Try justice for a change in southern Thailand

The culture of impunity in Thailand creates a cycle of violence and steps should be taken to curb it, writes author.

Thai soldiers talk to a Muslim family they stopped during a patrol in the troubled Yala province in southern Thailand
Soldiers and officials get away with abuse that sometimes results in death due to codified immunity [REUTERS]

This year has seen the internal armed conflict in southern Thailand thrust back into the national and regional spotlight, with a string of coordinated and deadly attacks by Muslim insurgents and a raft of reactions by Thai authorities. Absent from the authorities’ responses and the wider public debate, however, has been any mention of the critical role that justice – its administration and perception – plays in both the problem and the solution.

Ramadan alone was book-ended by two bombs that injured 15 people on the first day of fasting, and three coordinated attacks in which a soldier and civilian militia member were killed on the last day, all in Narathiwat province. In between, two car bombs killed five police in Yala province and injured three others at the CS Pattani Hotel, while an ambush of a Thai army patrol in Pattani captured on a security camera, chillingly showed insurgents shoot four soldiers at close range. 

Seemingly as numerous were the responses of the Thai authorities during Ramadan, with the army’s trending toward the absurd and the government’s more sensible if wide of the mark. General Prayuth Chan-ocha alternately blamed the media for inflaming the situation; continued to defend the army’s use of the useless GT200 bomb-detection device; cryptically warned that the “South may be lost if the UN intervenes”; and claimed that poor Cambodian Muslims in Thailand “who have no jobs in their homeland” may still “give indirect financial support” to the southern conflict.

The government of Yingluck Shinawatra, which named the restoration of peace and safety in the deep South as one of its 16 policy goals upon coming into power a year ago, initially mooted a curfew. Within weeks, in a shift far greater in bureaucracy and administration than in policy, it established a new southern command structure, reportedly designed to integrate intelligence operations; support cooperation between the civilian Southern Border Provinces Administration Centre and the military’s Internal Security Operations Command; and supervise the implementation of development projects by more than a dozen ministries.

‘Work for justice’

The administration of justice in southern Thailand suffers from two major defects. First, in an indeterminate number of convictions, the evidence has been obtained through torture or ill-treatment. This is legally prohibited, politically counter-productive, and quite often misleading intelligence-wise. The “own goal” by the authorities is compounded where the individual is innocent and confessed only under torture.

Second is that any discussion of successful prosecutions is necessarily confined to the insurgents. For nearly nine years, it has been exceedingly rare that an official or member of the security forces has been successfully prosecuted for a human rights violation in the counter-insurgency. This is despite a litany of incidents that call out for accountability (eg, Krue Se, Tak Bai, Al-Furqan), and in some cases post-mortem or other investigations that point clearly to official wrong-doing and/or identify its perpetrators. 

This is largely because of Section 17 of the Emergency Decree (in effect in the South since mid-2005), which codifies immunity from prosecution for officials for violations committed in good faith during the course of their duties. While the term “culture of impunity” is generally overused, it is sadly apropos to the counter-insurgency in southern Thailand.

Culture of impunity

For example, on April 10, the Prime Minister’s office appealed a verdict which ordered it to pay compensation to Rayu Dokho for the abuse he suffered at the hands of security officers when he was arrested as a suspect in 2008. Detained with him was imam Yapha Kaseng, whose death in custody was determined by an earlier post-mortem inquest to have been caused by “blunt force trauma” and did result in the army compensating his family. In neither case, however, has anyone actually been held accountable; offices and armies do not abuse and kill suspects, individuals do.

Similarly, on June 28 a post-mortem inquest concluded that physical abuse in official custody resulted in the death of Assaree Samae in 2007. Will the public prosecutor initiate a criminal investigation against the perpetrators in the army and police, and bring someone to justice?  

It is not unprecedented – even if the rare exception proves the rule – and not all recent developments have been negative. On August 9, not only did the Prime Minister’s office accept a court’s order to provide compensation to Mazaofi Kwangbu and Adil Samae (11 years old at the time) for their physical abuse by security forces in 2009, but the decision followed a 2010 criminal conviction of a soldier for the ill-treatment. 

Whether a flawed and imbalanced administration of justice in the South (as well as its local perception of such) is a “root cause” of the insurgency is debatable. What is certain, however, is that it has become a significant contributing factor to its intractability nearly nine years on. 

It is widely believed, feared, and resented in the South that suspects are subject to abuse, and this has served as a boon to the insurgents’ recruiting efforts, which underpin the insurgency and assure its operational capability and continuity. More directly, the official impunity in the counter-insurgency has become a cause celebre of the insurgents, motivating them to stage heavy attacks (quantitatively or qualitatively) both in the wake of decisions to not charge/try/convict officials, as well as on the anniversaries of the events themselves. Among other evidence of this are leaflets left at the scene of attacks.

Fomenting resistance

Impunity has also arguably increased the urgency among insurgents to engage in “tit for tat” attacks immediately after the original incident or violation and well before the justice system becomes implicated; for at least three years it has been assumed by southern Thais that such revenge attacks are the only “justice” the security forces (or their civilian proxies) are likely to face. And the assumption is founded in law as well as in fact, as Section 17 of the Emergency Decree not only helps explain past impunity but also sends a clear message that the authorities have no intention of changing course in the future.

A case that commenced on appeal in late June potentially goes even further, consisting of a police officer attempting to bring a criminal case against a man who had previously accused him of torture, basing his case on the fact that a court had ruled against the accuser’s claim. Thus, Sudi-Rueman Mahlae’s alleged crime of “providing false information to state officers” is essentially to have sought accountability for those who tortured him.

Weak political will for ending impunity in the South has been common to all seven Thai governments since the insurgency reignited in 2004. The furthest the current Yingluck government has gone is to expressly seek “reconciliation” via financial compensation for the families of certain persons who have died in incidents related to the counter-insurgency. But as a southern community and religious leader recently told me, however important such compensation is toward mitigating the financial effects of losing breadwinners and as a kind of official expression of regret, it is not justice. Indeed, a condition for accepting the compensation is that any and all legal claims against the authorities are barred or dropped.

Thai authorities should end torture and ill-treatment of suspected insurgents; review (and if applicable, overturn) convictions believed to have resulted from evidence or confessions obtained through torture; step up prosecutions of officials engaged in events involving or constituting human rights violations; and repeal Section 17 of the Emergency Decree. 

A flawed and imbalanced administration of justice in southern Thailand has given a personified insurgency a reason to dig in its heals and harden its resolve. These measures would not themselves be sufficient to ending the insurgency, but they are necessary and increasingly urgent steps.  

Benjamin Zawacki was Amnesty International’s Thailand Researcher for five years through August 2012 and is the author of “Political inconvenient, legally correct: A Non-international armed conflict in southern Thailand”, published this month in the Oxford Journal of Conflict and Security Law.