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UPDATE (Thailand): Court condones the death by suffocation of 78 men in military trucks

June 5, 2009

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal Update: AHRC-UAU-012-2009

5 June 2009

[RE: UP-113-2007: THAILAND: Commander testifies that he left for dinner instead of overseeing Tak Bai protest operation]
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THAILAND: Court condones the death by suffocation of 78 men in police trucks

ISSUES: Extrajudicial killing; denial of custodial rights; impunity
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MASS KILLING AT TAK BAI
http://thailand.ahrchk.net/takbai
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Dear friends,

The Asian Human Rights Commission (AHRC) deeply regrets to inform you that after a four-year-long post mortem inquest, a provincial court in Southern Thailand has absolved all officials and military persons of responsibility for the deaths of 78 persons at Tak Bai, Narathiwat. The court admits that the victims suffocated to death, but glosses over how and why: namely that the men were beaten and then piled five-deep in trucks for five to six hours. The court considers the deaths collateral damage sustained in the line of police duty. The case raises grave concerns over impunity in Thailand.

UPDATED INFORMATION:

Concluding its inquest on May 29, 2009, the Songkhla Provincial Court has ruled that the officials, police officers and soldiers who arrested and transferred Tak Bai detainees cannot be charged for the deaths, because they were acting in the line of duty. The post mortem has revealed that the victims fatally suffocated.

The court order, signed by Judges Mr. Yingyots Tan-orrachorn and Ms. Jutharat Santisevee (Red Case No. Chor. 8/2009), states that the nature of the emergency and the need for hurry was taken into consideration. It notes that there were more than 1,000 demonstrators in front of the Tak Bai police station–which was in a narrow and limited place--and close to the Thaksin Royal Palace. It also notes that the crackdown took place at dusk in low light and the weather was unfavourable, which slowed the 160 km transfer between Ingkayuthaboriharn Army Camp and Tak Bai. The judges ruled that if such action had not been taken quickly the consequences would have been ‘serious’, and that evidence given by the 78 victims’ relatives did not carry enough weight.

However the court order gave little consideration to the testimonies of other witnesses. These include the medical doctors who carried out the postmortems, and evidence that pointed to the inhumane treatment of the arrested men during their transfer. It also ignored a confession by one officer who said that he knew of deaths early on in the journey, but neither reported them or tried to help the surviving detainees until the last truck arrived at the camp.

Over a four year period approximately 60 witnesses were called in defense of the officials involved, compared to the 10 witnesses related to the victims.

ADDITIONAL INFORMATION:

In our previous appeal update we reported on three important testimonies which challenged the official line on the death, but did not appear in the court order. We would like to reiterate these in our challenge of the verdict. They are:

Testimony from Dr Porntip Rojanasunan, (UP-056-2007) director-general of the Central Institute of Forensic Science (CIFS) under the justice ministry, who examined 24 of the bodies and testified that the victims had died from asphyxiation and heatstroke. Evidence suggested that their hands had been kept tied behind the backs for the whole journey. The bodies showed signs of physical pressure (from having other persons stacked on top of them). The doctor also made it clear to the court that the deaths were could not be related to the fact that many of the victims had been fasting for the Islamic month of Ramadan.

Testimony from General Pisarn Wattanawongkiri, (UP-083-2007) who was the highest military officer present and one of three army officers named responsible for the deaths by the independent commission appointed by the former government (please see our general report on Tak Bai and Krue Se). Wattanawongkiri told the court that he knew that there were not enough trucks for the protesters and that they were piled on top of one other; he said he disagreed with the method but did not claim to have done anything stop it. He also reported seeing police kick protesters and order them to take off their shirts yet he left the scene before the operation was completed, leaving his deputy, Major General Chalermchai Wirunpeth in charge.

Testimony from Lieutenant General Chalermchai Wirunpeth, (UP-113-2007),who was one of the three army officers named responsible for the deaths by an independent commission appointed by the former government (see: Tak Bai and Krue Se Report). Wirunpeth commanded the Fifth Infantry Division at the time and testified that he was ordered by General Pisarn Wattanawongkiri to arrange the dispersal. However he actually stayed in the Tak Bai police station meeting room during most of the incident, then left the scene and went to dinner with the then-prime minister in the royal palace. He also confirmed that some of the victims’ injuries--including broken teeth and swollen eyes--could have been caused during the transfer.

Furthermore, in March 2005, the Social Development and Human Security Commission of the Senate reported to its president that various forms of torture were carried out by military, police and official personnel. The protestors were ordered to take off their shirts and lie in the mud with their hands tied behind the backs; they were allegedly forced to move around on the ground like mudskippers; they were kicked and beaten while on the ground.

Their findings reported that the men were then piled in the trucks in four or five layers--about 50 to 60 people to each truck--for between five and six hours while they drove 160 kilometers, and that the perpetrators knew that deaths had occurred. The report further stated that the authorities could have easily foreseen the fatal effect of this treatment. It recommended investigations, leading to charges. The report was also given to the court by Dr. Niran Pitakwatchara, the chairman of the commission, when he testified.

BACKGROUND INFORMATION:

Some 85 persons died that day, 78 of them after being arrested (UA-143-2004). A politically-appointed inquiry found that three army officers were responsible for the deaths but despite this no criminal inquiries have followed (AHRC-OL-008-2007; UP-025-2005; Tak Bai & Krue Se Reports on The Nation website). Instead the state chose to prosecute the surviving victims, though the case was dropped last year due to a lack of evidence. On March 20, 2007, the Pattani Provincial Court awarded about 42 million Thai baht (one million USD) to the families of the 78 victims in compensation.

However no one has been punished. The public prosecutor in Narathiwat province filed for a judicial inquest into the killings, which opened in 2005 and tried to clarify the circumstances of the deaths and find out who was responsible. The public prosecutor applied for the case to be transferred to Bangkok for better security, however the central court would only let it be transferred to the neighbouring province of Songkhla. The hearing took place at the Songkhla Provincial Court, Case No. Chor 16/2548.

Please refer to our earlier appeals and sample letters for the full history of this case:

[UA-143-2004: THAILAND: At least 84 people killed in Southern Thailand on 25 October 2004; UP-65-2004: THAILAND: A list of the victims of the mass killing in Narathiwat province; Immediate international intervention needed; UP-25-2005: THAILAND: Three generals found responsible for mass killing transferred without penalty; UP-094-2006: THAILAND: Trial opens against 58 accused in Narathiwat protest; key witnesses for prosecution go missing; UP-126-2006: THAILAND: Trial continues against 58 accused in Narathiwat protest; key witnesses for prosecution absent or ignorant; UP-178-2006: THAILAND: Trial against 58 accused in Narathiwat continuing; constant delays in prosecution witnesses; UP-201-2006: THAILAND: Important events marking 2nd anniversary of mass killing; UP-051-2007: THAILAND: Inquest into deaths of 78 men going on in Bangkok; UP-056-2007: THAILAND: Doctor tells court that Tak Bai victims died of asphyxiation after assault; no full autopsies done; UP-083-2007: THAILAND: General did nothing to stop mass killing; attempt to intimidate lawyers for victims' families in court; UP-113-2007: THAILAND: Commander testifies that he left for dinner instead of overseeing Tak Bai protest operation]

ADDITIONAL COMMENTS:

The AHRC has dealt with various cases in Thailand, in which the police and military have been acquitted of large scale killings. In such cases the testimonies of witnesses against the official line are often sidelined, or completely overlooked. This was the case in UAU-066-2008: in which 19 men were shot dead by police in Songkhla province (also please see Court ignores facts of Sabayoi killings).

In Thailand senior army officers have typically enjoyed full impunity for their actions. When 28 persons were killed inside Krue Se Mosque on 28 April 2004 three senior army officers were charged with their deaths, but so far no progress seems to have been made in prosecuting the three (UP-028-2007).

Under Criminal Procedure Law in Thailand a prosecutor has the responsibility to exhaust all possible means when it comes to holding the security forces accountable for alleged abuses. In the inquisitorial system judges are similarly obliged to conduct the whole trial in pursuit of truth and justice. All evidence, it goes without saying, should be taken into account.

Yet here public prosecutors are seen acting in defense of the security forces; the judges act according to the accusatorial system, in which their power is limited; the inquest procedure has not allowed relatives of the victims to present evidence, and has left them reliant upon the approval and the discretion of the prosecutor. As a result the relatives of victims must rely on their lawyers to prove a case by asking crucial questions avoided by the prosecutor. Lastly, the court has a duty to rule on the cause and circumstance of death, which it has not done. The legal system has proved a spectacular let down for the 78 men who lost their lives at Tak Bai. Systematic brutality has been given the Thai stamp of approval and impunity once again, has been extended to Thai officials. There is little to celebrate in this verdict.

Please refer to our earlier appeals and sample letters for further information and action.

Thank you.

Urgent Appeals Programme
Asian Human Rights Commission

Document Type :
Urgent Appeal Update
Document ID :
AHRC-UAU-012-2009
Countries :
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.