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Thursday, December 31, 2015

Thailand: Enforced disappearance is not a crime

December 31, 2015

A Statement by the Asian Human Rights Commission

Thailand: Enforced disappearance is not a crime

On Tuesday, the Supreme Court affirmed the appellate court verdict of not guilty in relation to the five police officers accused in relation to the disappearance of Mr. Neelapaijit 11 years ago. The Supreme Court further held that the family could not be co-plaintiff as there was no conclusive evidence that Mr. Neelapaijit was dead or seriously injured.

11 years after the abduction and disappearance of Mr. Neelapaijit, the Supreme Court of Thailand refuses to accept the claim of the family that he has disappeared. During these long years, Thailand's investigating agencies have continuously conducted inquiries and have failed to find any trace of the lawyer Mr. Neelapaijit. The burden of accounting for a disappeared person is with the state. The state of Thailand has failed to establish what has happened to Mr. Neelapaijit. The Thai Supreme Court failed to fix the responsibility for accounting for the whereabouts of Mr. Neelapaijit on the Thai government. By doing so, the Supreme Court also denied the right of the family to hold the government responsible for its failure to account for what happened to Mr. Neelapaijit.

There are sinister implications to the Supreme Court's verdict. If a group of state agents succeeds not only in killing a victim but also in making them disappear, they have a greater chance of escaping liability for their crime on the basis of the verdict of the Supreme Court in this case. The burden of proving an enforced disappearance is thereby cast on the disappeared person himself.

The basic failure lies with the law of Thailand, which failed to recognize an enforced disappearance as a crime.

International Convention for the Protection of All Persons from Enforced Disappearance defines the crime as follows: '"enforced disappearance" is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.'

The implication of the Supreme Court judgment is that such concealment of the fate or whereabouts of a disappeared person is considered to be a matter that does not come within the purview of the authority of the highest court in Thailand. This will only assure the state authorities that they may continue to cause such enforced disappearances, untroubled by the law.

In the recent decades, there have been large numbers of cases of enforced disappearances in Thailand. This means that there may be thousands of other families like the Neelapaijit family who seek to find legal redress for one of the most heinous crimes recognized under international law. In reply to them, what the Thai courts would say is that it may be an international crime under international law, but it is not a crime in Thailand. Such a message naturally encourages those who wish to engage in such crimes, and the state of impunity has been strengthened by the verdict of the Thai Supreme Court. Under these circumstances, the United Nations and other international bodies have a serious duty to bring sanctions against Thailand for the continuous protection it provides for perpetrators of the heinous crime of enforced disappearances.

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About AHRC:The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.

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