Enforced Disappearances and the Application of International Humanitarian Law to the Conflict in the Southern Border Provinces of Thailand
| Author | Jagoda Sekular |
Enforced Disappearances and the
Application of International Humanitarian
Law to the Conflict in the Southern Border
Provinces of Thailand
Jagoda Sekular
This paper finds that Thailand has failed to
uphold its positive obligations to prevent
enforced disappearance and torture and
argued that international humanitarian law
(IHL) could be applied in southern border
provinces (SBPs). However, this argument
was countered by the Royal Thai
Government’s (RTG) refusal to acknowledge
that the situation in SBPs could be recognized
as a non-international armed conflict. Thus,
this paper found that it is not appropriate to
utilise jus in bello and the specific provisions
in IHL that prohibit enforced disappearance.
It is argued that enforced disappearance could
in some cases amount to a form of torture as
the victim’s next of kin is subjected to mental
torture. The RTG has failed to take legislative
steps to ensure adequate redress and
restitution for the next of kin. Additionally,
the RTG has neither criminalised torture nor
included enforced disappearance as an offence
in its penal code, as required by the
international human rights instrument it has
ratified. It is concluded that the immunity
114 SLJ 5(2)
clauses in the special security laws in the
SBPs exacerbate the risk of enforced
disappearance and potentially mental torture
of the next of kin. Thailand has
disproportionately derogated from its
obligations under international human rights
law and should place a ‘strict proportionality
test’ before re-imposing special security laws.
Thailand is therefore currently not upholding
international human rights standards.
I. Introduction
The purpose of this paper is to research how the Royal Thai
Government is upholding international human rights
standards, in regards to enforced disappearance, particularly
in the Southern Border Provinces. This paper will draw upon
the link between enforced disappearance and torture, to
establish that there is a connection between the two acts and
that enforced disappearance could constitute a form of
torture. This will be done to crystallise the nature of
Thailand’s non-derogable obligations under the Convention
against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT)1. The right to liberty and
security, as guaranteed under the multilateral International
1 UN Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT) 1984.
Enforced Disappearances […] in Southern Thailand 115
Covenant on Civil and Political Rights (ICCPR)2 will be
discussed in relation to enforced disappearance. The RTG has
not ratified the International Convention for the Protection of
All Persons from Enforced Disappearance (CPED)3 and this
paper will therefore instead draw on the state’s obligations
under the above-mentioned international human rights
instrument.
It will further be argued that the situation in SBPs could
amount to a non-international armed conflict and therefore
international humanitarian law (IHL) could be applied.
Thailand has not ratified the Rome Statute, but it is a party to
the four Geneva Conventions. Common Article 3 of the 1949
Geneva Conventions and Article 4.2 of the 1977 Additional
Protocol II,4 which expressly prohibit the commitment of acts
that result in a person’s disappearance, will thus be utilised
in this paper to argue that RTG has a positive obligation
under IHL to prevent enforced disappearance and torture.
This paper argues that the RTG should amend its Criminal
Procedure Code (CPC) and 2007 Constitution to include the
crimes of enforced disappearance and torture. The failure of
the RTG to establish these crimes as offence undermines its
commitment to uphold international human rights standards
and advocate accountability that would counter impunity,
particularly in the SBPs. The three special security laws in the
2 International Covenant on Civil and Political Rights (ICCPR),
UNGA Res 2200A (XXI) 21 GAOR Supp 16, 52, UN Doc A/6316
(1966), 999 UNTS 171 (entered into force March 23, 1976).
3 International Convention for the Protection of All Persons from
Enforced Disappearance 2006.
4 Geneva Conventions (12 August 1949) Additional Protocol
relating to the Protection of Victims of Non-International Armed
Conflicts (Protocol I, 8 June 1977).
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