Narathiwat killings, and questioned the apparently uneven application of criminal law in the country. That letter is contained in Annexe 7. It pointed out that the numerous inconsistencies and gaps in various stories regarding the events of October 25 spoke to the important role of the Attorney General in investigating and prosecuting persons responsible for such killings. In particular, it urged that the Attorney General should at once begin criminal proceedings against the alleged perpetrators of the 78 custodial deaths. However, the minister did not entertain a reply, and like the Attorney General, has remained noticeable by his absence from public debate on these killings.
55. Since then, the key officers implicated were exonerated by way of internal military procedures. But how is it that the fate of these officers was left in the hands of the military at all? And even if the matter was turned over to the military it should have been addressed through a properly-established formal tribunal, operating under established procedures for investigation and punishment, rather than being treated with casual disdain behind closed doors.
56. In none of the large-scale killings in the recent years has there been any evidence of a concerted effort by the Office of the Attorney General to perform its functions under the Constitution. This again amounts to a negation of article 2 of the Covenant, which obliges the State party to have a functioning public prosecutor or equivalent capable of documenting complaints quickly and thoroughly, investigating and collecting evidence, and prosecuting alleged perpetrators.
57. It is a basic norm everywhere in the world that arrestees are treated humanely and kept under judicial supervision. Why has the judiciary in Thailand failed to guarantee the same for victims of the military there? Its failure to secure legal action speaks to radical defects in Thailand’s justice system, speaking particularly to the role of the Attorney General. While initial responses to the killings gave hope, it lacked the capacity for a sustained fight against more powerful forces. It lacked the inner strength needed to secure and stand by universal norms of justice: that perpetrators of crimes be brought to account for their actions. The experience of the victims and their families after the mass killings in the south has been that impunity is more deeply entrenched in the judicial system of Thailand than is justice. Thus, the system continues to be driven by feudal rather than judicial imperatives. The families of victims in the ‘war on drugs?and those of numerous other gross human rights violations throughout the country in recent years have had the same experience. The effect is to reinforce a perception in society that when the security forces and their accomplices kill, nothing can be done. Where there is a feeling that nothing can be done, there is silence: no one bothers to risk speaking out against crimes for which the perpetrators enjoy absolute impunity.
IV. Role of the Forensic Science Institute
58. The Forensic Science Institute was established because of a recognised need for an independent and professional body to identify and assess dead bodies. This has been acknowledged in the State party report (paras 154/5). Quite rightly, this agency is necessary in order to act as a checking measure against uncontrolled killings by the police, and deliberately manipulated or botched autopsies under conventional procedure (para. 149). But despite in-principle recognition of the need for such an agency, the Institute has been obliged to fight for its mandate from its inception. In the face of the large-scale killings of the recent years it has been hard-pressed to fulfil its mandate, and not surprisingly it—and particularly its deputy director—has been the subject of police ire.
59. The police have not referred cases of extrajudicial killings to the Forensic Science Institute. The bodies of alleged drug dealers killed in 2003 were not sent. Whereas police sometimes reportedly excused themselves from conducting proper autopsies on the ground that they needed all their resources to meet the government targets, the Institute’s deputy director Dr Pornthip Rojanasunan observed that her agency had resources available to help investigate cases, but the police were not seeking its assistance. Whereas before February 2003 her central Institute had typically examined one to two extrajudicial killings per day, the number of referrals had since dropped to zero. She said that relatives of those killed had contacted the Institute directly to get help in having the deaths properly investigated. However, attempts to intervene in cases were thwarted by prior autopsies in other locations and removal of evidence. She added that in more than half of the cases seen by her drugs appeared to have been planted on the victims after their deaths. Other doctors also reported that they were reluctant to attend the scenes of drug-related shootings as required by law, or record anything that did not verify the police version of events.
60. After the killings in Narathiwat too 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 as required in order to begin prosecution.
61. The police have attempted to subvert the role of the Forensic Science Institute. That the police have targeted the agency has been evidenced most recently in the aftermath of the Indian Ocean tsunami—a matter of international concern given the number of foreign victims on the beaches of Thailand. Shortly thereafter, the government sought outside assistance for the identification of bodies. However, the important work of forensic experts from abroad in identifying the remains of victims has had a dangerous effect on the fragile relationship between the police and the Forensic Science Institute. After the Institute initiated all the work of identifying bodies, the police succeeded in wresting control of the enquiries. Although on the surface the dispute was about the most efficient means by which the very large number of victims from the cataclysm may be properly identified, in reality it was about the power over forensic science in Thailand as a whole. These latest attacks on its mandate and reputation speak to a concerted effort by the police to completely undermine its role. More troubling still are recent allegations that police have kidnapped volunteers who worked with Dr Pornthip during the tsunami recovery effort and interrogated them on the work of the Institute. At least one of these victims is since reported to have received witness protection. These allegations speak to a very real threat to the future of the Institute and its work that is analogous to the threat facing the public over its right to control and determine the shape and direction of the judicial system of Thailand.
V. Forced disappearances
62. The Asian Legal Resource Centre has heard of a rapid increase in the number of forced disappearances in Thailand, most in the south of the country. These disappearances have accompanied the recent spread of sectarian violence in the region, but are known to have preceded it as well. After the mass killing in Narathiwat, allegations emerged of from tens to hundreds of persons missing. Due to the manner of handling the case by the government, reliable evidence to either support or repudiate these claims has not been forthcoming. As the ALRC lacks detailed information on the numerous reported cases in the south for reason of the very difficult security conditions in the region, here it concentrates on the forced disappearance of high-profile human rights lawyer Mr Somchai Neelaphaijit as indicative of the problem as it stands in Thailand.[5] Indeed, despite immense efforts and a high-level of publicity to date there has been no satisfactory conclusion to this case, which speaks to the enormous obstacles faced by any person in Thailand seeking to have a forced disappearance properly investigated.
63. Mr Somchai was forcibly disappeared on 12 March 2004 while representing four men who alleged that they had been tortured. He was taken from his car while in Bangkok, allegedly by five police officers. Details of the incident have been widely reported. The five officers, none of whom were known to be associated with one another prior to the alleged abduction, have been charged only with collusion to coerce and assault a person, and armed robbery. They have all been released on bail. They all deny the charges. Other police officers conducting the investigation at the scene of the crime are reported to have damaged important evidence, such as by sitting in the vehicle themselves before it could be examined by forensic experts. Senior police have publicly backed their charges.
64. Government comments on the case of Mr Somchai have been characterised by contradiction. In a letter of 5 August 2004 to the Asian Human Rights Commission, the Minister of Justice wrote that the Prime Minister “had given a clear command to all Thai agencies concerned that every necessary measure must be taken to search for Mr Somchai Neelaphaijit’s whereabouts, and those who are responsible for his disappearance and safety will have to be brought to justice without exception? Among these measures, he added, “an ad hoc committee under the responsibility of the Special Investigation Department (SID), the Ministry of Justice has been set up to work on information gathering, forensic evidence as well as other investigation for the case? He further stated that this committee had made “a lot of progress? However, the minister has since stated publicly that the matter is not with the Department of Special Investigation, nor is he prepared to transfer it to the Department. He has also stated that no one has approached him to have the case taken up by the Department. However, the ALRC is aware that additionally the wife of the victim, who is a joint plaintiff in the criminal case against the five accused police, the Law Society of Thailand and the Thai Working Group on Human Rights Defenders have initiated requests to this effect to the minister. The wife of the victim has claimed that her application to the Department was refused. The AHRC has communicated to the minister about the case on a number of occasions, most recently on 24 February 2005. That letter is contained as Annexe 8. Finally, on the first anniversary of his disappearance it formally submitted a petition to His Majesty the King of Thailand, via the Consul General in Hong Kong, requesting that his office pay particular concern to this case. The petition to the King is enclosed here as Annexe 9.
65. The scale of disappearances in Thailand remains unknown due to the lack of any directed effort by government or non-government agencies to take up and document the issue; however, anecdotal evidence suggests that it is extremely high. Reliable reports obtained by the ALRC indicate that the incidence of recent disappearances in that region is in the hundreds, if not thousands. Additionally, the deputy director of the Forensic Science Institute has stated that her agency alone receives around 1000 bodies annually that it is unable to identify. Many of these bodies are found under suspicious circumstances. The families of all these victims could benefit from the introduction of effective legislation to stem the practice of forced disappearances in Thailand.
66. The disappearance of Mr Somchai remains of tremendous significance to the situation of human rights in Thailand because it amounts to a challenge to the very foundations of the justice system in dealing with gross violations of rights there. How is it that the justice system in Thailand has proven so completely incapable of dealing with such a public case of disappearance, even after the initial steps of the crime have become widespread knowledge? Is the hold that impunity has on the system of justice in Thailand so strong that it is not possible to break even when there is deep public and international concern? The victim's wife has expressed doubts over the ability of the justice system to afford her a remedy for the loss of her husband, with good reason. The Asian Legal Resource Centre shares her suspicions and doubts, as will all reasonable people.
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[3] Contents of this section are drawn primarily from the special report entitled "extrajudicial killings of alleged drug dealers in Thailand" published by the ALRC in its bimonthly periodical article 2, vol. 2, no. 3, June 2003.
[4] AHRC Urgent Appeal UA-143-2004: THAILAND: At least 84 people killed in Southern Thailand, 26 October 2004; Urgent Update UP-65-2004: THAILAND: A list of the victims of the mass killing in Narathiwat province; Immediate international intervention needed, 28 October 2004.
[5] AHRC Forwarded Appeal FA-06-2004: THAILAND: A human rights lawyer Mr. Somchai Neelaphaijit missing, 17 March 2004; and Urgent Updates, UP-14-2004: THAILAND: Mr. Somchai Neelaphaijit is still missing and the police may be involved in his disappearance, 25 March 2004; UP-26-2004: THAILAND: 5 suspects in the alleged abduction of missing human rights lawyer Mr. Somchai Neelaphaijit bailed out, 11 June 2004; UP-58-2004: THAILAND: Inaction by Thai authorities in investigation the disappearance of Mr. Somchai Neelaphaijit, 14 October, 2004; UP-61-2004: THAILAND: Justice Minister responds over case of disappeared lawyer, 19 October 2004; UP-20-2005: THAILAND: Human rights lawyer still missing after nearly one year; Action needed today to have case transferred, 24 February 2005; UP-24-2005: THAILAND: Thai minister refuses to act on missing human rights lawyer case, 9 March 2005.
Posted on 2005-03-22
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